Privacy Advocates Research Articles

SURVIVING THE INEVITABLE FUTURE

Click to increase image sizeClick to decrease image size Notes 1. As anti-war demonstrators in the US have increasing found, ‘gatherings’ now constitute a de facto threat in need of action. 2. http://www.whitehouse.gov/nsc/nss.html, accessed 20 April 2005. 3. In a power point presentation entitled ‘Forming a Core Trader Group for The Policy Analysis Market’, Net Exchange euphemistically refers to these dubious insider traders as ‘practitioners’. Cf. http://hanson.gmu.edu/PAM/reports/Trader-Solicitation-6-5-03.pdf, accessed 28 July 2005. 4. http://www.rand.org/pubs/monograph_reports/2005/RAND_MR1731.pdf, accessed 15 April 2005. 5. http://www.cnn.com/2004/ALLPOLITICS/11/09/ashcroft.text.ap/ 6. http://www.darpa.mil/body/news/2002/DirectorSpeechDT20002.pdf, accessed 20 April 2005. 7. Senator Bill Frist Frist, Bill. 2002. When Every Moment Counts: What You Need to Know About Bioterrorism from the Senate's Only Doctor, Boulder: Rowman and Littlefield. [Google Scholar], the Republican's majority leader in the Senate, for one, took it upon himself to offer the reading public a ‘Family Survival Guide’ in his book ‘When Every Moment Counts’. 8. The bold graphic dominates the front of a series of publications instructing Americans on how they can prepare for various sorts of terrorist attacks, including the ‘Pocket Edition Survival Guide’ of ‘What You Should Do to Prepare for and Respond to Chemical, Radiological, Nuclear, and Biological Terrorist Attacks. http://www.rand.org/publications/MR/MR1731.2/ 9. Comparatively, similar anti-terror readiness program in Canada encourage individuals to seek out emergency information from local schools and community organizations. Nevertheless, the Canadian government still acknowledges its minor role when it entitled its Public Safety and Emergency Preparedness document: ‘Self-Help Advice for Families and Individuals: Preparing for the Unexpected’. 10. http://www.medjournal.com/forum/archive/index.php/t-876, accessed 5 December 2004. 11. http://archives.cnn.com/2002/ALLPOLITICS/10/07/bush.transcript/, accessed 15 October 2004. 12. op. cit., note 6. 13. The logo was removed soon after the program received criticism from privacy advocates. cf. http://www.thememoryhole.org/policestate/iao-logo.htm 14. http://www.biz.uiowa.edu/iem/markets/pr_Pres04_VS.html

Recommendations for the Evolution of Cyberlaw

This article focuses on the privacy implications arising from an increasing reliance on digital networks for communication, commerce, education and entertainment. Greater access to the maze of information and services will create needs for customized services and tools to guide users through the information anarchy and channel products of interest to consumers. Yet these trends raise concerns about what usage data will be collected and how such data will be stored, used and disclosed to others. While there have been calls from privacy advocates in the U.S. to adopt the European model and create new privacy laws and federal agencies to govern data use practices, this approach conflicts with not only traditional U.S. legal privacy paradigms, but also with current U.S. public opinion. The global market for interactive services, the U.S. public's growing concern for their privacy in cyberspace and reluctance to rely on government intervention with respect to personal privacy matters all support initial reliance on market forces and the industry-regulatory model. For U.S. providers of interactive services to remain competitive in the United States and operate in global markets, they must establish and maintain their subscribers' trust with respect to individual privacy. Consumers will penalize providers who fail to proactively disclose their data collection practices and privacy safeguards.

Privacy and the USA Patriot Act: Rights, the Value of Rights, and Autonomy

Civil liberty and privacy advocates have criticized the USA PATRIOT Act ("Act") on numerous grounds since it was passed in the wake of the World Trade Center attacks in 2001. Two of the primary targets of those criticisms are the Act's "sneak-and-peek" search provision, which allows law enforcement agents to conduct searches without informing the search's subjects, and the business records provision, which allows agents to secretly subpoena a variety of information - most notoriously, library borrowing records. Without attending to all of the ways that critics claim the Act burdens privacy, I examine whether those two controversial parts of the Act, the section 213 "sneak-and-peak" search and the section 215 business records "gag-rule" provisions, burden privacy as critics charge. I begin by describing the two provisions. Next, I explain why those provisions don't burden privacy on standard philosophical accounts. Moreover, I argue that they need not conflict with the justifications for people's claims to privacy, nor do they undermine the value of privacy on the standard accounts. However, rather than simply concluding that the sections don't burden privacy, I argue that those provisions are problematic on the grounds that they undermine the value of whatever rights to privacy people have. Specifically, I argue that it is important to distinguish rights themselves from the value that those rights have to the rights-holders, and that an essential element of privacy rights having value is that privacy right-holders be able to tell the extent to which they actually have privacy. This element, which is justified by the right-holders' autonomy interests, is harmed by the two provisions.

Guarding Privacy on the Internet

Undoubtedly, the government, business houses and employers have a legitimate need to collect data and to monitor people, but their practices often threaten an individual's privacy. Since a vast amount of data can be collected on the Internet, and due to its global ramifications, the FTC had identified ‘core’ principles of privacy which are widely accepted by leading countries. With the European Directive in force from 1998, ‘trust seals’ and ‘government regulations’ are the two leading forces pushing for more privacy disclosures. The need for companies to develop and put into place good privacy policies and/or statements has become more crucial than ever. Privacy legislation prevalent in the US, the EU, Canada, Japan and Australia is summarized in this article. Privacy laws vary throughout the globe but, unfortunately, the topic has turned out to be the subject of legal contention between the EU and the US. Among the companies given high marks by privacy advocates for making data protection a priority are Dell, IBM, Intel, Microsoft, Procter & Gamble, Time Warmer and Verizon. Currently, the only way consumers can stop the collection of their personal data is to ‘opt-out’ or configure the browser to reject ‘cookies’. We have briefly examined various methods (like Carnivore program, W3C Platform for Privacy Preferences (P3P), Encryption, etc.) used by the corporate world. Today, more advanced technological safeguards are needed. For corporations that collect and use personal information, ignoring privacy legislative and regulatory warning signs can prove to be a costly mistake.

Retention of Offender DNA Samples Necessary to Ensure and Monitor Quality of Forensic DNA Efforts: Appropriate Safeguards Exist to Protect the DNA Samples from Misuse

The topic of offender DNA databases and the retention of offender's DNA samples are issues that continue to generate debate between privacy advocates and forensic DNA scientists. Considered previously by both the Federal DNA Advisory Board and the National Commission on the Future of DNA Evidence, recommendations were made that the existing statutory frameworks were sufficient to protect the confidentiality and use of the DNA samples solely for forensic identification purposes and that the issue be revisited. Now, approximately five years since these debates, privacy advocates and forensic scientists retain divergent views on this issue. This brief essay is not intended to fuel the debate, but rather, to describe the protections and safeguards currently in place for the protection of the offender DNA samples.Surrounding the discussion of the sample retention issue are the underlying principles for the establishment of the Combined DNA Index System (CODIS) Program and the National DNA Index System (NDIS).

Tag & Trace Marketing

Tag & Trace Marketing

Deep Democracy, Thin Citizenship: The Impact of Digital Media in Political Campaign Strategy

Digital media strategies are a crucial component of contemporary political campaigns. Established political elites use database and Internet technologies to raise money, organize volunteers, gather intelligence on voters, and do opposition research. However, they use data-mining techniques that outrage privacy advocates and surreptitious technologies that few Internet users understand. Grassroots political actors and average votersbuild their own digital campaigns, researching public policy options, candidate histories, lobbyist maneuvering, and the finances of big campaigns. I examine the role of digital technologies in the production of contemporary political culture with ethnographic and survey evidence from four election seasons between 1996 and 2002. Democracy is deeper in terms of the diffusion of rich data about political actors, policy options, and the diversity of actors and opinion in the public sphere. Citizenship is thinner in terms of the ease in which people can become politically expressive without being substantively engaged.

Would you like chips with that?: consumer perspectives of RFID

Addresses consumer perspectives of Radio Frequency Identification (RFID). States that some consumers put up barriers against new technology, while others welcome innovations. Idengtifies that market leaders can pretty much use this technology as they wish, meaning boom time for consumer product firms and pain for privacy advocates.

RFID privacy workshop

Radio frequency identification devices (RFID) are at the center of much debate and controversy. Backers have hyped them as a godsend to supply-chain efficiency, while some privacy advocates have labeled RFID as the worst thing that ever happened to consumer privacy.A group of technologists, industry proponents, academics, and privacy advocates gathered for the RFID Privacy Workshop at the Massachusetts Institute of Technology on 15 November 2003 to discuss privacy issues in RFID systems.

The Two Western Cultures of Privacy: Dignity versus Liberty

Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and continental Europe. Some of the differences involve questions of everyday behavior, such as whether or not one may appear nude in public. But many involve the law. In fact, we are in the midst of major legal conflicts between the countries on either side of the Atlantic - conflicts over questions like the protection of consumer data, the use of discovery in civil procedure, the public exposure of criminal offenders, and more. Clearly the idea that there are universal human sensibilities about privacy, which ought to serve as the basis of a universal law of the protection of privacy, cannot be right. This article explores these conflicts, trying to show that European privacy norms are founded on European ideas of personal honor. Continental privacy, like continental sexual harassment law, prison law, and many other bodies of law, aims to protect the personal honor of ordinary Europeans. American law takes a very different approach, protecting primarily a liberty interest. These are not differences that we can understand unless we abandon the approach taken by most privacy advocates, since they have little to do with the supposedly universal intuitive needs of personhood. Instead, they are differences that reflect the contrasting political and social ideals of American and continental law. Indeed, we should broadly reject intuitionism in our legal scholarship, focusing instead on social and political ideals.

Technology, Families, and Privacy: Can We Know Too Much About Our Loved Ones?

Both an array of privacy advocates and a body of privacy policies have emerged to reduce threats to personal privacy posed by Big Government and Big Business. Technologies that threaten personal privacy when employed by large institutions are increasingly being used by family members to track one another, but without a comparable level of societal scrutiny and control. This paper examines four such technologies – internet tracking software, global positioning systems, miniature cameras, and genetic tests – to gauge their level of use and public acceptance and then to consider their impact on family relations, especially those between parent and child and between spouses. While these technologies are intended to promote the safety of family members, by disrupting personal privacy, they may also provoke a number of counterproductive responses that reduce safety. Moreover, the deployment of these technologies may inhibit the development of trust and trustworthiness within the family. Partly owing to a lack of understanding of how new technologies affect family relations, both formal and informal efforts to control these technologies have been slow to develop.

E‐commerce policies and customer privacy

The rapid growth of the Internet and the number of online consumers have resulted in increased fears from privacy advocates, legislators and consumer groups regarding the guarantees of privacy when using e‐commerce and the Internet. Some companies collect marketing information on consumers’ Internet habits without their knowledge or consent. This study looks at stated policies appearing on the Web sites of a number of major e‐commerce companies regarding Internet privacy. This was accomplished by the examination of information related to current Internet policies posted on these firms’ Web sites. Also examined was whether these policies have been changed over a three‐year time period. Five policy categories were examined over this three‐year period using a consistent rating scale. These categories were privacy, returns, shipping, warranty, and security.

Is More Government Regulation Needed to Promote E-commerce?

E-commerce has experienced tremendous growth over the past few years. Nonetheless, senators, privacy watchdog groups, and the Federal Trade Commission have argued that e-commerce is being held back by consumer worries about online privacy and security. Some privacy advocates are calling for additional regulations specifically new online privacy rules aimed at providing consumers with more information and customer choice. And Congress has tried to answer that call most recently with a bill introduced by Senator Ernest Hollings. This essay examines the case for more government regulation and argues that the advocates have overstated their case. While some consumers, particularly older Americans and those new to the Internet, are clearly concerned about online privacy and security, these issues do not appear any more urgent for online shopping than offline shopping. Nor do these issues emerge as significant deterrents to e-commerce. Indeed, it is not even clear that any e-commerce has been deterred. Absent evidence of a significant market failure, the case for further government intervention is weak at best.

Some Problems with Employee Monitoring

Employee monitoring has raised concerns from all areas of society - business organizations, employee interest groups, privacy advocates, civil libertarians, lawyers, professional ethicists, and every combination possible. Each advocate has its own rationale for or against employee monitoring whether it be economic, legal, or ethical. However, no matter what the form of reasoning, seven key arguments emerge from the pool of analysis. These arguments have been used equally from all sides of the debate. The purpose of this paper is to examine seven key arguments that have been made with respect to employee monitoring. None of these arguments are conclusive and each raises important managerial and moral consideration. We conclude that a more comprehensive inquiry with ethical concern at the center is necessary to make further progress on understanding the complexity of employee monitoring. The final section of this paper sketches out how such an inquiry would proceed.

The Failure of Privacy Enhancing Technologies (PETs) and the Voiding of Privacy

Most contemporary conceptions of privacy are based on a notion of aseparation between the individual and the environment. On the oneside of this boundary lies ‘the private’ on the other lies ‘the public’.The struggle over the protection of privacy is about defending thisboundary and the individual's ability to determine who can access theprivate under what conditions. Such a conception of privacy, far from being universal, is in facthistorically specific. Its rise (and decline) is part of a particular culturalcondition connected to the dominance of print media from the 16th to the 20th century. As electronic communications rise in importance, print culture, part of which is the notion of privacy, erodes. Reacting to this development, academics and the general public havebeen concerned with the preservation of privacy for more 35 years, precisely the period when the shift from print to electroniccommunication accelerated. During most of this time, focus of privacyadvocates was on the development of policy frameworks. Despitesuccesses, this strategy has, by and large, failed to stop the erosion ofprivacy. More recently, a new approach to privacy protection which promises torestore personal privacy has been developed in the context of the Internet: Privacy Enhancing Technologies (PETs). This article analyses some of the key PETs and concludes that they, too, fail to protect privacy in the electronic environment. This supportsthe thesis of the historical situatedness of privacy and raises troublingquestions for privacy advocacy in the long term.

Privacy as Property

A SOCIETY protects its values in different and overlapping ways. The values of free speech in America are protected by a constitution that guards against speech abridging regulation (U.S. Constitution , First Amendment). They are supported by copyright regulation intended as an “engine of free expression” to fuel a market of creativity (Harper & Row Publishers, Inc. v. Nation Enterprises , 471 U.S. 539 (1985)). They are supported by technologies such as the Internet that assure easy access to content (Lessig, 1999: 164-185). And they are supported by norms that encourage, or at least allow, dissenting views to be expressed (Lessig, 1999: 164-185; 235-239). These modalities together establish cultural resources that to some degree support the right to speak freely within American society. This is an essay about the cultural resources that support the values of privacy. My aim is to promote one such cultural resource—the norms associated with property talk—as a means of reinforcing privacy generally. In my view, we would better support privacy within American society if we spoke of privacy as a kind of property. Property talk, in other words, would strengthen the rhetorical force behind privacy.1 Such a view is not popular among privacy advocates and experts in the field of privacy law. It has been expressly rejected by some of the best in the field.2 Thus it is my burden to demonstrate the value in this alternative conception. This essay alone will not carry that burden. But my hope is that it will at least evince a benefit from our reconceiving privacy talk. SOCIAL RESEARCH, Vol. 69, No. 1 (Spring 2002) Privacy as Property* BY LAWRENCE LESSIG *I am grateful to Jason Catlett for correction of and advice about parts of this essay. That is not to say he agrees. I will address some of the objections to this form of speaking, but only after advancing the arguments in its favor. The essay moves in six parts. I first introduce two stories that will frame my argument (parts I and II). I then consider one account by Professor Jonathan Zittrain that might explain the tension that is revealed between these two stories (part III). Part IV offers a different account from the one proposed by Professor Zittrain . In the final part, I offer a brief response to some of the criticisms that have been made of the privacy as property model. I then conclude. I At a public debate about the increasing scope of patent protection granted by U.S. law to software and business method inventors , Jay Walker, the president of Priceline.com and Walker Digital and a holder of many of these new, and controversial, patents, was asked to justify them. Did we know, Walker was asked, whether increasing the scope of these new forms of regulation would actually increase innovation? Or would they, by requiring every developer to add to its team covens of lawyers, increase the costs so much as to chill or stifle innovation? (“Internet Society,” 2000). Walker did not have a strong answer. In the face of evidence that these patents harm innovation, he could cite no firm evidence to the contrary. Would it not make sense then, Walker was asked, to have a moratorium on this new form of patent protection until we learn something about its economic effects? Why not study the effect, and if it is not clear that they do any good, then why not halt this explosion of regulation? Walker exploded in anger at the very suggestion. Grabbing the mic, he said to the questioner: “Does that mean if Microsoft takes my property, I can’t bring a suit against them, is that what you’re suggesting?” (“Internet Society,” 2000; emphasis added). 248 SOCIAL RESEARCH II Amazon.com is a collector of data. It sells books to collect that data. These data help it do an extraordinary job understanding its customers’ wants. By monitoring their behavior, Amazon can build large and accurate profiles about its customers. And using powerful data-matching techniques, it can predict what books they are likely to want to buy. Amazon had a privacy policy. The data it was collecting, Amazon said, would not be...

Will Carnivore devour online privacy?

In February 2001, the Federal Bureau of Investigation (FBI) renamed its controversial Internet surveillance tool, Carnivore, as the innocuous-sounding DCS1000. Although the move is sensible from a public relations perspective, more than the system's name must change to protect innocent Internet users' rights. According to the FBI, Carnivore (as everyone outside the Bureau still calls it) allows law enforcement agents to intercept and collect e-mail and other electronic communications only when authorized by a court order. What is so controversial about Carnivore, and why has it provoked strong negative reactions from privacy advocates, editorial boards and members of the US Congress? The answers lie in how the system works and who controls it.

A Recipe for Cookies: State Regulation of Consumer Marketing Information

The debate over the regulation of consumer marketing information so far has focused on what form any such regulation should take. Despite the lack of consensus on the basic framework for allocating rights to use consumer marketing information, there seems to be broad consensus that any regulation should be promulgated at the federal level. Privacy advocates have stressed uniform federal law as a solution to the potential for under-regulation by the states. Firms have advocated uniform federal law as a solution to the problems of over-regulation by some states and having to comply with multiple and inconsistent state laws. This paper argues that the focus on a uniform federal solution is misguided. Given the lack of consensus on a basic framework for allocating rights in this area, it would be counterproductive to straightjacket emerging technologies and business practices with a federal law. Rather, consumer marketing information is best regulated at the state rather than the federal level. A process of state experimentation, competition and evolution would allow discovery of appropriate and comprehensive responses to problems concerning consumer marketing information, in contrast to the growing patchwork of federal laws that inhibit the development of such responses. A state law approach will not lead to over-or under-regulation as some have predicted as long as merchants and consumers can contract for the applicable law and forum. Contractual choice of a jurisdiction that under-regulates privacy is constrained by market forces and by the political forces within that state. Enforcement of contractual choice of law and forum would allow firms and consumers to agree to the application of a particular state's law, thereby eliminating the costs of having to comply with inconsistent or excessively burdensome state laws.

Abstracts of Recent Articles and Literature

Abstracts of Recent Articles and Literature

Privacy Advocates Grow in Europe

Privacy Advocates Grow in Europe