posted Sep 05, 2003
in Communication Ethics

Communication Ethics book part for A New Form of Intellectual Property . (This is an automatically generated summary to avoid having huge posts on this page. Click through to read this post.)

The only practical way to protect privacy is to create a new legal concept matching what I call privacy-sensitive information and create the legal machinery to protect it.

We need to grant entities the right to decide what constitutes "privacy-sensitive information" and require information brokers to respect the fact that the information is considered privacy sensitive and not distribute it. We need clear guidelines on what constitutes "privacy-sensitive" so that people can't abuse it, as they inevitably will. The definition given above would be a good start, as it correctly focuses on people and not technology, unlike other attempts I've seen to create privacy machinery. We need to establish meaningful penalties for violating privacy, applicable across the whole domain of privacy-sensitive information, not mere subsets like "medical data".

Sound ambitious? It really isn't. Already current privacy legislation is hinting at this level of protection. There is precedent for controlling the dissemination of information, in both the form of trade secrets and the concept of confidential information. There is precedent for the owner of information setting value or refusing distribution entirely, as in current copyright law. (Compulsory licensing is the exception, not the rule.) There is certainly precedent for granting only limited rights, not a binary "possession/no possession" status, in current copyright law.

This is not calling for anything truly novel in execution, only a re-combination of already-existing legal machinery. Given the existence of copyright, patents, trademarks, trade secrets, and confidential information, this isn't so much a blazing of new territory as closing a gap in existing communication-ethics-based law, one being exploited by many entities as they benefit from selling our information without passing any benefit back to us.

Finally, one way or another more privacy legislation will be enacted. It can either try to merely address symptoms, which we've already seen in legislation like HIPAA, or more directly solve the fundamental problems. For society's benefit, the latter is much more desirable.

Another nice benefit is that once these protections are enacted, a privacy market can develop, allowing society itself to directly decide what their privacy is worth, almost exactly analogously to how the government manages the economy itself. Many people have researched how this could be made technologically feasible, but without a legal framework enforcing the technological protections, the technological solutions are worthless in practice.


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