Document Type

Article

Publication Year

2010

Journal Title

Widener Law Journal

Abstract

As a starting point, this essay offers six basic propositions. First, "the 'privacy paradox' " refers to inconsistencies "between individuals' [asserted] intentions to disclose personal information and [individuals'] actual ... disclosure behaviors." Put simply, we indicate-at a granular level-specific items of personal information that we will not disclose, but we then give away that same data with what appears to be little regard for the risks of doing so and for little in return. Second, the privacy paradox is a wellestablished concept in many fields of the social sciences, even though the precise contours and causes of the paradox are quite controversial. Third, broadly speaking, legal scholarship has failed to adequately consider either the various conceptions of the privacy paradox set forth in other fields of scholarship or the import of these conceptions to what may be intended or perceived as more normative legal works. Fourth, this failure creates a significant gap in what might be termed relevance, credibility, or practical effect, marginalizing the impact of legal scholarship in the formation of privacy policy. Fifth, this space in the sphere of influence elevates the role of fields that are traditionally less concerned with the core privacy values of personhood, autonomy, and control-inter alia, economics, contract law, marketing theory, and computer science. Sixth, the emergence of social network sites both alters the conditions of the privacy paradox and intensifies the rate and depth of uncontrolled disclosure, further marginalizing legal scholarship that fails to seriously consider the role of the law in privacy policy.

Focusing on this final point, the goal of this essay is to describe both the current market in personal information and the privacy paradox as a product of market distortion. Part I identifies two unique phenomena that modify the conditions of the privacy paradox by creating new and powerful distortions in the market, thereby intensifying the rate and depth of personal data disclosure. The first is a transformation in social organization, which drives individuals to join social network sites and to disclose a great deal of personal information on those networks. The second is an alteration of the basic structure of the information exchange agreement that permits social networking sites to recede into the background as third-party beneficiaries to the social exchange of personal information. Part II addresses the necessity to account for the effect of these phenomena in the formation of privacy policies by briefly addressing various proposals for regulating the collection, storage, use, and transfer of personal information. This section argues that many of these proposals are misguided, either because they under-protect personal information by failing to adequately address the problems of valuation and consent or because they overprotect personal information by failing to adequately preserve functionality in socially valuable communications platforms. Part III attempts to briefly conceptualize the broad outline of a more workable solution that, rather than reforming the current notice-and-choice system of privacy protection, is guided by user expectations in imposing minimal restraints on the margins of data collection, storage, use, and transfer practices. Although a solution would impose certain boundaries on the scope of consent, significant space would remain for the negotiation and development of social norms around privacy practices.

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