Privacy and Democracy in Cyberspace

In this Article, Professor Schwartz depicts the widespread, silent collection of personal information in cyberspace. At present, it is impossible to know the fate of the personal data that one generates online. Professor Schwartz argues that this state of affairs degrades the health of a deliberative democracy; it cloaks in dark uncertainty the transmutation of Internet activity into personal information that will follow one into other areas and discourage civic participation. This situation also will have a negative impact on individual self-determination by deterring individuals from engaging in the necessary thinking out loud and deliberation with others upon which choice-making depends. In place of the existing privacy horror show on the Internet, Professor Schwartz seeks to develop multidimensional rules that set out fair information practices for personal data in cyberspace. The necessary rules must establish four requirements: (1) defined obligations that limit the use of personal data; (2) transparent processing systems; (3) limited procedural and substantive rights; and (4) external oversight. Neither the market nor industry self-regulation are likely, however, to put these four practices in place. Under current conditions, a failure exists in the "privacy market." Moreover, despite the Clinton Administration's endorsement of industry self-regulation, this method is an unlikely candidate for success. Industry self-regulation of privacy is a negotiation about "the rules of play" for the use of personal data. In deciding on these rules, industry is likely to be most interested in protecting its stream of revenues. Therefore, it will benefit if it develops norms that preserve the current status quo of maximum information disclosure. This Article advocates a legislative enactment of the four fair information practices. This legal expression of privacy norms is the best first step in promoting democratic deliberation and individual self-determination in cyberspace. It will further the attainment of cyberspace's potential as a new realm for collaboration in political and personal activities. Enactment of such a federal law would be a decisive move to shape technology so it will further--and not harm--democratic self-governance.