Книга: Code 2.0

Chapter 11. Privacy

Chapter 11. Privacy

The conclusion of Part 1 was that code could enable a more regulable cyberspace; the conclusion of Part 2 was that code would become an increasingly important regulator in that more regulable space. Both conclusions were central to the story of the previous chapter. Contrary to the early panic by copyright holders, the Internet will become a space where intellectual property can be more easily protected. As I’ve described, that protection will be effected through code.

Privacy is a surprisingly similar story. Indeed, as Jonathan Zittrain argued in an essay published in the Stanford Law Review[1], the problems of privacy and copyright are exactly the same. With both, there’s a bit of “our” data that “we’ve” lost control over. In the case of copyright, it is the data constituting a copy of our copyrighted work; in the case of privacy, it is the data representing some fact about us. In both cases, the Internet has produced this loss of control: with copyright, because the technology enables perfect and free copies of content; with privacy, as we’ll see in this chapter, because the technology enables perpetual and cheap monitoring of behavior. In both cases, the question policy makers should ask is what mix of law and technology might restore the proper level of control. That level must balance private and public interests: With copyright, the balance is as I described in the last chapter; with privacy, it is as we’ll explore in this chapter.

The big difference between copyright and privacy, however, is the political economy that seeks a solution to each problem. With copyright, the interests threatened are powerful and well organized; with privacy, the interests threatened are diffuse and disorganized. With copyright, the values on the other side of protection (the commons, or the public domain) are neither  compelling nor well understood. With privacy, the values on the other side of protection (security, the war against terrorism) are compelling and well understood. The result of these differences, as any political theorist would then predict, is that over the past ten years, while we’ve seen a lot of legislative and technical changes to solve the problems facing copyright, we’ve seen very few that would solve the problems of privacy.

Yet as with copyright, we could restrike the balance protecting privacy. There are both changes in law and changes in technology that could produce a much more private (and secure) digital environment. Whether we will realize these changes depends upon recognizing both the dynamics to regulation in cyberspace and the importance of the value that privacy is.

We will think about three aspects of privacy, and how cyberspace has changed each of them. Two of these three will be the focus of this chapter, but I begin with the third to help orient the balance.

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