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New technology has made privacy and its protection a more complex issue than ever.
We have moved from an era in which confidential information was best protected by the individual to whom the information pertains to one where we must trust the collectors of information to protect our information for us.
Throughout most of our history, the keys to our private lives have been largely controlled by individuals themselves and whom they choose to share and trust with that information. Information about our friends, habits, secrets, desires, ailments and insecurities. Taken together, even our subconscious was something we had a great deal of control over.
This ability to control the sharing of our information is what has allowed us to draw lines between our private lives and the human relationships we made out in the world.
For example, we share different pieces of information about ourselves to our parents, our friends, our doctors, our co-workers and a variety of other people with whom we have relationships. It is this information we choose to share that forms these identities and relationships we have in both our private and public lives.
Today, however, it is impossible to participate in the modern world without giving up control of all kinds of the personal information we have traditionally withheld.
When we use a ride-sharing app, we hand over our location information to a third party that now knows where we live, where we eat and where we have been. We must trust these companies to use that information about us to perform the service of getting us from one place to another.
When we use a search engine or social media service, we hand over personal information to a third party that now knows our interests, our insecurities, our desires and our weaknesses. We must trust companies to use this information to perform the service of connecting us with information and people.
Once our information is handed over, we have little to no ability of preventing our intimate details from being shared, discovered, used or manipulated outside of the purpose for which we handed it over in the first place.
That is because our laws and our courts treat personal information as “belonging” to the collectors of information, without having an obligation for the collector to protect that information from being exploited. To protect personal data from exploitation, we need to impose an enforceable, legal duty on these information collectors to exercise reasonable care over the information they are given.
With millions of applications, new technologies and methods of using data, it is impossible and impractical to address the privacy implications of every specific collection method or purpose.
Instead of trying to legislate every way our personal data is implicated or compromised, we could simply start with a constitutional framework that gives individuals a meaningful opportunity to protect their privacy, including the personal information we must share to participate in the modern world.
We could start by creating a legal presumption that personally-identifying information is confidential, as well as a presumption that the unauthorized or unreasonable disclosure of that information causes harm that can be measured in economic damages.
This would give people a meaningful opportunity to protect their personal information through the expectation that privacy will be safe guarded when they use digital services, as well as a legal remedy when the standard is not met.
Dealing with the complex nuances of privacy protection could then be accomplished over time through the Legislature and courtrooms on a more particularized basis.