Engaging Privacy and Information Technology in a Digital Age (2007) / Chapter Skim
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5 The Politics of Privacy Policy in the United States
5 The Politics of Privacy Policy in the United States
Pages 155-174
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From page 155... ...
By the 1920s, protecting privacy had become a matter of federal policy as Congress focused first on making wiretapping unlawful.1 Although legislators have addressed privacy to a considerable extent, it is less clear that the legal safeguards for privacy that they have enacted 1 It is unclear today whether the legislation of the time reflected more a concern about the integrity of the burgeoning telecommunications system rather than a fear that wiretapping would imperil the privacy of individual conversations.
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From page 156... ...
Gandy, Jr., The Panoptic Sort: A Political Economy of Personal Information, West view Press, 1994, pp. 209-211, for a discussion of the Video Privacy Protection Act of 1998.
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From page 157... ...
Government policies affecting privacy are established at the administrative, legislative, and judicial levels in states, nations, and economic regions like the European Union, as well as at the international level.9 The fact that these policies can vary quite substantially from jurisdiction to jurisdiction means that information-inten 6 James Q Wilson, "The Politics of Regulation," pp.
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From page 158... ...
Consistent with the view of privacy policy as a struggle between competing interests, efforts to protect privacy have not had much resonance with lawmakers seeking to broaden their electoral appeal. As recently as 1995, Priscilla Regan, drawing on her Capitol Hill experience as well as her extensive scholarship, concluded that "privacy issues do not provoke great electoral support" and so members of Congress are "unlikely to champion or adopt these issues because they believe there will be an electoral payoff."11 Indeed, noting that "privacy has not been an issue in the electoral arena at either the national or the state level," Regan finds no obvious "explanation for why a member of Congress chooses to champion privacy issues." Politicians, especially members of the House of Representatives, who are almost continually in search of support for re-election, are careful to select issues that can attract press coverage.
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From page 159... ...
David Brin aptly observes that "whenever a conflict arises between privacy and accountability, people demand the former for themselves and the latter for everybody else." 16 Such paradoxical views exist "in almost every realm of modern life, from special prosecutors investigating the finances of political figures to worried parents demanding that lists of sex offenders be made public." The framing and passage of broadly acceptable privacy-enabling legislation have undoubtedly been impeded by the existence of such ambivalent views, and by the imposition of irreconcilable demands by constituents who are often unaware of the conflict they create by insisting that privacy be protected as far, but only as far, as necessary to serve subjective needs and interests. When privacy concerns do emerge on the public agenda, the development of privacy policy almost inevitably involves some conflict over the "balancing" of competing interests and values.17 While privacy is not weightless, considerations of efficiency, security, and global competitiveness hold considerable sway in the policy debate.
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From page 160... ...
A classic example of this patchwork is the Video Privacy Protection Act of 1998. During confirmation hearings over the eventually thwarted Supreme Court nomination of appeals court judge Robert H
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From page 161... ...
network of privacy protection could more fairly be faulted than its patchwork or piecemeal quality. As noted in the National Research Council report Global Networks and Local Values, "In practice, the U.S.
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But even if only one state takes such a position, it effectively requires financial service providers to treat their customers in that state very differently, and to make certain that they have evidence of opting in before any personal data are shared. Such state action may, of course, be challenged on grounds other than due process -- for example, as a burden on interstate commerce or invasion of an area in which uniformity is essential even though Congress has not so mandated -- but such challenges rarely succeed, since the federal courts often (or even mostly)
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From page 163... ...
Similarly, public concerns about privacy jumped in the mid-1970s in the wake of the Watergate scandal and the Church Committee report, but tended downward in subsequent years.25 • Public opinion is also responsive to technological developments. For example, concerns have risen with technology developments that make it easier, faster, and cheaper to store, process, and exchange vast amounts of individual-level data, and with the advent of new and expanding techniques for acquiring information about individuals such as data mining to link consumer purchases with demographic information and new techniques of surveillance.
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From page 164... ...
Westin's analysis of change in the privacy agenda notes the very important role that publicity or media coverage has played in the policy process, and emergent theory suggests that it is when the policy debate moves into the public sphere that the outcomes of the process are less certain.29 Public concern and a legislative response are often activated in response to the efforts of activist organizations concerned with technology, media, and civil liberties more generally.30 The press and these activist organizations help to raise public awareness about the extent to which many of the business practices that the public assumed were against the 26 Eleanor Singer, Nancy A Mathiowetz, and Mick P
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From page 165... ...
The ACLU's concerns continue unabated, indeed intensified, especially in the period after September 11, 2001, and other broad mission organizations have now entered the fray, including some that have found common ground with the ACLU on privacy issues regarding government access to personal information despite being in opposite corners in many other areas. The most dramatic change in public advocacy groups is that, within the past decade or less, the field has now become far more crowded by the entry of a host of influential specialized groups, such as the Electronic Frontier Foundation, the Electronic Privacy Information Center, Americans for Computer Privacy, the Online Privacy Alliance, the Center for Democracy and Technology, and the Privacy Rights Clearinghouse.
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Regan, "From Privacy Rights to Privacy Protection: Congressional Formula tion of Online Privacy Policy," pp. 45-63 in Colton Campbell and John Stack, eds., Congress and the Politics of Emerging Rights, Rowman and Littlefield Publishers, 2002.
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From page 167... ...
described by Westin it was not a single investigation or comprehensive report that sparked a legislative response but instead what Westin characterizes as a "stream of national surveys" that focused on a rise in privacy concerns among the public.44 For example, content analyses designed to assess the presence and quality of the privacy notices of firms engaged in e-commerce were the result of a 40 Regan, Legislating Priacy, 1995. 41 Warrantless FBI Electronic Sureillance, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 1976.
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From page 168... ...
ENGAGING PRIVACY AND INFORMATION TECHNOLOGY IN A DIGITAL AGE BOX 5.1 Databanks in a Free Society In the early 1970s, professors Alan Westin and Michael Baker directed a study investigating how the increasing use of computers was affecting U.S. record keeping processes and what impact the resulting large-scale collections of data (or databanks)
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government to "connect the dots" that might indicate a terrorist operation in planning or preparation, and it is not surprising that they have emphasized the importance of improving the government's information collection and analytic capabilities. For example, a special task force organized by the Markle Foundation argued forcefully for the accelerated development of the government's capacity to gather, process, and interpret information from sources and with means that had previously been barred by law.46 The 9-11 Commission emphasized the key role of information and intelligence in preventing future terrorist actions in the United States and the importance of sharing information among appropriate agencies.47 Though the ultimate outcomes remain to be seen, reports cast in such terms may well help to tip the scales toward greater collection, consolidation, and sharing of personal information than had been considered reasonable, appropriate, or just in the past.
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From page 170... ...
Such opposition or indifference is rarely manifested in declaratory policy by responsible administration officials but can be seen in a lack of compliance with fair information practices. Under such circumstances, it is generally only the courts that can induce the agency or agencies involved to comply, and individual citizens and privacy advocates have had to sue government agencies in order to ensure that the rights of privacy established under the Privacy Act have meaning in practice.51 48 Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, translated by William Rehg, MIT Press, Cambridge, Mass., 1998.
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From page 171... ...
For example, privacy advocate Robert Ellis Smith has argued that the appointment of William Rehnquist to the Court came just in time for him to demonstrate the extent of his opposition to a privacy agenda that had only been hinted at by his testimony before the Senate on presidential powers.52 Somewhat ironically, concerns about the private lives of some nominees to the Court have figured prominently in their review.53 Although political debate addresses one or another competing values, it is rare that the political debate explicitly addresses tradeoffs. Explicit discussion of tradeoffs does often take place during judicial review, where tensions between competing values, such as those between privacy and the freedom of speech, can be made explicit.
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From page 172... ...
Launched by Alan Westin in 1993 as a "privacy-sensitive but businessfriendly" organization to provide information useful to businesses about privacy,57 it began training and certifying corporate privacy officers in 2000. A second organization, the International Association of Privacy Professionals, offers the Certified Information Privacy Professional credentialing program and a variety of information resources (newsletters, conferences, discussion forums, and so on)
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From page 173... ...
These conflicts represent constraints on the ability of corporate actors to develop a comprehensive position on the privacy rights of employees, consumers, and members of the public at large.63 59 Smith, Managing Priacy, 1994. 60 Smith, Managing Priacy, 1994, pp.
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