Lisa M. Austin

Privacy and the Question of Technology

Technology is not simply eroding our privacy — it may also be forcing us to rethink what we mean by privacy. Increasingly, what we are worried about are practices that involve collecting, using and disclosing information that is not sensitive or intimate and that is increasingly collected in public — concerns that do not easily fall within the domain of traditional privacy theory. This article argues that technology need to force us to reinvent privacy although we must sharpen and clarify what we mean by privacy and why we are concerned about losses of privacy. The account I offer takes being subject to the public gaze as the paradigmatic case of a privacy loss and argues that insulation from the public gaze protects two important aspects of individuality. This account provides a justification for privacy that accomplishes several goals: it takes us beyond simply appeals to social conventions, and it allows us to more clearly differentiate between privacy and the reasons why privacy may be overridden, as well as between privacy and emerging issues regarding information uses and misuses that are not best described as privacy issues — problem that I argue plague alternative accounts.

Law and the Internet : regulating cyberspace

Part 1 Introduction: introduction, Lilian Edwards and Charlotte Waelde a lawyers introduction to the Internet, Andrew Terrett setting up a legal Web site - pitfalls and promises, John MacKenzie. Part 2 Intellectual property aspects: trade marks and domain names - whats in a name?, Charlotte Waelde copyright and the Internet, Hector MacQueen. Part 3 Electronic commerce: contract formation on the Internet - shattering a few myths, Lars Davies software transactions and contract law, Hector MacQueen legal barriers to electronic contracts - formal requirements and digital signatures, Ian Lloyd the taxation of electronic commerce, Sandra Eden. Part 4 Liability for content on the Internet: defamation and the Internet - name-calling in Cyberspace, Lilian Edwards news without frontiers - pre-trial prejudice and the Internet, Alistair Bonnington computer crime, Paul Cullen governance of pornography and child pornography on the global Internet - a multi-layered approach, Yaman Akdeniz. Part 5 Electronic evidence and procedure: the impact of information technology upon civil practice and procedure, Stuart Gale.

Enough About Me: Why Privacy is About Power, Not Consent (or Harm)

Most contemporary approaches to privacy regulation, including comprehensive privacy legislation, are based upon Fair Information Practices. Solove has called this the “privacy self-management model” because a central concern is to give individuals control and choice with respect to the collection, use and disclosure of their personal information. In this paper, I argue that despite many of the perceived advantages of this model, it is deeply flawed. I suggest an alternative view, based upon ideas of power rather than consent or harm. Recent scholarship has pointed to some of the problems surrounding the ability of individuals to make rational choices regarding their information. However, I argue here that the problem is more deeply structural. The promise of the self-management model is that it regulates “personal information” rather than “private information”. Instead of defining what is private, we leave it up to the individual to decide. The advantage is that we do not have rely upon ideas of informational privacy that are often rooted in notions of the harms involved in disclosure of intimate and sensitive information, and seem unsuited to deal with contemporary information practices. Despite this advantage, I argue that the self-management model necessarily falls back on some other idea of informational privacy when operationalized in legislation and in doing so undercuts its ability to deal with current privacy problems. This is not just a theoretical argument, but reflects the Canadian experience. Canada has had comprehensive private sector privacy legislation since 2001 that is very much based upon a self-management model. Despite this, the idea of a reasonable expectation of privacy is central to many aspects of the interpretation and application of the legislation. Although the legislation has largely succeeded in protecting consumer privacy in relation to on-line transactions, I argue that it has been quite unsuccessful in addressing some of the most pressing privacy issues of our time concerning private sector data collection – privacy in relation to user generated content and the relationship between the private sector and law enforcement (including the intelligence establishment). We need an alternative paradigm, but I argue here that the way forward is not through developing a new approach to consent or to the avoidance of harm. Instead, we need to draw upon a set of lessons that I take from constitutional law and that are rooted in property law. Constitutional privacy protection in jurisdictions such as the United States and Canada is based upon the guarantee of freedom from unreasonable search and seizure and the early iconic cases were trespass cases. I propose here to draw two important lessons from this. First, trespass is not about harm. Trespass liability protects the control powers of the owner. I argue that this suggests that we should attend more carefully to the idea of legal powers and the facilitative dimensions of law that are usually bound up with legal powers. By this I mean that law sometimes exists in order to allow us to do things that we wouldn’t otherwise be able to do (rather than protect us from harms). We need to understand informational privacy in relation to the facilitative function of law. Second, the trespass cases show us that search and seizure law is concerned with upholding the rule of law. The rule of law has been traditionally concerned with constraining power. Although constitutional jurisprudence regarding privacy sometimes loses sight of this, constraints on law enforcement discretion are deeply embedded in this area of law. A focus on power in this twin sense can provide a new way of looking at privacy regulation and provide a superior way of understanding what privacy law should demand in an age where the explosion of user-generated content online and the private sector/law enforcement relationship have combined to create strikingly pervasive surveillance.

Control Yourself, or at Least Your Core Self

Contemporary privacy debates regarding new technologies often define privacy in terms of control over personal information such that the privacy “problem” is a lack of control and the privacy “solution” is increased control. This article questions the control-paradigm by pointing to its parallels with earlier debates in the philosophy of technology regarding technology that was out-of-control. What first-generation philosophers of technology understood was that at the root of the questioning of technology lay a need to question the modern self itself. Legal debates regarding privacy renew the importance of this question, for the control-paradigm perpetuates a view of the self as an individual with an inner core transparent to itself on solitary introspection and revealed to others through self-conscious acts of disclosure. Increasingly, this model fails to account for the challenges raised by new technologies and calls for rethinking.

Property and the Rule of Law

This paper offers a new framework for thinking about the relationship between the common law of property and the rule of law. The standard way of framing this relationship is within the terms of the form/substance debate within the literature on the rule of law — does the rule of law only include formal and procedural aspects or does it also encompass and support substantive rights such as private property rights and civil liberties? Jeremy Waldron and Richard Epstein have recently defended each of these positions, respectively. By focusing on the nature of common law reasoning, I wish to question the form/substance dichotomy that frames this debate and show that the formal aspects of the rule of law are in fact principles widely adopted within the practice of common law reasoning and, as such, play a large role in shaping the substantive content of common law property rights. In other words, once property rights are understood as the result of a practice of reasoning that routinely invokes rule of law principles, the standard form/substance dichotomy is untenable. In short, there is no “substance” in the common law of property that is not already informed by “form.” Understanding this has implications beyond the relationship between property law and the rule of law for it indicates an important defect in contemporary property theory more generally. My claim is that property theory has focused too much on the concept of, and justifications for, ownership and ignored the role that rule of law principles have played in shaping substantive property doctrine. Theories of ownership risk going astray if they seek to account for property doctrine without first appreciating the way that form influences substance. Moreover, theories of legal reasoning and justification risk going astray if they do not appreciate the role that rule of law principles play in providing important standards of legal justification and instead mistake these elements for either principles of political morality or references to broad policy considerations.

Pluralism, Context and the Internal Life of Property: A Response to Hanoch Dagan

This paper is a comment on Hanoch Dagan’s claims in “Inside Property.” Despite Dagan’s desire to provide an “internal” account of property institutions that is sensitive to both pluralism and context, I argue that his denigration of doctrinal analysis robs him of important critical resources. Doctrine is part of the “inside” of law that can help us understand when legal institutions fail. In addition, by offering an alternative to Dagan’s ends-based reasoning, doctrinal analysis can provide us with a way of seeking agreement on public norms governing interaction when we have deep disagreements regarding ends. In other words, pluralists interested in critical contextual analysis of institutions have good reason to take doctrinal reasoning seriously. I illustrate my claims by using the Canadian example of Re Noble and Wolf, a Canadian case concerning discriminatory restrictive covenants.

A Postmodern Defence of Universal Liberal Legal Norms

The liberal ideal of the rule of law is concerned with the public nature of law, where “public” refers to a set of concerns that are taken to mark out the exercise of legal authority as distinct from, and regulative of, political power. This idea has come under strain in the face of various strands of “norm anxiety” nurtured in a political context of pluralism and an intellectual climate suspicious of claims of universal values. Heidegger provides one of the most sustained and sophisticated philosophical versions of this suspicion of universal values with his account of the social embeddedness of the self and his argument from this idea of the self to the ultimate contingency and groundlessness of any claims of normativity. This paper argues that Levinas’ response to Heidegger rescues a sense of the human that is not conditioned by cultural context and which can provide a basis for affirming universal values while not requiring that we throw away all insights into the deeply social and contextual nature of meaning. If there is a significance to the human beyond the particular context in which we find ourselves embedded and which can justify the endorsement of liberal norms, the expression of this remains essentially culturally conditioned and requires ongoing debate and revision. This, I will argue, leads to a view of legal norms as inseparable from the community practice of reasoning about these norms.

Information Sharing and the 'Reasonable' Ambiguities of s.8 of the Charter

One of the core issues regarding informational privacy in the 21st century is the issue of information sharing. The question is not whether the state will engage in information sharing practices, or even whether it should. The real question is whether such practices will be subject to constitutional scrutiny and thereby required to meet a rigorous standard of justification. The Canadian Supreme Court constitutional exhibits a number of key ambiguities regarding privacy that suggest courts will find it too easy to hold that such practices do not violate a reasonable expectation of privacy. First, the court shifts between a descriptive and a normative approach to defining privacy. Second, its descriptive approach often conflates the threshold question of defining privacy with the subsequent question of balancing privacy with other important social goals. Third, some of the more normative elements that do provide content to the reasonable expectation of privacy are norms of confidentiality, which, although related, are not the same thing as norms of privacy. This paper outlines these ambiguities and shows how they operate to discount privacy within the regulatory context but in a manner that is particularly problematic if applied without regard to the issues arising from information sharing.