Ch. 2 - Privacy

Judge Richard Posner

Gives economic argument for privacy as a property right; some information should have property rights while some shouldn't. Any information that might be profitable but expensive to collect for a business should be given a property right. The main issue of Posner's views is that it seems to waive privacy in favor of economics.

Riley v. California (2014)

Held that police must obtain a warrant before searching a smartphone for information.

Free-Market View

- The freedom of individuals, as consumers or in businesses, to make voluntary agreements; - The diversity of individual tastes and values; - The flexibility of technological and market solutions; - The response of markets to consumer preferences; - The usefulness and importance of contracts; - The flaws of detailed or restrictive legislation and regulatory solutions (stifling innovation) - Emphasizes informed consent and freedom of contract - People and organizations have the right to use and disclose information that was obtained without any rights violations (like theft). - Prefers penalties to organizations that violate the rules - Can be associated with negative rights

Warren and Brandeis

People have a "right to privacy." Criticized newspapers and gossip columns. Believed that true personal information leaks should be lawfully prevented alongside false information leaks (slander). Beliefs excepted information of general interest (news). Critics argue that their views are too broad and conflict with other rights like freedom of press. Their views also allow some things that violate privacy, such as the sharing of information that one smokes cigarettes to a life insurance company; their views don't rule out targeted marketing (though they wouldn't support it).

Privacy as a Positive vs. Negative Right

Positive Right: Stop others from spreading information about us Negative Right: We can choose to refrain from giving information to those we don't wish to

Privacy Risks and Principles

Privacy Threat categories: - Intentional, institutional uses of personal info - Unauthorized use or release by "insiders" - Theft of info - Inadvertent leakage of info - Our own actions New Tech Threats: - Search query data - Smartphones with location data - Anything we do in cyberspace is recorded. We cannot directly protect our info, we depend on businesses and organizations to protect it.

Privacy Act of 1974

Restricts the way in which personal data can be used by federal agencies Individuals must be permitted access to information stored about them and may correct any information that is incorrect. Agencies must insure both the security and confidentiality of any sensitive information.

Katz v. US (1967)

Reversion of Olmstead v. US. Regardless of the location, a conversation is protected from unreasonable search and seizure under the Fourth Amendment if it is made with a "reasonable expectation of privacy." 4th amendment protects people, not places.

Stingray

Used to track mobile phones, state and federal (not supreme) ruled they violate 4th amendment if no warrant

Consumer Protection View

- Emphasize unsettling uses of personal information - Costly and disruptive results of errors in databases - Ease with which personal information leaks out - Consumers need protection from their own lack of knowledge, judgment, or interest. - Argue for more stringent consent requirements, legal restrictions on consumer profiling, prohibitions of certain types of contracts or agreements to disclose data, and prohibitions on businesses collecting or storing certain kinds of data - Prefer opt-in for secondary use of data rather than opt-out, and prevent waivers and broad consent agreements for secondary usage - Joe-Maria scenario too outlandish; power difference between individual and business, as well as spread of information quickly in a complex society

Key Aspects of Privacy

- Freedom from intrusion - Control of information about oneself - Freedom from surveillance - Personal Information - Providing Informed Consent (opt in or out) Bad Things - Invisible Information Gathering - Secondary Use (Use of information for something other than which it was provided for) - Data Mining - Computer Matching and Profiling (Use of collected info to match data to certain people)

Fair Information Principles

1. Inform people when you collect information. 2. Collect only the data needed. 3. Offer a way for people to opt out. 4. Keep data only as long as needed. 5. Maintain accuracy of data. 6. Protect security of data. 7. Develop policies for responding to law enforcement requests for data.

Olmstead v. US (1928)

1928, the government can tap your phone without a warrant or court order. Interpreted the 4th amendment to only apply to physical possessions and material things.

Smith v. Maryland (1979)

3rd Party Doctrine: Established that police do not need a warrant for pen register data (the record of who you were calling and when), because there is no reasonable expectation of privacy when you voluntarily transmit that data to a third party (the phone company). VERY IMPORTANT JUSTIFIES NSA

Market-Oriented Solution

Advocate that many volunteer organizations will provide consumer education, develop guidelines, monitor the activities of business and government, and pressure businesses to improve policies.

E-Government Act of 2002

An act to enhance the management and promotion of electronic Government services and processes by establishing a Federal Chief Information Officer within the Office of Management and Budget, and by establishing a broad framework of measures that require using Internet-based information technology to enhance citizen access to Government information and services, and for other purposes.

Profiling

Analysis that finds groups of people most likely to engage in a behavior

Kyllo v. US (2001)

Law enforcement officials cannot examine the inside of a home with a thermal-imaging device unless they obtain a warrant. Court interpreted this action as using a non-publicly available tool to perform a search into a house from outside that reveals the same info as a physically intrusive search

Security Camera Tradeoff

Increase security, decreased privacy

US v. Jones (2012)

Jones was arrested for drug possession and without a judicial approval, they put a tracker on his jeep. By doing so, the court was able to convict Jones of some charges. The SCOTUS ruled that those charges are not valid because the tracker was put on the car without a search warrant, which violates the 4th Amendment.

Noninvasive

New tech makes noninvasive (doesn't actively cause damage) but deeply revealing searches, like packet sniffing, imaging systems, location trackers

U.S. v. Miller (1976)

No right to privacy in bank records; rights not violated when 3rd party transmits entrusted information to government

Judith Jarvis Thomson

People cannot have a "right" to something that is not clearly defined, so privacy must be considered within context. You can inadvertently or intentionally waive your right to certain privacies. For instance, going out in public waives your right to not be seen by others, unlike if you stay at home.

Positive Rights (Claim-Rights)

Rights that state that some group of people is obligated to provide certain things for others (ex. unemployment benefits from govt)

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - Sets limits on the government to search and seize our stuff - Bypassed by new database technology and similar stuff

Negative Rights (Liberties)

The rights to act without interference; rights to life, liberty, property as examples