Privacy Law's Role in an Information Economy

Abstract

What do we lose when we lose our privacy? A slew of recently enacted state laws suggest that the loss of privacy is merely a loss of individual choice in the market exchange of services for personal information. This Article argues that a loss of privacy risks something greater: the collapse of complex and fluid social identity. Without privacy, individuals cannot nurture their own senses of self because they are no longer free to try on different social roles across diverse relationships. Pervasive, private data collection threatens multi-faceted selfhood by eliminating the boundaries that make social roles distinct and hindering the possibility of withdrawal from view.

If a loss of privacy entails a loss of our selves, how do we gain our selves back? This Article argues the answer is in the “role” of privacy law in two senses. Normatively, it asserts online privacy law should work towards restoring the roleplay that underwrites social selfhood. Methodologically, it contends online privacy law should pursue that end through thoughtful “legal role-scripting.” Privacy lawmakers should be attentive to the social roles they ascribe to the data collectors and Internet users law regulates. Legal role-scripts orient and pre-commit law in multiple ways. They establish a set of evaluative criteria that justify or undermine particular rights or responsibilities. They also direct courts to particular lines of legal precedent.

Following this understanding of privacy law’s role, this Article uncovers a better way it can safeguard dynamic identity formation. It argues privacy governance law – an original legislative proposal – is better suited than alternative reforms to empower Internet users to engage in self-constructive roleplay. It characterizes private, online data collection in terms of a governance relationship, with data collectors hegemonically deciding how they will collect and use Internet users’ personal information. Privacy law, in this formulation, works to afford Internet users countervailing power to participate in collective decision-making about the privacy practices appropriate to their relationships with diverse data collectors. This offers Internet users the greatest possibility of reclaiming emergent selfhood in an information economy.

Keywords: privacy law, law and society, internet law, law and technology, information privacy, data protection, role theory