The Other Privacy Crisis: Informational Privacy, Undermined Norms, and Loss of Control

Richard Warner

Abstract

Informational privacy consists in the ability to control one’s personal information. Advances in information processing technology have reduced informational privacy by giving others the power to determine when our personal information is collected, and how it used and distributed. Privacy advocates the sound alarm—in regard to both the governmental and private sectors. This Article focuses entirely on the private sector. Privacy advocates have been remarkably unconvincing when arguing that purely private sector reductions in informational privacy pose a serious danger. Their arguments typically consist of examples in which the loss of control over personal information causes harms that—other things being equal—virtually anyone would find unacceptable. “Other things” are rarely “equal.” Reducing informational privacy often advances other important goals, and many readily surrender privacy for even relatively minor benefits. The privacy advocates insist we are wrong. They see us as trapped in a “balancing wrongly” crisis in which we systematically undervalue the informational privacy we willingly surrender. They may well be correct; but this Article does not pursue that possibility. The Article claims that there is another privacy crisis, one that has gone largely unnoticed. Technological advances have not only created critical balancing questions; they have also rendered largely useless the scales on which we balance the competing interests. We have lost the customary balancing mechanism at the very time we most need it. This loss is the other privacy crisis. The lost balancing mechanism consists of informational norms—norms that constrain the collection use, and distribution of personal information. The norm-created constraints not only balance competing interests; they also, by virtue of creating that balance, constitute an essential means to achieving a variety of important ends. The technological increase in our ability to process information has undermined the norm-created balance and thereby deprived us of that indispensible means. The solution is to create new informational norms. Legal regulation will not be particularly effective in this regard; however, the very information processing technology that undermined traditional informational norms may provide the means to creating new norms.