Raymond Brescia, ‘Zoning Cyberspace: Protecting Privacy in the Digital Upside Down’

ABSTRACT
Over fifty years ago, Charles Reich posited that we should extend property protections to what he would call ‘government largess’: that array of interests – from licenses to welfare benefits – that often form the bases for one’s economic existence in the modern world. Reich considered such protections essential to the preservation of individual autonomy, the independence that is critical to a functioning democracy. Today, our most personal information and even our thoughts as reflected in our online activities and digital existence are subject to ‘private largess’. Private entities possess information central to the identity of those individuals who utilize their services. This information exists in a digital ‘upside down’, to borrow a phrase from popular culture: an almost parallel universe or shadow world where our most intimate details are open to inspection and acquisition by third parties without our consent. Indeed, only a relatively weak set of institutions stand in the way, if they offer any resistance at all, to the sharing of such information by these entities in ways that undermine what I refer to throughout this piece as the integrity of identity: what should be a protected sphere of personal interests, desires, affiliations, and even our beliefs that make up the self. As we face calls for greater surveillance in the throes of the novel Coronavirus crisis, concerns that privacy protections will be further eroded loom large; what is more, any crisis-intervention measures may never be rolled back when the acute crisis dissipates.

While much privacy scholarship focuses on the personal, individual, and private rights such risks to privacy entail, what I will focus on here are the dangers these threats pose to democracy because they undermine the integrity of identity and the collective goods that democracy produces. In so doing, I explore the critical benefits that accrue from the preservation of the individual’s integrity of identity because of the central role that such integrity plays in the enterprise of collective meaning making, the realization of self-determination, the creation of social capital and societal trust, and the bringing about of social change. In a landmark article, Calabresi and Melamed argued that we should protect different entitlements through those rules that produce desired results in society, including solving collective action problems. They would classify these different approaches as either property, liability, or alienability rules. This Article draws from and builds upon the work of Reich, Calabresi, and Melamed to argue that, as in several property law contexts, from the mortgage market to zoning, among others, where we use what I call ‘hybrid’ rules – rules that combine elements of property, liability and alienability approaches – to solve collective action problems, we should see the problem of privacy in the digital world as a collective action problem that requires similar, hybrid solutions, ie, an approach that combines elements of all three rules identified by Calabresi and Melamed. Indeed, this Article argues for a form of what I call digital zoning that utilizes all three approaches in the Calabresi and Melamed taxonomy through hybrid rules to help preserve privacy, autonomy, and self-determination in the digital world.

Brescia, Raymond H, Zoning Cyberspace: Protecting Privacy in the Digital Upside Down (May 1, 2020). Utah Law Review, volume 2020, no 2, 2020.

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