Afterword: Responding to a World Without Privacy: On the Potential Merits of a Comparative Law Perspective
A World Without Privacy: What Law Can and Should Do 234–270 (Austin Sarat, ed., Cambridge University Press 2015)
20 Pages Posted: 7 Mar 2016
Date Written: February 1, 2015
This essay, an afterword to an important collection of essays considering the potential salience of privacy in the era of Big Data and drones, posits that a comparative legal analysis could shed important light on how law both succeeds and fails to secure privacy interests. Because many of the current and pressing threats to privacy, particularly with respect to non-disclosure of personal data, do not respect national borders, we should, to borrow a turn of phrase from Justice Elena Kagan, seek good ideas about how best to secure privacy rights wherever we can find them. In other words, rather than merely guessing about the potential efficacy of potential responses to the growing threats to privacy, it would make more sense to consider whether particular regulatory approaches have proven successful – or unsuccessful – in other countries that share a meaningful legal commitment to safeguarding privacy interests. To be sure, the protection of privacy in other democratic nations reflects and incorporates different legal, social, institutional, and moral understandings of privacy rights. Yet, at the same time, foreign privacy laws also reflect a core of common concerns and objectives; knowledge and consideration of foreign privacy regimes could assist us in assessing the virtues and shortcomings of our contemporary domestic arrangements. Even if, at the end of the day, we choose not to revisit our domestic regulation of privacy interests, our law of privacy would surely by the better for undertaking the exercise. In sum, a comparative legal perspective could help to improve our domestic legal system’s response to the growing reality of a world without privacy.
Keywords: Constitutional law, privacy, dignity, right to be forgotten, Big Data, PRISM, metadata, drones, surveillance, comparative law, free speech, personal data, democracy, first amendment, expressive freedom, comparative law, autonomy, transnational judicial dialogue, surveillance, borrowing, transplants
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