This chapter is focused on the need for and the likely problems to be encountered as we pursue a regulatory response, especially through the traditional framework for thinking about privacy and data protection. This regulatory framework is characterized through a consideration of an evolving tradition beginning with the contributions that were made by Samuel Warren and Louis Brandeis in 1890. Other perspectives, including those of Edward Bloustein, which suggested the importance of dignity and other intangible injuries are explored. Links between privacy interests and interests in intellectual property emerged within legislative and regulatory concerns being raised about rights to information. Of particular importance are struggles over information rights as they apply to individuals and rights claimed by corporate actors, including those rights being claimed by corporate pursuit of First Amendment, or speech, rights. Distinctions are also drawn in this chapter between rights sought as defenses against actions taken by corporate actors versus those of governmental actors, given the fact that the First Amendment as a constraint applies only to agencies of government. A variety of specific cases and continuing struggles within the legal and regulatory environment are described, and due note is taken of the increasing influence of a neoliberal framing of a “marketplace solution” as the appropriate solution for conflicts over informational rights. The chapter concludes with a discussion of “Fair Information Practices” as a strategy for assigning oversight responsibility for informational regulation to a government agency. While there was expression of hope and desire for a governmental agency focused solely on privacy-related concerns, the creation of such an agency in the United States was not forthcoming.
