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PRIVACY IN CYBERSPACE

Module I - Introduction

Few legal concepts have taken on such baggage as the concept of "privacy." Privacy has come to encompass such varied concepts as the right to make decisions for yourself, the right to travel anonymously, the right to be left alone, and the right to control the dissemination of information about yourself. Additionally, the concept has been applied to so many arenas of contemporary life-from health care, to credit reports, to search and seizure-that the concept itself-akin to words like "freedom" and "rights"-carries multiple meanings in multiple discourses.

The task of our first Module lies in clarifying two things: (1) Why do we care about informational "privacy" --especially Privacy in Cyberspace? What values does privacy protect? and (2) What are the legal sources that will help inform our decisions about what protection should be given online privacy? In addition, (3) we have prepared a short tutorial on how the internet works because many of the issues arising in Cyberspace depend on understanding the technological possibilities for tracking online behavior.

Assigned Reading:

1. Readings on the values protected by "informational privacy:"

Privacy: Circa 2002 (General Introduction to Course)

A Brief History of Privacy:
Ken Gormley, One Hundred Years of Privacy, 1992 Wisconsin Law Review 1335 (excerpts) (1992) (Summarizing the historical origins of the legal concept of privacy in the United States, starting with the 1891 publication of the Samuel Warren & Louis Brandeis article on Privacy)(Excerpt)

Excerpts from: Jerry Kang, Information Privacy In Cyberspace Transactions, 50 Stanford Law Review 1193, 1212-20 (April 1998)(the excerpt focuses on the value question in the online context; i.e., what values does privacy protect?)

2. Introductory readings on the legal background of privacy

Background Introduction

Constitutional Cases on Informational Privacy (read excerpts only):

Katz v. United States, 389 U.S. 347 (1967)
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)
Whalen v. Roe, 429 U.S. 589 (1977)

3. Readings/Presentations on how the Internet works

• Video (OPTIONAL)
  "Warriors of the Net," produced by Ericsson Media Lab (12 minute video presentation introducing some of the mechanics of the web)
  Click here to view RealVideo for 56k modem
  Click here to view RealVideo for DSL/Cable

• Internet 101: An introduction to how the Internet works

Discussion Topics/Assignment:

Please read through the following hypothetical scenario and discussion questions. Use the links after each question to submit your thoughts to the discussion board.

In 1999, a company called RealNetworks was discovered to have inserted software code into its popular RealJukebox software for playing CD's on computers to allow it surreptitiously to monitor the listening habits and certain
other activities of people who use it, and continually to report this information, along with the user's identity, to RealNetworks. When a user went to the RealNetworks website to download the CD playing software, this feature of the program was also downloaded. Most users were unaware of this feature of the software. http://www.nytimes.com/library/tech/99/11/biztech/articles/01real.html

1. What features of this practice, if any, raise privacy concerns? Is the concern that RealNetworks did not tell users who downloaded their software that it was collecting data regarding their music preferences? Or, is there something troubling about such monitoring in general-even if the website tells a user about the practice?

2. What privacy values did the RealNetworks practice affect?

(Note that after a public outcry RealNetworks abandoned its monitoring efforts: http://www.nytimes.com/library/tech/99/11/biztech/articles/02real.html)

Go to Discussion Summary

Additional Background Readings (optional):

A. A. Michael Froomkin, The Death of Privacy?, 52 Stanford Law Review 1461 (May 2000)(excellent article exploring risks posed by new technologies to online privacy, as well as privacy generally, and explores overall legal background to these issues).

B. Jerry Kang, Information Privacy In Cyberspace Transactions, 50 Stanford Law Review 1193 (April 1998) (a foundational article focussing on the legal issues surrounding the privacy of transactional data in cyberspace).

C. Simpson Garfinkel, Database Nation (2000).

D. Alan F. Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970's, 66 Colum. L. Rev 1003 (1966)(author is one of the leading thinkers on how technology affects privacy; suggests values of privacy include solitude, intimacy, anonymity, and reserve).

E. C. Keith Boone, Privacy and Community, 9 Social Theory and Practice 1 (1983)(develops values of privacy)

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