There are two kinds of truths that the law might try to protect:
That's the first kind of privacy the law may want to protect - what we will call informational privacy. The second kind of privacy is more familiar. How much money I have in my cookie jar (bank records raise a different question); what I say in my letters to my lover; what books I have on my shelf; what movies I watch on TV. All of these are facts about myself, truths about myself, to which we all want to control the access of others.
Historically, the law has protected well the second kind of privacy. But the law has not had much concern for the first. It has protected the second kind by protecting property rights: Facts about myself that were kept in my home were protected from the snooping eye, since the snoop was not allowed to enter my house to look. If he did, he trespassed; and if he trespassed, he would be punished. This was true whether the trespasser was a snoop, or a cop: in either case, the law protected my privacy in my home.
But not on the street. Historically, what I chose to make open to the public became public. What I chose to take out of my house (or out of my briefcase) I chose to take out of privacy's protection. True facts I disclosed to the public were outside of my control. For much of our history, this compromise was fairly stable. While facts I disclosed publicly were beyond my control, not much could be done with them. Sure, someone could follow me around to record all the things I purchased with my cash, and then sell that list to someone else. But this collecting would have been costly - more costly than it was worth.
But today, people are more concerned about information that they have made public, since more and more, everything we do is *in a sense* made public and accessible: We make public who we call, or how much money we have, what our salary is, what medication we take, to where we travel, what books we read. All of these facts are in a sense made public. How much control do we have over them?
In this section of our course, we consider these issues of privacy.
We begin with this problem of informational privacy, and then turn to the
more traditional problem of protecting private facts. Both issues are intimately
connected to the emergence of cyberspace, and some features of cyberspace
raise unique problems for the law of privacy. Our message in the end is
that there are more questions than answers about privacy in cyberspace.
We hope at least to frame the questions.
authors: Larry Lessig / David Post / Eugene Volokh