New Directions in Privacy: Disclosure, Unfairness and Externalities

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6 I/S: A Journal of Law and Policy for the Information Society 425 (2011)

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Mark MacCarthy
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paper description
This paper reviews criticisms of the notice-and-choice and harm-based frameworks for privacy policy, and urges researchers and policymakers to focus on the concept of privacy externalities. These externalities occur when disclosure of personal information by some people reveals information about others. Examples from eligibility contexts, data mining, social networks, and social science research illustrate the concept. When information leakage of this kind harms others, then merely relying on individual consent to determine the legitimacy of an information collection and use practice will not be sufficient. To take into account these externalities the paper develops an unfairness framework. In this framework, choice is a means to an end, not an end in itself. The purpose of the framework is to prevent privacy harms. The framework divides information collection and use practices into impermissible uses where the harm is so great choice should not be permitted; public benefit uses where the benefit is so great choice should not be allowed; and intermediate uses where choice is appropriate. The article recommends the use of the Federal Trade Commission's unfairness standard as a way to assess the privacy implications of information practices.