Privacy and the New Virtualism

57 Pages Posted: 21 Nov 2007 Last revised: 27 May 2021

See all articles by Jon Penney

Jon Penney

Osgoode Hall Law School; Harvard University - Berkman Klein Center for Internet & Society; Citizen Lab, University of Toronto

Date Written: 2008


First generation cyberlaw scholars were deeply influenced by the uniqueness of cyberspace, and believed its technology and scope meant it could not be controlled by any government. Few still ascribe to this utopian vision. However, there is now a growing body of second generation cyberlaw scholarship that speaks not only to the differential character of cyberspace, but also analyzes legal norms within virtual spaces while drawing connections to our experience in real space. I call this the New Virtualism. Situated within this emerging scholarship, this article offers a new approach to privacy in virtual spaces by drawing on what Orin Kerr calls the internalist or virtualist perspective. The virtualist approach to privacy shifts the focus away from the concept of privacy itself, which has been over theorized and categorized by privacy theorists, to analyzing and theorizing persons in virtual environments and how they ought to be understood. It focuses on virtual persons and the distinct privacy concerns they raise, and reconnects ideas about informational and data privacy to traditional normative justifications for privacy based on personhood. Adopting a virtualist approach to privacy has conceptual, normative, constitutional, and public policy benefits.

Keywords: Privacy, cyberspace, technology, virtualism, virtualist, realist, internal, externalist, constitution, information privacy, fair information practices, whalen, roe, state action doctrine,

JEL Classification: K19

Suggested Citation

Penney, Jonathon, Privacy and the New Virtualism (2008). 10 Yale Journal of Law & Technology 194, 2008, Available at SSRN:

Jonathon Penney (Contact Author)

Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States

Citizen Lab, University of Toronto ( email )

Munk School of Global Affairs
University of Toronto
Toronto, Ontario M5S 3K7

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