International Journal of Communications Law & Policy

DIGITAL CORRESPONDENCE: RECREATING PRIVACY PARADIGMS

By Maria Helena Barrera and Jason Montague Okai

Download the Paper in PDF Format: IJCLP Web-Doc 4-3-1999

Abstract

To be in cyberspace is to be recorded. Digital activities and objects are nothing but an ensemble of traces and records. Each electronic action in cyberspace implies the creation of tread marks; digitalization involves the generation of representations, more or less permanent. Those digital footprints can be, by nature, reconstituted, recreated and saved indefinitely. Where a vast number of activities in traditional space are inherently non-traceable, cyberspace actions are the traces themselves.

The prophetic scenario conceived of by Justice Brandeis in Olmstead v. U.S. have become a banal cyberspace reality. Theoretically an environment made of records, under non-orthodox control blueprints, is the perfect Orwellian space, a context where, in a technical point of view, privacy could not survive. That conclusion however must be vigorously tested against the value that democratic society attaches to privacy as a part of the concept of freedom. In that light, privacy is a notion independent of the nature of the space where human activities are developed and unconstrained by the material tools involved in those activities. Having freedom in mind, the question becomes if society could not afford to create a proper structure for privacy protection in a digital environment. If cyberspace is not an ideal setting of privacy, then it is necessary to transform it in order to preserve freedom. The emergence of cyberspace has stretched privacy in personal digital communications to a breaking point. The laws attempting to contain it have outpaced the development and expansion of a global communication technology. The perception of the problem has become a digital paradox; the concept of privacy as an unwavering foundation of freedom seems to be at odds with the widely held view that cyberspace is the ultimate model of freedom for all people. The most critical communications privacy precepts suffer in cyberspace: The notion of correspondence inviolability seems to vanish when such correspondence is embedded in digital form.