ILAW 2004 was on last week at the Berkman Center at Harvard. The usual suspects, Larry Lessig, Jonathan Zittrain, Charles Nesson, Yochai Benkler and William Fisher enjoyed themselves educating the latest cohort of delegates in the intricacies of internet law. Frank Field was there and reports on many of the sessions.

Donna, though, sees Jerry Kang's session as one of the higlights. She pegs him the Larry Lessig of privacy:

"UCLA law professor/Harvard law visiting professor Jerry Kang is the Larry Lessig of privacy, in that he was able very quickly
and powerfully to communicate that there are extremes in the debate that result largely from the culture-born clash between
"property talk" (U.S.-take on privacy) and "dignity talk" (Euro approach). He lifted the discussion out of the dreaded "tin foil
hat" arena -- that is, beyond "paranoid freaks v. reasonable people" nonsense that stops people from truly engaging with the
problem/issues at hand. He's one to learn from. (Check out Frank Field's comprehensive ILAW notes for a remarkably
detailed transcript of his talk.)"

Kang talked about the unproductive ideologies in the privacy debate and how to get round them.

"A clash of civilizations (america v europe)
america - market talk; privacy is a widget; let the market do it; exercise your freedom in the market; exchange for value; and in a good market, we get allocative efficiency - kind of a caricature, but this is a good short term mechanism
europe - dignity talk; privacy is a fundamental human right; we do not auction off babies; we let the law decide what it a fundamental human right.

Substance - turning to the substance suggests that the ultimate elements are the same.
at the core, they seem to be the same.
- Dignity talk says (consent is required) (apparatus to ensure that there is a process to protect consent)
- Market talks says (clear property rights needed/so who gets initial entitlement?/many possible results/these days, it’s largely in the commons)
there are good reasons to think that efficiency emerges when you give the entitlement to the individual – same result as dignity talk...

...Dignity talk hates the market approach because there’s too little control for individuals to exert; individuals have a hard time making a good bargain. Rather, the system is set up to fortify the individual’s position in these situations...

...Market approach says that the dignity approach is too stilted – there are situations where the balance of interests should go against privacy; the market achieves that balance more efficiently

But dignity talk leads to systems that explicitly generate exceptions to the dignity right within the supporting instutions created...

...So, it may be that we will all end up in the same place; and it may be that rather than arguing about which regime is “right” we should move on to the real, mechanical issues that are the same for both...

...What can we do to reframe this debate?

1) soft pedal the concern about market talk/dignity talk - unproductive

2) the substance is something we ought to be focusing on
a) who gets the “thing” - the initial entitlement
b) how will the choices get made, and how to ensure that the decisionmaker is fortified to do it well/effectively - this is where inalienability may emerge (can’t ask, can’t tell) - there are lots of intermediate forms of the way we might frame/constrain the kinds of exchanges that we will allow; ability to correct
c) what are the societal overrides; what is allowable contexts within which we can override the rights/market actions of individuals. How to pick/adjudicate/etc.
d) How much supporting information infrastructure needed to enforce - various flavors

That;s the claim – answer these four question, rather than talking to me about dignity or markets"