Digital Citizens – En Guard!

By Asma Chandani

 

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 California, where privacy is a state constitutional right, protected against both public and private action, courts are reluctant to defend the right of privacy as having an independent stronghold in public policy, in cases where it has been freely contracted away. The California Supreme Court’s “void-if-contracted-for” doctrine refuses to acknowledge a person’s right to privacy if such person validly and legally consents to apparent intrusions of their privacy.[7] The doctrine reflects America’s firm belief in free markets and liberty of contract. This example from one of our nation’s most liberal states suggests that the only intrusions into privacy that courts should be concerned about are non-consensual intrusions, or those intrusions that violate fundamental values of American law. I have explained the inherent nature of privacy as defeating the argument for absolute protection. Thus, existing remedies in law need not be understated.

 

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. Ohio Elections Commission, 514 U.S. 334 (1995); United States v. Knotts, 460 U.S. 276 (1983).

[5] Hester v. United States, 265 U.S. 57 (1924). Closely related, see Vega-Rodriguez v. Puerto Rico Tel. Co, 11 F.3d 174 (1st Cir. 1997).

[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