Reviving the Public Trustee Concept and Applying It to Information Privacy Policy

Priscilla M. Regan

Three policy narratives in the 1980s and 1990s largely determined the path that information privacy policy would take. The first was the dominance of the individual rights definition of the problem of information privacy. Second was the Reagan administration’s deregulation perspective, which was followed by the Federal Communications Commission (“FCC”) stepping back from regulation in the “public interest, convenience and necessity.” And third was the Clinton administration’s admonition not to stifle innovation as the Internet developed. All three of these narratives are being challenged by events in the early part of the twenty-first century. The view that privacy is not only an individual right, but also a right that is important to society as a whole, has received more support in policy, philosophical, and legal literatures—and has called into question the effectiveness and relevance of policy based on the Fair Information Principles (“FIPs”). At the same time, the deregulatory policies of the Reagan administration have largely evolved into new forms of concentration in a number of industries— including those in the information and communication sectors—and have raised questions as to whether some of these companies have achieved the status of providing necessary or essential services and thus should be regulated. Finally, there is now a question of whether those who benefitted from the earlier era of free rein are now hampering Internet innovation by operating to stifle, or buy-up, new startups.