Hasta La Vista Privacy, or How Technology Terminated Privacy

Lawyers find great joy in pointing out the destructive effects of digital technology on privacy and naturally expect the law to avert overexposure of people’s personal information. This essay takes a different view by arguing that the trajectory of technological developments renders the expansive collection of personal data inevitable, and hence the law’s primary interest should lie in regulating the use—not the collection—of information. This does not foreshadow the end of privacy, but rather suggests a necessary reconceptualization of privacy in the digital era. Along those lines we first need to acknowledge that people increasingly sacrifice voluntarily some of their privacy to enjoy the benefits of technology. Second, the ready availability of a huge volume of personal information creates attention scarcity, such that the chances a person’s privacy will be intruded are diminished. Most importantly, though, once the law accepts the inevitability of the collection of personal information, it will be best in the position to focus attention on ensuring that the collected information is appropriately used, instead of wasting resources on trying to hinder in vain its collection. This more realistic approach calls for alternative means of regulation, like self-regulation or emphasis on informed consent, and facilitates the flow of information by reducing the transactional cost of its sharing and dissemination.