The steady stream of news reports about violations of privacy on the Internet has spawned a growing body of literature discussing the legal protections available for personally identifiable information—i.e., information about identified or identifiable persons—collected via the Internet. This Article takes the discussion of Internet privacy protection in a new and very different direction by reexamining the U.S. Internet privacy regime from the perspective of a broader cultural/historical analysis and critique. The perspective adopted is that of Alasdair MacIntyre's account of the disarray in Enlightenment and post-Enlightenment discourse about morality and human nature and the accompanying disappearance of rational justifications for decisions and institutions grounded in that discourse.
The argument of this Article proceeds in four stages. Section II briefly outlines the transition from the older paradigm to the modern, post-Enlightenment paradigm, drawing heavily on Alasdair MacIntyre's account of the relationships among the individual, the market, and the administrative state. Section III explicates the legal principles of the U.S. Internet privacy regime. Section IV sets those legal principles in a broader context of legal theories concerning the administrative state, drawing in particular on the work of Robert Rabin and other scholars in the field of administrative law. Finally, Section V argues that the U.S. Internet privacy regime reflects and reinforces key tenets of the post-Enlightenment paradigm. In particular, the regime emphasizes protecting the individual who competes in a market and empowering impersonal bureaucratic authority as the guarantor of the individual's privacy.
Mark F. Kightlinger, The Gathering Twilight? Information Privacy on the Internet in the Post-Enlightenment Era, 24 J. Marshall J. Computer & Info. L. 353 (2006).