Privacy as Commons: Case Evaluation Through the Governing Knowledge Commons Framework

Privacy and Security, Copyright and Trademark and Intellectual Property

Article Snapshot

Author(s)

Brett M. Frischmann and Katherine Strandburg

Source

Journal of Information Policy, Vol. 8, pp. 116-166, 2018

Summary

“Privacy” is best defined as a matter of the appropriate flow of information. A concept known as the “general knowledge commons” helps analyze privacy problems, although the concept was developed for creative content rather than privacy analysis.

Policy Relevance

Privacy cases can be better understood by thinking more about the institutions in which those cases arose.

Main Points

  • A "commons" involves the management and sharing of natural resources by members of a community; scholars have developed a "general knowledge commons" framework to analyze problems involving intellectual resources, including science, creative works, and data.
     
  • In a "contextual integrity" framework, a three-step process is used to evaluate privacy problems.
     
    • Does the practice violate an entrenched norm for sharing information?
       
    • Does the practice implicate high-level values, such as autonomy or freedom?
       
    • Does the new practice conflict with the values of the community in which it arose?
       
  • In considering the relationship between governing institutions and privacy rules actually in use in real-world privacy cases, three main patterns emerge:
     
    • When the rules for information sharing concern a public commons, such as Wikipedia.
       
    • When the rules for information sharing arise in a members-only community, as with information sharing between members of Congress.
       
    • When the rules for information sharing are imposed by a governing body, as with some biomedical and genetic data.
       
  • In a public commons like Wikipedia, rules for information sharing are difficult to enforce; privacy rules tend to be influenced by intellectual property rights, which govern the same content.
     
  • When a knowledge community is governed by a community with limited membership, the rules governing shared information are mainly concerned with secondary uses of information, and with disseminating or disclosing information appropriately.
     
  • When the rules for a knowledge community are imposed from the top down by a governing body, the legitimacy of the governing body must be established.
     

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