Engaging Privacy and Information Technology in a Digital Age (2007) / Chapter Skim
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4 The Legal Landscape in the United States
4 The Legal Landscape in the United States
Pages 122-154
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From page 122... ...
Constitution, the Supreme Court has made clear that this fundamental right is implicit from the panoply of other rights guaranteed in the First, Fourth, and Ninth Amendments. 4.1.1 The Fourth Amendment The source of constitutional protection for privacy (now embodied most clearly in the Constitution's Fourth Amendment)
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From page 123... ...
Supreme Court passes without at least one case on the docket that juxtaposes government's need for information, usually pursuant to law enforcement investigation, and a citizen's or organization's wish to withhold that information, or to prevent government from gathering the information by invading premises or conducting surveillance in other forms. The Supreme Court's recognition of a citizen's right to be secure against unauthorized government intrusion dates at least to a batch of cases in the 1880s, beginning with Kilbourn .
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From page 124... ...
In 2001, the Supreme Court considered for the first time whether the use of a thermal imaging device aimed at a private home from a public street to detect relative amounts of heat within the home -- to determine whether marijuana was probably being grown within -- constituted a "search" for Fourth Amendment purposes. Distinguishing permissible "naked eye surveillance of a home" the Court held on a 5-4 vote that thermal-imaging surveillance was constitutionally different and did involve an unlawful search.
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From page 125... ...
However, the legal status of potentially intrusive government surveillance is less clear under the First Amendment; three decades ago, the Supreme Court rejected citizens' efforts to enjoin the government's Vietnam era surveillance and infiltration of controversial anti-war political groups. The high Court has never revisited this issue, although a few lower courts have been more protective -- notably the California Supreme Court, a few years after the high Court ruling, in barring police departments from sending undercover agents into university classrooms, posing as students, to compile dossiers on suspected radicals.
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From page 126... ...
622 (1951) , the Supreme Court has shown substantial deference to local ordinances that protect privacy by forbidding door-to-door solicitation without the homeowner's permission -- save when such laws unduly burden free expression, as the justices found in their most recent encounter with such privacy-protecting measures, Watchtower Bible & Tract Soc'y .
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From page 127... ...
. In this case, the Supreme Court held unconstitutional a Con
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From page 128... ...
At least five states declined to follow Hardwick, granting protection to private homosexual activity under their own constitutions -- as states are free to do, since the national Bill of Rights sets only a floor and not a ceiling. Thus when the issue returned to the Supreme Court during the 2002-2003 term, the likelihood of an overruling seemed substantial.
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From page 129... ...
State Law Quietly Leads the Way in Privacy Protection," a special report issued by Privacilla.org, July 2002, available at http://www.privacilla.org/releases/Torts_Report.html; and National Research Council, Who Goes There? Authentication Through the Lens of Priacy, Stephen T
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From page 130... ...
Of the four privacy torts, the false light tort is least applicable to informational privacy, since it deals with false information. The 1964 Restatement of the Law of Torts (a clarification and compilation of the law by the American Law Institute)
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From page 131... ...
The impact of the Warren-Brandeis thesis, well over a century later, is still not easily assessed. On the one hand, nearly every state has adopted statutory protection for privacy claims that extend well beyond the physical sanctity of the home and office; at last count, North Dakota and Wyoming were the only holdouts.
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From page 132... ...
749 (1989) , the Supreme Court noted the need, under the statute, to balance the interests of openness and accountability against the statutory recognition of individual privacy.
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From page 133... ...
These cases include actions against companies with faulty information security practices that allow sensitive customer data to be exposed to unauthorized parties (a typical settlement might require the offending company to implement a comprehensive information security program and to obtain audits by independent thirdparty security professionals every other year for 20 years) and companies that use collected data in a manner inconsistent with their stated policies (a typical settlement agreement might require the offending company to 10 Many of the thumbnail descriptions of the laws in this section draw heavily on a description of laws related to information law and privacy prepared by the John Marshall Law School, "Information Law and Policy: Existing U.S.
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From page 134... ...
5311-5355 (1970) , was designed to aid the federal government in detecting illegal activity through tracking certain monetary transactions, and it requires financial institutions to file reports of certain kinds of cash transactions and to keep records on other kinds of transactions for which no record-keeping or filing requirements previously existed.
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From page 135... ...
normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." Only certain federal crimes may be investigated under Title III authority (e.g., murder, kidnapping, child molestation, racketeering, narcotics offenses) , and Title III also has a variety of provisions that minimize the intrusiveness of the wiretap on telephonic communications that are unrelated to the offense being investigated, provide for civil and criminal penalties for law enforcement officials or private citizens who violate its provisions, and allow the suppression of evidence obtained in violation of the central features of Title III requirements, even if such evidence meets the relevant Fourth Amendment tests.
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From page 136... ...
Subscribers are given the right to limit disclosure of name and address for mail solicitation purposes and have a right of accuracy and correction. However, restrictions in this act on disclosure of information related to the cable provision of communications services such as voice-over-IP phone service were substantially relaxed by the USA PATRIOT Act in response to law enforcement requests for information.
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• The Driver's Privacy Protection Act of 1994, 18 U.S.C. 2721, was passed subsequent to the stalking and murder of actress Rebecca Schaeffer by a fan who allegedly retrieved her name and address from a motor vehicle department.
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From page 138... ...
In general, the USA PATRIOT Act and subsequent amendments lower some of the barriers to conducting surveillance in the United States for national security or foreign intelligence purposes, provide the U.S. intelligence community with greater access to information uncovered during criminal investigations, and encourage cooperation between law enforcement and foreign intelligence investigators.
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From page 139... ...
• The Video Privacy Protection Act, 18 U.S.C. 2710, was passed in 1988 in response to actions taken by reporters covering the hearings for Judge Robert Bork's nomination to the Supreme Court.
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0 ENGAGING PRIVACY AND INFORMATION TECHNOLOGY IN A DIGITAL AGE BOX 4.1 Identity Theft Identity theft or fraud is a major and growing concern in the information age. In 1998, it was made a federal crime under the Identity Theft and Assumption Deterrence Act.
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THE LEGAL LANDSCAPE IN THE UNITED STATES But modern information technology facilitates identity theft on a large scale. For example, 8 of the 36 incidents of large-scale compromise of personal information reported by the Identity Theft Resource Center2 involved the theft of computers containing personal information.
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From page 142... ...
States are also required to provide to all other states electronic access to information contained in the motor vehicle database of the state. 4.3.2 Federal Laws Relevant to Confidentiality A number of federal laws protect the confidentiality of personal information collected by the statistical agencies of the United States.
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From page 143... ...
Although many agencies have regulatory authority, the Federal Trade Commission has played a key role in enforcing regulations related to information-age privacy and has some authority to promulgate regulations as well. For example, the FTC states, Privacy is a central element of the FTC's consumer protection mission.
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From page 144... ...
Part 313) to ensure that financial institutions protect the privacy of consumers' personal financial information.15 The main privacy protection provision is the Financial Privacy Rule, which governs the collection and disclosure of customers' personal financial information by financial institutions.16 In brief, the Financial Privacy Rule requires covered institutions to give consumers privacy notices that explain the institutions' information-sharing practices, gives consumers the right to limit certain types of sharing of their financial information on an opt-out basis, and puts some limits on how anyone receiving nonpublic personal information from a financial institution can use or re-disclose the information.
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From page 145... ...
Legislators understood very well that the privacy of personal health information was a central issue for health insurance portability, but they were unable to reach agreement on the nature and scope of the appropriate privacy protections. Thus, Section 264 of HIPAA directed the secretary of the Department of Health and Human Services (DHHS)
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From page 146... ...
A second example is Executive Order 13181, issued on December 20, 2000. This executive order declared as the policy of the government of the United States that law enforcement may not use protected health information concerning an individual that is discovered during the course of health oversight activities for unrelated civil, administrative, or criminal investigations of a non-health oversight matter, except when the balance of relevant factors weighs clearly in favor of its use.
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From page 147... ...
The problem in regard to privacy protection, however, is the inevitably broad reach across much (if not all) of the nation of especially restrictive measures, and the potentially heavy burdens of compliance for those business entities that serve clients and customers in many states.
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From page 148... ...
TABLE 4.1 Privacy Laws by State Statea Category US AL AK AZ AR CA CO CT DE DC FL GA HI IL IN IA KS Arrest records O X O X O X X X X X X X X X X O O Bank records X X X O O X O X O O X O O X O X O Cable TV X O O O O X O X O X O O O X O O O Computer crime X X X X X X X X X O X X X X X X X Credit X O O X O X O X X O X X O O O X X Criminal justice X X X X X X X X X O X X X X X X X Government data banks X X X X O X X X X X X O X X X X X Employment X O X O O X O X X X X O X X O X O Insurance X O O X O X O X O X X X O X O O X Mailing lists X O O X O X O X X O X O X O X X X Medical X X X X X X X X X X X X X X X X X Miscellaneous X O O O O X O X O O X O X X X O O Polygraph results X X X X X X O X X X O X X X O X O Privacy statutes X O X X O X O O X O X X X X O O O Privileges O X X O O O X X X O O X O O X O O School records X O O X O X X X X O X O O X O X O Social Security numbers O O O O O O O O O O O O O O O O O Tax records X O X X O O X O X O O X X O O O X Telephone solicitation X O X X X X X X O O X X X X X X X Testing O O O O O O O X O O X O X O O X O Wiretaps X X X X X X X X X X X X X X X X X aAn X in indicates that the state has a privacy law relevant to the category indicated, although it does not indicate how effective or strong the law is. Only the first 16 states (in alphabetical order)
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From page 149... ...
to forbid state departments of motor vehicles and law enforcement officials to sell or otherwise release personal information obtained in connection with any motor vehicle or license record without affirmative opt-in consent. The constitutionality of this law was challenged by a group of states that apparently wished to retain the revenue streams associated with the sale of such data.
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From page 150... ...
Although the justices were sharply divided in these cases, a clear majority consistently sided with the states throughout this decade. Thus, the extent to which the Condon decision indicates a willingness of the Supreme Court to uphold congressional preemption of state laws regarding privacy is unknown.
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From page 151... ...
This is best illustrated by the absence of comprehensive data privacy legislation regulating the U.S. private sector and the absence of an independent agency (data protection authority or privacy commissioner)
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From page 152... ...
However, differing approaches of the United States and the European Union to protecting privacy might have hampered the ability of U.S. companies to engage in many trans-Atlantic transactions.20 While some privacy advocates at the time had hoped that the directive would force the United States to move significantly in the direction of the European approach to protecting privacy (i.e., in the direction of comprehensive privacy protection)
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From page 153... ...
Although traditional sources of power and influence such as national governments and representatives from key missions and administrative agencies with interests and responsibility for national security and foreign trade have to be considered along with the more complex interests of transnational firms, it is also important to consider the role of the epistemic community of policy experts who are engaged in the elaboration of new ways of thinking about the international arena.26 Policy formation at the international level is also characterized by a considerable amount of negotiation, bargaining, and compromise among 23 Hiawatha Bray, "Yahoo Said to Aid China in 2003 Subversion Trial," Boston Globe, February 9, 2006, available at http://www.boston.com/business/technology/articles/2006/02/09/ yahoo_said_to_aid_china_in_2003_subversion_trial/. 24 Eric Schonfeld, "Analysis: Yahoo's China Problem," CNNMoney.com, February 8, 2006, available at http://money.cnn.com/2006/02/08/technology/yahoo_china_b20/.
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From page 154... ...
Regan, "American Business and the European Data Protection Directive: Lobbying Strategies and Tactics," pp. 199-216 in Colin Bennett and Rebecca Grant, eds., Visions of Priacy: Policy Choices for the Digital Age, University of Toronto Press, 1999.
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