This paper offers a new framework for thinking about the relationship between the common law of property and the rule of law. The standard way of framing this relationship is within the terms of the form/substance debate within the literature on the rule of law: Does the rule of law include only formal and procedural aspects or does it also encompass and support substantive rights such as private property rights and civil liberties? By focusing on the nature of common-law reasoning, (...) I wish to question the form/substance dichotomy that frames this debate and to show that the formal aspects of the rule of law are in fact principles widely adopted within the practice of common-law reasoning and as such play a large role in shaping the substantive content of common-law property rights. Understanding this has implications beyond the relationship between property law and the rule of law. (shrink)

Contemporary privacy debates regarding new technologies often define privacy in terms of control over personal information such that the privacy “problem” is a lack of control and the privacy “solution” is increased control. This article questions the control-paradigm by pointing to its parallels with earlier debates in the philosophy of technology regarding technology that was out-of-control. What first-generation philosophers of technology understood was that at the root of the questioning of technology lay a need to question the modern self itself. (...) Legal debates regarding privacy renew the importance of this question, for the control-paradigm perpetuates a view of the self as an individual with an inner core transparent to itself on solitary introspection and revealed to others through self-conscious acts of disclosure. Increasingly, this model fails to account for the challenges raised by new technologies and calls for rethinking. (shrink)

The rule of law is widely perceived to be a public law doctrine, concerned with the way governmental authority conforms to dictates of law. This book explores the idea that the rule of law instead concerns the conditions under which any relationship - that among citizens as well as that between citizens and the state - becomes subject to law.

Alan Westin’s work Privacy and Freedom remains foundational to the field of privacy, and Westin is frequently cited for his definition of privacy as control over personal information. However, Westin’s full definition of privacy is much more complex than this statement, describing four states of privacy (solitude, intimacy, anonymity, and reserve) that one achieves through physical or psychological means. The “claim” of privacy involves negotiating a balance between a desire for disclosure and social participation and a desire for withdrawal into (...) one of the “states” of privacy. Influencing this adjustment process are social norms (and surveillance to enforce social norms), environmental conditions, and the curiosity of others. In this Article, I draw upon this complexity in order to reread Westin’s definition of privacy as a claim of control over personal information and use this rereading to understand how the law should protect and promote privacy in the twenty-first century. I argue that the law should focus on securing meaningful privacy choices rather than on individual control over personal information. Meaningful choice requires that our informational infrastructure, and the social practices that it enables, make states of privacy available for choice along with the means of attaining them. To enable such meaningful individual choice, we need to shift our attention from a focus on individuals to a more systemic focus on our public norms and built infrastructure. Otherwise we risk protecting a narrow understanding of individual control, while ignoring a more general and systematic erosion of privacy. (shrink)

In this Article I argue that the emerging public/private nexus of surveillance involves the augmentation of state power and calls for new models of constitutional constraint. The key phenomenon is the role played by communications intermediaries in collecting the information that the state subsequently accesses. These intermediaries are not just powerful companies engaged in collecting and analyzing the information of users and the information they hold are not just business records. The key feature of these companies is that, through their (...) information practices and architecture, they mediate other relationships. I argue that this mediating function, and its underlying technological form, interacts with legal and social norms in ways that can lead to the erosion of constraints on state power. This Article maps two stories of erosion, rooted in two kinds of community displacement. The first involves the displacement of community participation in law enforcement and the emergence of “technological tattletales” where intermediaries cooperate with the state. Unlike citizen cooperation, this practice augments state power and undermines more traditional informal modes of constraint on state power. The second involves the displacement of national legal and political community. Communications intermediaries are often large multinational companies that operate in multiple jurisdictions and move their data to various datacenters across the world even as the individual data subject remains in one geographical location. Laws that treat nonresident aliens differently from residents and citizens can create “constitutional black holes” where the communications data of an individual is not protected by any constitutional constraints. (shrink)