In the Internet Law and Policy class I am currently teaching, this week we talked about consumer privacy. We began with an overview of the five areas of U.S. privacy law: Constitutional Privacy; Government Surveillance; Information Privacy; Privacy Torts; and Administrative Law Privacy (e.g. Banking, Consumer Bureau and Federal Trade Commission). Last night in particular we talked about fair information practices (notice; ability to see and correct records; disclosure rules; administrative, technical and physical security). Naturally, we compared European Union (and, for that matter, most of the developed world’s) data privacy approach (comprehensive, but not deep) to the United States’ (sectoral, but deep). Interestingly, we asked how market, legal, normative and technical factors encroach on traditional expectations of personal privacy … and yet how those factors may also be in the process of creating expectations. And, finally, what those shifts tell us about the viability of a democratic republic.
Recently I have written about gaps in the presidential campaign discourse regarding the Internet. Just as the word “Internet” hardly gets an utterance, “privacy” would not appear to be on candidates’ lips. Pity, because when one takes the time to think through contemporary issues, privacy pops up prominently. It is no surprise that the first thought associated with the term turns to government surveillance. The distrust of centralized government runs deep in American’s veins. Not that we are paranoid to think so, as Edward Snowden revealed, but the consequences on most people’s lives are negligible compared to incursions by corporations and other entities that hold our personal data and exercise untold influence over our lives. To be sure, what happens to one person in the governmental context could happen to us all. I am not suggesting that government surveillance is unimportant. I am suggesting that a focus on government surveillance – and a corresponding entrancement with “the market,” as if it can do no wrong, and therefore hardly gets any scrutiny -- may obscure that which has the most immediate, significant impact.
Once we got the fundamentals of fair information practices under our belt in class, we asked how those principles could be applied as a regulatory matter to U.S. corporations. And then we laughed! In a sign of how far all of us are into the pocket of what makes Internet corporations run – information about us – we abandoned an exercise on how to regulate the market. The very concept that, first, the government would impose restriction such as transparency, informed consent and choice on corporate America, or that, second, Internet companies would stick around to be so managed, seemed fantastical. It was not worth class time. What is the lesson in that? The power of the market and technology is so overwhelming that the law does not have a chance. The only option available to individuals is to negotiate their own personal norms. That’s asking a lot of people who otherwise have busy lives.
As I drove home from class I could not help but reflect on the apparent futility of reigning in Internet companies. And then wondered about the effect of their power on a democratic republic. Nation-states are in service to global corporations, not the other way around. When civil society inevitably falls, will future generations be surprised by our actions at this poignant juncture? Most likely not. They will be too inured into the new political structures and cultural glue that holds their society together. The thought kept nagging me, however. Will some traditionalists look back on us and wonder how it was that a democratic republic deteriorated? Why, for example, did we encourage candidates for federal government to ruminate over diversionary issues in a tautological discourse that effectively ignored genuinely transformative issues, the ones that really mattered? Are the issues too complex, and the march of history too inexorable, for democratic forms of governance?
Turns out I am not the only one asking these kind of questions. Jill Lepore, the Harvard historian and New Yorker staff writer, raised a similar query in an article making the rounds these days. In After the Fact, she applies her stock-in-trade wit to Anglo-American law, history, philosophy, and the current presidential campaign, with a dash of memoir, to conclude that the “jury is still out” on this combustive, combative political season and its relevance to larger historical change. Contemplating class last week, I would rank that conclusion as optimistic. It suggests that we still have a choice.
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