Privacy and the New Virtualism

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 cyberspace by drawing on what Orin Kerr calls the internalist or virtualist perspective. The virtualist approach to privacy in cyberspace shifts the focus away from the concept of privacy itself which has been over-theorized and overcategorized by privacy theorists, to analyzing and theorizing persons in cyberspace 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 in cyberspace has conceptual, normative, constitutional, and public policy benefits. Recently a postgraduate researcher at the Faculty of Law, Oxford University, where he was a Mackenzie King Travelling Scholar. The author would like to thank the staff of the Oxford Internet Institute for their patience and assistance in the course of this research and YJoLT editor Caitlin Hall for her help in preparing the article for publication. He would also like to thank Robert Danay, Jonathan Zittrain, Richard Albert, Ali Abrar,, Julie Cohen, and Kandia Aird for their advice, comments and/or suggestions. 1 PENNEY: PRIVACY AND THE NEW VIRTUALISM Published by Yale Law School Legal Scholarship Repository, 2008 PRIVACY AND THE NEW VIRTUALISM