Privacy and the New Virtualism

Abstract

First generation cyberlaw scholars were deeply influenced by the uniqueness of cyberspace, and believed its technology and scope meant it could not be controlled by any government. Few still ascribe to this utopian vision. However, there is now a growing body of second generation cyberlaw scholarship that speaks not only to the differential character of cyberspace, but also analyzes legal norms within virtual spaces while drawing connections to our experience in real space. I call this the New Virtualism. Situated within this emerging scholarship, this article offers a new approach to privacy in virtual spaces by drawing on what Orin Kerr calls the internalist or virtualist perspective. The virtualist approach to privacy shifts the focus away from the concept of privacy itself, which has been over theorized and categorized by privacy theorists, to analyzing and theorizing persons in virtual environments and how they ought to be understood. It focuses on virtual persons and the distinct privacy concerns they raise, and reconnects ideas about informational and data privacy to traditional normative justifications for privacy based on personhood. Adopting a virtualist approach to privacy has conceptual, normative, constitutional, and public policy benefits.

Keywords: Privacy, cyberspace, technology, virtualism, virtualist, realist, internal, externalist, constitution, information privacy, fair information practices, whalen, roe, state action doctrine,

JEL Classification: K19