Computers, Privacy & the Constitution
-- KotaroKubo - 05 May 2008

Reconstruction of Public/Private Dichotomy

Bernard Crick wrote in his “In Defense of Politics” (1964) that “politics are the public actions of free men; freedom is the privacy of men from public actions.” In the 21st century, economy has become more based on software, information and knowledge. In this information-driven society, the protection of a right to privacy is essential to guarantee our freedom. In the US, individual’s right to control the circulation of information relating to oneself was introduced into 1970 Fair Credit Reporting Act and then into 1974 Privacy Act, which regulates the information obtained by the federal government. These acts provide mainly for rule in the public sector. On the other hand, many European and East Asian countries have recently established personal date protection act which covers both public and private sectors.

In the 18th century, based on the public/private dichotomy which I elaborated in the first paper, the US Constitution was understood as a norm which was directed against government. The framers of the Constitution thought that any disputes among citizens can be resolved through private autonomy without applying the Constitution. However, in this 21st century, not only government but also big corporations including mass media and search engine companies collect the gigantic amount of information. It means that such “private” big corporations have become a privacy invader.

Limitation of Private Autonomy

We can no more maintain a simple public/private dichotomy to protect our privacy for the following two reasons. First, it would be extremely difficult for individuals to reduce the power gap among various private actors if we leave such gap as it is. A big corporation which collects customer’s personal information forces such customer to unilaterally consent to “their” privacy policy. I believe that now is the time to discuss the content of “our” privacy policy which redresses the law of information jungle.

Second, we should remember that the 18th century Constitution as well as the traditional public/private dichotomy is historical concept which was born in certain Western countries. Though their end should have been to protect people’s freedom and privacy, their means can be differ in accordance with the changes in the times and places. The traditional view that considers human rights as protection from tyranny of the state derives from the liberalistic view of states and the theory of the state as legal person. The concept of human rights does not necessarily entail the assertion that the constitution should not be applied to any dispute among private actors. In fact, the constitution in Germany and other countries influenced by the German jurisprudence is understood as the one which allows a direct application to certain private dispute. A right to privacy must be protected not only from the government but also from private person.

Risk of Intervention by the Government

Yet the Constitution itself said nothing in the rule of information privacy. We cannot deduct therefrom any clear and specific rule as to how to protect our privacy from gigantic corporations. One way to solve this problem is to rely on the governmental intervention into the private sphere. This is the way which has been pursued by the European and Asian countries that established personal data protection act. It is plain, however, that such intervention causes a risk to our freedom. This risk can be well observed in the recent Japanese experience. In 2005, Japan enacted the personal information protection act which was the first overall statute which covers information held by the private sector. This new act’s characteristics are summarized as the following three points:

(1) This act introduced a brand-new ex-ante regulation which is separate from, and in addition to, privacy law as tort case law that functions as an after-the-fact regulation.

(2) While the act strictly regulates transfer or provision of personal data among private sector, it loosely permits data transfer from private sector to government.

(3) If a company or individual fails to comply with this new requirement, the government exercises a power to redress and/or punish such failure irrespective of actual harm.

I find here a serious dilemma between protection and restriction. The Japanese example can be understood as a paternalistic restriction which attempts to substantially realize private autonomy through intervention by the government. The new act will possibly lead to restriction in private autonomy, since it provides a legal basis for the government intervention into distribution of information among private actors.

A New National Privacy Policy

The above discussion can be seen as a dilemma regarding the relationship between individuals and the “intermediate” social organizations. The modern constitution excluded guilds and other “intermediate” social organizations which had suppressed individuals’ freedom so as to simply set individuals over against state. The underlying idea was that the elimination of guilds would ultimately lead to guarantee of individuals’ freedom, and that tyranny of the state should be eliminated by the constitution. However, this idea demands individuals to have firm resolution that each weak individual must face state which has immense power. As a result, individuals rearm themselves with “intermediate” social organizations which were once denied. Nevertheless, history repeats itself. Every newly organized organization easily becomes hardened and turns to an invader.

The relationship between individuals and the modern “intermediate” social organizations (i.e., mass median and other big corporations) should be governed by the following three principles:

(1) These organizations are expected to exercise autopurification system and self-discipline.

(2) In the case which these groups lose self-discipline, individuals should have a right to rearm to establish a new “intermediate” social organization (e.g., NGO in the current era).

(3) If one such group becomes irreparably hardened, the government has the authority to take the necessary measure to recover the self-discipline of that group. However, the government must not intervene in private autonomy more than necessity to substantially guarantee private autonomy.

I believe that we are required to design a new privacy policy which fulfills these three principles. Otherwise privacy guaranteed in our constitution would be euthanized soon or later.

  • I think this essay is too abstract to be fully successful. If the issue that moves it is the state action requirement of Barron v. Baltimore and The Civil Rights Cases, then it does little good to enunciate principles for regulation of private organizations that neither comport with the constitutional requirements nor can be confined rigidly enough to avoid clashing with other constitutional rights (of which free association is merely the most obvious). Identifying a constitutional problem can't be followed by identifying an unconstitutional solution, so more particular approaches that address the constitutional principles themselves may be necessary (I pointed to the Ninth Amendment conceptions offered by Charles L. Black as one such example), or the problem has to be decomposed into parts that can be constitutionally addressed, as was done with environmental regulation issues in the Nixon Era. Because the power to regulate commerce includes the power to regulate commerce in personal information, this approach may seem easier in the short run. At any rate, an essay that took such "mid-level" conceptions as its basis would allow you to combine your strong theoretical predilections with your practical knowledge in a more effective form.


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r3 - 23 Jan 2009 - 15:29:38 - IanSullivan
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