13.1

Chapter 13

Privacy

© 2003 by West Legal Studies in Business/A Division of Thomson Learning

13.2

Political and Social Context

Personally identifiable information (PII)

Sectoral approach

Omnibus method

Commoditization of private information Data creep

Segmentations include privacy fundamentalists (25%), privacy pragmatists (63%), and privacy unconcerned (12%)

13.3

What is Privacy?

Public-sector vs. private-

sector

Privacy vs. confidentiality

Privately-held vs. publicly-

held

13.4

Regulation of Private Data Management

Basic mechanics of modern private data activities Data acquisition

Information analysis

Use of knowledge

Nature of privacy rights

13.5Law and Economics of Private

Information What is meant by drawing the

privacy “balance?”

Present arguments against strong privacy rights.

Present arguments for strong privacy rights.

13.6

Fair Information Practice Principles

1. Notice

2. Choice

3. Consent

4. Access

5. Security

6. Enforcement

13.7

Constitutional Amendments as Basis for

Privacy Rights

1st1st

3rd3rd

4th4th

5th5th

6th6th

9th9th

10th10th

14th14th

Freedoms of speech, religion, press, petitions, assembly, Freedoms of speech, religion, press, petitions, assembly,

No quartering of soldiersNo quartering of soldiers

No unlawful search and seizureNo unlawful search and seizure

No double jeopardy, self-incrimination, or taking of private propertyNo double jeopardy, self-incrimination, or taking of private property

Trials of public record, confronting witnessesTrials of public record, confronting witnesses

Stating rights in Constitution does not deny people other rightsStating rights in Constitution does not deny people other rightsReserves power of government to states or to the peopleReserves power of government to states or to the peopleDue process in states, privileges and immunities, equal protection of the lawsDue process in states, privileges and immunities, equal protection of the laws

13.8

Privacy in Regulatory and Law Enforcement

Rights pertaining to discovery and production of documents are covered under the Fourth Amendment

Other evidentiary privileges include Privileged communications

Search and seizure

Privacy under federal FOIA and state open records laws

13.9

USA PATRIOT ACT

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001

http://www.epic.org/privacy/terrorism/hr3162.html

Enacted in response to 11 September 2001 attacks

Amended more than 15 existing laws

13.10

USA PATRIOT ACT

Four principal categories Greater communication monitoring

authority for federal LEO and intelligence

Increased authority for Secretary of the Treasury to regulate banks to prevent money laundering

13.11

USA PATRIOT ACT

Four principal categories Making it more difficult for terrorists to

enter the US

Defining new crimes and penalties for terrorist activity

13.12

Increased Monitoring

Allows for using internet to track email addresses and URLs

Does not require probable cause

Requires warrant

Extends jurisdiction of court approval

Allows for national search warrants

13.13

Increased Monitoring

Broadens roving surveillance

Previously required law enforcement purpose and demonstration that the subject used the device to be monitored

Now allowed for intelligence

Does not require reporting back to the court

13.14

Increased Monitoring

Allows for intercepting computer based communication without warrant if Access to computer was illegal

Computer owner gives permission

Allows search without warrant if there is “reasonable” belief that providing notice of warrant may have an “adverse affect”

13.15

Increased Monitoring

Allows seizure of property if it “constitutes evidence of a criminal offense” even if not terror related

Makes it easier for FBI to obtain warrant for medical, educational, library, religious organization records

No need to show probable cause

Only requires statement of support of ongoing investigation

13.16

Increased Monitoring

Illegal for record provider to Reveal existence of warrant

Tell anyone that they provided information

Prohibits FBI from investigating citizens solely on basis of First Amendment activities

13.17

Privacy Rights Under State Law

Intrusion upon seclusion

13.18

Privacy Rights Under State Law

Public disclosure of private facts

False light

Misappropriation

13.19

Electronic Privacy

Profiling

Unsolicited commercial e-mail (Spam)

Telecommunications

Children's online privacy

13.20

Financial Privacy

Fair Credit Reporting Act of 1970Fair Credit Reporting Act of 1970 Assures fairness in credit reports

without burdening the credit reporting system

Consumer reports are compiled from lender reports

Provides for consumer disputes of accuracy of information in credit reports

13.21

Financial Privacy

Gramm-Leach-Bliley Act of 1999Gramm-Leach-Bliley Act of 1999 Introduces consolidation of financial

service firms

• Commercial banking• Investment banking• Insurance

Requires secrecy measures, notice and opt-out consent

13.22

Health Care Privacy

Primary use is for treatment, payment and business operations

Secondary uses are hiring, insurability or treatment eligibility

Health Insurance Portability and Accountability Act (HIPPA) Defines health care information as

personal identifying information Requires protection of PII

13.23

Employment and Workplace Privacy

Substance use or abuse Federal lie detector prohibitions Workplace surveillance Workplace e-mail privacy

13.24

Privacy and Self-Regulation

Netiquette

Chief privacy officers

Objective self-regulation

Seal program

13.25

Questions & Discussion