Mary D. Fan, Regulating Sex and Privacy in a Casual Encounters Culture
Comment by: Jason Schultz
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1796534
Workshop draft abstract:
The regulation of sex and disease is a cultural and political flashpoint and persistent problem that law’s antiquated arsenal has been hard-pressed and clumsily adapted to effectively address. The need for attention is demonstrated by arresting data – for example, that one in four women aged 14 to 19 has been infected with at least one sexually transmitted disease (STD), that managing STDs costs an estimated $15.9 billion a year, and that syphilis, once near eradication, is on the rise again as are HIV and other STDs. Public health officials on the front lines have called for paradigm changes to tackle the enormous challenge. Controversial proposals have circulated, such as mass HIV screening for everyone aged 13 to 64, STD testing in high schools, mandatory HIV screening, strict liability in tort for transmission, and criminalizing first-time sex without a condom. The article argues that a less intrusive, more narrowly tailored and efficient avenue of regulation has been overlooked because of the blinders of old paradigms of sex and privacy.
The article contends that we should shift our focus away from the cumbersome costly hammers and perverse incentives of criminal and tort law and focus on adapting privacy law and culture to changes in how we meet and mate today. Information-sharing innovations would better deter without as much intrusion and avoid perverse victim-chilling and incentives against acquiring knowledge or seeking help. Turning to adjusting privacy law rather than criminal and tort law would better help safeguard sexual autonomy and ameliorate the information deficit in the increasingly prevalent casual sex culture and Internet-mediated marketplace for sex and love.
Mary Fan, Quasi-Privacy and Redemption in a World of Ubiquitous Checking-Up
Comment by: Deven Desai
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.