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Privacy As Property in the Electronic Wilderness Patricia Mell

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Privacy As Property in the Electronic Wilderness Patricia Mell ARTICLE SEEKING SHADE IN A LAND OF PERPETUAL SUNLIGHT: PRIVACY AS PROPERTY IN THE ELECTRONIC WILDERNESS PATRICIA MELL TABLE OF CONTENTS I. IN TRO DU CTIO N ................................................................................. 2 II. SOCIAL AND TECHNOLOGICAL CONTEXT GIVING RISE TO THE ELECTRONIC PERSONA ...................................... 11 A. An Historical Perspective of Society, Information Management and the Law ........................................................ 11 B. The Parameters of the Electronic Wilderness ........................... 21 III. THE RELATIONSHIP BETWEEN PRIVACY AND PRO PERTY .......................................................................................... 26 A. Development of Common Law Protection of Inform ational Privacy .................................................................. 28 B. Development of the Constitutional Right to Inform ational Privacy ................................................................ 34 C. Development of Statutory Protection of Privacy on the Federal Level ................................................................................. 41 IV. ASSESSMENT OF THE INTERESTS COMPETING FOR USE OF TH E PERSON A ........................................................................... 42 A . O verview ..................................................................................... 42 B. The Individual's Interest in His Persona ................................. 46 © 1996 Patricia Mell. t Associate Professor of Law, Detroit College of Law at Michigan State University; A.B. with Honors, Wellesley College, 1975; J.D. Case Western Reserve University Law School, 1978. The author wishes to express her appreciation to those individuals who gave their assistance, technical and otherwise, to this project. Individuals deserving of special thanks include the author's mother, Thelma W. Mell, a constant source of support and inspiration, and her aunt, Dr. Leatrice Emeruwa. In addition, thanks are extended to her colleagues at Detroit College of Law at Michigan State University: Professors John Apol, Susan Bitensky, Cynthia Starnes, Alvin Storrs and Nicholas Revelos; Professor Eileen Cooper, Librarian, Widener University School of Law; Eric Martin, Director of Computing Services, Detroit College of Law at Michigan State University; Charlotte Bynum, Associate Librarian for Reference Services, Detroit College of Law at Michigan State University; and Dr. Roland M. Smith, Vice President of Student Life, University of Delaware. 2 BERKELEY TECHNOLOGY LAW JOURNAL VOL 11:1 C. The Government's Interest ......................................................... 47 D. The Public Interest in the Persona ........................................... 54 E. Conflict Between the Interests of the Government and the Public for Use of the Persona .............................................. 56 F. Commercial Interests in the Individual's Persona .................. 57 V. THE NATURE OF THE ELECTRONIC PERSONA-THE BLURRING OF THE DISTINCTION BETWEEN PUBLIC AND PRIVATE INFORMATION .................................................... 67 A. The Electronic Persona as Property in the Electronic W ilderness ..................................................................................... 68 B. The Merging of Privacy and Property in the Electronic W ilderness ..................................................................................... 70 C. Public Source of the Persona ..................................................... 72 D. Scope of the Property Right ....................................................... 74 VI. CON CLU SIO N .................................................................................. 81 VII. APPENDIX: COMPARISON OF FEDERAL STATUTES REGULATING INFORMATIONAL PRIVACY ............................. 82 I. INTRODUCTION A life spent entirely in public, in the presence of others, becomes, as we would say, shallow. While it retains its visibility, it loses the quality of rising into sight from some darker ground which must remain hidden if it is not to lose its depth in a very real, non-subjective sense. The only efficient way to guarantee the darkness of what needs to be hidden against the light of publicity is private property, a privately owned place to hide in. -Hannah Arendt, The Human Condition 71 (1958). In the diverse society of the late twentieth century, institutions frequently make decisions about individuals based on personal information stored in computer databases.' While such decision making 1. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information..." Whalen v. Roe, 429 U.S. 589, 605 (1977). In 1976, it was determined that the federal government maintained 3.9 billion files on private citizens. 45 U.S.L.W. 2161 (Sept. 28, 1976). See also PRIVACY PROTECTION STUDY COMM'N, PERSONAL PRIVACY IN AN INFORMATION SOCIETY 4 (1977) [hereinafter PRIVACY PROTECTION STUDY]. See also Bruce Clark, Note, The ConstitutionalRight to Confidentiality, 51 GEO. WASH. L. REV. 133, 133 n.1 (1982). By 1989, that number had grown to on the average of 18 files on each individual on the federal level and 15 on the state level. ROBERT E. SMITH, PRIVACY AND HOW TO PROTECT WHAT'S LEFT OF IT 82 (1980). Private industry maintains significant amounts of information on individuals as well. In 1988, TRW, Trans Union and Equifax (the Big 1996 PRIVACY AS PROPERTY 3 is efficient and economical, there is neither consistent and generalized protection of the information contained in the databases, nor uniform recognition of the data's relationship to a specific individual.2 Despite almost fifty years of experience with the information-management ability of computers, society has not yet reformulated traditional notions of privacy, which restrict third-party access to personal information, to accommodate the tremendous storage capacity and instantaneous retrieval ability afforded by computers.3 Concepts of privacy, property and the individual's rights to both, take on a new dimension when the use of computer-stored information allows images of the individual-the "electronic persona"-to be created and used by a variety of third parties without the individual's knowledge. The term "persona," derived from the Greek term for the mask worn by theatrical performers, is generally used to describe the various ways by which a person can be identified by personal information about him.4 The term is also used with reference to the right of publicity to describe the bundle of commercial values embodied in the identity of a person.5 The right of publicity comprises a person's right to own, protect 6 and commercially exploit his own name, likeness and persona. Three credit bureaus) held a combined 410 million files on individuals. Jeffrey Rothfelder, Is Nothing Private?,Bus. WK, Sept. 4, 1989, at 81. 2. This was pointed out in the statement of purpose of the Privacy Act: "[T]he increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur for any collection, maintenance, use or dissemination of personal information... " Privacy Act of 1974, Pub. L. No. 93-579, § 2(a)(2) (1974). For a diagram of several federal statutes which ostensibly protect the individual's privacy in specific contexts, see the appendix to this article [hereinafter App.J. See also Clark, supra note 1, at 135. 3. The first computer, called ENIAC, was developed by the U.S. Army in 1946. The next generation computer, UNIVAC, was developed for use by the Census Bureau for the 1950 Census. ENCYCLOPEDIA OF COMPUTER SCIENCE AND ENGINEERING 532 (Anthony Ralston ed., 2d ed. 1983). 4. See generallyJ. THOMAS MCCARTHY, THE RIGHTS OF PUBLICITY AND PRIVACY (1995); Patrick J. Heneghan & Herbert C. Wamsley, The Service Mark Alternative to the Right of Publicity: Estate of Presley v. Russei, 14 PAC. L.J. 181, 182 (1983). Information has been defined as knowledge, facts and data. WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY (1985). It comes in a variety of forms, many of which are interchangeable-pictures, works, speech, writing-and in varying formats. Here the word is used to include any information presented electronically in any form, embodied in any format and handled by any computer processor. The term "personal information" refers to any information which identifies or relates to a specific individual. See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW, §§ 15-17, at 966 (1978). With respect to the term "persona," see MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT§ 1.01[BI[l][c] (1978). 5. NIMMER& NIMMER, supranote 4, § 1.01[B][1][c]. 6. Id. 4 BERKELEY TECHNOLOGY LAW JOURNAL V/ol. 11: 1 In the computer context, however, the persona is an electronic compilation of bits of personal information concerning the individual.7 The persona is personal in nature in that it can be associated with a specific individual by name or any other identifier.8 Identifiers are words or symbols which identify a specific person.9 Examples of identifiers include an individual's name, social security number or account number.' Since computer records are often filed under these identifiers, they are the key to accessing files which hold personal information concerning a specific individual. In this article, the
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