The Privacy debate losses and more losses in cyberspace.

Peter Timusk

e-mail: ptimusk@sympatico.ca

For LAWS 3501; Law in the Information Society

Due March 17^th, 2003.

I want in this brief paper to look at some hypothetical people involved in the privacy debate. I will look at the readings in our course that concerned privacy, then, see if I can find out where I stand on this issue. When, one considers how ideology, affects the views on privacy and affects the degrees of privacy the state supports, I think privacy concerns in the information society can be viewed as a moral panic.

To some lose of privacy is offensive. I will call these people the 'libs' for libertarians. Others find the use and gathering of information about people to be profitable. This second camp divides into two smaller camps, the not for profits, that still need to raise money for their activities by fund raising, and, the for-profits. The first of these two I will call the 'orgs' for organisations. The second subgroup I will call the 'caps' for capitalists. Then there is another group, that I will call the 'opens'. This stands in for the people who believe we should be totally open about private information. These people believe that, personal information does not need to be private. For a variety of reasons including moral, political, and health reasons, they think honestly representing ourselves in public is important. The 'opens' believe honesty is the best policy. There are a variety of other views and interests about privacy and there are shades of all these views and situational dependencies that affect where people's views fall. In some senses, viewing privacy on a case by case basis and looking at privacy based on the facts of the case makes it the ideal legal topic.

Lessig gives us cases where privacy is an issue in the information society. With 'perfected regulation' and 'trusted systems' designed to protect copyright, we can no longer read in private, says, Lessig.

The 'opens' would say it should not matter if others know what we are reading because we should be responsible for what we read. Those who know what we are reading are only free to react in a limited way to what we read. Legally we are still free to read what we want baring hate literature and certain forms of pornography. The Personal Information Protection and Electronic Documents Act (2000) purports to protect personal information and this might apply when people know what we are reading. Valerie Steves's analysis of the policy work by the IHAC leading up to this act shows that this protection might not actually exist. Maybe this fails to make my point about the 'opens'. I am presupposing the existence of the laws and then the laws do not quite cover this case. As well as, the protection of the new laws the 'opens' believe they have nothing to hide. Anonymity does not matter to the 'opens'.

The 'caps' need to know what we are reading, so that they can make more books for us and make sure that we pay to read. The 'orgs' might say something more. If we are not reading about their cause, we should be. If we are reading about their cause, we might be good people to ask for money for the cause. Therefore, both the 'caps' and the 'orgs' need to know what we are reading for financial reasons. The 'orgs' also need to know if their message is reaching the public. The Heart and Stoke Foundation need to spread information about the symptoms of a heart attack to save lives. There is a public agenda with being able to monitor the extent of sharing of useful information. Amitai Etzioni argues that the public agenda needs to take precedence over privacy in more cases than at present.

I would argue that Lessig is one of the 'libs'. If 'libs' want to read a banned book, they believe they should be able to read it without others knowing they are reading it. This libertarian argument seems to cause many law enforcement headaches. Do we in Canada really want people to be able to read Steal this Book, by Abby Hoffman or similar work in private without someone knowing about it?

I think that if we accept the 'opens' view we solve this problem of anonymity of what we are reading.

Lessig in his chapter on privacy offers another case to look at, the case of tinysex in MUDS.

The 'libs' might argue that they should be free to have tinysex and should be free to keep sex private. This, of course, might be the way we could structure our state and media. We could restrict the expression of sexual matters. To some extent, we do this now in North America. I think the libertarians would not like this because we might restrict sex too. In China some years ago, sex was restricted. It is possible to run a society this way. From what I know of Arab societies, and it is limited knowledge, sex is not as public as it is here. This points to the ideologies behind some privacy positions.

The 'caps' and the 'orgs' might see this tinysex case in another way. The caps cannot make money from sex, or maybe they can. Perhaps after this MUD died the people who set it up and were profiting from running a MUD, learned that sex sells, and opened a porno MUD site where tinysex and invasion of privacy happened all the time. But no the public sex destroyed the MUD. The fact is sex does not sell ethically. As Boyle argues, sex can not be for sale legally because it is a family matter.

The 'orgs' might see the tinysex case as destructive of community building. The 'orgs' might further object to public information of some topics because they destroy rather than build community.

Yet, the 'orgs' want to allow some kind of public information. This is a type of information definition by the 'orgs'. Boyle attempts to illustrate defining information in his Chapter 3.

In this chapter, he gets the concept of schizophrenia wrong as too many legal scholars seem too. He also seems to think Dali, Maggrite, and Escher are somehow similar artists. Each artist in my opinion depicts different not similar social orderings in their works of art. Boyle attempts through his book to look at how we define information. He either, sees information as costly, or free in microeconomic terms. I think he sees the public agenda that the 'orgs' would have for the spreading of information but perhaps does not give it as much weight as a Canadian should. Here to the government might see the same view as the 'orgs.' Some information must reach the public. It would be nice to know they got it.

The 'opens' would argue that sex is natural. That if some people like to kiss and tell that is human nature. We should be responsible for our sexual actions, say the 'opens'. Being open sexually creates a healthy social environment. Being responsible for our sexual behaviour can create a better society.

Lessig finishes his chapter on privacy by looking at the data gathering by the 'caps'. It seems the 'caps' offer some benefits by marketing well to us. The 'orgs' too might be assumed to be good by gathering data. The 'Lib's can complain until the cows come home. In Canada the Personal Information Protection and Electronic Documents Act has this subsection 4.9 from schedule 1(section 5)

<http://www.privcom.gc.ca/legislation/02_06_01_01_e.asp>, (March 15, 2003).]

This seems to answer one of Lessig's concerns and perhaps improve things for both the 'caps' and the 'orgs'. What would the 'libs' and the 'opens' think about this? The 'opens would be glad this legislation exists. They would argue that they could faithfully represent themselves using this section of the act. They could correct computer error and Lessig's imperfect monitoring.

The 'libs' might think they should be free from commercial invasion of privacy. But in a society based on some communitarian values as Canada and the USA are some sharing of personal information is needed. We are materially, physically not alone. We can not support people materially to be alone. We must live one together all together. This is our fate and destiny. Those who fail to see the community nature of our society should not be allowed to control the public agenda. I do not agree with Libertarians and would hope you would also not agree with them, and see the positions offered by the 'opens' to be the best positions to take on privacy.

Boyle, J., Shamans, Software and Spleens, Law and the Construction of the Information Society, (Cambridge, Massachusetts: Harvard University Press, 1996).

Etzioni, A., The Limits of Privacy, (New York, NY: Basic Books, 1999).

Lessig, L., Code and other Laws of Cyberspace, (New York: Basic Books, 1999).

Mac Neil, M., Cyberspace Governance: Canadian Reflections, in Law Regulation and Governance, Mac Neil, M, N. Sargent, P. Swan, eds., pp. 264-286, (Toronto, ON, Oxford University Press, 2002)