Anita Allen – Privacy Law – Spring 2011
What is Privacy
Definition
· Different definitions
§ Privacy = Control (Allen, 10)
· Scholars: Schwartz, Fried, Parker, Gerety
· Politics: Communitarian, Liberalism
§ Privacy = Data Control (paradigm that Professor Allen promotes)
· Do not need to have control to get privacy protection (Allen, 10) because privacy involves consent and choice
· Policy involving this paradigm
o Practical limits (Allen, 12)
o Moral limits (Allen, 13)
§ Privacy may not be in the interests of the greater society
§ People may have to be coerced into protecting their privacy when they may not care about it
§ Privacy as ‘restricted access’- identify privacy with a limitation on others’ access to the individual (Allen, 7)
· Access control
· Limitations on unwanted access
· Limited access or inaccessibility
§ Privacy as ‘conditions of inaccessibility’ (Allen, 8) because of logical connection between protecting privacy and limiting access
· Practical and connotational link between privacy and inaccessibility
· ‘Privacy’ connoted both Conditions of limited access and degrees of inaccessibility
· ‘Privacy’ and ‘inaccessibility’ have nearly synonymous meanings
§ Privacy is distinct in public and private spheres (Allen, 9)
· Public- activity that is or ought to be of governmental concern
· Private- activity that is or ought to be left to non-governmental interests
· Differences in definitions due to:
§ Variations in the use and connotation of word ‘privacy’
§ Variations in purpose of word ‘privacy’
· Definitional pragmatism: definition in the context of practical tasks like reporting or legislation not subject to meticulous theoretical scrutiny (journalists, lawyers, policymakers)
· Definitional Prescription: theory based definitions of word, also taking into account practical goals (philosophers and scholars)
o Gavison (8): Privacy is limited access in the senses of solitude, secrecy any anonymity (excluding nuisances, contraception, sexuality, libel/slander, false light, mail/phone calls, commercial exploitation, etcà not focused on decisional privcy at al and not on things that could be protected under other forms of law)
§ Variations in approaches in the task of defining ‘privacy’ (Allen, 6)
· Timeline to recognition of Privacy
§ 1960’s and 70’sà increased scholarship about privacy
· US Sup Ct popularized idea to legal right to privacy (Allen, 4)
· Heightened concern about government surveillance during cold war, Vietnam War, and civil rights movement (Allen, 4)
· Computers were used and perceived as threat to privacy (Allen, 4)
· Advances in medicine and health care raised questions about life and death decisions, birth control, diseases, etc (Allen, 4)
· Professor Allen’s types of privacy
§ Physical Privacy
§ Informational Privacy
§ Decisional Privacy
§ Proprietary Privacy
§ Associational Privacy
§ Intellectual Privacy
· DeCew’s types of privacy
§ Informational privacy- info about one’s activities, lifestyle, medical history, etc (DeCew, 23)
§ Accessibility privacy- privacy of information and on surveillance and physical proximity (DeCew, 23)
§ Expressive privacy- ability to define oneself shielded from interference (DeCew, 23)
How to protect privacy
· Start with a presumption of a reasonable expectation of privacy acknowledging social, legal and moral considerations that may override presumption (DeCew, 23)
· Critiques against protecting privacy (Allen, 28-29)
· Accounts of why to value privacy (Allen, 26)
§ Intrinsic value- inherent and unanalyzable value or privacy
§ Reductionist- privacy understood in reference to other values
§ Personhood creation and enhancement- privacy for ontological norms or personhood and moral agency
§ Relationship creation and enhancement- privacy to promote desirable social relations
§ Functionalist- instrumental value of privacy promoting diverse interests of individuals, groups and the state
Sources
· Constitution
· Statutes
· Common Law Invasion of Torts
History
· DeMay v. Roberts- Scattergood was competition to husband therefore privacy invasion in that context with specific type of person
§ Not called privacy at the time, called deceit
§ Harm/Injury=shame, mortification
§ Remedy=money damages
· Manola v. Stevens: right to female modesty
§ Used by Warren and Brandeis to say from women during birth to stage actress, everyone should get privacy
§ May also be seen as economic professional control and not just modesty
· “The Right to Privacy” Warren & Brandeis: recommending the creation of common law tort of right of privacy that would allow person to complain if it is breached.
Comparative
· UN
§ Declaration Article 12 of International Regulation of Human Rights 1948
· A lot of documents track language of the Declaration
§ Resolution from 1990
§ International Covenant 1966 –article 17 often cited (law against interference with privacy)
· Human Rights Committee that hear Article 17 complaints
· OECD principles have been assumed by 38 states
· Council of Europe 47 member states (broader than the EU). p.98 contains Article 8, concern and respect for privacy protection in Council
§ EU human Rights allowed to hear Article 8 complaints
· EU
§ 4th amendment like set of concerns
§ article 8- protection of personal data/info
§ issued directives
· processing of personal data and free movement of data (nicknamed the EU directive)
o racial origin, ethnicity, trade unions, political affiliations, health, religion, sex lifeà broad conception of what is private (not as broad in US)
o do not relate to public/gov’t agency transfer of data
o does not include communications btw natural persons about purely private matter
o Linquivist (923) lady put up personal info on church website in Sweden. EU court of justice says identifying people on internet page constitutes processing of personal data by automat
e informal attempts to resolve privacy disputes (lawsuits=last resort)
· Expand law’s recognition of privacy to respect expectations and allow people to control their personal information (eg protect their right to only share info with their social network “friends” online)
· Encourage website builders to build-in mechanisms to protect privacy
Groups of Harmful Activities
I. Information Collection
1. Surveillance: Surveillance can lead to social control bc it can lead to self-censorship and inhibition. Leads to uneasiness
2. Interrogation: Form of searching to disclose info that becomes problematic s degree of coerciveness is elevated
II. Information Processing
1. Aggregation: Gathering of information about a person that unsettles expectation bc it combines data in an unanticipated way that reveals unknown facts
2. Identification: Enables info to be linked to people; increases government power over people
3. Insecurity: Caused by the way info is handled and processed by businesses and the government that can make people vulnerable to handle
4. Secondary Use: Using data for purpose unrelated to purpose it was initially collected for without consent; betrayal of expectations
5. Exclusion: Failure to provide person with notice or input about their records; creates sense of vulnerability and uncertainty
III. Information Dissemination
1. Breach of Confidentiality: Breaches violate trust in a specific relationship when info is disclosed
2. Disclosure: when certain true info is revealed that causes damage to reputation
3. Exposure: Exposing true info about a person’s physical or emotional attributes
4. Increased Accessibility: Info already available made easier to access and heightens the risk of harm
5. Blackmail: Allows a person to be dominated by another
6. Appropriation: Losing control over the way one prevents oneself to society
7. Distortion: Manipulated of the way a person is perceived and judged by others by disclosing false and misleading info
IV. Invasion
1. Intrusion: Interrupts one’s activities through the unwanted presence or activities of another person spatially or electronically
2. Decisional interference: Unwanted incursion by the government into an individual’s decisions about her personal life
Privacy and the Constitution
First Amendment
Right of Religious Freedom (Reynolds, Yoder, Peyote Case)
Right of Free Association (NAACP, Irish Parade Boy scouts
