We live in a world where information is the foundation of modern society. Federal, state, and local governments, as well as intergovernmental organizations, assemble near-limitless amounts of personal information concerning individuals’ birth, marriage, divorce, property, court proceedings, driving records, political activities and affiliations, criminal transgressions, professional licensing, travel, and countless other activities. Private businesses also gather personal information for marketing purposes, to prepare credit histories, or to sell to various other entities, both private and public. This collection of personal information by its very nature implicates the concept of privacy—a concept of central importance in today’s technological world.
Before venturing into the complex and difficult task of defining privacy one must understand why the topic is important and why privacy law is one of the most exciting developing fields of legal study. Professor Roger Clarke, a pioneer in the field of privacy and information technology, describes individual privacy as consisting of four dimensions: the psychological, the sociological, the economic, and the political. Psychologically, people need private space to preserve a sense of individual identity. Sociologically, people require the opportunity to connect and interact with others, but without the continual threat of being observed. These 2dimensions of privacy have long been recognized. Indeed, as the Eighteenth Century British philosopher Jeremy Bentham wrote in describing his vision of the ultimate prison (the “Panopticon”), “the most important point [is] that the persons to be inspected should always feel themselves as if under inspection ….”1 More recently, the economic and political dimensions have come to be recognized as critically important as well. Economically, people must be able to plan and innovate without their efforts being subject to continual scrutiny by others who might seek to appropriate their ideas. Politically, if representative governments are to be functional, people need to be able to think, argue, and act without fear of their identities being exposed. For a free political system to function successfully, people must be able to vote without the fear of retribution from others who hold a different viewpoint. Individuals must have privacy in their choice to engage in the political process, as well as in their decision of what causes to support. All four of these dimensions inform the study of the law of privacy.
It is vital that both lawyers and the public in general become familiar with the study of privacy law. First, with the increasing rapidity of technological advancement and ever-greater exchanges of information, notions of privacy are being challenged as never before. Through the 3collection, manipulation, and dissemination of personal information, commercial and government entities are gaining more influence over individual autonomy and decision making. As members of a democratic society we have the choice, through studying and understanding privacy laws, to shape the kind of society we desire as we move ever deeper into the Information Age. Second, and flowing in large part from the first trend, public concern over invasions of privacy has grown tremendously in the last few decades. Privacy concerns appear with increasing frequency on the legislative agendas of Congress and state legislatures, and garner increased media attention with each subsequent revelation about theft or misuse of personal information. Third, at the nexus of the first two trends, we find an increasing amount of litigation which implicates privacy law, either directly or indirectly. Lawyers are faced with drafting privacy policies for businesses, litigating privacy issues, and helping a variety of industries and government agencies conform to ever more complex and pervasive privacy regulations.
Most law students will receive only tangential schooling on the subject of privacy law. Criminal procedure discusses the constitutional limits on where police can go and what evidence the police can collect in criminal investigations under Fourth Amendment searches and seizures; reproductive, sexual and family privacy is deemed a subset of First and Fourteenth Amendment jurisprudence; and privacy in cyberspace is often treated as a subset of intellectual property or communications 4law. None of these particular courses, however, are aimed at providing students with a systemic framework through which broader debates about privacy issues can be examined. As a result, privacy problems are often not well articulated and we, who are being affected by privacy intrusions, are faced with the lack of a convincing account of what is at risk when privacy is threatened and what exactly the law must do to solve these problems. Rather than using a narrow, topical framework that isolates specific sub-types of privacy protection, privacy law is best understood by first approaching it from a broad conceptual perspective before moving to an examination of particular sub-topics.
In this Nutshell, we divide the study of privacy into four parts. First, we begin by examining the history of privacy law. More specifically, we explore the definitions of privacy from a wide array of jurists, philosophers, legal scholars, psychologists, economists, and sociologists. This is followed by a discussion of the historical trends in privacy, including: a general discussion of the development of international privacy rights; the European Union’s view on privacy; the United States’ view on privacy; the Organization for Economic Co-operation and Development (OECD) guidelines; and the collection, retention, accuracy, and use of privacy information. The first part concludes with a discussion of the technological impact on privacy.
Second, we have selected representative examples of court decisions, federal statutes and legislation, agency decisions, state constitutions and statutes, 5and professional ethical rules. These authorities are the root of claims brought on behalf of those who demand privacy against government officials, business entities, and private individuals in the United States.
Third, we provide an overview of international privacy law for comparison with the United States’ standards and views on privacy. Canada, the European Union, Mexico, Japan, South Korea, China, and India are all analyzed. Notwithstanding the philosopher Ayn Rand’s observation that, “[c]ivilization is the progress toward a society of privacy,”2 privacy does not have a universal meaning that is the same across all cultures. Indeed, the significance of privacy in a particular nation depends on the social importance attached to the context in which privacy concerns are raised. Also in this chapter, we review legal developments, business perspectives, and concerns regarding transborder privacy data flows. Transborder data flows include the transfer of data containing personal or sensitive information from an entity in one nation to an entity in another. This is an area of both increasing economic significance and regulation around the world.
Finally, we explore a variety of current and developing challenges to privacy. This chapter focuses primarily on the challenges new technologies pose to the legal concepts discussed in earlier chapters.
This Nutshell is by and large not structured around traditional legal categories such as torts or constitutional law. Rather, it provides an overview of legal theories, principles, doctrines, statutes, rules, policies, and international norms and customs, which define and inform the term “privacy,” as well as where the challenges to individual privacy are likely to be in the future based upon developing technologies. The broad structure of this book is intended to allow individuals to develop a legal and logical framework to understand potential implications for privacy concerns in a variety of contexts.
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1 JEREMY BENTHAM, PANOPTICON OR THE INSPECTION HOUSE, Letter V (1787), available at http://cartome.org/panopticon2.htm.
2 AYN RAND, The Soul of an Individualist, in FOR THE NEW INTELLECTUAL 84 (1961).