What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication

71 Pages Posted: 9 Mar 2000

See all articles by Jonathan L. Zittrain

Jonathan L. Zittrain

Harvard Law School and Harvard Kennedy School of Government; Harvard School of Engineering and Applied Sciences; Berkman Center for Internet & Society; Harvard University - Harvard Kennedy School (HKS)

Date Written: February 2000


Individuals have long had the desire but little ability to control the dissemination of personal information about their health. Law has been a weak instrument for such control, given the articulate and powerful interests that insist upon maintaining and enhancing access and use of others' personal information, with sensitive medical data proving only a sporadic exception. Technology has so far only made exploitation of personal information easier. The evolving federal framework for the protection of electronic medical records is, at the moment, one in which individuals are third-party beneficiaries of what are likely to be flexibly-interpreted, ponderously-enforced fair information practices created in the shadow of a Congressionally-mandated networking of sensitive medical data. This networking promises to greatly lower the costs of accessing and using medical data for any number of purposes?including ones not central to health care, such as direct marketing. It is ushering in what some call the "Era of Promiscuous Publication." The danger this era portends is that what is gained in efficiency of health care provision may be lost in erosion of privacy. Privacy advocates could learn a new approach to this problem from an unlikely teacher: publishers of intellectual property?specifically the American music industry.

The music industry until recently feared ruin from the unauthorized swapping and rebroadcasting of high-quality audio reproductions among its customers, a phenomenon enabled by increasingly cheap networks, cheap data storage, and cheap processors?again, the Era of Promiscuous Publication. Despite access to a sympathetic Congress and extensive enforcement resources, the music industry has found recourse to law largely unavailing against this tide of technological progress. The industry is now embarking on a different strategy?changing the technology itself. At the core of the technological response lies the idea of "trusted systems": computer databases of the rights and privileges of specific entities vis-a-vis information, linked to hardware and software that recognize and enforce those rights. If fully deployed, trusted systems could trump the Era of Promiscuous Publication with what I call an "Era of Trusted Privication": one in which a well-enforced technical rights architecture would enable the distribution of information to a large audience?publication?while simultaneously, and according to rules generated by the controller of the information, not releasing it freely into general circulation?privication.

In my view there is a profound relationship between those who wish to protect intellectual property and those who wish to protect privacy. Their common desire to control the distribution of information, and the music industry?s potential success at regaining control through the implementation of trusted systems, offer several lessons to privacy advocates seeking to protect the privacy interests increasingly threatened by the advent of the Era of Promiscuous Publication. The paper explores these lessons first by mapping out the problem presented to the music industry by the advent of fast, cheap, and perfect copies, along with the music industry?s legal and technological strategies for regaining control. Second, it describes the similar problem faced by privacy advocates in the arena of medical privacy, the legal solutions that have been and might be attempted, and a hypothetical technological solution that demonstrates the enforcement power of the trusted system. Finally, it looks beyond the enforcement potential of the technological solution to demonstrate how thinking in terms of privication architectures might help negotiate the allocation of rights to medical data to account for the interests of individual "producers" of personal data in ways that need not disparage the legitimate interests of the sophisticated institutional players who wish to consume that data.

JEL Classification: I10, K11, K32

Suggested Citation

Zittrain, Jonathan, What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication (February 2000). Available at SSRN: https://ssrn.com/abstract=214468 or http://dx.doi.org/10.2139/ssrn.214468

Jonathan Zittrain (Contact Author)

Harvard Law School and Harvard Kennedy School of Government ( email )

Cambridge, MA 02138
United States

Harvard School of Engineering and Applied Sciences

1875 Cambridge Street
Cambridge, MA 02138
United States

Berkman Center for Internet & Society

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

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics