In today's digital age, the right to privacy is a major concern for many people, with statistics showing that most Americans are worried about how their personal data is collected and used online. However, there is often a significant lag between the law and technology, making it difficult for individuals to protect their rights without government intervention or organized groups. Emerging technologies like blockchain provide innovative solutions to enhance digital privacy rights.
The legislative history of consumer information privacy law in the United States is traced back to 1890 when former Justices Brandeis and Warren argued for a "right to privacy" in a Harvard Law Review article. However, it wasn't until 1965 in Griswold v. Connecticut that the right to privacy was secured in the American common law. Today, California is the only state that explicitly grants its citizens the right to privacy, and it has enacted laws to protect consumer privacy rights online.
Blockchain technology can help to further enhance online privacy rights, in line with the original intent of Warren and Brandeis. Blockchain technology allows individuals to have "self-custody" and "sovereign identity" over their private data, which would provide greater autonomy and control over digital personhood. Further technological development and legal research is necessary, but the tools are already available to take the next steps towards enhancing individual privacy rights.
As technology advances, concerns about consumer privacy continue to grow. In the United States, several legislators from both major political parties have introduced legislation with varying means to evolve the way in which consumer information privacy rights are protected. Almost 20 bills have been proposed on the issue in the last two years alone, ranging from the most heavy-handed direct solutions targeted at the largest providers to broad and general protection of rights without consideration of the size of the provider. However, to date, none has passed and taken effect as national law in the United States, and consumers are still left to their own devices under state law and potential fraud or contractual claims.
The current infrastructure of the internet and digital spaces is built much like a bunch of massive “skyscrapers”—websites or platforms—with very few connecting roads or pathways between them. A user must usually enter one skyscraper (the website) by typing in an address and entering a particular username and password, agree to the terms of use, and then surrender all personal data to participate in whatever happens within that particular site as dictated by the organization that owns the skyscraper and controls all within.
An emerging technology, blockchain, introduces the concept of “backpacks” and "highways" to this digital space. A user in a blockchain world will still find themselves traveling from skyscraper to skyscraper, but with blockchain, they are now equipped with backpacks which can store their own data over which they have control about how each skyscraper can use their data. The skyscrapers are also built on highways with the blockchain, on which users travel from each skyscraper to skyscraper with their backpacks, controlling what data they add to their pack and what they share or leave with each skyscraper. The technology space calls this concept of the “backpack”: “sovereign identity” or at their most rudimentary, "wallets".
The metaphorical description boils down complex technological concepts to the two basic infrastructure architectures of digital spaces that can exist—what some call “custodian” versus “self-custody”. That is either the skyscraper or website/platform is the one controlling the user’s data as “custodian” with full control to do as the website wishes, or the user is controlling their own data as “self-custody” with full control over how their data is used.
As we move forward in this digital age, it is essential to examine the current state of consumer information privacy legislation and consider the technological solutions that could inform the evolution of consumer information privacy laws. While proposed legislation may be slow to pass, technological solutions like blockchain offer a promising alternative for users to have more control over their personal data.