Yale Journal of Law & Technology
Volume 4, 2001-2002
Privacy Wars in Cyberspace: An Examination of the Legal and Business Tensions in Information Privacy
By Jeanette Teh
Jeanette Teh, Privacy Wars in Cyberspace: An Examination of the Legal and Business Tensions in Information Privacy, 4 Yale Journal of Law & Technology 1 (2002).
For all its remarkable attributes, the explosive growth in e-commerce and Internet use has had deleterious consequences for the privacy of participating individuals, who are often unaware of the tremendous amount of information about them that is collected and analyzed These disparate bits of data are amalgamated to yield very identifiable consumer profiles, which are subsequently sold to other organizations, depriving the consumers of their ability to control what they divulge about themselves to others, potentially resulting in a loss of individuality and creativity. Through the use of cookies, which provides numerous benefits to both consumers and retailers, the many advantages of e-commerce applications and business models are realized. However, the reliance on industry self-regulation has led to a plethora of privacy infractions in cyberspace, resulting in the enactment of the Canadian Personal Information Protection and Electronic Doents Act (PIPEDA) and the U.S. plan under Bush to introduce privacy legislation after the Federal Trade Commission's recommendation. The task of drafting legislation is wrought with the complexities of balancing the interests of both parties, while attempting to address the tension of employing either overly or under-inclusive language. This difficulty is demonstrated in the analysis of PIPEDA's ambiguities, which is instructive for U.S. states seeking to implement similar laws, who should note that privacy legislation ought to mandate full, informed consent through an express and explicit opt-in approach.
Building Social Norms on the Internet
By Daniel B. Levin
Daniel B. Levin, Building Social Norms on the Internet, 4 Yale Journal of Law & Technology 97 (2002).
This Note examines how architecture, and particularly the design and coding of software on the Internet, helps shape social norms. The Note makes two points about architecture and norms. First, architectural decisions affect what norms evolve and how they evolve. By allowing or facilitating certain types of behavior and preventing others, architecture can promote the growth of norms. On the flip side, architecture not tailored to promote certain positive norms of cooperation or compliance with the wishes of the designer (or in some cases the law) may allow the growth of antisocial norms. Second, because design decisions affect behavior directly as well as indirectly through norms, software engineers must recognize the regulatory function of the code they create. Although online architecture can promote productive social norms, design decisions can also create a backlash by fostering the development of norms that work against the sort of behavior the code is written to promote. The Note begins by describing how architecture works to regulate behavior in the physical world, examines the leading theories of social norm development, and explores the intersection of architecture and norms. The latter part of the Note transposes the general theory of architecture and norms to the Internet world, first describing the particular features of the Internet-anonymity, dispersion, and the free flow of information-that make the process of norm development different in cyberspace than in physical space, and then turning to two examples, online auctions and digital music, to show how software engineers have effectively and ineffectively used code to promote the development of social norms.