The online world is regarded by many as new and uncharted
territory. It is natural and not surprising that so many seek order and
control, by government regulation if necessary, in the online world.
The online and offline worlds are collapsing into one,
however, and probably never were as far apart as people might think. Businesses
have collected information for many, many years, and they have moved that
information onto computers and into databases as those technologies have
become available. The Internet has only given a new public face to information
technologies and information practices that have been developing and evolving
"offline" for years.
Today, more and more transactions that used to take place
offline are being moved online. Already, telephones, radios, and devices
that go into our homes, offices, and automobiles are being built to connect
to the Internet. The differences between the online and offline worlds
are growing increasingly blurry.
For this reason, it is a mistake to think that the "offline"
and "online" worlds should be treated differently. Any way of addressing
online privacy should address offline privacy the same way.
The offline harms to privacy that are currently recognized
— the privacy torts that Warren and Brandeis
wrote about — can certainly
be committed in the online environment and, just as everything else online,
they sometimes can be committed more quickly and dramatically. But the nature
of the harms — the invasion of people’s privacy interests — does not depend
on the medium that causes the harm.
If policies were to artificially select between information
practices "offline" and those "online," this would create a distinction
that does not exist in the modern world — and certainly will not exist
in the future world. Such an artificial distinction would unnecessarily
drive transactions toward or away from the Internet. No policy should prefer
the offline world or the online world over the other. Businesses and
consumers should find the medium that satisfies them without government
policy driving their preferences.