Abstract
Cyberspace is the rapidly growing network of computing and
communication technologies that have profoundly altered our lives. We
already carry out myriad social, economic, and political transactions
through cyberspace, and, as the technology improves, so will their
quality and quantity. But the very technology that enables these
transactions also makes detailed, cumulative, invisible observation of
our selves possible. The potential for wide-ranging surveillance of all
our cyber-activities presents a serious threat to information privacy.
To help readers grasp the nature of this threat, Professor Jerry Kang
starts with a general primer on cyberspace privacy. He provides a
clarifying structure of philosophical and technological terms,
descriptions, and concepts that will help analyze any problem at the
nexus of privacy and computing-communication technologies. In the
second half of the article, he focuses sharply on the specific problem
of personal data generated in cyberspace transactions. The private
sector seeks to exploit this data commercially, primarily for database
marketing, but many individuals resist. The dominant approach to
solving this problem is to view personal information as a commodity
that interested parties should contract for in the course of
negotiating a cyberspace transaction. But this approach has so far
failed to address a critical question: Which default rules should
govern the flow of personal information when parties do not explicitly
contract about privacy? On economic efficiency and human dignity
grounds, Professor Kang argues in favor of a default rule that allows
only "functionally necessary" processing of personal information unless
the parties expressly agree otherwise. The article concludes with a
proposed statute, entitled the Cyberspace Privacy Act, which translates
academic theory into legislative practice.
Keywords: Cyberspace, privacy, information privacy, default rules, data mining
[download published version @ SSRN]
[the Appendix, available separately, is a model Cyberspace Privacy Act]
[a readable summary of these ideas appeared as Cyberspace Privacy: a Primer and Proposal, 26 HUMAN RIGHTS 3-6 (1999) :: access at Amercian Bar Association]
[some testimony to the Federal FTC on privacy @ UCLA JOLT]
