Cyber Showdown: Balkin v. Volokh

This blog post is admittedly a cop-out, since I can't comment sensibly on the readings until I've read them first. Despite being so swamped with midterms and the like that I foolishly put off the readings for tonight, I did attend last night's free-form conversation--compliments of the Federalist Society--between Jack Balkin and Eugene Volokh, colleagues in the blogosphere and legal scholars of repute. Just about everything they discussed was thought-provoking (and often borderline dystopian), but I'll limit myself here to the connections they drew explicitly to privacy, and implicitly, I suppose, to the 4th Amendment.

At the outset, Volokh admitted to being more concerned about the Internet's implications for defamation than for privacy. That's why the first half of the conversation turned on Section 230 and the immunity from torts redounding to online platforms that unwittingly play host to libelous comments (though not to copyrighted-protected material, apparently, as the panelists were quick to point out).

The transition to privacy came when it was Balkin's turn to prognosticate what ambiguities or downright dangers he saw "coming down the pike." Rhetorically, Balkin wondered aloud if we should get used to a world where there isn't much privacy, to which Volokh retorted that we need to be clearer about what we mean by privacy. When challenged, Balkin specified that there are three varieties of privacy: vocational, transactional, and mundane/intimate. I don't take much of an issue, intuitively, with the thrust of the exchange thereafter, namely that it could conceivably be beneficial (for the individual, company, society -- whichever!) to sacrifice impersonal details for heightened productivity or a better bargain. The concrete example that Balkin and Volokh bandied about a few times was the now-existing practice of coupons being geared to individual shoppers, based on their habits and demographics; where does the shopper get off on objecting to this practice, now that he no longer has to spend time sifting through all the coupons just to find the ones appealing to him? Another example, brought up by Balkin, was the premise in Minority Report that an individual might be best-served in knowingly forfeiting his private information to an outside body, in exchange for mercantile deals.

For some time, especially when the discussion veered toward the hypothetical and fictitious, Balkin and Volokh overlooked the circumstance when it's not in somebody's interest to relinquish information, or when that somebody isn't even aware of it happening. The panelists were by and large preoccupied with classifying privacy and debating whether it matters to the compromised individual if it's a neighbor viewing the information, a benevolent (...) corporation, or the government even. Another complication, with reference to privacy, is that new technologies and applications thereof often cut both ways, providing gains to some and hardships to others.  Take Google Buzz, which endangered a woman who didn't know what she was revealing--does that mean anything, legally?--by alerting her abusive husband to her whereabouts. In the same breath, however, Balkin touched on another application that apparently behooves gay men, whatever the threat is to their privacy, by signaling their coordinates to other gay men in the hunt for a hookup.

But of all the colorful examples alluded to by Balkin and Volokh, the one I left thinking about the most was the latter's at the very end: PleaseRobMe.com. This is a service that epitomizes the double-edged nature of giving up one's privacy.  Simultaneously, it informs would-be burglars where potential targets are located, while also educating their overly forthcoming residents about the perils of revealing too much on Twitter. 

While it's comforting that someone has taken it upon himself to act as an intermediary between the collectors and generators of (particularly sensitive) data, I question why there need be an intermediary in the first place. In those instances where there isn't an overriding concern for security, to the detriment of privacy in that binary of values, might it be helpful (or even practicable) for someone to have recourse to a database that lets him view all the data gathered on him? Would corporations be exempt from this, or should the government--which itself would be bound to such a regime of transparency--force their hand via legislation? I ask all this only because I'm just beginning to familiarize myself with the movement in this direction (i.e., Operation Sunlight, which I believe Lawrence Lessig is associated with), after hearing about such a government-run database taking effect in Estonia.

I'm looking forward to tonight, when I'll see if any of the above has a bearing on the readings. (And, as fun as it was to write this blog post, when I'll actually get around to starting my midterm paper...)