--Privacy on a Commercialized Net Ming-Li Wang1
1 J.S.D., Stanford Law School. Assistant Professor of Law, Graduate Institute of Industrial Economics, National Central University, Taiwan;mlwang@ncu.edu.tw.
2 Ming-Li Wang, Constitutional Privacy Discourse in a Network Society, NTU L. Rev., Mar. 2010, at 127.
In a previous article,2 I criticizedboth the European legal regime of privacy protection and its
American counterpartfor trying to solve new problems with dated tools, rendering bothineffective on the information superhighway.The former was overly rigid as a result while the latter was plainly inadequate.At the heart of their failure, I went on to contend, laytheir inability to appreciate the changes brought upon us by some thirty years’worth of technological breakthroughor, put simply, the differencesbetweenmodern cyberspaceand the old realspace.
This paper intends to further elaborate on a key difference: the unmistakable and unavoidable trend of commercialization in all matters personal, personal informationin particular.In less than two decades since the NSF opened up the internet tocommerce, advertising has permeated the web and established itself as the predominant form of financing for ever proliferating forms of
information-centeredservices, old and new alike. Aided by seemingly unlimited computing power, storage capacity and communications bandwidth, which just keep on progressingat breakneck speed, the sophistication of modern data mining and informationprocessing techniques has reached a point that no data is valueless as long as commercial exploitationis concerned. New businesses and new markets have sprung up to take advantage of these novel technologies. Many are still on their way.
Social norms have changed, too. Fading away isthe generation of faceless participants in Usenet newsgroups or online bulletin boardsof the eighties, all too mindful of keeping one’s true identity under wrap, going such length as creating fictional characters as one’s own surrogatesin
cyber-participation. In its place is a new generation of netizens that has practically grown up with the internet. Compared to their cyber-seniors, they are much more willing to open up their life to
strangers. This is an era of sharing; social networking has been the rage for good reasons.Personal information is both a currency and a commodity that one exchangeswith one another, not only socially but also economically.
What this thorough transformation of cyberspace means to our privacy is not to be taken lightly.People’s attitude toward privacy is different. They still want it, but at the same time they know they could gain by sharing. They stand to lose—by being shut out of social networks, by missing out on opportunities, by giving up convenience and efficiency here and there—if they guard their informational self too tightly. As they hesitate and agonize, commercial interest the snake lurks and whispers. All too often, itsoffers aresimply too tempting to resist; life is easier just to give up the fight, or so it often seems.
Crafting privacy law in this space and age takes wisdom, courage, and most of all, patience, lest we build the house on quick sand.Hopefully this paper will shed some light on where things stand.
The Foundation of Privacy Tentative title:
“Privacy” in Traditional Chinese Societies
Contributor:
Liu, Ting-Chi
Assistant Professor, College of Law, National Chengchi University (Taiwan) S.J.D., The George Washington University Law School (2009)
Abstract:
This paper will try to refute the views of some scholars that the Chinese did not have the concept of privacy in the past, and there is no Chinese equivalent of the English word privacy. From the outset, this paper will point out that there are different concepts of privacy even in the Western world. They include physical privacy, informational privacy, decisional privacy, and spatial privacy, just to name a few. In addition, scholars vary on the philosophical foundations of the concept: from secrecy to intimacy to personhood.
This paper then explores Confucian thought—which plays an important role in the Chinese culture tradition—and ancient Chinese laws (e.g., the laws of Tang Dynasty and Ching Dynasty) in order to identify those concepts or values that closely resemble the Western concept of privacy. This paper will conclude with the observation that although a right-based privacy concept, which
emphasizes individuality, might not exist in traditional Chinese society, there are ideas and practices in ancient China that reflect and resemble the various privacy concepts embraced by
contemporaryWestern countries.
Rethinking the Feminist Debate on Privacy :Constructing the Theoretical Foundation for the Public-Breastfeeding Laws:
Hsiaowei Kuan I
n countries around the world, breastfeeding mothers have uncomfortable experiences if they nurse their baby in public. Some were ousted from the restaurants and some harassed by police threatening to charge them of indecency in public. In some countries, breastfeeding advocates organized mothers to stage nurse-out in the public places to protest unfriendly laws on public
breastfeeding. In the past decade, breastfeeding laws permitting public breastfeeding were enacted in many countries and some laws requires nursing rooms be set up in public facilities.
In recent years, breastfeeding legislations were passed in most of the states of the United States.
Yet the social attitude toward breastfeeding in public remains controversial and breastfeeding mothers still face challenges even though the law says it is legal. In the United States, some states considered requiring a mother to breastfeed discreetly or allow mothers to breastfeed in public only if there was no designated area for them to go. Breastfeeding advocates contested that these attempts purport to segregate breastfeeding women from the public although from the first look the laws are protecting mother’s right.
In the case of Dike v. Orange County School Board, 650 F.2d 783 (5th Cir., 1981), the US federal court of appeals recognized that women has a right to breastfeed because breastfeeding is
“intimate to the degree of sacred”. The decision based the constitutional right to breastfeed on the privacy case of Griswold v. Connecticut, stating that women’s decision to breastfeed should be protected. Therefore, some feminists challenge that the privacy approach to establish the theoretical basis for women’s right to breastfeed can be dangerous for women.
Whether constructing women’s rights on the theory of privacy really benefit women? This question has long been debated among legal feminists. Many feminists, for instance, Catharine MacKinnon, worry that the public/private dichotomy has become a shield to cover up domination, degradation and abuse of women and leave the private domain from scrutiny. Therefore, privacy can be dangerous for women when it encourages nonintervention by the state. Other feminists, for instance, Anita Allen, reject the idea that feminist should abandon privacy completely. The total rejection of privacy leads everything open to the public and invites state intrusion with no limit into women’s most intimate and private sphere.
Will the privacy approach to the right to breastfeed again trap women in the private sphere?
What challenges will this approach face? If the privacy approach does not work, what will be the viable alternative? This paper will re-examine the debate on privacy among legal feminists and discuss whether the current privacy doctrine on the right to breastfeed effectively provides a theoretical description of this right.
Inner or Outer? Two Approaches to the Protection of Personal Information Wen-Tsong Chiou∗
It is now commonplace to hold that across countries the rationale underlying data protection laws, laws that provide either comprehensive or selective statutory protection to a plethora of sundry personal data, is a privacy right or, in a different vein, a constitutional liberty to control one’s own information. As a right to protect a person’s most private sphere from unwanted intrusion, privacy, for most legal scholars, assures one’s freedom to choose and define one’s personality and necessarily entails one’s liberty to control personal data. Nevertheless, some of the personal data is of little or no implication to personality and yet enjoys the shelter of data protection laws. On the other hand, personal information is used to produce the knowledge contributing to the growth of bio-political power is escaped from scrutiny because it is provided by people with their wholehearted consents. We face a theoretical inconsistency in reasoning the grounds for the protection of personal information. This article argues that the current theory of privacy suffers from the fallacy of a voluntarist version of personhood thesis. It wrongly assumes that personality or personal identity is something that persons are able to define for themselves in the absence of external interference with certain conducts, roles, values and relationships they choose to undertake, to play, to espouse and to enter. Personality is unavoidably, however, socially constructed. A view attending to the constituted nature of personality demands that the constitutional right to privacy looks beyond freedom of choice or “liberty as license.” Privacy right, if we are to maintain a “freer” condition for identity formation, requires that the role personal data plays in knowledge production be scrutinized and the effects of knowledge on the construction of personal identity be considered. People are free to dispose the kinds of personal data that has nothing to offer for knowledge production that entails constitutive effects on personal identity.
While data protection laws could extend their generous arms to those kinds of personal data, a differential treatment should be made between such data and that indeed deserves the concern of constitutional privacy.
∗ Associate Research Professor, Institutum Iurisprudentiae, Academia Sinica; S.J.D., University of Virginia.
Chinese and Western Conceptions of Privacy:
Hybridizing towards Convergence?
Charles Ess Lü Yao- huai
In 2004-2005, the authors collaborated in the development of what has become a landmark series of articles on diverse cultural conceptions of privacy.1 In particular, Prof. Lü argued that Chinese conceptions of privacy were clearly changing – i.e., from a conception of Yinsi (阴私) as a “shameful secret,” or something hidden or bad (so the Chinese Dictionary of Law, 1985) towards a more positive conception of Yinsi (隐私) as “a personal thing people do not wish to tell others or to disclose in public” (Lü, 2005). This shift in the valuation of privacy has
accompanied a further shift – namely, away from a more traditional Chinese sense of the self as a relational self (i.e., a self defined primarily in terms of the multiple relationships with others, e.g., as parent, child, sibling, etc.) towards a more individual sense of self (as exemplified in young people’s insistence on individual privacy from their parents – see Lü, 2005, p. REF).
1 See: Lü, Yao-huai, “Privacy and Data Privacy Issues in Contemporary China,” Ethics and Information Technology 7 (1: 2005): 7-15; Ess, Charles, “Lost in Translation?: Intercultural Dialogues on Privacy and Information Ethics” (Introduction to Special Issue on Privacy and Data Privacy Protection in Asia), Ethics and Information Technology 7 (1: 2005): 1-6.
For his part, Ess argued that a comparison of privacy laws in diverse “Western” nations (specifically, Germany and the United States) and “Eastern” nations (specifically, China and Hong Kong) demonstrated a pluralistic structure in such laws. That is, on the one hand, the justifications for these laws differed dramatically: briefly, privacy laws in the Western examples relied first of all upon appeals to individual rights (including freedom of expression as well as to privacy per se) while parallel laws in the Eastern examples justified privacy from more collective bases, e.g., the importance of online security for the sake of e-commerce and economic growth, etc. On the other hand, despite these fundamental differences in their starting points, the emergent privacy laws at least converged towards a shared or “focal”
conception of privacy rights for the individual. As Ess argued, this structure of a shared ethical norm that is nonetheless interpreted or applied in diverse ways, reflecting the fundamental values and practices of irreducibly different cultures, thereby exemplified the sorts of ethical pluralisms found more broadly in, e.g., both Aristotle and Confucius, as well as other global ethical traditions.
More recently, Ess has built upon these starting points by taking up the media theory developed in the 20th century by Harold Innis, Elizabeth Eisenstein, Marshall McLuhan, and Walter Ong – a theory that demonstrates strong correlations between diverse modalities of communication (namely, orality, literacy, print, and what Ong calls the “secondary orality” of electric media, beginning with radio, movies, and TV) and our foundational conceptions of self.
Ess has sought to extend these earlier theoretical developments with more recent
contributions from communication scholar Naomi Baron (2008) and Zsuzsanna Kondor (2009),
as these scholars help us extend Ong’s 2
notion of “secondary orality” to what Kondor calls the secondary literacy of contemporary computer-mediated communication (whether via “traditional” computational devices such as desktop or laptop computers, or through smart phones as Internet-enabled communication devices). In its simplest (i.e., oversimplified) form, the resulting framework foregrounds strong correlations between the relational self and orality, followed by the gradual emergence of a reflective self affiliated with literacy. The modern Western conception of the individual as a rational autonomy – i.e., a being capable of giving itself its own law – emerges only in conjunction with print. By contrast, at least in the West, Ess argues that the secondary orality-literacy of online communication is accompanied by a shift from a modern Western sense of the self as a rational individual towards a more relational sense of self. This more relational sense of self explains, for example, why young people in the West appear to be moving towards a conception of “group privacy,” e.g., sharing in social networking sites such as Facebook what were once intimate, strictly individual sorts of information with small groups of friends – in ways that scandalize their elders as more rooted in a more traditional individual sense of privacy. More precisely, Ess argues that we may be witnessing in the West a hybrid sense of self or identity – one that conjoins both a modern Western individual sense of self with a more relational sense of self, where these relationships are facilitated through social
networking sites and other forms of networked communication.
If Ess is correct, then a striking symmetry appears to be emerging alongside the earlier
pluralism apparent in the privacy laws of diverse “Western” and “Eastern” countries. That is, as Lü sees a shift from a more relational self towards a more individual self in the cases of Japan and China, so Ess sees in Western examples a shift from a more individual self towards a more relational self. A key question here is: how far will the resulting senses of selfhood represent a hybridization of both individual and relational selves – and/or: is it conceivable that the Western shift towards a more relational self will lead to the dissolution of the individual self altogether, and/or that the Eastern shift towards a more individual self will leave behind the relational self altogether?
In our paper, we seek to explore these changing trends and questions, with a view towards determining:
1) how far do the shifts in each cultural domain suggest that the selves emerging in conjunction with computer-mediated communication and digital media are selves that will replace or simply complement (i.e., hybridize) with the earlier sense of selfhood and identity?
Depending on our answers to this question - if it appears that in both “East” and “West” such a hybridization is taking place, then we can argue that the hybridizing selves in both Eastern and Western traditions
A) mirror one another nicely – but in such a way as to remain clearly rooted in their respective cultural traditions (the one more recently individualist, the other more recently relational), while at the same time
B) thereby present a second structure of pluralism – i.e., these hybridizing selves are thereby both closely similar while remaining irreducibly different.
If so, then this would further mean, finally, that
C) the pluralism of such hybridizing selves thereby underlies and justifies the first pluralism Ess has argued holds for privacy laws as such. 3 We will explore these possible developments first of all empirically, i.e., by seeking to collect evidence in the form of recent research in computer-mediated communication that illustrates whether or not such shifts in conception of selfhood are in fact taking place – and if so, how far these shifts represent a hybridization (as predicted by the
Innis-Eisenstein-McLuhan-Ong theory).
We will then use our empirical findings as the basis for determining how far such changing senses of self indeed mesh with a first pluralism in privacy laws – and/or, how far such changing senses of self may be pushing our diverse countries and cultures to develop different sorts of privacy laws (including, e.g., the complete absence of privacy expectations in certain instances), thereby undermining the pluralism thesis.
Whatever our results, our collaboration should thereby offer new insight to the larger project of information ethics to establish a globally shared but
nonetheless culturally pluralistic set of ethics regarding the uses of information technologies. At the same time, our findings should shed some light on the larger questions surrounding privacy – i.e., whether or not “privacy” represents a universally
附件五：2011 RISE Beijing Conference 規劃
本計畫屬於歐盟第七架構計畫（FP7）之 RISE（Rising pan-european and international awareness of biometrics and security ethics）
子計畫。由台灣政治大學法律系特聘教授 陳起行博士帶領相關研究團 隊與義大利 CSSC 中心(Center for Science, Society and
Citizenship)Emilio Mordini 教授所帶領之跨國研究團隊共同合作。
擬邀請者：
- Emilio Mordini, FP7 RISE Project Coordinator - 歐洲個人資料保護法學者專家：2 人
- 邱映曦 CHIU,YING-HSI, 組長 Senior Manager, 科技應用法制組 Technology Application Section, 科技法律中心 Science & Technology Law Center, 財團法人 資訊工業策進會 Institute for Information Industry(III)
- 日本情報處理開發協會 (Japan Information Processing Development Cooperation, JIPDEC)專家代表一名
- 韓國情報通信產業協會 (Korea Association for ICT Promotion)專家代表一名 - 大連軟件行業協會 (Dalian Software Industry Association)專家代表一名 - 美國加州柏克萊大學法學院科技與法律研究中心隱私保障學者代表一名
系統運作的專家學者，以及歐，美專家學者探討這項制度在亞洲數國 的發展，以及其符合歐盟隱私指令，以及美國資訊隱私法制的探討 學理上，這項討論有助於隱私治理議題的開展; 實踐上則對於台灣涉及 個人資料越境（transborder data flow） 時，不至於受到他國個人資料保護 或其他壁壘的不利影響
系統運作的專家學者，以及歐，美專家學者探討這項制度在亞洲數國 的發展，以及其符合歐盟隱私指令，以及美國資訊隱私法制的探討 學理上，這項討論有助於隱私治理議題的開展; 實踐上則對於台灣涉及 個人資料越境（transborder data flow） 時，不至於受到他國個人資料保護 或其他壁壘的不利影響