Lesson 13 - Privacy 1:

Privacy Law in Cyberspace

In this section, we discuss the law of privacy. By "privacy," we do not mean the constitutional "right of privacy" that the Supreme Court has held protects the right to abortion, or the right to use contraceptives We are interested in a more narrow, and traditional sense of the term. The sense that we mean is this: Privacy is the power to control what other people know about you. Better - it is the power to control the truths about you that other people know. Falsehoods are controlled through the law of defamation; privacy is concerned with your ability to hide the truth.

There are two kinds of truths that the law might try to protect:

truths about you that have revealed to the public, either by giving some information over to someone else, or by being observed in public; or
truths about you that you have kept private.

For example, I may have made public the price of my house when registering my mortgage at the county court house; but I might still want to control how easily others have access to that information. Or I may have made public that I have purchased a pregnancy test at a pharmacy, by openly using my credit card when buying it; but I might still want to control how easily others have access to that information.

That's the first kind of privacy the law may want to protect - what we will call informational privacy. The second kind of privacy is more familiar. How much money I have in my cookie jar (bank records raise a different question); what I say in my letters to my lover; what books I have on my shelf; what movies I watch on TV. All of these are facts about myself, truths about myself, to which we all want to control the access of others.

Historically, the law has protected well the second kind of privacy. But the law has not had much concern for the first. It has protected the second kind by protecting property rights: Facts about myself that were kept in my home were protected from the snooping eye, since the snoop was not allowed to enter my house to look. If he did, he trespassed; and if he trespassed, he would be punished. This was true whether the trespasser was a snoop, or a cop: in either case, the law protected my privacy in my home.

But not on the street. Historically, what I chose to make open to the public became public. What I chose to take out of my house (or out of my briefcase) I chose to take out of privacy's protection. True facts I disclosed to the public were outside of my control. For much of our history, this compromise was fairly stable. While facts I disclosed publicly were beyond my control, not much could be done with them. Sure, someone could follow me around to record all the things I purchased with my cash, and then sell that list to someone else. But this collecting would have been costly - more costly than it was worth.

But today, people are more concerned about information that they have made public, since more and more, everything we do is *in a sense* made public and accessible: We make public who we call, or how much money we have, what our salary is, what medication we take, to where we travel, what books we read. All of these facts are in a sense made public. How much control do we have over them?

In this section of our course, we consider these issues of privacy. We begin with this problem of informational privacy, and then turn to the more traditional problem of protecting private facts. Both issues are intimately connected to the emergence of cyberspace, and some features of cyberspace raise unique problems for the law of privacy. Our message in the end is that there are more questions than answers about privacy in cyberspace. We hope at least to frame the questions.

authors:

Larry Lessig David Post Eugene Volokh

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