The new Harvard Journal article is divided into three major sections. Part I focuses on some of normative challenges we face when discussing privacy and argues that there may never be a widely accepted, coherent legal standard for privacy rights or harms here in the United States. It also explores the tensions between expanded privacy regulation and online free speech. Part II turns to the many enforcement challenges that are often ignored when privacy policies are being proposed or formulated and argues that legislative and regulatory efforts aimed at protecting privacy must now be seen as an increasingly intractable information control problem. Most of the problems policymakers and average individuals face when it comes to controlling the flow of private information online are similar to the challenges they face when trying to control the free flow of digitalized bits in other information policy contexts, such as online safety, cybersecurity, and digital copyright.
If the effectiveness of law and regulation is limited by the normative considerations discussed in Part I and the practical enforcement complications discussed in Part II, what alternatives remain to assist privacy-sensitive individuals? I address that question in Part III of the paper and argue that the approach America has adopted to deal with concerns about objectionable online speech and child safety offers a path forward on the privacy front as well. A so-called “3-E” solution that combines consumer education, user empowerment, and selective enforcement of existing targeted laws and other legal standards (torts, anti-fraud laws, contract law, and so on), has helped society achieve a reasonable balance in terms of addressing online safety while also safeguarding other important values, especially freedom of expression. That does not mean perfect online safety exists, not only because the term means very different things to different people, but because it would be impossible to achieve in the first instance as a result of information control complications. But the “3-E” approach has the advantage of enhancing online safety without sweeping regulations being imposed that could undermine the many benefits information networks and online services offer individuals and society. This same framework can guide online privacy decisions—both at the individual household level and the public policy level.
I’ve embedded the full article down below in a Scribd reader, but you can also download it from my SSRN page and it should be available on the HJLPP website shortly. [Update 4/16: It is now live on the site.] In coming weeks, I hope to do some blogging that builds on the themes and arguments I develop in this article.