I know nothing, or next to nothing, about the law of privacy, in cyberspace or elsewhere. This is neither false modesty nor an apology; I am here to celebrate (and, one hopes, also to mitigate somewhat) my own ignorance.
As some of you know from our discussions after Larry Lessig's most interesting talk last night, I have been spending considerable time recently with the writings of Thomas Jefferson. There's one picture, of a moose -- more specifically, of Jefferson's moose -- that I can't seem to get out of my mind. In 1787, Jefferson, then the American Minister to France, had the "complete skeleton, skin & horns of the Moose" shipped to him in Paris and mounted in the lobby of his hotel. One can only imagine the comments made by bemused onlookers and hotel staff.
This was no small undertaking at that time -- I suppose it would be no small undertaking even today. It's not as if he had no other things to do with his time or his money. It's worth asking: Why did he do it? What could have possessed him?
He wanted, first, to shock. He wanted his French friends to stand back, to gasp, and to say: There really is a new world out there, one that has things in it that we can hardly imagine. He wanted them to have what Lessig called an "aha! moment" in regard to the New World from out of which Jefferson (and his moose) had emerged.
But there was another, more specific, purpose. He wanted to show them that this new world was not a degenerate place. The Comte de Buffon, probably the most celebrated naturalist of the late 18th Century, had propounded just such a theory about the degeneracy of life in the New World. Jefferson described Buffon's theory this way:
"That the animals common both to the old and new world, are smaller in the latter; that those peculiar to the new, are on a smaller scale; that those which have been domesticated in both, have degenerated in America; and that on the whole the New World exhibits fewer species."Though it may be hard to appreciate from our more enlightened 21st century perspective, this was deadly serious stuff -- both as science and, more to our point here, as politics; to Jefferson, Buffon's theory had ominous political implications, for it was, as he put it, "within one step" of the notion that man, too, would degenerate in the New World. Thus, it could and did give a kind of intellectual cover to the notion that man in the New World could not be trusted to govern himself.
Sometimes a picture -- or, better yet, a carcass -- is worth a thousand words. So out comes the moose; larger than its European counterparts (the reindeer and caribou), its brooding presence in downtown Paris would surely make observers think twice about Buffon's theory. Jefferson was no fool; he knew full well that one data point does not settle the argument, and he would provide, in his "Notes on the State of Virginia," a detailed refutation of Buffon's charge, page after page of careful analysis of the relative sizes of American and European animals.
But even with all that, he was not satisfied that the battle had been won. He wrote to a friend:
"Our only appeal on such questions is to experience, and these questions cannot be decided, ultimately, at this day. More facts must be collected, and more time flow off, before the world will be ripe for decision. In the mean time, doubt is wisdom."Sometimes, doubt is wisdom - and a conference about "privacy in cyberspace" is one of those times. We, too, know - or should know - that cyberspace is a new place; we know, or should know, that the old distinctions by which we lawyers and law professors made sense of the world will not work here. Just this morning, for example, I was talking with Joe Grundfest, who happened to mention that for purposes of regulating the issuance of securities, the SEC makes an important distinction between written and oral representations - a distinction that has no meaning applied to communications about securities or anything else in cyberspace. In a world of jennicam.com and Realworld, the very distinction between public and private, which is as close to the root of all of our thinking about these issues as we get, doesn't even seem to make sense anymore.
We know that this phenomenon -- square pegs and round holes -- is happening all over cyberspace, that the distinctions the law used to make in order to make sense of the world are no longer doing their job. Doubt is wisdom. New distinctions can grow, but only with time and with experience; it is particularly important, in a world moving on Internet Time, that we remind ourselves of that. Our goal at this conference, then, should be to start the process of elaborating distinctions, distinctions that make sense in this place and which can replace those that no longer do.
How do we do that? Not, I suggest, a priori, on the basis of some grand theory we may have that we are certain applies to life in cyberspace. Not by deciding whether all privacy matters in cyberspace should be dealt with by an "opt-out" or an "opt-in" system. Not by deciding whether to implement a new structure of property rights, which will have vast and unanticipatable consequences across the spectrum of the law. "More facts must be collected, and more time flow off, before the world will be ripe for decision."
The slow growth of the common law is as good a model as we have for this process: start with the facts, with the particulars, and build your theory from the slow accretion of distinctions parsing those facts. Prof. Epstein's paper for this symposium illustrates the common law method quite beautifully. Epstein has drawn out for us the existing tree of the law regarding liability for the publication of truthful information -- the Defamation Tree. We distinguish "fact" from "opinion," and treat the two categories differently for purposes of imposing liability; on the branch of the Defamation Tree dealing with "facts," we define two additional branches, distinguishing "true facts" from "false facts," and we treat the two categories differently for purposes of imposing liability; on the branch dealing with "false facts," we distinguish false facts about "public figures" from false facts about "private" persons; we distinguish statements made by a judge in the course of his/her official duties from those made by others; we distinguish statements appearing in a newspaper from statements appearing elsewhere.
And on and on. Some of these distinctions -- between fact and opinion, perhaps, or truth and falsity -- may well continue to make sense in the special conditions of cyberspace. Others may not. What does it mean to be a "public figure" in cyberspace? Can we continue to place "newspapers" in a special category of their own? As their incongruity and inappropriateness become apparent to us, we can discard these distinctions; it's a kind of pruning exercise. And as we seek answers to concrete questions regarding which forms of data mining, or profiling, or preference matching, are reasonable and which are not, we can draw new distinctions to take their place.
Calling this a "tree" is more than just metaphor -- it is a useful description of the end product of all of this branching, the web of interconnected information that is, in fact, a kind of organic whole. In our ignorance, having just stepped onshore in this new New World, we pretend to knowledge of the shape that the tree should take at our peril; there are new kinds of organisms here. [Think of the moose!] "These questions cannot be decided, ultimately, at this day." We need to give the tree a chance to grow at its own pace, for that is the only way it can reach a fullness that is both stable and responsive to the particulars conditions of the new place.