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Right of privacy

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[edit] Overview

It is difficult to define privacy in a precise and concise fashion, even for those who express strong feelings about its value. The concept of "privacy" is colored by the history, culture, and political system of a particular people. Privacy includes concerns about autonomy, individuality, personal space, solitude, intimacy, anonymity, and a host of other related concerns. There have been many attempts to give meaning to the term for policy purposes.

In terms of information and recordkeeping (as opposed to personal association) it appears to mean, to most people, the ability to keep certain kinds of personal information from other people or to restrict its use, except as one freely chooses to permit its disclosure or use.

In a modern society, it is difficult to keep all personal information absolutely confidential. In practice, individuals generally seek to restrict some kinds of personal information to those who have a legally defined or socially sanctioned need to know, or to those who can provide some benefit or service in return. There may be many reasons for wishing to withhold information about oneself, other than concern about government encroachment on civil liberties. Information may expose one to censure or punishment; it may threaten one’s reputation, social status, or self-esteem; it may give others some advantage or power over oneself, or lessen one’s advantage over others in competitive situations.

[edit] OECD

The Organization for Economic Cooperation and Development (OECD) adopted guidelines in 1980 to protect the privacy] and transborder flows of personal data. The OECD Guidelines on the Protection of Privacy and Trans-Border Flows of Personal Data are:

1. Collection Limitation Principle: “There should be limits to the collection of personal data and any such data should be obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the data subject”;

2. Data Quality Principle: “Personal data should be relevant to the purposes for which they are to be used, and, to the extent necessary for those purposes, should be accurate, complete and kept up-to-date”;

3. Purpose Specification Principle: “The purposes for which personal data are collected should be specified not later than at the time of data collection and the subsequent use limited to the fulfillment of those purposes or such others as are not incompatible with those purposes and as are specified on each occasion of change of purpose”;

4. Use Limitation Principle: “Personal data should not be disclosed, made available or otherwise used for purposes other than those specified in accordance with [the Purpose Specification Principle] except:

a. with the consent of the data subject; or
b. by the authority of law”;

5. Security Safeguards Principle: “Personal data should be protected by reasonable security safeguards against such risks as loss or unauthorised access, destruction, use, modification or disclosure of data”;

6. Openness Principle: “There should be a general policy of openness about developments, practices and policies with respect to personal data. Means should be readily available of establishing the existence and nature of personal data, and the main purposes of their use, as well as the identity and usual residence of the data controller”;

7. Individual Participation Principle: “An individual should have the right:

a. to obtain from a data controller, or otherwise, confirmation of whether or not the data controller has data relating to him;
b. to have communicated to him, data relating to him
i. within a reasonable time;
ii. at a charge, if any, that is not excessive;
iii. in a reasonable manner; and
iv. in a form that is readily intelligible to him;
c. to be given reasons if a request made under subparagraphs(a) and (b) is denied, and to be able to challenge such denial; and
d. to challenge data relating to him and, if the challenge is successful to have the data erased, rectified, completed or amended”;

8. Accountability Principle: “A data controller should be accountable for complying with measures which give effect to the principles stated above.”

[edit] United Nations Guidelines for the Regulation of Computerized Personal Files of 1990

The United Nations Guidelines for the Regulation of Computerized Personal Files of 1990 recognize many of the same rights in information as the OECD Privacy Guidelines, providing in addition that “data likely to give rise to unlawful or arbitrary discrimination, including information on racial or ethnic origin, colour, sex life, political opinions, philosophical and other beliefs . . . should not be compiled.”[1]

[edit] United States

[edit] Constitutional Law

[edit] Overview

The U.S. Constitution makes no explicit mention of a right of privacy. However, the rights and protections spelled out in the ten amendments of the Bill of Rights and in the Fourteenth Amendment affirm and define a sphere of personal autonomy that is protected against any but the most powerful overriding interests of state. This principle was a basic tenet of 18th century political thought and was and is a cornerstone of constitutional government.

[edit] First Amendment

First Amendment principles bear on privacy, both in the sense of protecting it,[2] but more often in terms of overriding privacy protection in the interests of protecting speech and press.[3] Finally, the due process clause of the Fifth and Fourteenth Amendments, to some degree, may be construed to protect the "liberty" of persons in their privacy rights in cases that implicate “fundamental rights,” or those “implicit in the concept of ordered liberty” such as marriage, procreation, contraception, family relationships, child rearing, and education.[4]

[edit] Fourth Amendment

The Fourth Amendment "search and seizure" provision protects a right of privacy by requiring warrants before government may invade one's internal space or by requiring that warrantless invasions be reasonable. However, "the Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’ That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all."[5]

[edit] Fifth Amendment

Similarly, the Fifth Amendment's self-incrimination clause was once thought of as a source of protection from governmental compulsion to reveal one's private papers,[6] but the Court has refused to interpret the self-incrimination clause as a source of privacy protection.[7]

[edit] Supreme Court Decisions

In an important decision in Whalen v. Roe,[8] the Supreme Court recognized a "right of informational privacy." Whalen concerned a New York law that created a centralized state computer file of the names and addresses of all persons who obtained medicines containing narcotics pursuant to a doctor’s prescription. Although the Court upheld the state’s authority, it found this gathering of information to affect two interests. The first was an “individual interest in avoiding disclosure of personal matters”; the other, “the interest in independence in making certain kinds of important decisions.”[9] These two interests rest on the substantive due process protections found in the Fifth and Fourteenth Amendments.

Similarly, in Griswold v. Connecticut,[10] the Supreme Court struck down an anticontraceptive statute as an infringement of the fundamental right of ‘marital privacy. The Court recognized a limited constitutional right applicable to certain intimate decisions related to family or marital matters.

[edit] Common Law

Privacy is a value that continues to be highly esteemed in American society, yet its mean- ing, especially for policy purposes, is often unclear.

In 1890, Samuel Warren and Louis Brandeis defined "privacy" as “the right to be let alone.”[11] They found the primary source for a general right to privacy in the common law protection for intellectual and artistic property, and argued that:

the principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.

Later when Brandeis was on the U.S. Supreme Court he referred to privacy as "the most comprehensive of rights, and the right most valued by civilized men.”[12]

Subsequent legal debates have been structured by two points raised by Warren and Brandeis. The first is whether privacy is an independent value whose legal protection can be justified separately from other related interests, such as peace of mind, reputation, and intangible property. The second is controversy over their definition of the “right to privacy” as the “right to be let alone.” Such a definition is so broad and vague that the qualifications necessary to make such a definition practical in society negate the right itself.

Second only to the Warren and Brandeis article in influence on the development of legal thinking regarding protection of privacy in the United States is Dean Prosser’s 1960 California Law Review article, “Privacy.”[13] His primary finding is that:

At the present time the right of privacy, in one form or another is declared to exist by the overwhelming majority of the American courts.

Prosser analyzed four distinct torts — intrusion, disclosure, false light, and appropriation — that could be isolated in state common law decisions and that represented four different types of privacy invasions. Each of these torts depends on physical invasion or requires publicity, and hence offers little protection for privacy of personal information. Although Prosser’s analysis has received wide acceptance as a way of categorizing tort law relating to privacy, most legal scholars doubt that these traditional privacy protections in common law can, or should, be extended to cover more general privacy concerns.

In the mid-1960s, concern with the “privacy” of computerized personal information held by credit agencies and the government rekindled interest in defining a right to privacy. Edward Shils viewed privacy of personal information as:

a matter of the possession and flow of information, . . . Privacy in one of its aspects may therefore be defined as the existence of a boundary through which information does not flow from the persons who possess it to others.[14]

Privacy expert Alan Westin conceived of privacy as “an instrument for achieving individual goals of self-realization, and defined it as “the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others."[15] He defined information privacy as the claim of individuals, groups or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.[16]

The “right to privacy" as “the right to control information about oneself” has served as the definition for policy purposes in the United States. Various statutes have been designed to give individuals the means to control information about themselves. Such means include primarily the right to know and the right to challenge and correct. Organizations are also expected to follow “Principles of Fair Information Use,“[17] which establish standards and regulations for collection and use of personal information.

In 1974, Congress established the Privacy Protection Study Commission to undertake a broad study of whether privacy rights were being adequately protected in the emerging information society. In its final report, issued in 1977, the Commission concluded that federal privacy laws should advance three concurrent policy goals —

  • To minimize intrusiveness by creating a proper balance between what an individual is expected to divulge to a record-keeping organization and what he or she seeks in return;
  • To maximize fairness by opening up record-keeping operations in ways that will minimize the extent to which recorded information about an individual is itself a source of unfairness in any decision about him or her; and
  • To create legitimate, enforceable expectations of confidentiality by creating and defining obligations with respect to the uses and disclosures that will be made of recorded information about an individual.

"Today . . . there have been further advances in telecommunications and information technology. Given the proliferation of computerized data collection and the prospect of converging technologies — computers, telephones, and mass media — it is time to reconsider what privacy means in developing electronic communities."[18]

More recently, one commentator has defined privacy as a

broad, all-encompassing concept that envelops a whole host of human concerns about various forms of intrusive behavior, including wiretapping, surreptitious physical surveillance, and mail interception. Individuals claim a right of privacy for an enormously wide range of issues, from the right to practice contraception or have an abortion to the right to keep bank records confidential.[19]

The U.S. Department of Commerce wrote:

There is no single privacy law in the United States, rather, U.S. privacy law is a patchwork of constitutional, statutory, regulatory, and common law protections. While the Supreme Court has held that the Fourth Amendment restricts the ability of government to collect information from places in which an individual has a reasonable expectation of privacy, there is no constitutional right to be free from analogous intrusions by private parties. Tort law limits intrusive collection of private information, penalizes unwarranted disclosure of erroneous information about individuals. A number of statutes, at both the federal and state level, protect individuals from governmental misuse of personal information, while other statutes adopt "fair information principles" for private sector record keepers in specific industries.[20]

[edit] Statutory Law

There is no comprehensive federal statute that protects the privacy of personal information held by the public sector and the private sector. Instead federal law tends to employ a sectoral approach to the regulation of personal information.

Statutes relating to the federal government's collect, storage and use of personal information include:

[edit] Europe

Much of modern European privacy law arose from the atrocities of World War II, when large databases of personal information were used to segregate populations, target minority groups and facilitate genocide.

Privacy is recognized as a fundamental human right by the European Convention on Human Rights (ECHR). Privacy regulations aimed at governing how personal data is processed were introduced in the 1970s and 1980s, and the European Data Protection Directive came into force in 1995.

[edit] United Nations

The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights recognized privacy as a fundamental human right and attempt to shield the individual from abuse by protecting his/her personal data.

[edit] Universal Declaration of Human Rights

The Universal Declaration of Human Rights, Art. 12 states:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.[25]

[edit] References

  1. ↑ United Nations, G.A. Res. 45/95, Guidelines for the Regulation of Computerized Personal Files (Dec. 14, 1990).
  2. ↑ See, e.g., Frisby v. Schultz, 487 U.S. 474 (1988) (using privacy rationale in approving governmentally-imposed limits on picketing of home).
  3. ↑ See, e.g., Florida Star v. B. J. F., 491 U.S. 524 (1989) (newspaper could not be liable for violating state privacy statute when it published the name of a rape victim that it had lawfully obtained through public sources).
  4. ↑ See, e.g., Paul v. Davis, 424 U.S. 693, 713-14 (1976).
  5. ↑ Katz v. United States, 389 U.S. 347, 350 (1967).
  6. ↑ Boyd v. United States, 116 U.S. 616, 627-630 (1886).
  7. ↑ Fisher v. United States, 425 U.S. 391, 399 (1976).
  8. ↑ 429 U.S. 589 (1977).
  9. ↑ Id. at 592-93.
  10. ↑ 381 U.S. 479 (1965).
  11. ↑ Samuel Warren & Louis Brandeis, "The Right to Privacy” 4 Harvard L. Rev. (1890).
  12. ↑ Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
  13. ↑ William L. Prosser, “Privacy,” 48 Cal. L. Rev. 383, 386 (1980).
  14. ↑ Edward Shils, “Privacy: Its Constitution and Vicissitudes,” 31 L. & Contemp. Problems 281, 282 (1966).
  15. ↑ Alan Westin, Privacy and Freedom 39 (1967). This definition served as the basis for the Privacy Act of 1974.
  16. ↑ Id. at 7. See also Alan Westin, The Equifax Report on Consumers in the Information Age XVIII (1990).
  17. ↑ A “Code of Fair Information Practice” was first developed in U.S. Department of Health, Education, and Welfare, "Records, Computers and the Rights of Citizens" (1973).
  18. ↑ Id.
  19. ↑ See David Flaherty, Protecting Privacy in Surveillance Societies (1989).
  20. ↑ Department of Commerce, Inquiry on Privacy Issues Relating to Private Sector Use of Telecommunications-Related Personal Information, 59 Fed. Reg. 6841, 6843 (Feb. 11, 1994) (footnotes omitted).
  21. ↑ Pub. L. No. 108-458 (Dec. 17, 2004).
  22. ↑ The Transportation, Treasury, Independent Agencies and General Government Appropriations Act of 2005 applies to the Department of Transportation, Department of Treasury, Executive Office of the President, Architectural and Transportation Barriers Compliance Board, Election Assistance Commission, Federal Election Commission, Federal Labor Relations Authority, Federal Maritime Commission, General Services Administration, Merit Systems Protection Board, Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation, National Archives and Records Administration, National Historical Publications and Records Commission, National Transportation Safety Board, Office of Government Ethics, Office of Personnel Management, Office of Special Counsel, U.S. Postal Service, and U.S. Tax Court.
  23. ↑ This law grants the Privacy and Civil Liberties Oversight Board authority to require any other agency or element of the executive branch to establish a privacy and civil liberties officer. Further, this law specifies that if covered agencies have another statutorily designated privacy officer, this officer must also undertake the responsibilities described in the Act.
  24. ↑ Sec. 512, Title V, Pub. L. No. 107-347, Dec. 17, 2002; 44 U.S.C. §3501 note.
  25. ↑ United Nations, Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948), art. 12.

[edit] See also

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