Privacy and ITs Discontents
Premise
“The liberty of the individual is no gift
of civilization. It was greatest
before there was any civilization,
though then, it is true, it had for
the most part no value, since the
individual was scarcely in a position
to defend it. The development of
civilization imposes restrictions on
it, and justice demands that no one
shall escape those restrictions.”
 Sigmund Freud, Civilization and Its
Discontents, 1929
Argument
 Neither technology nor the USAPatriot Act have dramatically taken
away your privacy
 You never had much to begin with!
 America society would benefit from
a meaningful and comprehensive
evaluation of the role that
“information” is playing in
economic, social, cultural and
political relations.
 “Privacy” law is inadequate for the
task
Challenge
How can information (and its underlying
technologies) serve democratic
republican
values?
From whence “privacy” in
Western Culture?
 Dynamic definition of culture
 Control over nature
 Interpreted though binary oppositions
 Sex/Gender relations foundation
 Women, because of childbearing
functions, become more closely
associated with nature, men with
culture
 Therefore, men control women
 Patriarchal/paternalistic societies
Western Civilization
 Ancient Greece




Clear public/private distinctions
Grounded in sex/gender relations
Women constitute private, men public
“Democracy” as a government construct
originally built on this foundation
“I want to be alone…”
Brief History of Privacy in
Western Civilization
 Ancient Rome
 Great imitators of Ancient Greece
 Recreated the public/private sphere split
 “Privacy” derives from the Latin: to be let alone”
but applied only to the wealthy statesmen
 With empirical twist
 Great latifundia, or plantations
 Slaves from conquest
 “Citizens” of the Mediterranean
Medieval Society:Does hierarchy
equal respect? Dignity?
Dignity, based on Respect, based
on Hierarchy
 Hierarchical, organic, interdependent,
cooperative political, social and
economic relations




Contrary of “individualism”
Theocracy, not a democracy
But respect and dignity, knights and ladies
Dignity and respect precursor to European
“privacy” society
American Privacy Law:
Quilt or Just Patchwork?
Civil Law:
Tort
 “The Right to Privacy”
 Warren and Brandeis, Harvard Law Review 1890
 A tort grounded in property?
 Defamation, Slander and Libel




“intrusion upon a individual’s seclusion”
“public disclosure of private facts”
“false light”
“private gain of individual identity”
*Contract law? Why not, copyright holders do!
No contest
First Amendment and entertainment and
media-driven society
 Extremely high standard: no truth and
actual malice
 Most people would be willing to see
their information for a tuppence
Constitutional Law
 Fundamental Rights
 Children’s schools, foreign language, no
castration…
 Griswold v. Connecticut, 1965
 Privacy as a “penumbra” of 1, 3, 4, 5, 9
Amendment rights
 Married couples right to contraception
 Extended to non-married couples a few
years later…
Constitutional Law
 Roe v. Wade, 1973
 Woman’s right to “privacy” in her own body,
decriminalizing abortion before viability
 Note: the term “privacy” no where in the constitution,
therefore a construct of jurisprudence
 Substantive due process
 Equal protection jurisprudence
 Lawrence v. Texas
 Dignity?
The Fourth Amendment and
Electronic Communications
 Katz v. U.S. (1967)
 “Fourth Amendment protects people, not things”
 Law enforcement must have a court order to tap
a phone line for content
 Precursor to the Omnibus Crime Control and Safe
Streets Act of 1968, which was the…
 Precursor to the Electronic Communications
Privacy Act of 1986
 Kyllo (2001)
 Technology does not trump sanctity of home.
Legislative and Regulatory
Privacy
 Fair Credit Reporting Act (FCRA), Public Law
No. 91-508
 accuracy, fairness, and the privacy of personal
information assembled by Credit Reporting
Agencies
 Privacy Act of 1974
 established rules for the collection, use and
disclosure of personal information held by
federal agencies and specifically prohibited data
matching of those government files
Privacy Legislation
 Freedom of Information Act of 1972
 Family Education Rights Privacy Act (FERPA)
of 1974
 Computer Matching and Privacy Protection
Act of 1988
 Video Privacy Protection Act of 1988
Communications Privacy Laws
 Electronic Communications Privacy Act
of 1986
 Wiretapping Act of Internet
 Cable Communications Privacy Act of
1989
 Telephone Consumer Protection Act of
1994
 Subscriber’s records
Resurgence of Privacy Laws for
Selected Content
 Health Insurance Portability
Accountability Act of 1996
 Financial Modernization Act of 1999
 Homeland Security Act of 2002
 First federal statutory privacy officer
History tells a different story
about privacy:
The Sixteenth Amendment
The Draft
From New Deal to the Regulatory
State
Welfare
 Aid to Dependent Families
Medicare
What does technology have to
do with it?
Digitization, meet packet switching, which hooks up
with Ethernets and networking systems and the
personal computer. Add hypertext transfer
protocols and hypertext markup language, popular
applications such as electronic mail, e-commerce
and file share programs to the recipe, transform
computing into communications, bake it through
the miasma of late twentieth, post-modern
American society and out comes the Information
Age.
Signing of the USA-PATRIOT Act
of 2001
USA-Patriot Act:
Basics
 Uniting and Strengthening America by
Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Acts
 Signed into law on October 26, 2001
 One of the longest pieces of emergency
legislation passed in one of the shortest
periods of time in American history
The Basics
 Ten Sections covering a variety of
areas, including banking, money
laundering, surveillance, border
protection, victims’ support,
information sharing within the
infrastructure and the strengthening
of criminal laws against terrorism.
 Severability clause
 To protect against the whole the
potential constitutional violation of a
single section
Definition of Terrorism
 Act divides definition into two parts
 Foreign
 Domestic
 For the purposes of our discussion, the
definition for domestic terrorism is the
more helpful to keep in mind.
 Domestic
 “the term `domestic terrorism' means
activities…[that ] involve acts dangerous to
human life that are a violation of the criminal
laws of the United States or of any State; appear
to be intended (i) to intimidate or coerce a
civilian population; (ii) to influence the policy of
a government by intimidation or coercion; or (iii)
to affect the conduct of a government by mass
destruction, assassination, or kidnapping; and
occur primarily within the territorial jurisdiction
of the United States…
Overview of Title II: Enhanced
Surveillance Procedures
Sharing of Information
 Law enforcement with federal agencies
 Obtaining Records
 FERPA (507 of Title V)
 FISA
 ECPA
 Rewording to Include Electronic
Communications
 “routing,” “network addresses,”
“signaling”
Patriot Act Amends Existing
Legislation
 FERPA
 Family Education Records and Privacy Act 1974
 FISA
 Foreign Intelligence Surveillance Act 1978
 ECPA
 Electronic Communications Privacy Act 1986
Family Education Records and
Privacy Act
 Originally passed in 1974, subseq.
amended
 Historical foundation in anti-war
protests protection for students’
records, “transparency” and access
of those records for the individual
student
 Recognize shift from in loco parentis
 Already existing “health and safety”
exception for the individual student
New Exception to FERPA
 U.S. Assistant Attorney General, or
similarly ranked, obtains a court order
relevant to terrorism investigation
 Institution is not liable, no record need
be maintained
 Distinct from “health and safety
exception” already existing
Ancillary to FERPA
 National Center for Education Statistics
 Federal officials can have access to survey
information, which is otherwise held
confidential
 Monitoring of Foreign Students
 Full implementation of existing
Immigration and Naturalization Service
law regarding information about students
 SEVIS Program
Foreign Intelligence Surveillance Act
1978
 Early recognition, if not prescience,
about the potential for terrorist
activities on American soil or affecting
American interests internationally
 Terrorist exception to 4th A.
 End-run around the constitution?
Foreign Intelligence Surveillance
Act
 FISA Court (pre-Patriot Act)
 Seven federal judges
 Post Patriot Act: eleven and with
residence restrictions in contemplation of
an increase in requests and need for
quick process of them
 Meet in closed session
 Content of applications permanently closed
 Example of Moussaoui Flight School case
 Results in search warrant or subpoena
 Post Patriot Act: reduced standard for
approval
 Under total circumstances, that is the
issue
Foreign Intelligence Surveillance Act
1978
 Core concept:
 Possible to circumnavigate traditional
constitutional protections for search and
seizure if it is possible to establish that
the investigation is about “intelligence”
and/or a connection to a “hostile foreign
power;”
 No showing of “probable cause” of
criminal activity necessary
Foreign Intelligence Surveillance Act
1978
 Only statistics, and annual vice-president’s
report to Congress of applications and
approved;
 Although records are sealed, annual reports
that the Vice President makes to Congress on
these warrants reveals that 13,000+ have
been issued, 1,000 in 2000 alone, and in that
time only one request has been turned
down.
Section 215
 Business Records
 FBI can seize with a court order certain
business records pursuant to an
investigation of “international terrorism
or other clandestine intelligence
activities…”
 Prohibits record keeper to disclosure FBI
action to anyone “other than those
persons necessary to produce the
tangible things under this section…”
 Investigation “not to be conducted of a
United States person solely upon the
basis of activities protected by the first
amendment…”
Electronic Communications
Privacy Act of 1986
 What is it?
 Wiretapping Act for the Internet
 What is the “Wiretapping Act?”
 Olmstead 1928
 Katz 1967
 Omnibus Crime Control and Safe Streets Act of
1968 is the actual “Wiretapping Act”
 ECPA brings those same legal protections of
telephonic communications to electronic
environment
ECPA: What Does It Protect?
 Ideally the privacy of communications in
electronic media
 Pre-Patriot Act list of exceptions
 Usual course of business
 But not disclosure to third parties
 Wireless: distinction between listening and disclosing
 Authorized law enforcement
 Court or Administrative Order
 Search Warrant or Subpoena
 Executive Order 12333 Letter
To Whom Does It Apply?
 Statutory Language:
 “…providers of Internet service to the
public”
 Does it apply to colleges and
universities?
 No case law on point
 Anderson Consulting: EPCA does not
apply
 Digital Millennium Copyright Act as
model for safe harbor distinctions?
 General Rule
 Act as if it does, but hold question as
potential defense
Patriot Act Amendments of
ECPA
 New “emergency” disclosure
 “Imminent danger to life and limb”
 New “required disclosure”
 “Rubber-stamping subpoenas”
 Below “probable cause”
 “Routing:” Pen registers and trap and trace devices
 Content is the constitutional question
Patriot Act Amendments of
ECPA
 New “Computer Trespass” Disclosure
 Owner/Operator consent for federal
intervention
 So long as owner/operator reasonably
believes investigation is relevant to computer
trespass
 Investigation of it and no other
 No authorization required
 No limits set, e.g. stop
 No restraint on return with authorization
based on information gathered during the
invited investigation
 No guarantee it is constitutional
 Sunset provision
Observations about the USAPatriot Act
 Did not significantly diminish
privacy
 Didn’t have much to begin with!
 Given its exposure in these troubled
times, its best hope has been to make
people aware of how little privacy they
have…
 And not only due to government
surveillance but, perhaps more so,
in the free market
 Total Information Awareness and JetBlue
case as examples…
Observations on (Information)
Technologies
 A “liberty” driven society and free
marketplace has exploited
technology for its ends
 Telemarketers
 Credit/Banking/Reporting
 Spam
 Technology not the cause of
diminished privacy
 But it illuminates and exacerbates the
problem…if there is one?
 Depends on your expectations…
How does technology change privacy
expectations?
 Wireless
 Open communications, who cares?
 Cell phones
 Remember the phone booth?
 Internet
 Cookies?
 Trails?
 Sniffing?
American Privacy Law? Forget about
it!
 Patchwork, not a quilt
 Not coherent or comprehensive
 No overarching principles
 Mired in complicated social issues, such
as “family…”
 Have to be a criminal to get a little?
 Exceptions swallow rules
 Transcripts for jobs
 Health care for benefits
 Banking for a loan…
 Does not take account of technology
and its impact on existing legal forms
 property/privacy, copyright, criminal and
civil law…
Contrast Chapter I, Article 8: “Dignity” of
EU Human Rights…
Article 8 Protection of personal data 1.
Everyone has the right to the protection
of personal data concerning him or her. 2.
Such data must be processed fairly for
specified purposes and on the basis of the
consent of the person concerned or some
other legitimate basis laid down by law.
Everyone has the right of access to data
which has been collected concerning him
or her, and the right to have it rectified.
3. Compliance with these rules shall be
subject to control by an independent
authority.
Conclusion
Information age presents all kinds
of new legal and policy
challenges which require a
comprehensive assessment of
the dynamic relationship
between “information” and
economic, social, political and
cultural relations, with a focus
on service to our foundational
democratic republican vales.
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Privacy and Its Discontents