The Information Privacy Law Project

Abstract

One of the most interesting developments in privacy law literature over the past few decades has been the emergence of The Information Privacy Law Project, a group of scholars focused on the legal issues raised by the increasing collection, use, and disclosure of personal information made possible by evolving digital technologies. These scholars have sought to establish information privacy law as a field of study distinct from the constitutional right to decisional privacy. This Essay uses the recent publication of a major work by Daniel J. Solove, "The Digital Person: Privacy and Technology in the Digital Age", as a lens through which to assess two aspects of the accomplishments and potential of the Information Privacy Law Project. First, it argues that although information privacy law may be a useful shorthand to describe a subset of legal issues associated with the use and abuse of personal information, The Digital Person itself reveals that there are enough doctrinal, historical and theoretical linkages between informational and decisional privacy law that the two are ultimately analytically indistinct. Nevertheless, this conceptual confusion can be an opportunity for the Information Privacy Law Project, as insights drawn from decisional privacy could possibly supply solutions to some of the Information Privacy Law Project's most intractable problems. Second, this Essay argues that The Digital Person's assertion that the problems of personal databases are best understood by reference to Franz Kafka's "The Trial" obscures a more powerful insight that problems of databases are problems of power and consumer protection. Nevertheless, such an attention to the importance of metaphor in this context reveals that thinking of the database problem as one of privacy limits the law's ability to respond imaginatively. It would be far better, the Essay concludes, to engage in an effort to conceive of these problems as implicating data protection law or confidentiality law than to rely so much upon the notoriously slippery, baggage-laden, and limiting concept of privacy.

Keywords: Privacy, Cyberspace Law, Free Speech, Metaphor, Digital Dossiers, Confidentiality