PATRICIA MELL ^†

The term "persona," derived from the Greek term for the mask worn by theatrical performers, is generally used to describe the various ways by which a person can be identified by personal information about him.⁴ The term is also used with reference to the right of publicity to describe the bundle of commercial values embodied in the identity of a person.⁵ The right of publicity comprises a person's right to own, protect and commercially exploit his own name, likeness and persona.⁶

In the computer context, however, the persona is an electronic compilation of bits of personal information concerning the individual.⁷ The persona is personal in nature in that it can be associated with a specific individual by name or any other identifier.⁸ Identifiers are words or symbols which identify a specific person.⁹ Examples of identifiers include an individual's name, social security number or account number.¹⁰ Since computer records are often filed under these identifiers, they are the key to accessing files which hold personal information concerning a specific individual. In this article, the term "persona" is used to signify a personal information file electronically stored, which, by virtue of at least one "identifier," relates the personal information to a specific person.

The electronic persona can perform several functions simultaneously for different parties. It is a manifestation of an individual's life-his identity. For government entities, the persona is the resource used as the basis of decision making about individuals and forecasting trends for groups of their constituents. As a consequence of its use by government, the persona becomes a public resource reflecting the operation of government. Finally, it can be the resource commercial entities use in decision making and as a source of revenue. These coextensive layers of interests necessarily blur the lines between that which can be restricted from public access and that which should be sheltered from unrestricted public view. This article will examine the manipulation of information in these contexts, focusing on the effect of this information transfer upon the individual. The lack of consistent rules governing its use makes the electronic wilderness a land of perpetual sunlight for the persona.

Uncertainty concerning the nature of the electronic milieu exacerbates the problem of determining the scope of protection to be afforded the electronic persona. The electronic wilderness created by computer technology lacks dimension in the usual sense, but it is vast and very real. The collection and dissemination of an individual's personal information to third parties remains largely untamed by law.

We have not consciously created such images of our personae. They are a function of the electronic trail of the information we leave in the wake of our use of any service that electronically records and/or stores information concerning our transactions.¹¹ These separate images, stored by those with whom we deal directly, can be collected, compiled and matched with other pieces of information about us by third parties in a secondary information market.¹² The same persona, being both public and private, is then used by institutions to make decisions about each of us.¹³

In a "primary information market," the individual voluntarily discloses personal information in exchange for some benefit. For this reason, most of the early literature in this area dealt with the use of personal information as an issue of contract between the individual and the provider.¹⁴ By contrast, the "secondary information market" describes information collected from any information-producing sector, which is used either by organizations with which the individual has not dealt directly or for purposes which the individual could not have foreseen.¹⁵ This would include the activities of credit reporting agencies, employers, governments or any other organization or person who uses information services. The individual typically has no idea that this information makes its way into the secondary market to be used for additional purposes.¹⁶ Resolution of this problem becomes of acute concern as we begin to settle the wilderness with our electronic personae.¹⁷

Since personae are created for third parties' purposes, all individuals can have more than one persona, each one held by a different third party.¹⁸ Indeed, each user of personal information is free to manipulate the information into any desired configuration.¹⁹ The programmer's directives could require that certain information be given emphasis while other information be downplayed.²⁰ The distorted persona goes to the wilderness. In pre-computer days, witnesses, various paper references and photographs could all effectively counter inaccurate references concerning the individual.²¹ As computer storage becomes increasingly inexpensive, relative to the cost of storing paper records, the individual may find himself unable to challenge a computer-compiled history.²²

On the other hand, centralization of private information and its preservation in computer memory may decrease illegitimate leaks of that information. Those with access to personal histories will see much more of them than was usually the case when the information was contained in printed records, but with computerization of access restrictions, fewer curious eyes may have knowledge of any part of the private history of the individual.²³

The electronic persona is then autonomous, commodified into the physical world, directing from the electronic wilderness the actions and transactions in which we are involved.²⁴ It can survive our deaths, exist totally without our awareness and be unresponsive to sudden changes in our society and lifestyles. To the user of this information, who will seldom meet the individual face-to-face, the electronic persona becomes the "real person." The outsider will see and use the persona to make decisions about the individual's life. In effect, the individual becomes secondary to the accuracy of the persona.²⁵ No one or two pieces of information can tell the entire story of the individual's life. Nor do the separate pieces of information necessarily identify the individual directly. At some point, however, the combinations of personal information can form seemingly complete "images" of the individual.²⁶ At that critical moment, an electronic persona is born and its reality overtakes our own.²⁷

Much computer-stored personal information is used without the knowledge or consent of the subject individuals. While surveys suggest that Americans would prefer to control the use of information collected about them, as a society we have failed to successfully identify either the interest being infringed upon by nonconsentual access to personal information, or the proper balance to be assigned to those interests competing for use of it.²⁸

Largely unprotected by law, the persona seeks shade from the light of disclosure under the existing patchwork of protections based in the United States Constitution, statutes regulating government and private record collectors, and common law concepts of privacy which regulate the use of information by private industry and individuals.²⁹ Many authors discuss the interest to be protected in personal information under the rubric of privacy.³⁰ However, the fact that privacy is an evolving concept, burdened with several definitions,³¹ complicates this approach. For example, there is no consensus as to whether privacy is a property right or a personal one.³² Also, there is no definitive solution as to how privacy should be applied to a non-physical intrusion in an electronic medium and the appropriation of the information stored there.³³ The use of privacy as the primary source of protection is particularly problematic because in this new electronic medium, an individual's privacy is alienable.³⁴

Society requires a definition of privacy that recognizes the fluid relationship between the electronic persona and traditional Western conceptions of privacy. Rapid societal changes produced by increased use of computer technology to manage the electronic persona exacerbate this dilemma. The technology of computer-mediated information management has confounded traditional discourse by the creation of a new dimension of human activity and interaction. Just as the real person wearing the Greek "persona" became the character depicted by the mask, the "facts" about the modern individual become lost in the presence of the electronic persona created by collectors of information about him.³⁵

The American pioneers tamed the wide open spaces of the western United States by erecting fences to determine the ownership of their private property. Boundaries must be established in the electronic wilderness delineating the public information that can be fully disclosed and the electronically-stored personal information that should be protected as the individual's private property.

While there is great disagreement as to what information should be protected from disclosure, there is a general consensus that individuals do have a right to some degree of privacy, even in the electronic wilderness. That consensus was summarized in 1973 as five rights an individual would regard as basic in a consistent and generalized personal information protection plan.³⁶ Those rights are: 1) the ability to discover the existence of personal information files; 2) the right to know how the record holder intends to use the personal information and how broadly the information will be disseminated; 3) the right to withhold consent if the record holder intends to disclose the information more broadly than originally contemplated; 4) the individual's ability to access personal information files and the opportunity to correct any inaccurate information; and 5) the right to adequate security and to update outmoded personal information.³⁷ Implicit in these rights is an individual's right to control a record holder's disclosure of personal information. These five rights will be used in this article as the basic assumptions for conceptualizing the property right in the electronic persona.

Several privacy definitions recognize the individual's right to control personal information.³⁸ In this article, privacy is the legally recognized power of an individual (group, association or class) to both 1) regulate the extent to which another individual (group, class, association or government) may access, obtain, make use of or disclose a persona concerning him, or concerning those for whom he is personally responsible; and 2) monitor and correct the accuracy of the persona compiled concerning him or those for whom he is personally responsible.³⁹ This definition incorporates the five rights and demonstrates the situations in which the individual might want to control disclosure of personal information.

In this article, I describe the scope of the individual's right to privacy as being a type of property right in his electronic persona. To clarify the need for such a property right, I review the social and technological use of the individual's persona in its historic context. To define the parameters of that property right, I consider the traditional relationship between privacy and property as protection of the persona.

The electronic persona, in its easily accessible and malleable form, presents many conceptual problems for the current law,⁴⁰ which seeks to balance use of the persona among those groups competing for superior rights to it. I identify four entities with potentially conflicting priorities in the use of the persona: individual, government, public and commercial groups.⁴¹ The tension between these interests has created a cumbersome and ineffective system of personal information protection.⁴² The gaps in protection that the existing system affords the individual are diagrammed in the Appendix.

Finally, I describe a new property right in electronic personae by suggesting a joint evolution of our traditional notions of privacy and property. I recommend a solution to the primary impediment to this evolution that borrows from existing intellectual property traditions to resolve the public-private dichotomy of the electronic persona. This joint evolution should result in the individual's recognized property interest in personal information collected about him by public or private institutions, and the balancing of the interests in use or disclosure of such information by ranking the purpose of the disclosure in terms of its importance to society.

These recommendations suggest one way in which the individual can obtain uniform power to restrict both the collection and disclosure of his persona, and present a method to assure the information's contextual accuracy as it passes from primary collectors to secondary users.

Technology changed society from an agricultural, pre-industrial stage to the present post-industrial, information society.⁴⁵ Supported by a triad of different infrastructuresÑtransportation, power and communication (information)Ñhuman society changed with the technological shift in predominant infrastructure.⁴⁶ The economy of pre-industrial society was based on the extraction of natural resources and their market distribution. Industrial society's economy was based on goods-producing industries; the extraction of resources was necessary for the production of goods but was not itself the focus of this economy. The increased interaction between energy and transportation systems allowed the expansion of U.S. industries along rivers and the Great Lakes regions.⁴⁷ This made society solidly industrial; wealth and economic growth was based upon the energy-consuming manufacture of goods and their wide distribution through a well developed transportation system.⁴⁸ In contrast, the post-industrial economy is based not on the production of goods but upon the selling of services, such as education, health, social services, professional services and scientific research and development.⁴⁹

While information has always been a core resource,⁵⁰ until the present stage it was largely relegated to the position of supporting other resources. However, in the present service economy, information has become an increasingly valuable commodity. This shift has put pressure on the maintenance of the individual's privacy, in that information about the individual has itself become increasingly valuable.⁵¹ The computer has exacerbated this problem through its capacity to disclose a large amount of personal information to a large number of unrelated individuals in a very short amount of time.⁵² Property law had balanced the potentially conflicting needs for information and privacy.⁵³ Consequently, the concepts of privacy and property as barriers to societal intrusion became inexorably entwined.⁵⁴ Philosophical and legal conceptions of privacy reflected society's attempt to adjust to technological changes. As society intruded more into the lives of its citizens, the number of laws protecting the individual's privacy proliferated.⁵⁵

In contrast, pre-industrial society's need for information was comparatively limited and purely local. The economy was dependent upon the value and quality of its natural resources, which were reaped through manual labor.⁵⁶ Its primary needs for information were based on agriculture.⁵⁷ The majority of citizens did not live in cities or pursue an education beyond grade school.⁵⁸ Military registration was not compulsory and there was no federal income tax.⁵⁹ As such, there was little contact between the average citizen and the federal government. Commercially, it was a cash and face-to-face transaction society. Very few people owned property, and local banks and merchants relied on the community reputation of the individual to guide them in the few consumer or commercial credit transactions of the time. Very few people carried insurance of any kind, and medical records rarely existed beyond the doctor's office. If records needed to be exchanged, they were paper records sent by mail. Records were maintained by the organization with which the individual dealt, and there was no substantial market for the exchange of information between different organizations.

Until the end of the Revolutionary War, there was no federal government to collect records and very little organized credit was extended by institutions.⁶⁰ With the exception of the U.S. Census, there was no centralized governmental collection of information regarding individual U.S. citizens.⁶¹ Record collection was purely a local matter. People rarely left the town in which they were born. The absence of a need for record collection provided effective protection for the individual's privacy.

Despite the lack of interpersonal privacy during the pre-industrial period, privacy was considered to be an attribute of man in nature.⁶² John Locke stated that "every Man has a Property in his own Person. This no Body has any Right to but himself."⁶³ This suggests that an individual has exclusive rights to the use of his person and can preclude its use or even knowledge of it from third persons. Locke continues, "that with which he mixes his labor becomes 'his property.' "⁶⁴ Locke did not consider the individual to be isolated and without interaction with society. Rather, "all that [the person] becomes and all that he makes are part of his own person."⁶⁵ The pre-industrial period witnessed a "growth of individuality" and fostered "the belief that one's actions and their history 'belonged' to the self which generated them and were to be shared only with those whom one wished to share them."⁶⁶

Industrial society required a greater quantity and quality of information than did pre-industrial society.⁶⁷ The need for labor centered in urban areas, whose burgeoning industries encouraged the abandonment of the frontier's wide open spaces for the city's concentrated living spaces.⁶⁸ The information needed was more complex and technical in nature and required greater reliance on machines to boost production and efficiency.⁶⁹ Ralph Waldo Emerson recognized the difficulty of maintaining control over one's identity when actively involved in society. He stated, "[p]erson makes event, and event person . . . . The event is the print of your form . . . . Events are the children of [one's] body and mind . . . . [They] grow on the same stem with persons; are sub-persons."⁷⁰ One commentator interpreted this to mean that "[o]nce man's power of self-transcendence is posited, it becomes impossible to confine the self within marked-off limits and to say positively, 'This is the self, this is a man's "own person," and the rest is not self.' "⁷¹

The development of the telegraph in 1844 exacerbated this trend,⁷² since neither distance nor time encumbered this means of information transfer.⁷³ By the time Warren and Brandeis wrote The Right to Privacy in 1890, the individual's ability to shield information about himself from the public was beginning to erode in response to society's increased need for more information.⁷⁴ The invention of the telephone in 1876 was followed by the inventions of the radio, television and computer.⁷⁵ All of these modes of collecting and distributing information were in use by the first half of the twentieth century. As society became more adept at manipulating these communications technologies, it developed new ways of observing the individual. The increasing ability of information technology to pervasively intrude during this period⁷⁶ led to the first modern cases concerning government surveillance.⁷⁷

By the turn of the century, the largest collector of personal information concerning individuals was the federal government pursuant to its decennial census.⁷⁸ But approximately forty percent of the population continued to work on the family farm, twenty-eight percent worked in the developing industries and the remaining thirty-two percent worked in services and in the budding information sector.⁷⁹ Commercial agencies specializing in the collection of personal information about individuals began to grow in earnest,⁸⁰ as did government information with the passage of the national income tax amendment.⁸¹ However, despite institutional encroachment upon the individual's solitude, the individual's privacy was protected from mass collection, matching and disclosure by cumbersome technological limitations associated with information management.⁸² For example, in the paper-based record keeping system, pragmatic file-management issues deterred organizations from endeavoring to compile vast quantities of information about individuals.⁸³

This period saw the development of tort theories of privacy, intellectual property doctrines governing the commercial exploitation of the persona, and an increased use of the Fourth Amendment to restrict the government's right to invade the individual's domain.⁸⁴ The consequence of the increased institutional need for information made its possession the determining factor in the right to use the information. With few exceptions, the individual's ability to prevent collection and disclosure of the information ended once the information was in the hands of a third party.⁸⁵

In its third stage of development, society has experienced a shift in its economic base from industry to information.⁸⁶ The basis of the economy is now the selling of human and professional services.⁸⁷ This transformation has given rise to such labels as the "Information Revolution," the "Information Society," or the "Post-Industrial Society" to describe the late twentieth century.⁸⁸ In this society, institutions administer to the needs of a widely divergent population. The drive for the efficient determination of needs and allocation of resources mandated the replacement of personal face-to-face evaluation with information-based decision making.⁸⁹ The magnitude and diversity of the population has isolated the government from its constituents while requiring greater contact from the government in the form of government-backed support.⁹⁰ A significant consequence of the variety and concentration of institutional relationships with individuals has been the pervasiveness of persona collection and maintenance.⁹¹ The balance between the institution seeking better information and the individual seeking to control his persona has shifted in favor of the institutions due to the anonymity with which the institutions operate.⁹² This imbalance prompted post-industrial society's label, the "dossier society."⁹³

The merging of telephone and television with computers has resulted in the development of a flexible and diverse international information-exchange system that allows the nearly instantaneous transfer of information through cables, satellites, microwave relays and fiber optics.⁹⁴ This system has five major aspects: data processing networks, information banks and retrieval systems, teletext systems, facsimile systems and interactive on-line computer networks.⁹⁵ While each aspect can divest the individual of control over his persona, this article will focus on information banks and retrieval systems.

Just as the advent of mechanized industry and the subsequent rise of the bourgeoisie once transformed Western societies, the consistent downward spiral in the pricing of information technology and of access to information entails a pervasive and profound social transformation.⁹⁶ Since the system is driven by the need for information disclosure, the resource user assumes a great deal of power over the substance of the persona. With the exception of anti-discrimination laws and First Amendment protections, the persona user makes his own determination as to what information may be relevant to his purposes. If the individual has requested a service from the persona user, he is generally obliged to either disclose the information or forego the desired benefit, whether or not the information request is objectionable.⁹⁷ Consequently, "unless an agency or private organization chooses to restrain itself in the public interest, no one is in the position of answering whether the benefit of having the information outweighs the intrusion upon privacy of getting it."⁹⁸

The anonymity of the information system's operation divests the individual of any real power over the use of his persona and shifts to the user the ability to shape the individual's "public identity" to the institution's specifications.⁹⁹ Operating on the theory that more information is always better, the record-keeping institution is not necessarily driven to assure the personal information's substantive accuracy.¹⁰⁰ Consequently, in the absence of specific statutory authority, a false persona may continue to exist-to the individual's detriment. In Tarver v. Smith,¹⁰¹ information concerning Mrs. Tarver was collected by the state office of social services when Mrs. Tarver became ill and was hospitalized. The Juvenile Court, after reviewing a report by her caseworker that contained "assertedly derogatory contents," including an allegation of child neglect, placed her children temporarily in the custody of the Department of Public Assistance.¹⁰² A second hearing exonerated Mrs. Tarver and returned her children to her, but the caseworker's report remained in her file at the Department of Public Assistance. The Washington Supreme Court determined that the individual had no power to eliminate a false record not directly related to the function of the agency-record user.¹⁰³ Thus, the individual had no right or legal ability to prospectively prevent damage from inaccurate records. Such a policy fails to protect the individual in his efforts to limit the impact of records on his life. The United States Supreme Court refused to review her case and the caseworker's report remained in her file.¹⁰⁴

Reposing unfettered power in the record keeper divests the subject of the record of any ability to protect his interest in preventing the record's disclosure. The individual therefore has no power to control or prevent disclosure of personal information held by third parties to other institutional information-seekers.¹⁰⁵ United States v. Miller exemplifies this problem; here the United States Supreme Court held that a bank customer had no legitimate "expectation of privacy" in his bank records and thus no protectable interest for the Court to consider.¹⁰⁶ Miller was suspected in two instances of illegal liquor violations. Pursuant to a grand jury subpoena, and without Miller having been notified, copies of his checks and bank statements were either shown or given to Treasury agents. Miller's attempt to have the evidence excluded was unsuccessful. The Court reasoned that because checks were an independent record of an individual's participation in the flow of commerce, they could not be considered confidential communications.¹⁰⁷ The account record, moreover, was the property of the bank, not of the individual account holder.¹⁰⁸ The majority of the current privacy-protection statutes were enacted to counter such perceived intrusions.¹⁰⁹

Information networks are not set up to prevent disclosure. Indeed, their very purpose is to provide easy access to information in the system.¹¹² From the database collector's viewpoint, there are both procedural and substantive components of each phase of a computer network system-manual initiation of data, conversion into computer-readable form, computer processing and output distribution-which must be protected.¹¹³ The procedural component concerns access to programs and corresponding files stored within the system and linked to other systems.¹¹⁴ The substantive elements embrace the collection of data for processing and regulate the accuracy of data collection and its availability to the user.¹¹⁵ These concerns are totally divorced from the interests of the individual, whose record is but a chattel to the collector or user.

Computers do have a physical component that can be subject to intrusion. In this sense, informational privacy involves the protection of the computer system itself. Most state statutes protect information by protecting the computer system under computer-security-type statutes. Such statutes generally prohibit "unauthorized access" to the computer system itself.¹¹⁶ These statutes limit access to personal data files, but they leave unresolved the question of what can be done with the information once it is accessed.¹¹⁷

Like the right to privacy, laws against unauthorized access are based on the concept of trespass and the ability of the "owner" of certain property to restrict access to such property from others.¹¹⁸ While unauthorized-access statutes collaterally protect the privacy of the information in the system, the core of these statutes is not protection of the persona and the subject's interest in it. There is, in fact, no statutory protection for a persona subsequent to its disclosure through lawful access.

The use of computers to manage information has considerably blurred the demarcation between the private and public realms.¹¹⁹ Once an item has been recorded in an on-line computer system, there are no consistent rules establishing the boundaries of private ownership of information not already protected by copyright or other existing intellectual property law.¹²⁰ While a paper record can be destroyed by shredding, "deleting" a computer-stored file may not necessarily destroy it.¹²¹

Before computer matching, an individual's personal records were scattered among the various organizations that had dealt with the individual directly.¹²² Today's computer matching, however, allows various fragments of information about an individual to be combined and compiled to form a much more complete profile. These profiles then can be collected, maintained and disclosed to organizations with which the individual has no direct contact or to which the individual would prefer to prevent disclosure.¹²³ Using computer-matching programs, the government can obtain data from private data compilers to assist in the government's regulatory role. In a statement to Congress on the topic "Computer Matching: Taxpayer Records," then Commissioner of the Internal Revenue Service Lawrence Gibbs stated:

The procedural manner in which information is stored and the manner in which it is referenced for retrieval can make it difficult for an individual to discover either the existence or nature of information held about him. A programmer generally arranges the information storage system (i.e., database) pursuant to the specifications of the user of the records. This means that the information-retrieval system likewise will be set up to function in only a certain number of ways.¹²⁶ The individual's request for information may be outside the computer's usual parameters.

A recent Ninth Circuit decision exemplifies this dilemma. In Baker v. Department of Navy,¹²⁷ Baker had been investigated pursuant to a grievance filed about her by a subordinate. The investigation report was indexed under only the subordinate's name and was not cross-referenced to Baker. Baker was exonerated in the grievance but sought to see the report and determine its contents. This request was denied. In construing the Privacy Act, the court held that the Act applied only to the correction or retrieval of records retrieved by the individual's name.¹²⁸ Any other request fell outside the Act's disclosure mandate.¹²⁹ Even though the plaintiff in Baker had been named in a report, the file was not accessible to her because the record was not indexed under her name. An information request under these circumstances likely will be denied.¹³⁰ The creation of special computer programs to fill the individual's request would require additional expense of time and labor on the part of the organization. Such efforts by the record keeper are rarely mandated.¹³¹ In contrast, the result was more favorable to the individual when the request had sought disclosure of public records. In Miller v. Department of State,¹³² the court interpreted the Freedom of Information Act¹³³ (FOIA) as requiring the agency to make a reasonable effort to search its records for the requested information.

Currently, the law places the primary right to control the disclosure and use of information upon the party in possession of it. This means that the third-party users of personae dictate the amount of information, and to whom, when and how personae are further disclosed. The organizations with which we directly deal record and store information about our transactions.¹³⁴ Unfortunately, neither the law nor technology consistently provides the individual with a means of protecting his interests in the records collected and maintained about him.¹³⁵

Once an individual has disclosed personal information and it is entered into a computer database, few limitations preclude an organization with no direct relationship to the individual from collecting, maintaining or disclosing the information.¹³⁶ Verification of information in these records typically involves comparing the record to other records, not consultation with the individual who is the subject of the record. Since the individual may not have notice of any inaccuracy in the original record, such an error is now compounded. In this system, once the persona is recorded it achieves more credence than the individual.¹³⁷

The information, as a valuable commodity, is collected and resold to any interested third party.¹³⁸ It is a valuable resource both to the entity relying on the persona to render efficient decision making, and to the organization that specializes in collecting such information for repackaging and resale.¹³⁹ This method of information management has accentuated the dual public-private nature of the electronic persona, but this issue merely reflects the historic search for balance between society's need for information and the individual's need to prevent disclosure of his persona. This dual nature of the persona becomes a search for an accommodation between the public self and the individual's private identity. While not always apparent, the balance was traditionally sought in the recognition of varying property rights in the resource of the persona.

Recently, scholars have suggested that the traditional distinction between the privacy tort and privacy under the Constitution is void or at least considerably blurred.¹⁴⁵ A comparison of constitutional privacy and intrusion tort cases demonstrates the degree to which the two doctrines align.¹⁴⁶ Identical treatment of the issues is supported by the fact that data collection by private industry can be just as pervasive as governmental data compilation.¹⁴⁷ Therefore, this traditional distinction may have outlived its usefulness.

Even those doctrines that recognized a property interest in certain personal information largely declined to recognize the individual's ownership of his various personae spawned by the manipulation of bits of personal information collected on him.¹⁴⁸ Some authority indicates that the attempt to reconcile the myriad of interests has resulted in an overinclusive view of privacy as a concept and an overextensive view of its function.¹⁴⁹

Likewise, in Abernethy v. Hutchinson,¹⁵² the Court of Chancery prevented a medical student from publishing for profit a surgeon's lectures. The court recognized that the surgeon had a common law copyright in the verbal rendering of his lectures. To prevent Hutchinson from profiting from the publication of Abernethy's lectures, the court had to recognize that Abernethy had a property right in those lectures.

It was not until the 1849 case of Prince Albert v. Strange¹⁵³ that the interest protected was labeled one of privacy. In that case, pictorial engravings made by the Prince were appropriated by a printer's employee. The employee produced a few copies for himself and gave the prints to Strange, who published a catalogue describing them. The Prince sued both to recover the prints and to enjoin distribution of the catalogue.¹⁵⁴ The defendant argued that no law existed that would prevent him from describing to the public either orally or in writing what he himself knew concerning the property held by another person.¹⁵⁵ The Prince prevailed on breach-of-trust and implied-contract theories, but the court also indicated that common law copyright protected the individual's property rights in personal information having commercial value. The doctrine gave the Prince legal power to withhold art and to prevent its description from reaching the public without his consent.¹⁵⁶

In determining the application of common law copyright protection, each of these British courts considered the commercial value of the personal information to a third party. This left open the question of whether noncommercially exploitable personal information could be protected in like manner. Prince Albert v. Strange also cited contract, trust and property bases for recovery for the nonconsentual disclosure of personal information when the individual had dealt directly with the third party.

The genesis of the extra-constitutional right to privacy in the United States was the 1880 treatise by Judge Cooley of Michigan, in which he coined the phrase "the right to be let alone."¹⁵⁷ One year later, the Michigan Supreme Court became the first state high court to recognize a privacy right to redress the emotional injury suffered by the nonconsentual disclosure of intimate facts. In DeMay v. Roberts,¹⁵⁸ the court considered the plaintiff's right to exclude another from her home during childbirth. The court held that the plaintiff had a legal right to the privacy of her apartment at such a time; the law secured this right by requiring others to observe it.¹⁵⁹ By recognizing the plaintiff's right to exclude others from her apartment, the court tied the right to privacy to a trespass or property doctrine. Early in 1890, the right of a light opera performer to prevent the publication of photographs taken without her consent was upheld in an unreported decision of a lower level New York Court.¹⁶⁰

Although not the first to declare the right to privacy, Warren and Brandeis were the first to discuss privacy as both a property and personal right.¹⁶¹ It has been suggested that Warren and Brandeis presented a "hierarchical" relationship between privacy and property, in which intellectual property was a subcategory of the more general right to privacy.¹⁶² Warren and Brandeis did not distinguish between the labor that went into the creation of a work of art or literature and the labor expended by an individual in the conduct of his life.¹⁶³ Both theorists recognized the individual's ownership of his persona,¹⁶⁴ as well as the individual's difficulty in maintaining control of this property when he interacts with others in an ostensibly public sphere.¹⁶⁵

The most frequently cited phrase of this article labels the right to be protected as "inviolate personality," not property.¹⁶⁶ The article's sole purpose was not to describe a new right that could redress the emotional injury suffered when the individual's "inviolate personality" had been made public without the individual's consent. Warren and Brandeis actually viewed privacy as an umbrella concept covering a series of related rights, some best protected by property concepts and others by tort law. A careful reading of the article indicates the full scope of the right of privacy as envisioned by Warren and Brandeis.

After Warren and Brandeis' article was published, the courts were not unanimous in recognizing the privacy right. In 1902, Roberson v. Rochester Folding Box Co.¹⁷⁵ illustrated the diversity of values included in the right to privacy. Robertson brought suit because her photograph had been printed on defendant's flour advertisements without her permission. The court refused to restrain the unauthorized use of her picture for advertising purposes, arguing that simply no legal right was being infringed. An ordinary individual apparently had no property interest in the use of her own likeness. Judge Gray, writing for the dissent, found it inconceivable that there was no remedy under common law or in natural justice in keeping with "the progress of civilization . . . made possible as the result of new social or commercial conditions."¹⁷⁶ While the court recognized the antagonism between commercial interests and the individual's interests in this property, it incorrectly gave the commercial interests preference.¹⁷⁷ The New York legislature followed Judge Gray's lead by enacting a comprehensive statute protecting the individual's privacy.¹⁷⁸ This statute prohibited the use of a person's name, portrait or picture for advertising purposes without that person's written consent.¹⁷⁹

On similar facts, the Georgia Supreme Court became the first American court to recognize a common law right to privacy in Pasevich v. New England Life Ins. Co.¹⁸⁰ This court's decision was based more on property concepts than on tort theory. The court stated:

In 1960, Professor Prosser identified four categories of tort relief under the heading of privacy: appropriation of name or likeness; intrusion upon an individual's seclusion, solitude or private affairs; public disclosure of private or embarrassing facts; and publicity that places a person in a false light in the public eye.¹⁸³ As common law concepts, these torts reflected society's consensus as to what information should be considered private and what recourse should be allowed when private information is exposed without the consent of the subject. Since the electronic persona is a relatively new phenomenon, courts have yet to significantly apply these torts to protect electronic privacy. However, using the torts to prevent against the nonconsentual use of electronic persona by either the news media or private industry presents certain conceptual problems.¹⁸⁴

In the 1970s, privacy protection for the persona was considered to exist in the nature of a contract between the individual and the third party.¹⁸⁵ The individual divulged personal information to the third party, who conferred a benefit to the individual in exchange.¹⁸⁶ The assumption was that the exchange bound the record keeper from "misusing" the information.¹⁸⁷ However, the record keeper's post-use obligations were not formalized, and there was no monitoring of the record keeper's bargain. In addition, there was little or no law establishing the ownership or disposition of the information when its use was contrary to the individual's understanding of its use.¹⁸⁸ In Salinger v. Random House,¹⁸⁹ Salinger sought to prevent letters he had written to third parties from being used in an unauthorized biography. The recipients of the letters had donated them to various university libraries. Since the information provided in the letters was available to the public, it was considered to be "public information." Consequently, traditional copyright protection could not be invoked to prevent the use of the letters. In recognizing Salinger's interest, the appellate court characterized the biographer's act as one of taking Salinger's "property"; that is, Salinger's economic interest in safeguarding a future market for the letters should he or his successors later decide to publish them.¹⁹⁰

Statutes enacted during the subsequent twenty years largely divested the individual of any power to prevent or limit disclosure of his persona.¹⁹¹

Despite the opening of this door, the United States Supreme Court at first declined to extend informational privacy protection to non-physical intrusions.¹⁹⁸ Chief Justice Taft, writing for the five-member majority in Olmstead, based the decision on the historic view of physical trespass and found that the use of a listening device to obtain evidence was not prohibited by the Fourth Amendment restraint against unreasonable search and seizure.¹⁹⁹

Writing for the dissent, however, Justice Brandeis reiterated his views on privacy and prophetically noted how technological changes must necessarily alter the application of the Fourth Amendment.²⁰⁰

The limitation of Fourth Amendment protection to privacy in "protected" areas lasted until the Court developed the "expectation of privacy" principle as a basis for restricting government's access to individuals' information.²⁰⁸ The first cases to invoke the "expectation of privacy" principle involved the circumstances under which electronic surveillance could violate the Fourth Amendment right to privacy. These cases were Berger v. New York²⁰⁹ and Katz v. United States.²¹⁰ Of these, Katz had the greater impact on constitutional protection of privacy.

In Berger, the Court was asked to determine the constitutionality of New York's eavesdropping statute. The Court held that electronic intrusions in the form of surveillance constituted a search; therefore, the Fourth Amendment's probable cause requirements applied to requests-for-a-surveillance order.²¹¹ The statute failed to pass constitutional muster on a variety of grounds. First, the statute did not require a description of the communications, conversations or discussions to be seized.²¹² Second, the statute failed to require the proponent of an order to specify the duration of the requested surveillance.²¹³ Finally, the proponent of a surveillance order could acquire an extension of the order without making a separate showing of probable cause.²¹⁴ The Court refuted the United States' argument that, due to the importance of electronic surveillance to law enforcement, the probable cause requirements should be relaxed for electronic-surveillance petitions.²¹⁵

In Katz, FBI agents attached an electronic listening and recording device to the exterior of a public telephone booth. They recorded Katz's part of the conversation. The government's argument focused on two points: whether a public telephone booth is a protected area and whether physical penetration is necessary before a search and seizure violates the Fourth Amendment. The Court decided that the attachment of an electronic listening and recording device to a public telephone booth was an unconstitutional search and therefore an invasion of the individual's privacy.²¹⁶ The Supreme Court stated:

Despite the majority's expansive view of the Fourth Amendment's privacy protection, Justice Harlan's concurrence again linked the protection of the Amendment to the protection of an identifiable place, and emphasized that the Constitution does not provide generalized privacy protection.²²⁰

In his dissent in Katz, however, Justice Black presented the core argument that would prevent the Constitution from providing generalized informational privacy protection concurrent with the changes achieved in technology. Justice Black felt that to interpret the intrusion complained of as being within the purview of the Constitution's prohibitions would be to distort the Amendment and put the Court in the position of being "a continuously functioning constitutional convention."²²¹

Justice Black's restrictive view was subsequently adopted by the Court in cases dealing with the individual's expectation of privacy in information resulting from the individual's dealings with third parties.²²² Since the Katz decision, the Fourth Amendment has not been construed to create any generalized right in the individual to prevent disclosure of personally identifiable information.²²³ Pursuant to Katz, information could be protected from disclosure only if the individual divulged it under a reasonable expectation of privacy. Subsequently, the Court concluded that there is no expectation of privacy in information voluntarily given to a third party.²²⁴ This view continues to have severe implications for computerized records, since most information is, in fact, given voluntarily to the original collector by the individual.²²⁵ With few exceptions, information collected from the individual by governments of all levels, pursuant to their regulatory and administrative functions, becomes a public record.²²⁶ Such records are subject to governmental disclosure through the Freedom of Information Act (FOIA). They are protected from disclosure only by the Privacy Act (PA) or by agency-specific statutory protection.²²⁷

Before Griswold v. Connecticut,²²⁸ privacy under the Constitution was conceptualized only as a part of general protection afforded by the Fourth and Fifth Amendments.²²⁹ The Griswold Court based its decision on the "penumbral" right of individual citizens to control their own lives in highly personal matters.²³⁰ While such a protection may be central to an "ordered conception of liberty," it does not necessarily protect informational privacy.²³¹ The Griswold type of privacy focuses on individual autonomy but does not deal directly with the disclosure of the individual's personal information. Since constitutional privacy independent of the Fourth Amendment focuses on autonomy, as opposed to informational privacy per se, the protection of personae must be found in a different venue. Due to the Supreme Court's reluctance to expand the penumbral privacy of the Fourth Amendment, it is impractical to place a heavy reliance on either existing constitutional doctrine or the creation of new constitutional rights to protect the privacy of electronic personae.²³²

The Supreme Court has tended not to question the state's ability to collect personal information from and about U.S. citizens. When challenged specifically concerning the ability of the government to collect and maintain computer records, the Supreme Court, in Whalen v. Roe, turned the issue into whether the information, once collected, had been properly safeguarded so as to prevent unwarranted disclosure.²³³

In Whalen, a New York statute required hospitals and pharmacies to send a record of all patients receiving certain doctor-prescribed drugs to a central computer data bank.²³⁴ The statute also prohibited the public disclosure of this information.²³⁵ The purpose of the data bank was to allow the state to monitor drug abuse resulting from multiple drug prescriptions. The opponents of the record keeping argued that the information was both personal and protected and, further, that the statute's reporting requirement deprived them of the right to make personal decisions about their medical treatment unencumbered by government intrusion or public disclosure.²³⁶ While the Court recognized

Even though courts tend freely to allow disclosure of government records, they have refused disclosure requests that impact other recognized constitutional freedoms of the individual.²⁴⁰ While informational privacy under the Fourth Amendment has not been recognized generally, autonomy issues of privacy do seem to be constitutionally protected. In this regard, the First Amendment freedoms of speech and association are recognized sources of some protection against government acquisition and disclosure of information.²⁴¹ This protection focuses more on autonomy than on informational privacy.²⁴²

The statutes have had mixed results in defending the individual's privacy.²⁵² While each of these statutes is diagrammed in the Appendix, a brief overview of their respective purposes is provided here.

The Freedom of Information Act (FOIA) makes federal records available for inspection and copying by the public. Its ostensible policy is that citizens should be able to find out what their government is doing. FOIA has several exemptions, one being that information should not be disclosed when such action would constitute a clearly unwarranted invasion of privacy.

The Fair Credit Reporting Act (FCRA) was the first piece of federal privacy legislation designed to regulate the disclosure of information held by the private sector. FCRA was touted as offering three basic forms of privacy protection to the consumer. First, it limits disclosure of reports on individuals to companies with a legitimate business need for the information. Second, it requires that organizations which provide credit or investigative reports to third parties also make their records available to the subject of the report. Finally, it mandates procedures for the correction of errors in reports.

The Privacy Act (PA) was enacted to protect the confidentiality of individuals about whom a government agency held a file containing personal information. Like FCRA, it provides the individual with access to information stored about him and establishes procedures for the correction and amendment of these files. It also attempts to limit the government's ability to disclose the information to third parties.

The Privacy Protection Act (PPA) limits the procedures by which the government can gain access to the files held by newspaper agencies.

The Family Education Rights and Privacy Act (FERPA) limits the ability of schools and colleges to disclose student records to third parties. It also requires the school or college to provide the student access to such records and provides procedures for challenging the accuracy of and amending student records.

The Right to Financial Privacy Act (RFPA) gives bank customers a limited expectation of privacy in their bank records by requiring that law enforcement officials follow certain procedures before any information can be disclosed.

Despite the apparent scope of coverage of these statutes, the actual protection afforded the individual's privacy varies greatly from one to the next.²⁵³ The number of statutes passed, each an attempt at protecting "privacy," partially explains society's failure to design a coherent policy regarding the aspects of personal information needing protection.

By focusing on the subject matter of the data, existing laws do not offer a viable guide to balancing the use of the persona by these competing interests. The balancing of these interests centers on three aspects of the information collection and dissemination process: the right to collect information, the right to control or restrict the use of previously collected information and the right to monitor the accuracy of the information collected about the individual. The current legal rules on informational privacy are a multi-leveled maze of sometimes conflicting laws that are generally ineffective from the individual's standpoint. Despite the pervasive influence of the electronic persona over an individual's life, the electronically stored information comprising the persona is not under the control of the individual in any significant way. While there have been some attempts to ensure confidentiality under some statutes and privacy under others,²⁵⁶ the right of the individual to prevent the collection and secondary dissemination of personal information is virtually nonexistent.²⁵⁷ The right of the individual to correct inaccurate information is piecemeal at best, particularly since the individual does not have a right to know whether a private enterprise has compiled information concerning him.²⁵⁸ If an individual wants to discover the existence of a record about him, he must decipher one set of rules for records generated by the government and a different set for records collected by private industry.

Currently, the balance between these competing rights lies in favor of the party in possession of the information. This means that the possessor of the information has the power to control the collection, content and disclosure of personal data without the subject's knowledge or consent. This improperly divests the subject of the data file of his right to self-determination, in that he can no longer monitor the accuracy of the information upon which decisions about him are being made.²⁵⁹

Even more confusing for the individual is the fact that the national trend in this area has been to base protection of the persona upon the subject matter of the record itself, or on the type of damage done to the database, rather than to enact general personal information protection provisions.²⁶⁰ The existing statutes do not necessarily consider the information's relation to an identifiable person as important.

This haphazard approach is at cross-purposes to society's stated interest in preserving the individual's privacy. It has created a necessarily inconsistent definition of the interests sought to be protected and has failed to establish a workable framework for balancing the interests of those competing for access to personal information.²⁶¹ Given technological advances, which will sharply reduce the economic barriers to the cross-referencing and continued storage of vast amounts of information,²⁶² such a framework is crucial. Without this framework, there can be no uniform and comprehensive protection of personal information.

There are two contexts in which the four interests conflict: collection and secondary disclosure to third parties. The disclosure is secondary in the sense that the party receiving the information was not a party to the transaction giving rise to its collection. These recipient parties may or may not intend to use the data for purposes consistent with its original collection. From the collector's view, use of the information is implicit in its collection and its disclosure. This may not comport with the individual's understanding of the information exchange. The individual's interest in his persona is, as compared to public, governmental and commercial interests, the least protected by the current information regulatory system.

An additional impediment to balancing the use of the persona is the difference in fundamental perspectives between the four groups with an interest in the persona. The need for the collection and disclosure of the persona is largely driven by economic incentives of government, public and commercial groups.²⁶³ The individual's personal need to control the persona may stem more from a concern for autonomy, which is not conducive to economic evaluation.

Not all of the interests held by the four different groups are adverse. They share an interest in the accuracy of the information.²⁶⁴ In addition, all would want notice of the disclosure of information to third parties and would want the ability to limit such disclosure to a designated few. Statutes applying to both the federal government and private industry have recognized this unity of interest.²⁶⁵ Some states' statutes require the reporting agency to correct inaccurate information.²⁶⁶ In other instances, where a given statute is otherwise silent, the courts have imposed due process notice and hearing standards upon reporting agencies.²⁶⁷

The interests diverge sharply, however, on the secondary disclosure of information.²⁶⁸ Both federal and state statutes attempt to balance these interests depending upon the type of record sought to be disclosed and its context.²⁶⁹ In addition, the nature of the rights afforded and the remedies provided differ depending upon whether the infringer is a governmental, public or commercial entity.²⁷⁰ Such a distinction is without merit because the identity of the infringer does not change the disclosure's effect on the individual.²⁷¹

The five rights the individual might assert were articulated over twenty years ago. Each assumes the individual has some modicum of control over the information and thus implies a property right. The rights were stated as follows: the person should be able to find out what files concerning him exist; when the individual provides information concerning himself, he should know how the information is to be used and how broadly the information will be disclosed; if the record holder wants to disclose the information more broadly than originally contemplated, the individual's consent should be obtained; the individual should have access to files concerning him and the opportunity to correct inaccurate information; and files should be afforded adequate security and outmoded information updated.²⁷²

Control is not the sole issue from the individual's perspective. Concerns over the proliferation of databases and the unchecked availability of personal information move beyond issues of information control to issues of maintaining the individual's autonomy and a free society in which personal differences can exist.²⁷³ Some have argued that privacy is not properly a claim, but rather "a situation of freedom about which claims may be made."²⁷⁴ Even this view acknowledges that, as a practical matter, attaining the privacy necessary for true autonomy turns on the individual's ability to control his personal information.²⁷⁵

This situation directly conflicts with the individual's desire to prevent collection and limit disclosure of his persona. While the individual's need or desire to disclose information may vary depending upon the circumstances, he might want to be able to restrict the types and amounts of personal information the government can require him to divulge. None of the existing statutes places comprehensive limits on what the government can collect.²⁸⁰ The individual may also wish to limit the government's post-collection uses of the information and limit the government's ability to divulge this information to third parties. However, information which has been recorded by the government has traditionally been freely accessible as a public record.²⁸¹ Such status gives the individual no power to restrict its disclosure.

Because so many of the services offered by the government are or have come to be considered necessities, the individual has little choice but to submit to the government's informational demands.²⁸⁶ In the government information-collection process, the diversity of the population necessitates the establishment of both a variety and concentration of institutional relationships with individuals.²⁸⁷ The substitution of records for face-to-face contact in these relationships makes the persona of paramount importance to the individual. It may not be an accurate reflection of the real person, but this image will be used to determine such fundamentals as to whether the individual gets hired, qualifies for a mortgage or social security benefits or is ostracized for pursuing a nontraditional lifestyle.

Some commentators have posited that the substantial growth in governmental record-keeping capability upsets the existing power balance between the individual and government.²⁸⁸ Much of an individual's freedom rests on his ability to act in relative anonymity.²⁸⁹ The accumulation of information about individuals, however, increases the government's power by facilitating its ability to monitor the individual directly. Thus, growth in society's record-keeping capability poses the risk that existing power balances will be upset.²⁹⁰

With exceptions in criminal prosecution or personal autonomy decisions, there are few restraints on the power of the government to collect data. The government has been restrained under the First, Fourth and Fifth Amendments when its attempts to collect information have impacted the individual's right to exercise freedom of choice in birth control, abortion and marital choice matters.²⁹³ As a consequence of these prohibitions, the government's right to collect personal information has most often been challenged as a violation of constitutional rights.²⁹⁴

Another troubling aspect of the Privacy Act is its silence on the issue of revealing third-party sources of information. If the source is a part of the record, it must be revealed. However, the Privacy Act does not obligate the agency to disclose the information's source. This works adversely to the interests of accuracy in the information. The subject must be in a position to know the source of third-party information to successfully challenge it.

The Privacy Act presumes the individual's consent to use and disclose the information for "routine use" but requires that consent be sought before the record is disclosed for other uses.²⁹⁸ Unfortunately for the individual, the agency is not required to explain the extent of disclosure subsumed under the heading of "routine use." As a consequence, the individual may not be aware of the uses to which the government will put his information. Once such information is disclosed to a third party, there are no requirements that the receiving agency use it in a manner or for a purpose consistent with its original collection.

Although the Privacy Act directs each agency to establish security and confidentiality standards for the use of the personal information files, it does not create any mechanism for systematic review of the adequacy of these standards. The only other notice provision is activated when the use of the information may result in an action adverse to the individual. Pursuant to the individual's challenge to the information's accuracy, the agency is directed to collect information to the greatest extent practicable from the individual himself.

The Paperwork Reduction Act of 1980 limits the collection of information from individuals.²⁹⁹ This Act requires any agency soliciting information from members of the public to inform the public of the reason for which the information is being sought and whether the failure to comply with the request will affect the individual's eligibility for benefits. The Act also gives the federal Office of Management and Budget (OMB) the power to determine whether the requested information has already been collected by a different agency; if so, the OMB may deny the requesting agency the right to seek the information from the individual. It will also refuse to allow an agency to collect information if the OMB finds that the agency will not be able to use the information if collected.

The primary restraint on the government's secondary data collection ability is the Computer Matching and Privacy Protection Act of 1988.³⁰¹ This statute is very broad and provides guidelines for the computerized matching of information for two basic purposes: verification of the individual's eligibility or continued eligibility for government "cash or in-kind assistance for payments under Federal benefit programs"³⁰² and collecting payments or delinquent debts owed the United States.³⁰³ The government's eligibility to match information is conditioned upon its obtaining written consent from the individual.³⁰⁴ Most important for the individual are the statute's requirements in the event that adverse action results from a matching. Before taking the adverse action, the government is required to make an independent verification of the facts and to extend to the individual the opportunity to contest the findings of the agency.³⁰⁵

Governments now routinely match individuals' data files in multiple agencies to discover violators of laws. Despite the efficiency benefits of these means, some commentators characterize information matching as an unnecessary governmental fishing expedition.³⁰⁶ Their opposition is apparently based on the belief that the difficulty of combining paper personae residing in different offices provides the individual with a modicum of privacy. An efficient data-matching system foils this de facto privacy.³⁰⁷ However, courts considering this issue have not found in favor of the individual.³⁰⁸ In Jaffees v. Secretary of Health Education Welfare, the government matched an individual's social security and veteran's records and determined that the individual's benefits should be reduced. The court stated that the constitutional right to privacy did not extend to a matching of documents to determine the individual's right to continue receiving governmental benefits.³⁰⁹

While the Computer Matching and Privacy Protection Act of 1988 outlines rules regarding disclosure of records in connection with "matching programs," it does not cover matching programs that are "non-threatening" to the economic or privacy interests of individuals whose records are matched.³¹² Pursuant to its authority, the Office of Management and Budget (OMB) is required to issue guidelines that would standardize the data-matching activities of different government offices. The effect of the Computer Matching Act was to partially nullify provisions of the Privacy Act.³¹³ Likewise, the Paperwork Reduction Act of 1980 provides that the OMB may refuse to allow an agency to collect certain data if it concludes that another agency has already collected the information or that the agency proposing to collect the information cannot use it.³¹⁴

The Right to Financial Privacy Act requires the government to give the individual notice before the government can get financial records of the individual from a bank.³¹⁵ The act's primary function is to restrict access to financial records in institutions in which the federal government has either a financial or regulatory interest.³¹⁶

The Family and Educational Privacy Act limits the information which schools and other institutions can disclose about individuals.³¹⁷ Notably, while there have been several attempts to pass legislation concerning health records, Congress has yet to enact a privacy protection statute for personae based on health transactions.³¹⁸ Thus, while there are some constitutional and statutory constraints on the government's collection and use of personae, these limits offer only minimal protection of the individual's right to act in seclusion.

Unless the disclosure has a perceptible and direct impact on a recognized constitutional right of the individual, the public interest in open information will override the individual's interest in privacy.³²² The basic premise of open records is the American policy of open government. The Freedom of Information Act³²³ (FOIA) was enacted to promote this policy.

Freedom of information laws that support the public's interest in disclosing government-held personae can conflict with individual or commercial concerns for privacy. In serving the public interest, governments collect an extraordinary amount of information about citizens, businesses and other organizations.³²⁴ Much of this information has been theoretically available to the public by law for a long time, but has been protected by the effort required to retrieve it in a manual record-keeping system. Automated systems reduce the cost and time barriers to wider access to these public records, raising the issue of the extent to which this information can and should be publicly available.³²⁵

The basic premise of the Freedom of Information Act (FOIA) is that federal records must be open to public scrutiny unless they fall within one or more of seven exemptions.³²⁶ In operation, FOIA precludes the disclosure of otherwise public information if it would infringe on the privacy of the individual. In United States Deptartment of Justice v. Reporters Committee for Freedom of the Press,³²⁷ the Court held that FOIA's mandate to avoid "unwarranted invasions of privacy" prevented the disclosure of an FBI rap sheet, which combined reports on an individual's arrests and convictions from various state and federal law enforcement agencies. The Court stated that the determination of whether

The news media claim to represent a public interest in government-held personae. There are few deterrents on the news media's desire to publish personal information about the "newsworthy."³³⁰ The right to privacy urged by Warren and Brandeis would allow an individual to recover damages for widespread publication of information about him.³³¹

Economic competition is often based on access to special marketing information, such as a customer-base composition, salary, product preferences and frequency of purchase, credit history and residential patterns.³³⁶ The availability of the persona has created an industry in which the secondary use of information can generate direct sales solicitations known as direct mail.³³⁷ The practice is so pervasive that in 1992, the Direct Marketing Association reported that 66 of the Fortune 100 and 190 of the Fortune 500 used some level of direct marketing.³³⁸ The mere receipt of the "junk mail" generated by this industry has never been considered to be a major problem for the individual,³³⁹ but the phenomenon raises two persona protection issues. First, data marketers have the ability to collect and manipulate information even when the individual has had no prior contact with them. Second, there are no requirements that the direct marketers check the accuracy of the newly created persona with the individual or refrain from transferring the persona thus created to yet another party unknown to the individual.

As information becomes a more valuable commodity, increasing tensions are arising between those who wish to sell it through new information systems and those, like the public libraries, whose traditional role is to treat information as a public good available to all. These tensions may stem from the competition between government-collected data made available through freedom of information laws and commercial data services.

Commercially marketable information may invade privacy when computerized mailing lists compiled from third-party information sources are used without the knowledge or consent of the individual involved.

In many cases, courts would have to broaden the existing definition of likeness to apply this tort to an electronic persona. Unlike photographs, personae in the form of data-marketing profiles have not yet been determined to be likenesses. While both photographs and marketing profiles can give a clear image of the subject, the distinct media in which the "likenesses" are created pose very different issues for the application of the tort to personae in the electronic wilderness.

For the appropriation tort to be actionable, a complete and easily recognizable likeness of the individual must have been used.³⁴⁴ To apply this tort to redress the nonconsentual use of the electronic persona, a standard of completeness would have to be established. Different profiles of the individual, having been compiled by different parties for different purposes, may contain some but not all of the available information concerning the subject. The information in any profile may be correct, but that would not necessarily make the profile a complete "likeness" of the subject in the traditional sense.³⁴⁵ By the same token, inaccurate information would not be actionable under this tort, since inaccurate information could never be a "likeness" of the subject.³⁴⁶

The "name appropriation" aspect of the tort would not be difficult to apply in redressing abuse of the electronic persona. A great deal of information is accessible under the individual's name.³⁴⁷ By use of the "name," a user of the persona would be able to access any and all personal information filed "under" it. Once accessed, the information could be used to the acquirer's benefit without the consent of the subject.³⁴⁸

While this tort can represent the civil branch of the unauthorized access cases, it does not focus on the privacy of the persona per se. Rather, it focuses on the concept of intrusion into a protected area. Unless mere intrusion is equated with access to the persona, or the intrusion is accompanied by appropriation of the information, this type of tort recovery would not ordinarily redress a violation of the individual's interest in his persona.

In at least one instance, a court has recognized the propriety of extending this tort to non-physical intrusions. In Pearson v. Dodd, Senator Dodd alleged that his privacy had been invaded by Pearson's publishing of information allegedly stolen from his files.³⁵³ Since Pearson had not himself perpetrated the intrusion to obtain the files, the court failed to find that the intrusion tort had been established. It did state, however, "We approve the extension of the tort of invasion of privacy to instances of intrusion, whether by physical trespass or not, into spheres from which an ordinary man . . . could reasonably expect the particular defendant should be excluded."³⁵⁴ This echoes the Fourth Amendment's protection of areas in which the individual has reasonable expectations of privacy.³⁵⁵ In Dodd, the intrusion was accompanied by disclosure of the information without the consent of the data subject. Thus, it did redress the violation of the individual's interest in his persona.³⁵⁶ Similarly, the intrusion tort might be used to redress unauthorized access into personal home computers by third parties via modem.

Should the intrusion tort be applied only to individuals who lack authorization to access the information? Society could conclude that the tort should be applied to the individual who has authorization to access the information but who discloses the information without the consent of the subject. Whether the end-user knows the information he received had been improperly obtained should not be relevant to liability. Such a result would be in keeping with the prevailing view on misappropriation in trade secret law. Pursuant to the Uniform Trade Secrets Act, an individual cannot defend himself against a claim of misappropriation by alleging that he properly acquired the information if he is aware that his source misappropriated the information.³⁵⁷

The cases in this area have refused recovery for publication of any information visible in a public place.³⁶¹ An individual's name is not ordinarily considered to be private or personal information. Despite this perception, an individual's name can provide access to the social security number and the individual's entire credit history.³⁶² In addition, pieces of information may be public in the traditional sense if disclosed separately but become private as they are combined with one another. At what point does the compilation of public facts give so complete a view of the subject that it should be considered private?³⁶³

The unrestricted release of combinations of name and address has resulted in unfortunate consequences. Rebecca Schaefer was murdered in her apartment by an obsessed fan. After stalking her for two years, he obtained her address from a private investigator who requested the information from the California Department of Motor Vehicles. These records were available to the public in California for a fee. The fan used the information to go to Ms. Schaefer's home, where he shot and killed her.³⁶⁴

Even if information could be labeled private as opposed to public, the compilation of "private" information and "public" information in one profile might allow the dissemination of both. The traditional defense to a claim of public disclosure of private facts is that the published matter is of general public interest.³⁶⁵ The key question is how to distinguish between that information which is genuinely private and that which is of public interest. Borrowing from the constitutional arena, we can discern a number of areas which have been consistently labeled private and therefore protected.³⁶⁶ Perhaps these areas reflect the consensus of the public as to what arenas are truly private and therefore deserving of the greatest protection and consequently the greatest penalty for disclosure. In some cases, the courts have allowed recovery for disclosure to a limited public.³⁶⁷ Disclosure to one person would not be compensable unless the disclosure constituted a breach of contract, trust or confidential relationship.³⁶⁸

In the absence of a special agreement between the individual and the merchant, there is no relationship of trust and confidence. Thus the disclosure of information concerning the individual's transaction with the merchant would not be tortious. Computerized information would be hardest put to fit this tort category without statutory guidance.

The disclosure of true personae will not be actionable under this tort. There is precedent, however, allowing recovery for the negligent disclosure of untrue electronically stored information to third parties. In Greenmoss Builders, Dun and Bradstreet issued a false report to five subscribers stating that Greenmoss was bankrupt.³⁷¹ This report, in addition to Dun and Bradstreet's recalcitrance in correcting the error, wreaked havoc on Greenmoss's reputation. In awarding compensatory and punitive damages to Greenmoss, the Supreme Court stated "permitting recovery of presumed and punitive damages in defamation cases absent a showing of 'actual malice' does not violate the First Amendment when the defamatory statements do not involve matters of public concern."³⁷²

False light, on the other hand, redresses publicity which places the individual in a false light in the public eye.³⁷³ True information which is contextually inaccurate should be compensable under this form of the tort.³⁷⁴

The definition of "public" must also be established in this context. Ostensibly, any disclosure of false information to a third party makes the information public. The usual case brought under this tort, however, deals with likenesses that have been used in advertising campaigns or news publicity and thus discloses the false light to a multitude of people.³⁷⁵ Although the potential scope of disclosure is broad for information accessible by virtue of computer-matching programs and data transfers, the public-at-large requirement of this tort should not be relaxed. This tort provides redress for a narrow spectrum of conduct in "news" publicity. Redress for the non-news agency publication of inaccurate information might be better addressed by other methods.³⁷⁶

The difficulty with fitting electronic personae under the wing of the right to publicity is that a persona is the object of both the right to privacy and the commercial marketplace. The persona is reflective of the individual's personality with regard to his habits and patterns of spending and attitudes. As such it would come under the protection of privacy. It is this very quality which makes the persona valuable to the secondary market user. As an object of commerce, however, the persona relates more to the right of publicity than it does to the right of privacy.³⁸² In Haelen Lab, Inc. v. Topps Chewing Gum, Inc., the defendant chewing-gum manufacturer obtained authorization to use a ballplayer's photograph in connection with the sales of defendant's gum, despite defendant's knowledge that the ballplayer already had granted the rights to plaintiff, a rival gum maker.³⁸³ Defendant argued that there was no actionable wrong because the contract with plaintiff was simply a release of liability from the use of ballplayer's photograph, which would merely have been a violation of the ballplayer's right to privacy.³⁸⁴ Thus defendant concluded that since privacy is a personal right and hence not assignable, plaintiff's contract with the ballplayer vested in the plaintiff no "property" right or other legal interest which defendant's conduct invaded.³⁸⁵ In denying defendant's position, the court stated:

The confusion of the right to publicity and the right to privacy poses great problems for the protection of personae. The two theories protect two distinct interests of the individual. The right to publicity is founded on the presumption that the individual seeks exposure of his personality, and such exposure demands compensation to the individual for use of the persona. It is an economic interest subject to appropriation in exchange for consideration. In contrast, the right to privacy is premised on the individual's right to maintain a certain degree of solitude, the invasion of which can be punished.³⁸⁷

Only under limited circumstances would the law of copyright allow the individual to control the use of his electronic persona. Copyright protection attaches at the moment of creation for all "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device."³⁹³ Since the electronic persona is not "fixed in any tangible medium of expression," it would be outside the protection of copyright.

Assuming that this problem could be overcome by legislation, not all indicia of identity are copyrightable. While a name in a personal-information file does identify a specific person, there is no agreement that names are per se protected by copyright.³⁹⁴ Names and likenesses do not become a "work of authorship" simply because they are embodied in a copyrightable work such as a photograph.³⁹⁵ This is different from the right to publicity in which a cause of action is triggered by the unauthorized reproduction or other use of a name or likeness.³⁹⁶ Consequently, personal identity and the indicia by which they are recognized are outside the subject matter of copyright.³⁹⁷

The persona is a compilation of facts about the individual. Many of these facts can be obtained from the records of government entities. These records are collected by government entities pursuant to their regulatory functions. Conventional wisdom labels such records "public information." This means that, as a reflection of the workings of government, the information is a resource freely available to any seeker. Barring special circumstances, such information would most likely be disclosed despite the individual's desire to prevent its disclosure. It is this "public source" feature of the persona which prevents easy conceptualization of the individual's persona as private property.

Ultimately at stake here is society's conception of human identity and individuality. Currently, the content and accuracy of the persona depend on information compilation decisions made by parties unknown to the individual. This divests the individual of his ability to shape his own identity and control its manipulation.³⁹⁸ If the persona is merely a commodity to be manipulated at the whim of the collector, then the individual has no control over either his public face or private identity.

As property, the electronic persona is like any other resource and should be managed accordingly by balancing the competing interests in its use. This does not mean that information easily fits our commonly held notions of property. In many ways, personal information does not conform to the existing definitions of either personal or intangible property.⁴⁰² Ascribing property rights to information has been a difficult task for the law.⁴⁰³ Information is not destroyed in the act of consumption. It exists to be consumed again or by more than one person simultaneously. In this respect, it is the "classic public good" which all can enjoy in common.⁴⁰⁴ Physical commodities depreciate with use and must be replaced. Information need not depreciate with use and may, in fact, appreciate as knowledge and experience accumulate. Conversely, information can depreciate with non-use over time, and obscure knowledge that is not accessed becomes valueless.⁴⁰⁵

Traditionally, the persona was classified as public or private information based upon whether its possessor was a public or private entity. This system of classification should be re-evaluated if the individual is to maintain any control over the disclosure of information about him. The tension between the public and the private reflects the notion that, as individuals, our identity is largely defined by the objects to which we can control access or own.⁴⁰⁶ We are identified by that which we own as distinguished from that which is commonly owned. If we can exclude others' access to an object, then the object is established as our property-it is private. On the other hand, everything that is not privately owned is considered to be within the common. Such an object may be used freely without regard to concurrent claims by others. This rule of common use lasts until rules determining the power of exclusion can be established to guide use of the resource.⁴⁰⁷

Privacy has never been viewed as a right without limitation. The law consistently balances the individual's need for informational privacy with the needs of society for the collection and disclosure of personal information concerning the individual. A new view of privacy may act to balance these opposing forces.

No rules effectively balance the competing uses of a persona in the common of the electronic wilderness. Information is to the twentieth century what real estate was to the medieval economy-a basic resource that influences transactions. Modern society is an information society.⁴⁰⁸ Rules must now be developed to reconcile the variety of uses to which this resource is put.⁴⁰⁹

Historically, locking out the public was an effective method of maintaining control over one's property. Contemporary computer technology has eliminated such a simple solution. The individual cannot "lock out" the government once he has divulged his persona to it. While computer security laws will protect the persona to an extent, security will not prevent an authorized record keeper from unauthorized secondary use or disclosure. Computer technology makes the privacy of the persona alienable in the sense that it can be separated from the subject individual. Access to the persona in the database performs the function of publishing personal information in the physical world. If the record keeper is given exclusive rights to disclose the persona to any third party, then the individual's privacy interests in that information have been alienated. In this manner, privacy and property meld in the electronic milieu.

This is contrary to the common law view of privacy as an inalienable right of the individual.⁴¹⁰ At common law, privacy rights may be waived, but they cannot be sold, transferred or appropriated. By contrast, the persona and, therefore, the individual's privacy can be sold by any holder of the file. It can be transferred to any number of parties with or without the knowledge of the subject individual. The privacy of the individual is appropriated by the act of disclosing the file. These characteristics make the electronic persona sui generis. The persona is a unique combination of privacy and property rights that requires a new view of existing doctrine if society is to successfully balance those interests which compete for its use.⁴¹¹

On the frontier, electronic personae are merely indistinguishable parts of a larger database sold as a commodity.⁴¹² While the database itself may be considered property by the collector, the individual files constituting it are not recognized as the property of the data file subject. The distribution chain of these databases makes it relatively easy to lose sight of the individual's interests in any single persona contained within it. The database can be sold or transferred to a series of database users in commerce, each user modifying or redistributing the database as he sees fit. The database can also be transferred between two agencies pursuant to the agencies' functions. Since each user following the original collector can modify the information within it, each user claims a variety of rights to the persona as it moves along a distribution chain. Most of these rights are based in property concepts. The interests of these users are entirely different from those of the subjects of individual files within the database.

The individual's problem is particularly acute if the persona collected by government is viewed as being within the public domain and not property of the individual. The persona is simultaneously a valuable resource for the record keeper and a reflection of the individual's identity.⁴¹³ To date, the value as a commodity to the user has been given precedence over the value to the individual.

The exchange of personal information records from the public to the commercial arena is based on the understanding that the information from which the database is compiled is not protected from secondary use by virtue of law. The government makes no contract of confidentiality with the individual. Neither does its disclosure of public records breach any trust with the individual. Individuals cannot ordinarily claim that the government has a confidential relationship with them. The government is therefore not prohibited from disclosing most of its information under the freedom of information laws. Since such information is an unowned resource, it can become a chattel to the user who collects and compiles it.⁴¹⁶ Its nature as a chattel is determined primarily by the identity of this collector, so that the collector is free to collect, compile, store and disclose any factual information it legally acquires.⁴¹⁷

The individual's interest is impacted by the exchange of these data in several ways. A collector may make and keep a record about the individual in order to maintain a relationship with the individual. The collector may keep this record to document its own actions to a regulating institution,⁴¹⁸ so that the regulating entity can monitor the activities of not only the collector but also the activities of the individual.

Since in the public domain this information is an unowned resource, the parties to its exchange have the right to agree between themselves what type and how much information concerning individuals they may acquire. Their decision to collect the information is not necessarily limited by the lack of a present need for the information. In addition, the holder of the information is not ordinarily restricted in his ability to decide to whom and when the information may be disseminated.⁴¹⁹

In any event, the concerns of the person behind the persona are not taken into consideration. There are several reasons for this omission. While the electronic persona may hold highly personal information, the individual can not be said to "possess" it since he did not compile the particular persona at issue, nor does he have an ownership interest in the database which houses it. In the absence of these obvious ownership attributes, the assumption has been that the individual can restrict neither the collection nor the disclosure of the persona to anyone. Such information is essentially free.⁴²⁰ Any limitations placed on parties' ability to collect or trade information in the market are tied only to specific statutes.⁴²¹

The public source of the basic data comprising the electronic persona need not be determinative of the persona's status as "public" information. There is authority for the proposition that availability from one public source does not make a compilation of that information public. This means that while the data may be public and available for disclosure at various source collection points, a compilation of that data can be protected from disclosure. In D.O.J. v. Reporter's Committee for Freedom of the Press, the United States Supreme Court refused to require the government to disclose an FBI compilation of an individual's rap sheets from several jurisdictions across the country.⁴²² The Court determined that while the record of each infraction was a public record in the jurisdiction in which it occurred and would have been freely disclosed there, release of the compilation constituted an "unwarranted invasion of individual privacy."⁴²³ The Court based its decision on the fact that, although single entries reflecting each agency's interaction with the individual were public, once compiled with similar information from several jurisdictions, the data became more a persona of the individual than a reflection of the information-collection activities of government. Disclosure of such information was not within the parameters of a proper FOIA request, and therefore the exemption from disclosure was properly invoked.

Reporters Committee established that the persona's public record roots do not necessarily render the persona itself a public record. Consequently, compilations of facts can be protected by the property rights derived from the privacy claims of the individual about whom the persona is collected. Reporters Committee also implies that merely being recorded by a public institution does not necessarily mean that such information is of "general knowledge" and therefore immune to the individual's privacy claims.

The law of copyright and trade secrets also supports the notion that the compilation of data ostensibly residing in the public domain can give rise to a variety of enforceable property rights in information.⁴²⁴

One hundred and six years ago, Warren and Brandeis found themselves in the position of describing a new sphere of protection for individuals in the face of modern technological advancement. The growing use of computerized databases to store and disseminate personal information puts us in much the same position in 1996. Computer technology has created several problems for individuals seeking to maintain a small degree of solitude in the electronic wilderness. In that wilderness, the individual's privacy, in persona form, is being manipulated by various users. As the persona passes through the successive hands of the collector and user, its identifiability to a specific individual is not recognized in any sphere. Consequently, the electronic persona is largely unprotected from public, commercial and governmental collection and disclosure in the secondary market. This imbalance is enforced by the existing information-regulation structure.

Current problems of protecting the individual's privacy are myriad. The malleable nature of the persona makes its conceptualization as a definitive piece of property difficult. Since each persona was compiled by a different collector or user for that entity's own purposes, a single individual may have many different personae with varying characteristics. There is no consistent mechanism requiring the individual's consent prior to disclosure. Currently, as a matter of law, an individual in possession of information has the right to disclose it. Since the interests of the information collector or user are not coextensive with those of the individual, neither the collector nor even the user can give a valid consent for disclosure on behalf of the individual. No rules currently establish a consistent pattern in the respective duties of persona users and information collectors to the subject of the personal information file. Access to the persona is not limited to those with a legitimate need for the information. Moreover, there are few effective sanctions against unauthorized users. There are even fewer incentives to encourage the policing of access by the "possessor" of the electronic persona.⁴²⁶

In addition to these problems, the individual does not have a guaranteed right to discover the existence of records collected about him, and the informational accuracy of these records is not generally mandated by law.⁴²⁷ There is no clear view of the nature of the harm which will trigger a claim for breach of informational privacy. Assuming that the individual is harmed by the nonconsentual disclosure of his persona, there has been no determination as to whether a cause of action must be premised upon a finding of tangible loss. Likewise, there is no determination as to whether merely a finding of a nonconsentual disclosure of personal information will be sufficient to support a cause of action. Finally, there is no consistent pattern establishing the penalties that will be imposed for a violation of the individual's rights.

The resolution of the problem of regulating the myriad interests in the persona should begin with reference to the law of property, since property concepts have long been used to balance competing interests in valuable resources. The prime example of such use of property law was the creation of the many estates in land in common-law England. In the agrarian economy of medieval Europe, the primary object of the economy was real property. Property rights were created by the state to establish a balance for orderly use of a common resource. To fully utilize this resource, a complex set of rules surrounding its ownership developed. The basic concept of these rules was the common but specifically delineated usage of privately held property. This was demonstrated by the creation of a variety of rights of possession, or "ownership," which could be recognized in one parcel of real estate.⁴²⁸

By way of analogy, each of the four interest groups-the individual, the commercial, the public and the government-could have a property interest in the individual's persona. How can these interests be balanced as the persona is transferred from collectors to successive users? The resolution of the problem hinges on a determination of which party has the strongest rights to the property as it passes through a succession of hands. Such a resolution should establish the respective responsibilities of the parties along the electronic distribution path and must necessarily rank the need for the use of the electronic persona in determining the appropriateness of its further disclosure.

The persona should be viewed as property, the ultimate "ownership" or "fee simple" of which resides in the individual. The rights of any other entity (i.e., any group, class, association or government) that might obtain, access, make use of or disclose the persona would be subordinate to those of the individual. As with other forms of property, the individual's right to restrict the use of his persona by others would vary depending upon the reason for the use.⁴²⁹

The recognition of a property right in the individual about whom the persona is collected does not detract from the interest any collector or compiler of databases may have in the same persona. It does mean, however, that any information-collector's interest would be "subject" to that of the individual in some important respects. A basic premise of the law creating this property right should be that the identity of the holder or the information (government or private) industry would not determine the nature and extent of protection provided the individual. This is consistent with the current balancing of interests required both constitutionally and by existing regulatory statutes.

The property analogy is not without its difficulties for the electronic persona. Historically, the protection of any property was based on the presumption that the object to be protected had a consistent configuration regardless of the holder's identity. In contrast, the electronic persona is characterized by its mutability. Created and continually manipulated by parties other than the individual, the electronic persona may be the compilation of any variety of pieces of personal information. The key to recognizing a property interest in the electronic persona must be based in the identifiability of the persona to a specific individual. Once that link has been established, the persona "belongs" to the individual about whom it "speaks" without regard to the source or content of the specific pieces of information constituting it. Thus the electronic persona could be defined as a collection of at least three pieces of personal information concerning the individual (or those for whom he is responsible) that identifies the individual(s): for example, name, social security number, selective service number, finger print, etc.

The common-law view was that an owner could never be deprived of his ownership rights without either consent or compensation.⁴³⁰ This theory is the basis of the current protection of identity as persona under the intellectual property doctrines of the right to publicity, misappropriation and copyright.⁴³¹ Each of these doctrines is premised on the protection of various indicia of a specific person's identity from its commercial exploitation or use by a third party.⁴³²

Applying this view to a holder's use of the persona would suggest that any holder of the persona must bargain with the "owner-subject" for the right to use the information.⁴³³ The bargaining would involve negotiations for the price or use of persona. While there are often elements of financial gain in the use of the electronic persona by a holder, a profit motive is not always the primary incentive for its use. Governments, insurance companies, hospitals and schools all use the persona in the course of their respective operations but do not directly or consistently make a profit from this use. Thus, requiring payment for the use of the persona would not be appropriate in many circumstances, though the holder's ability to use the persona could still be regulated. The law does not require compensation for the appropriation of all valuable property. Ideas can be very valuable, but their use need not be compensated under the copyright law.⁴³⁴ The historic treatment of information from public sources has precluded the need to pay for such information's use per se.

On the other hand, the failure to require payment for use of the persona does not negate the need to recognize a protectable property right in the subject individual. If information is the driving force of the economy, then its use must be regulated for the benefit of all society and a valid consent must be procured for its use. A pre-disclosure consent requirement does not necessitate compensation for the persona's use. The focus of any uniform persona-protection statute should be on the electronic persona which is specific to an individual. The privacy sought on this new terrain of the electronic wilderness would give an individual a legally recognized power to manage the distribution of his persona. The privacy would have two aspects. First, it would allow the individual to regulate the extent to which any third party could obtain, access, make use of or disclose a persona concerning him or those for whom he is personally responsible.⁴³⁵ Secondly, this privacy would empower the individual to monitor and correct the accuracy of a persona compiled concerning him or those for whom he is personally responsible.

For the individual to exercise this power, he must be able to control the information-collector 's disclosure of the persona to third parties. A statute creating an agency relationship between the information holder and the individual for the purposes of regulating the secondary use of the persona would be an effective method of securing this power to the individual. The holder's duty as agent would be to use the information consistently with the purposes for which it was collected from the individual and to refrain from disclosing or allowing access to the information to a third party without the individual's consent. The privilege of the holder to use and disclose the persona would carry a double warranty: a warranty of authority to disclose and a warranty of accuracy.

Under the warranty of authority to disclose, the holder would be required to determine from the individual the extent to which secondary disclosure of the electronic persona is acceptable before the holder could disclose the information to a third party.⁴³⁶ This duty would be imposed upon the holder at the time he acquires the electronic persona.⁴³⁷ Any breach of the duty through "improper disclosure or access" should result in the higher of either statutory damages or actual damages. Attorneys fees should be provided, and criminal penalties similar to those provided by FCRA should penalize willful disclosures. Anyone in the distribution trail of the persona would automatically become subject to this duty, whether or not he had dealt directly with the individual. A secondary holder would be deemed a collector, and would be required to obtain a grant of authority from the subject of the records before either further disseminating the persona or creating a new persona by adding new information. The warranty of authority to disclose would not be transferable.

Concurrent with the warranty of authority to disclose would be a warranty of accuracy. This warranty would run to any collector or user of the information who disclosed the information to a subsequent user. It would warrant that the persona as compiled was accurate as of a specific date. Such a requirement would give the holder an incentive to make sure the persona was accurate and give the individual an added opportunity to challenge the accuracy of information before any damage is done by its disclosure. In essence, the proposed law would give the individual a right to informed consent in the disclosure of his persona.

When a user in the secondary market acquired an individual's electronic persona, he would be required to notify the individual that information had been collected concerning him and to obtain his permission to disclose the information. The holder would also have to send a copy of the information he intended to disclose to the individual, identifying the source of the information. The individual would then be given a reasonable amount of time to respond. If the individual disagreed with the accuracy of the information or declined to have the information reported, then the agent would have the duty to act accordingly. An individual's failure to respond within the allotted time would allow the agency to disclose the information.

These duties and disclosure provisions would not apply to information not readily identifiable to a specific person, or to information collected pursuant to criminal or other governmental investigations of a specific individual.

A limited license to use the information for like purposes should be recognized in government matching programs. Since notice to the individual concerning the match must be sent to the individual before any adverse action is taken, no additional burden has been placed on the government. This means that the reasons for the disclosure are a necessary part of the inquiry as to whether the files can be disclosed pursuant to the collector's warranty of authority to disclose.

In addition to the warranties of authority to disclose and of accuracy for holders of the persona, those who give information pursuant to confidential investigations would be required to warrant the truth of their observations or statements. If the information given were later found to have been false, then the confidentiality of their identity would cease and they would be subject to damages to the individual. The individual should have ready access to any information, including medical records, which are collected about him.⁴³⁸

The proposed statute should make the accounting provisions of the Privacy Act applicable to all statutes that govern the collection or disclosure of personal information. This would give the individual an opportunity to discover the existence of records concerning him and whether they had been disclosed to third parties. The addition of an annual review opportunity for individuals would enable the individual to properly assess the extent of his exposure.

Finally, the proposed statute would require all organizations maintaining files containing personal information about individuals to rank their personnel with respect to their ability to access the personal information files about others. The ranking should be based upon the sensitivity of the information to the individual and the need of the personnel to access the information in their duties for the organization. The information holder should develop required procedures for accessing the electronic persona which are proportionate to the nature and potential impact of the data's disclosure upon the individual. There is precedent for such a result.⁴³⁹

Since the persona is identifiable to a specific individual, the electronic persona is "owned" by that person despite its configuration. It is this very identifiability which makes it property. Following this premise, an individual needs certain legal powers over the use of his electronic persona. The suggested provisions could provide a modicum of solitude to the individual as he seeks shade in the land of perpetual sunlight-the electronic wilderness.