Confidentiality on the ‘net — it’s important

Many people argue privacy for individuals is effectively an old and impossible dream in today’s digital world.

I don’t think that thesis is correct. Nor is it sufficiently mindful of how the world as we know it works today. I think the future of privacy can be robust for individuals and this is a first attempt to describe a different view.

The interesting thing in the cold concrete world is that no one, including the government can compel one’s attorney, doctor, minister or therapist to reveal information about you that they are privy to or aware of as your professional advisers/agents. To my mind this is the core, the natural heart of normal, practical confidentiality in any civilized society.

People have confidentiality rights and responsibilities that are recognized and available in the bricks and mortar world.

The question of the moment is, how will legally available confidentiality rights and responsibilities for individuals transfer to the Internet in ways that serve everyone’s individual interests? Or will just the very few who have exceptional financial means continue to be the exceptional people who can and do take action on their own behalf to preserve their confidentiality?

Confidentiality is a critical element of personal freedom in the bricks and mortar world, but it is routinely castigated, ignored, and assumed to be inapplicable or non-transferable onto the ‘net.

Specifically, why isn’t “attorney / client privilege” (as well as the other legally privileged professional / client relationships) extended or deemed extensible to the Internet?

I ask because, were privileged communications routinely available on the ‘net, then any individual could establish a client/attorney service relationship with a legal services firm and then empower that service provider to function as his/her legal agent for all future transactions on the ‘net with every web entity.

In turn, one’s legal services agent would serve as the intermediary establishing and protecting all the client’s relationships on the net with every website. This could include negotiating a mutually satisfactory agreement regarding the degree(s) of confidentiality for all transactions, discussions, offers, etc.

Maintaining strict confidentiality is already done in the concrete world for some people. It’s clear that the personal and transactional confidentiality of certain individual’s actions can, in practice, be protected to a very exacting extent. I think we realize that the confidentially which some individuals have in the bricks and mortar world has been simply too costly, difficult, and time consuming for the vast majority of law abiding human beings to contemplate or pursue. But consider this: Will the assumption that confidentiality costs are exorbitantly expensive continue to be true on the ‘net? I believe the answer is a resounding “no”.

Abandoning or drastically limiting our ideals and expectations concerning privacy and confidentiality on the Internet — because it seems extremely unwieldy, difficult, and costly — is not inevitable, not necessary, and most importantly is not an accurate way to think about what is becoming available for individuals as citizens on the Internet, so to speak.

To the contrary, a very important alternative stance on confidentiality is awaiting us in the near future. There is a compelling promise of greatly increased confidentiality for individuals in the world tomorrow.

Greater confidentiality is feasible and possible in future precisely because of the nature of the digital bits of data and software that make so many things very inexpensive, some say free, on the ‘net.

With a solid foundation of case law and new legislation that should happen in the EU and, hopefully, in the US, technology innovators will continue to create powerful, effective, and inexpensive confidentiality options and services that can ensure all or virtually all of an individual’s transactions, registrations, comments, geo-location footprints, and even the so-called data smoke/crumbs/noise are confidential and legally protected.

Digital world confidentiality should be available under extant legal construct(s) of privileged attorney/client, doctor/patient, minister/member confidentiality relationships. This will be true for anyone utilizing the tools and services that are becoming available this year.

To put it bluntly, on the Internet, we should conduct all our business under the protections of contracts and attorney/client privilege.

Given the power of technology to do unimaginably complex, numbingly repetitious, exacting data tracking, collecting, etc. it seems entirely obvious that the availability of contract-based personal confidentiality for anybody who wants it will be available in future and for very little or perhaps no expense.

I quite accept the point that virtually any kind of electronic (or other type) transaction and interaction today has multiple owners and that the amount of data that is part of what gets transacted can be enormous.

There can be standing agreements in advance of any transaction stipulating what the dual or multiple parties/owners of the data contractually agree to and require.

The parties to a transaction are primarily interested in completing the transaction; not merely acquiring some bits of personally identifiable information about a new or existing customer. That’s simply because the parties in a transaction want the exchange of value to take place as efficiently as possible.

Therefore, if party A stipulates that all data related to a transaction with party B must be kept legally confidential (or even that party B is never informed about party A because it is conducted by an intermediary), that transaction will still take place because party B wants the transaction to occur.

This means that with a good legal services provider, party A will be able to keep all or nearly all transactions confidential.

This kind of legal service on the ‘net can be inexpensive because once an individual establishes a rich set of authenticated data about his/her transactional history, then the legal services agent will be able to mix together (with full confidentiality, of course) 100% accurate (trusted) pertinent historical data with an individual’s preference and intention information about future buying decisions that are being explored or planned.

The value of rich, authenticated past transaction and preference information about an individual accompanying a prospective transaction is a substantial and lucrative opportunity. And high probability opportunities to complete unsolicited sales transactions are orders of magnitude more valuable than ex post facto data mining activities. Moreover, when the legal services provider / agent for party A engages the seller, party B, about a proposed transaction, various commission options can be put in place to cover the service provider fees.

This category of legal services on the ‘net is important because it promises a more confidential and enriching marketplace future for everyone.

For many the Internet has long held the promise for both individuals and merchants of a far richer, deeper, and more balanced marketplace that is simultaneously economically more valuable, legally more secure, and more competitively fair, neutral, and balanced between buyers and sellers.

Equal legal protection, and thus confidentiality, for buyers and sellers ought to be recognized as as a primary first principle in the economic’bill of rights’ for individuals in the digital country we call the Internet.

Bill Washburn