A Liberal Communitarian Conception of Privacy, 29 J. Marshall J. Computer & Info. L. 419 (2012)

In a large and complex society, anti-social behavior cannot be restrained by government intervention alone—without it becoming a police state. Informal social controls are necessary to keep deviance from societal norms and values at a socially acceptable level, and one of the levers of this social pressure is the observation of and reaction to the personal conduct of members of one’s community. This article argues that in several areas of contemporary American life decreasing privacy by strengthening informal social controls will lessen the need for state surveillance and regulation, which tends to be act with a heavier hand and is more invasive than its informal counterpart. This article suggests that in the contemporary American context: (a) Increased protection of social privacy will lead to more government scrutiny. Hence, when one seeks to regulate social media in order to better protect privacy, one ought to take into account that such regulation is likely to undermine informal social controls, which in turn will lead to greater government surveillance and intrusion. Parents, colleges, and the community in general should be accorded a relatively high level of access to information about personal conduct. See Part I. (b) “The expectation of privacy” as a foundation for legal rulings and public policy should be allowed to fade away, and determining what constitutes a reasonable standard of privacy should draw on four explicit criteria. Accordingly, before limiting the scope of privacy, courts and policy makers should consider: i. The import of challenges to core values; ii. The availability of voluntary means to cope with these challenges; iii. Ways to minimize the intrusion if one is deemed necessary; and iv. Attention to unanticipated consequences. (This might be called a social policy model but it has clear foundations in the constitution.) See Part II. (c) If a free society can tolerate more surveillance, the greater is the surveillance of surveillance. The more government agencies are subject to oversight and their agents are accountable, including to those higher in rank, the legislature, and to the public, the more leeway they can be accorded. See Part III for a new mechanism for public oversight. (d) Sensitive information should be better protected than insensitive information, and the use of insensitive information to ferret out that which is more sensitive should be treated as akin to mining sensitive information. See Part IV