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Abstract

This Article provides a timely examination of U.S. law and policy concerning information privacy on the Internet, a subject that receives almost daily attention in the press. This Article constructs a new theoretical framework from the writings of Alasdair MacIntyre, a major contemporary philosopher and social theorist. Over the past 30 years, MacIntyre has examined the roots and continuing impact of the failure of post-Enlightenment thinkers to produce an account of human nature and action that could replace an older Aristotelian account and command the assent of all rational persons. In addition to extending MacIntyre’s examination of our post-Enlightenment situation, this Article incorporates into a unique interdisciplinary framework important insights from Prof. Robert Rabin’s analysis of regulatory models in administrative law and Max Weber’s seminal investigation of bureaucratic authority. This Article applies this new framework to the U.S. Internet privacy regime, showing how and why that regime reflects and reinforces three key elements of the “post-Enlightenment paradigm,” i.e., the sovereign individual, the market, and the administrative bureaucracy. The U.S. Internet privacy regime emerges from and helps to maintain a world in which the individual’s power to construct an identity increasingly depends on his or her ability to consent to the sale of personal information as a commodity to an impersonal corporate bureaucracy in a properly functioning market under the regulatory supervision of an impersonal government bureaucracy. In the era of what MacIntyre labels “bureaucratic individualism,” the individual’s identity comes to depend upon action by an impersonal bureaucracy and each new assertion of individual control over personal information paradoxically enhances bureaucratic power. If these conclusions are correct, they raise important questions about the extent to which our post-Enlightenment situation constrains our ability to imagine, let alone implement, truly different approaches to personal privacy.

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