Mary Fan, Quasi-Privacy and Redemption in a World of Ubiquitous Checking-Up
Comment by: Deven Desai
PLSC 2009
Workshop draft abstract:
The solace of those who stumble or free-fall after making a mistake or enduring misfortune is the ability to remake oneself. The possibility of remaking oneself is one of the casualties of the rampant and insufficiently regulated proliferation of private-sector databases that ossify and construct identity — and impede recovery and self-remaking after traumas like foreclosure, bankruptcy or lesser mistakes and mishaps such as an long-unpaid or mislaid bill scarring a credit score. Classically, one who suffered a substantial setback might hope that time and effort would expunge or alter natural memory or a geographical move might permit a fresh start beyond the reach of localized memory. The difficulty with the proliferation of private-sector databases is that memory is artificially prolonged, bureaucratically ossified, and extended in geographical reach, severely circumscribing the ability to remake or rehabilitate oneself.
This article conceptualizes privacy as protecting the plasticity—in the sense of ability to recover from injury—of identity and personhood and the life consequences that flow from identity. Our understanding of what privacy entails has been crucially updated for the information age by Dan Solove as more than just safeguard against intrusion on what is secret, but also “the ability to avoid the powerlessness of having others control information” affecting critical life consequences like loans, jobs and licensing, and further humanized by Anita Allen to include protection against perpetually dredging up the past so that one can move forward and rehabilitate. The conception of privacy as self-plasticity builds on these understanding. The article argues that conceptualized thus, privacy as principle and right requires the regulation of memory in the context of private-sector databases to permit attempts at self-remaking and rehabilitation. Memory regulation would translate into protections like mandatory expungement of records or circumscribing the geographical scope of database information to permit the possibility of self-remaking and rehabilitation.