Intellectual Privacy: Rethinking Civil Liberties in the Digital Age

By Kritikos, Katie Chamberlain | Journal of Information Ethics, Fall 2017 | Go to article overview

Intellectual Privacy: Rethinking Civil Liberties in the Digital Age


Kritikos, Katie Chamberlain, Journal of Information Ethics


Intellectual Privacy: Rethinking Civil Liberties in the Digital Age Neil Richards. New York: Oxford University Press, 2015. 220 pp. $29.95

"We're being encouraged to express ourselves so the government can put us into boxes and sort us onto lists."- Siva Vaidhyanathan (2014, p. 59)

Neil Richards deftly tackles the perennial tension between privacy and free speech in his accessible and readable Intellectual Privacy: Rethinking Civil Liberties in the Digital Age. The prodigious law professor, author, and scholar thoughtfully presents a complicated topic, covering the historical developments of free speech and privacy in the United States and connecting them to the digital revolution, ultimately introducing his concept of "intellectual privacy" and updating the issues and recommendations for the digital age.

Part history lesson, part law school lecture, and part impassioned editorial, the book exhorts all of us to take up arms in the fight against digital privacy invasion: "We all need to understand what is at stake and why it matters, and we all need to be a part of the solution" (p. 4). Part I introduces tort privacy and free speech in both their historical and modern contexts in the United States, and also addresses the limitations of disclosure torts to truly protect privacy or to uphold free speech when it comes to invasion of privacy and personal data online.

In reference to the growing popularity of the right to be forgotten, Richards finds that while its strongest form threatens free speech, perhaps weaker forms are "probably constitutional" (p. 92). As he argues: "Not everything that is a bad idea is unconstitutional, and in a democratic society in a time of technological change, we must be free to make policy mistakes" (p. 92). Is the right to be forgotten, then, a "policy mistake" that we must be willing to make to explore the relationship between free speech and the right to personal data protection in the digital age?

Building on the jurisprudence of privacy and free speech, Part II introduces Richards' theory of "intellectual privacy," which, in its simplest terms, is "a zone of protection that guards our ability to make up our minds freely" (p. 95). As Richards notes in the book's introduction, "For hundreds of years, the technologies we've used to communicate have been based on paper - the letter, the newspaper, the book.... Computers now mediate how we read, write, and think.... Yet even as these technologies enable new forms of learning and expression, they have been designed to create a data trail for each of us of what we think, read, and say privately" (p. 2).

Overall, Richards is skeptical about how we increasingly live and share our lives online, echoing the sentiment expressed by Siva Vaidhyanathan above. The book indicates the concerns with the data trail connected to our viewing, streaming, and reading habits online - personal information that should be private. Intellectual privacy offers an approach to reconcile the tension between personal privacy and free speech to reinforce the value and validity of civil liberties in our networked, online world. …

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