Digital
Citizens – En Guard!
By
We are living in
the era of an Information Revolution that our ancestors and comrades have
toiled to deliver. We are witness to phenomenal progressions in science; we
stand in awe of its promises and fall prey to its ruses. Those of us with
access to science avail ourselves of additional methods of communication, and
even the most patient among us concedes the virtue of multifaceted and instantaneous
correspondence. Ours is an era in which communication and convenience operate
in tandem, one fostering the other and vice versa. Yet science has not yet added to our composition- we retain our
original senses, still bound to perceive and react to our environment in only
one of five ways.[1] Thus, the man that accesses technologically advanced
methods of communication is no more inherently
worthy of protection than the man of yesterday.
The Internet – Private or Public?
The Internet is
a fulcrum of the Information Revolution. However, access to digital
communications is not universal, nor is there a vast movement towards public
provision of connectivity. Instead, the Internet is accessed by free volition
and blessed opportunity. To connect, we form multiple contracts with private
vendors of software, hardware, and connectivity. We waive many of our
prerogatives and agree to assume the risk of our digital activities.[2] Are we
to deem such contracts unconscionable, or harmful to well-rooted public
policies, manifestly different from numerous other contracts that allocate
risks and responsibilities or waive statutory rights?[3]
Privacy – Protecting Property or
Identities?
Since the times
of our ancestors, everyone living in society was expected to be known and traceable
to their corporeal masses, and a person of deceit or concealment never revered.
American law protects citizens from the non-consensual publicity of their
political expression, yet it has not found similar protections for the
non-consensual publicity of tangible movements along public highways and streets.[4] A “right to privacy” in the prior does not extend to
the former scenario, and for good reason. Far from being a quintessential
fundamental right like liberty, privacy is inherently solicitous of contract.
We may invite comrades into our homes and personal property, the bedrock
examples of places worthy of inviolate protection. Our identities, unlike our
properties, are inherently un-private. When we enter public spaces, we cannot
curtail the liberty of others to see us, hear us, remember us, or capture our
images on film.[5] Nor can we expect anonymity when we mobilize any piece of
mass in a public space, including the digital bit-streams generated from within
our homes. Indeed, we might be quite disappointed if our bit-streams were invisible, for then we would
receive no connectivity!
The Information
Revolution has transformed the way man may use his identity. Yet, one of the
most telling tales of this period is the “shock” citizens experience when the
transparency and publicity of their voluntarily communicated information is
realized, its sheer scope impressed upon them. The impatient man utilizes
science to create a one-man press for his identity, preferences, and habits in
order to reap its conveniences: he will process loans and payments with ease, quickly
find amenable merchandise, and travel through the country with his reputation
in his pocket. These conveniences are not imposed on the non-willing. We should
not assume the digital information created as a byproduct of scientific
advances ought to have a constitutional leash controlling its use. We would be
prudent to first consider the guaranteed freedoms of those who rightfully and
legally obtain the information of their fellow citizen’s identity. It seems
implausible to will that employees of companies across our nation shall not
copy, paste, or share files as they wish. It would seem preposterous to will
that another man forget his past business dealings or decline to share his
experiences with his associates. Would the law be wise or foolish to expect
such things?
Existing Remedies and the Absence of an Absolute
Federal Right of Privacy
The law of torts
provides a means for man to hold another accountable for the third party
effects resulting from his misconduct.[6] Injured
parties can also bring causes of action for breaches of contract, fraud, or the
violation of many state and federal statutes. Criminal law serves as additional
deterrent to serious identity thieves. Yet, scholars persist, and contemplate
the need for federal protections for digital privacy. However, even in a state
like
Citizen Participants in the Information
Revolution – Awareness and Social Activism
To all digital citizens
concerned about privacy, I suggest the following:
§
To maintain the privacy of your residence, use
alternative addresses (e.g. P.O. Box) to facilitate important correspondence.
§
Use cash for transactions you wish others to
“forget” about. Due to the present lack of digital cash, this entails making
physical purchases for such transactions.
§
Should you keep a diary, engage in research, or
wish to communicate by word or pen, utilize corporeal means for particularly “private”
issues. In the event you utilize digital means, be aware that such
communications are akin to posting a billboard in public places.
§
Should you use a free online mail service, clean
out your e-mail storage space regularly. Providers are generously granting you
a license to use their privately owned storage capacities and reserve the right
to parse through content on their property. Should you wish for greater
privacy, find a provider that provides such exclusive storage or host your own Internet
server. Lobby for a re-configuration of the domain-name system (DNS) so citizens
can reasonably be entitled to host personal servers,[8]
eliminating the need to store personal digital information on the property of others.
§
Your passwords, including social security numbers,
are only as safe as the entity requesting them. Bargain them away wisely, or
deal with parties respecting your privacy preferences.
§
To legal activists, consider lobbying to make
the Internet partially public, either through public provision of connectivity and
free spaces, or through eminent domain.
§
Consider lobbying for a federal statute
commanding the courts, “Standards of reasonableness shall be assessed by
reference to the medium that gives rise to the cause of action.”
§
Statutory laws already exist to make us aware of
digital transactions carried out in our names, and personal vigilance is the
ultimate defense to ward off ill-doers. The hassles inherent in such vigilance are
a necessary consequence of assumed risk.
§
Voice privacy concerns at every opportunity.
Markets for digital privacy will ensue.
[1] The five sense of man: smell,
sight, sound, taste, and touch.
[2] I posit entering the Internet as
akin to entering an amusement or ski park, or sports game.
[3] A host of federal statutory
claims have been held capable of mandatory arbitration in lieu of litigation, see Mitsubishi Motors Corp v. Soler Chrysler-Plymouth Inc., 473 U.S. 614 (1985); Gilmer v. Interstate/ Johnson Lane Corp.,
500 U.S. 20 (1991). Criminal defendants have been held capable of waiving
federal evidentiary rights, see United
States v. Mezzanatto, 513 U.S. 196 (1995).
[4] McIntyre v.
[5] Hester v.
[6] Common claims pertinent to the
Information Revolution are wrongful invasion of privacy, defamation, libel and
negligence. See also Restatement (Second) of Torts §652(A) for a typology of
invasions of privacy.
[7] Foley v. Interactive Data Corp.,
47 Cal.3d 654 (1988).
[8] IPv4 à IPv6