The Encrypted Self: Fleshing Out the Rights of Electronic Personalities


Curtis E. A. Karnow


VOL. XIII • Fall 1994 • NO. 1 (table of contents)

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13 John Marshall J. of Comp. & Info. Law 1


The electronic community is faced with a now classic dilemma: the tug-of-war between the desire for a free flow of information and the need for privacy. The problem can be recast as the pull between freedom of access in one direction, and, in the other direction, the right of self-determination and control over the dissemination of information. Often, the same individuals and organizations are vociferously in favor of both interests. The interests at stake are, respectively, those of the community versus those of the individual. The conflict is the traditional juxtaposition, which raises the traditional issue of rights, responsibilities and the acceptable bounds of community power. This article suggests that a new legal fiction, electronic personalities, may usefully address these conflicting interests.

The notion of epers provides the framework, espalier, for the debate on conduct in cyberspace. Rights are conferred on epers for the same reason rights are conferred on humans in the physical world: because we wish to restrain powerful forces; and we cannot restrain those forces with countervailing raw power.

Against these forces, epers must be allowed some room, so that literal ownership of (i) the means of communication and (ii) agglutinated information does not thereby confer rights with respect to the content of the communication and the dissemination of the information.

The recognition of epers, and their admission as bona fide legal fictions, will affect and be affected by our mutating notions of self. These are consequences worth noting, especially as it is easy to mistake epers for humans and to be afraid of that confabulation; or to urge it in some mistaken, bizarre push for the next generation of intelligent beings.

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