Protecting Privacy in the Digital Age

You have zero privacy anyway .... Get over it.' ' With this proclamation, Scott McNealy, founder of Sun Microsystems, anchored the radical edge of the privacy debate for the digital world. 2 He viewed it as a foregone conclusion that, in the information age, any "secret" thing committed to digital form was subject to instant and inevitable distribution.But while digital technology has drastically changed the privacy landscape, reports of the death of privacy have been greatly exaggerated.Nevertheless, Mr. McNealy's statement speaks some truth in that the conceptions of "privacy" carried over from the analog world have not aged gracefully.For example, the Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures .. .."3These words conceive personal privacy in physical terms, but in the digital world, many of one's most private things, such as medical records, may be stored in a database far from one's "person" or "house."How can one tell if a search of such a database is unreasonable?Mr. McNealy also intuited correctly that the existing legal framework for privacy is failing.As digital technology renders obsolete the theories on which the laws are based, the legal protections themselves become at best incomplete and at worst perverse.Privacy law has traditionally developed in tandem with technology-reshaping itself to meet the privacy threats embodied in new technology. 4The information revolution, however, is occurring so fast and affects so many areas of privacy law that the old, adaptive process is failing to address digital privacy problems. 5