July 29, 2014 · 2 Av

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Background

In 1890, in the Harvard Law Review, future Supreme Court Justice Louis Brandeis termed the right of privacy "the most comprehensive of rights and the right most valued by civilized men." Indeed, privacy is a fundamental American value that is recognized in our laws, business practices, professional obligations, electoral process, customs and traditions. The Fourth Amendment is the most recognizable guarantor of this indispensable freedom, stating that, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Over the years, courts rulings have established a broader right to personal privacy (not dependent on property rights), and in Katz v. U.S. (1967), the U.S. Supreme Court recognized that under the U.S. Constitution individuals have a "reasonable expectation of privacy" against which violations of privacy rights could be measured. In wake of the excesses of the McCarthy Era and the FBI's use of wiretaps to intrude into the lives of people such as Dr. Martin Luther King, Jr., laws that further protect personal privacy in a number of areas have been enacted.

Now, a new type of privacy debate is upon us. The explosion of the World Wide Web and the development and use of electronic data processing, advanced forms of networking, and data access for corporations and other institutions have facilitated increased levels of communication across the globe. Moreover, the computerization of patient medical records has brought health care system to new levels of efficiency, provided for faster transmission of patient information between doctors and facilitated more effective research by universities and drug companies into the risks and benefits of competing therapies and medications. In addition, the increased significance of medical technology and testing has provided new clues about our genetic makeup and new hopes for bringing about cures to our most devastating health epidemics.

Yet these same technological forces pose serious threats to our personal privacy. Our personal and business information is flowing through an ever-expanding number of computer networks in formats that allow data to be linked, transferred, shared and sold too often without our knowledge or consent. The opportunities for an individual to secure employment, insurance, and credit, to obtain medical care and to participate in electronic commerce are endangered by the misuse of personal information. "Cookies," or bits of information from an outside source stored on one's computer, are now commonly used to track user surfing habits, often without the individual's consent. While these technologies help expedite Web browsing, they are also used to construct invasive and often incomplete and inaccurate profiles of individuals, which are then sold to third parties for solicitation and other undesirable purposes.

Concern arose over two recent examples of governmental intrusion into privacy: the use of biometric face recognition technology to scan the tens of thousands of spectators at the 2001 Super Bowl in Tampa Bay, and the FBI's utilization of the Carnivore program to surreptitiously monitor individual email communications. In June 2001, in Kyollo v. United States, the Supreme Court ruled the use of heat sensors to monitor activity in people's homes is unconstitutional according to the Fourth Amendment. The rise in identity theft and the persistent refusal of companies (and the U.S. government) to abide by self-imposed privacy policies has further exasperated concern.

It is hardly surprisingly that polls demonstrate the intrusion of new technologies into our personal privacy is one of Americans' top concerns as we enter the 21st century. The most recent Federal Trade Commission survey confirms that 92% of Americans are concerned about misuse of their personal information on the Internet. In September 1999, the Wall Street Journal reported that Americans' top concern as we enter the 21st century was the fear of a loss of personal privacy. This apprehension also translates into lost online sales with estimates ranging from $2.8 billion (Forrester Research) in 1999 to $18 billion in 2002.

Glossary of Terms

Aggregate: formed by the collection of units or particles into a body, mass, or amount. In terms of privacy, refers to information of many individuals, anonymized and categorized.

Confidentiality: the legal duty of individuals who come into the possession of information about others, especially in the course of particular kinds of relationships with them, to keep private that information.

Cookie: Bits of information that can be used to track a user's progress though the web, with or without their knowledge.

Data Surveillance: the systematic use of personal data systems in the investigation or monitoring of the actions or communications of one or more persons..

Information Privacy: the interest an individual has in controlling, or at least significantly influencing, the handling of data about themselves

Opt-Out: the ability for an individual to actively remove themselves from a process or list, such as a marketing database

Profiling: a technique whereby a set of characteristics of a particular class of person is inferred from past experience, and data-holdings are then searched for individuals with a close fit to that set of characteristics

Reasonable expectation of privacy: the amount of protection from monitoring or observation that a normal individual would expect to have. For example, individuals in their bedroom at home would have a reasonable expectation of privacy that was rather high, in comparison to an individual on a public street or at work

Surveillance: the systematic investigation or monitoring of the actions or communications of one or more persons.



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