Review of Privacy: the Lost Right

Jon L. Mills, Privacy: the Lost Right (Oxford University Press 2008) hardcover, 391 pages, $65.

Privacy: the Lost Right by Jon L. Mills is a valuable resource for law professionals and others who want to be well informed about the state of privacy rights in our increasingly interconnected world. With extensive experience in the field of privacy rights from three vantage points – professor, practicing attorney and legislator — Mills is well qualified to write on this subject. His three perspectives provide a richness and breadth to the information.

For this reviewer, Mills achieved his ambitious goal to “put the loss of privacy in perspective historically, culturally, and legally.” The book’s organizational framework provides a helpful structure for sorting out complex issues. Mills defines four spheres of privacy as autonomy, personal information, personal property and control of physical space; and within this framework discusses how privacy is disappearing. He outlines the current legal tools for privacy protection, explains why he thinks these tools are failing, provides case examples to demonstrate this failure, and offers potential remedies. Mills demonstrates even-handedness and objectivity in providing examples of how both good and evil may be protected by privacy rights.

The author’s theme throughout is that law has not kept pace with the growth of technologies. Our laws in regard to privacy have been developed incrementally and specifically over time, with no overarching goal. Today’s culture has evolved to the point where individuality and privacy are challenged by virtually all aspects of society. Privacy rights conflict with other societal values such as free speech and public safety. He questions “When will the public care?”, observing there is relatively little concern about loss of privacy due to technology, except when one happens to be personally touched by a privacy infringement.

Although I had familiarity with the concept of data mining, I found the section describing how the personal information we provide every day is used by others valuable for understanding the potential of data aggregation. According to Mills, individual information in one location has “practical obscurity”. When this information is aggregated and sold to other entities, it is no longer obscure. He argues that assembled information is a different entity from small pieces of information in different locations, and legally should be treated differently.

The author compares privacy issues across different countries and regions. For example, privacy receives less legal protection in the United States than in European Union countries. The United States developed privacy law over two hundred years of court-created precedent. In contrast the EU, founded in the modern era, was able to regard privacy in a contemporary context. Mills includes examples of how privacy intrusions are becoming global, and argues that the remedies must also be global.

Mills’ examples correspond with accounts of “libel tourism” I am seeing in recent publications in which people having situations with some international aspect are shopping around to jurisdictions where the laws may be more favorable to privacy protections. However, some backlash to this approach is beginning to occur. Although a bill proposed in Congress in 2008 which would have directed United States courts not to enforce these judgments was not enacted into law, it appears various efforts in the United States to nullify these decisions will continue.

While agreeing that national security, free speech protections, and the openness of public records are important issues, Mills strongly favors taking a more comprehensive legal approach to privacy rights. He considers privacy a central part of personal liberty and individuality, and a right that should be fervently protected.

Mills’ detailed explanations and extensive examples of each line of reasoning help facilitate understanding. The reader has the option of focusing on the text only, reading and exploring the notes, or drilling down to research cases in areas of particular interest. Important resources located in appendices include 1) lists of federal enactments related to categories of privacy rights, 2) privacy protections which currently exist in state constitutions, 3) examples of consumer privacy policies, and 4) questions and answers about potential real life situations. I highly recommend this book to law professionals or lay persons as a clear, concise, and comprehensive overview of the privacy rights issue.

Reviewed by Beverly Burmeister, Cataloging Services Librarian, Valparaiso University School of Law Library

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April 2009

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