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“The Digital Person: Technology and Privacy in the Information Age” By Daniel J. Solove (New York University Press, 288 pages, $29.95) That privacy is important to voters is a fact not lost on Congress. In the last 30 years, it has passed some 20 privacy laws. Yet most people would say that there is less privacy in the information age than there was 30 years ago. Indeed, technology guru Scott McNealy, president of Sun Microsystems, once quipped: “You already have zero privacy. Get over it.” Professor Daniel J. Solove of George Washington University Law School doesn’t think you have to get over it. In his book “The Digital Person: Technology and Privacy in the Information Age,” he explains why the law fails to protect privacy and what can be done differently. This book — the first in a series called “Ex Machina: Law, Technology and Society” edited by Jack Balkin of Yale Law School and Beth Noveck of New York Law School — pulls together the many disparate principles and laws on privacy into a relatively short and readable summary. It also takes umbrage with Scott McNealy’s claim that privacy is dead and gone. Nonetheless, only time will tell whether McNealy or Solove is right. Solove’s thesis is that the law’s essential failing has been its reliance on a secrecy/invasion paradigm for privacy that doesn’t work in a digital age. The paradigm assumes that certain personal information about us should be secret and that the law’s job is to protect these personal secrets from being invaded. Rather than having the law continue to wrestle with an illusive concept like personal secrets, Solove advocates a simpler strategy designed to prevent individuals from being victimized by improper use of personal information. Because metaphors can be powerful aids to understanding complex issues, Solove reviews those that have been applied to privacy. The most common metaphor is that of Big Brother from George Orwell’s novel “1984.” Big Brother was the name of the omnipresent surveillance that the government used to control the population. The trouble with the Big Brother metaphor, Solove says, is that the metaphor speaks only to the threat to privacy from government. He believes that private enterprise poses the greater threat to privacy in the United States today. He points out that even the government needed to dip into the information-rich, private databases in the fight against terrorism. Solove prefers the metaphor of Franz Kafka’s novel “The Trial.” In Kafka’s book, the protagonist Joseph K. lives in fear of an investigation and trial, but he knows neither the charges against him nor the tribunal that will decide his fate. Indeed, this is more akin to the situation Americans face today. Huge databases about us are assembled — “digital dossiers” Solove calls them — yet we do not know what is in them, who has them, where the information comes from, or how it will be used. Every time we fill out a form for a merchant, bank or lender, the information goes into a computer file. Other databases contain records of the checks we write, our credit card transactions, our birth, and every place we have lived. There may be digital records of the food, beverages, and toiletries we buy and of the prescription drugs we use. If someone were able to assemble our complete digital dossier from all possible sources, that dossier would contain more information about us than we can remember about ourselves. In short, Americans should worry less about the kinds of personal information that is collected about them and instead, like Joseph K., worry more about who has the information, whether it is accurate, and how it will be used. “The Digital Person” examines three approaches to privacy protection. It dismisses the effectiveness of the first, the existing secrecy/invasion paradigm, because it is overwhelmed by the vast amount of information in our digital dossiers. Since thousands of pieces of information about us work their way into computer databases, some of our information cats will always be out of the bag. We can’t possibly put all of our secrets back. In fact, we need to give up personal information if we want mortgages, car loans, credit cards and the like. The second solution, the so-called market-based approach, also fails because it will never give adequate protection, according to Solove. Advocates of this approach want Congress to stay out of the picture and let the consumer bargain with the information-collectors about her privacy. Thus, the individual consumer, rather than the law, would determine how much or how little privacy she wants. Solove faults this view by pointing out that consumers are generally not in a position to bargain intelligently and on equal terms with the voracious information-collectors. Solove prefers a third approach, which he calls an “architecture” for privacy. He would have the law impose controls on how institutions can use personal information and when they may share it with, or sell it to, others. Government would assume part of the responsibility for protecting privacy by forcing institutions to abide by the rules. Solove advances what he says is the “radical proposal” of turning information-collectors into fiduciaries of the information they get from us. However, he seems to settle for a less radical set of principles, the Fair Information Practices that were recommended in a 1973 Department of Housing, Education, and Welfare report. These would be enforced both by the government and by private rights of action. The fair practices include a prohibition against secret information systems, the right of individuals to know what information is kept and how it is used, the right to prevent the sharing of information, the right to correct information, and a requirement that institutions take reasonable steps to prevent the misuse of information. “The Digital Person” treats the right of privacy vis-�-vis the government as presenting a separate and distinct set of issues. With respect to government records, one problem is how to protect privacy and yet have open access. The Freedom of Information Act is one example. Although it attempts to protect personal information, the fact that most FOIA requests come from businesses shows how useful the law is to the information-collectors. Indeed, Judge Patricia Wald once lamented that FOIA had turned government agencies into “information brokers.” The problem is even worse with respect to court records where, as the information industry knows, the most intimate personal information about litigants is readily available to the public. Another problem, in Solove’s eyes, is that current judicial interpretations of the Fourth Amendment are rooted in the obsolete privacy/invasion paradigm. This results in judges looking at the trees rather than the forest, puzzling over the narrow question of whether an individual had an “expectation of privacy” under the circumstances rather than whether the totality of the government’s conduct stripped him of privacy. “The Digital Person” is an excellent summary of the current law of privacy and the problems thereof. But it isn’t a treatise. Rather, it is the kind of book a privacy lawyer might give to a new associate or to a senior corporate lawyer as a quick and easy way for them to get up to speed on the history and issues of privacy law. The book is also a call for reform. It argues that the law needs to “reconceptualize” its approach to privacy. But it is short on details about what this would mean, leaving the reader hungry for elaboration on how Solove’s architecture approach would enhance privacy. For example, he doesn’t talk about whether new substantive privacy laws are needed. Does that mean the present laws just need to be enforced? What about enforcement of the privacy architecture? Who will do that? The implication is that there will have to be a federal agency, but which one? The already overburdened Federal Trade Commission, the Justice Department, or perhaps a new federal privacy protection administration? And would the individual still have a right to sue for invasion of privacy? Given the current wave of antipathy toward trial lawyers, Solove might win his privacy architecture but find its sole and exclusive overseer was a federal agency held captive by the information-collection industry. Would this improve privacy protection? Perhaps a book answering these questions will come later in the Ex Machina series. Nonetheless, if you want to find out what a mess the law of privacy is, how it got that way, and whether there is hope for the future, then read this book. If you don’t need the hope, then just read Kafka. Washington, D.C., lawyer James H. Johnston is a frequent contributor to Legal Times.

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