Author(s): Paul M. Schwartz
Abstract: In Internet Privacy and the State, Professor Paul M. Schwartz argues that the dominant rhetoric concerning the use of personal data in cyberspace slights the State’s important role in shaping both a privacy market and privacy norms. This Article reaches this conclusion in three steps. In Part I, it first identifies critical shortcomings in the leading paradigm of information privacy, which conceives of privacy as a personal right to control the use of one’s data.
After discussing and rejecting this model of “privacy-control,” the Article in its Part II elaborates information privacy as a constitutive value that helps both to form the society in which we live and to shape our individual identities. This model of “constitutive privacy” indicates that information privacy is necessary to place limits on the power of the state and community alike. Properly devised, information privacy serves to prevent mission-creep by over-zealous norm entrepreneurs in the public and private sectors.
Finally, Internet Privacy and the State in its Part III examines how the State can improve the functioning of a privacy market and play a positive role in the development of privacy norms. Regarding the privacy market, the State’s first two steps should be to: (1) discourage a default of maximum information disclosure, and (2) encourage a market for privacy-enhancing technology. To overcome more general failings in privacy market efficiency, the State should also: (3) reduce information asymmetries, and (4) seek ways to overcome collective action problems. Regarding privacy norms, the State should: (1) encourage norm circumvention by facilitating attempts to bargain around objectionable norms, (2) provide incentives to groups to modify certain kinds of behavior, and (3) help construct positive bandwagon effects.
Keywords: privacy, cyberspace, personal data, incentives