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Professor Schwartz is an important scholar of the interface between the difficult moral concept of privacy and the new information technologies. Someday a book will tell the story of modem history through the lens of privacy: village lives well known to neighbors; the claims of the national state (taxes, military service); the social welfare state; and the possibilities and dangers of modem biology. As Paul Schwartz has written, DNA and other tools can tell us a great deal about ourselves and can improve our lives; they can also tell employers, drug companies, prospective in-laws, and the police things we prefer they not know.

Today's privacy questions will seem like nursery school in a few years. My students divide fifty-fifty when asked if they would prefer free local telephone service if each outgoing call were preceded by a fifteen-second commercial, tailored to their calling patterns (you call for pizza, I for sushi). The British publisher of Harry Potter books charges two pounds for a plain-cover copy, which permits an adult to read the book on the London underground without embarrassment. Living Americans can establish descent from Thomas Jefferson. Amazon can use and sell my book-buying tastes. The plastic membership card I use to enter the Museum of Modem Art allows the museum to keep track of my visits.

Contemporary thinking about law is well suited for analysis of these issues as they arise. Who should have the "right" to the information? Should we bar sale? What is the appropriate remedy for violation? With information located in cyberspace, what terrestrial jurisdiction's law should control? The Schwartz emphasis is on republican values: how do we, collectively, want to live our lives? It is on the importance of marketguiding structures: what is meaningful consent? what should be the default rule? And it is on the chicken-and-egg direction of influence as norms are formed. Especially with rapidly changing technology, we and our friends are likely to think that what occurs is normal. How can organized society make itself think about whether evolving expectations create the best possible world? Asking these questions, Professor Schwartz chooses several lenses through which to observe incompletenesses and simplifications in standard rhetoric. Yes, there are arguments for decentralization, for markets, for industry self-regulation, and for contract. But yes also, there is need for collective public action and seemingly – horrors- – even for government.


Law | Privacy Law


This article was originally published in the Connecticut Law Review.

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