Personal privacy in developed countries is disappearing faster than the polar ice caps. The rapid growth in the number and breadth of databases, the continuing drop in the costs of information processing, the spread of cheap sensors and of self-identification practices, all have combined to make this the era of Big Data. Much like global warming, drift-net data collection and collation creates wide-spread harms substantially caused by actions not visible to most of those affected. Market failures, information asymmetries, and collective action problems characterize many aspects of the privacy problem.
Current US regulatory structures are not just unprepared for this data collection deluge, but almost totally incapable of responding to it because they tend to focus on data sharing rather than data collection and because US law currently has relatively few privacy-protecting rules. Although courts have found a limited right to privacy in the Constitution, that right finds most of its expression in the context of bodily integrity, and the traction in the information privacy arena is speculative and limited at best. Some members of the Supreme Court have signaled an interest in an evolution of privacy law, but if the law works at its usual pace those developments are still far in the future — if they ever come at all. Tort law has little to offer, as the classic privacy torts are somewhat limited and generally do not apply to the major data collection efforts that occur in (or through) public spaces. Nor do privacy torts have much traction against the often-unseen consequences of contractual agreements, most notably those relating to cell phones and internet-based technologies. Both Contract and Property-rights based approaches have to date yielded little due to a combination of factors ranging from transactions costs to the bounded rationality of consumers to problems inherent in domains where who owns what is at best contested. The fact is, it is increasingly difficult to defend one’s privacy in industrialized countries: sensor technologies and data aggregation technology are winning an arms race against privacy enhancing technologies, an arms race that most consumers are only dimly aware they are involved in.
