Right of privacy

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Privacy is the quietest of our freedoms . . . Privacy is easily drowned out in public policy debates . . . Privacy is most appreciated by its absence, not its presence.

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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.

Concepts of privacy

At a high-level, privacy covers a number of other broad (sub-)concepts, that in themselves partially overlap:

1. Decisional privacy: This conception of privacy addresses issues related to an individual's authority to make decisions that affect the individual's life and body and that of the individual's family members such as end of life issues.
2. Spatial privacy (also referred to as locational privacy): This conception of privacy addresses issues related to physical spaces like the home, the bedroom, etc. Concerns usually focus on the authority of the individual to determine who may enter or observe the objects and/or the activities that occur in the particular place.
3. Intentional privacy: This conception of privacy addresses issues related to intimate activities or characteristics that are publicly visible. Concerns usually focus on the authority of the individual to bar further communication of the observable event or feature. Examples typically include claims against repeating conversations that occurred in public but were directed to specific individuals and publishing photographs of unintended nudity, etc.
4. Informational privacy: This conception of privacy addresses issues related to the (un)availability and use of information that relates to an individual. Concerns usually focus on the extent of the individual’s authority to control how that information is collected and used in the broadest sense (by whom and for what purpose) and the corresponding responsibility of other individuals and organizations to include the individual in decision-making processes that drive subsequent use.
5. Communicational privacy: This conception of privacy addresses issues related to communication between individuals, in other words the exchange of information, data, thoughts, impressions, and feelings in whatever form: verbal (conversation, speech), written (letter), or digital (phone, email, chat). Concerns usually focus on the right of the individual to communicate ("communication freedom", e.g. for prisoners) and to choose the persons included in the communication ("communication secret"). The overlap of the latter with intentional privacy (see 3 above) is obvious.
6. Physical and psychological privacy: This conception of privacy addresses issues related to the body and mind of every individual. Concerns usually focus on respect for and dignity of the individual. Examples typically include examinations and experiments like personality tests, psycho-physiological tests, lie detector tests, narcoanalysis, analysis of brain waves, genetic research, police searches, frisking, body scans, etc.

​The last three (4, 5 and 6) concepts are e.g. explored in further detail in relation with labor law in a Belgian 1999 PhD study by Frank Hendrickx .

The impact of new technologies

Beginning with the emergence of the mass-market Internet, privacy law around the world has been in transition. During the past 15 years, networked information technologies — personal computers, mobile phones, and other devices — have been transforming the U.S. economy and social life. Uses of personal information have also multiplied, and many believe that privacy laws have struggled to keep up. The lag between developments in intensive uses of personal information and the responses of current systems of privacy regulation around the world leaves consumers with a sense of insecurity about whether using new services will expose them to harm.

Commercial data privacy policy must address a continuum of risks to personal privacy, ranging from minor nuisances and unfair surprises, to disclosure of sensitive information in violation of individual rights, injury or discrimination based on sensitive personal attributes that are improperly disclosed, actions and decisions in response to misleading or inaccurate information, and costly and potentially life-disrupting identity theft. In the aggregate, even the harms at the less severe end of this spectrum have significant adverse effects, because they undermine consumer trust in the Internet environment. Diminished trust, in turn, may cause consumers to hesitate before adopting new services and impede innovative and productive uses of new technologies, such as cloud computing systems.

Though existing U.S. commercial data privacy policy has enabled the digital economy to flourish, current challenges are likely to become more acute as the U.S. economy and society depend more heavily on broadened use of personal information that can be more easily gathered, stored, and analyzed. At the same time, innovators in information technology face uncertainty about whether their innovations will be consistent with consumer privacy expectations.

Definitions

Privacy is:

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[e]nsuring that information about a person is protected in accordance with national, regional, or global regulations. Such information may be contained within a message, but may also be inferred from patterns of communication; e.g. when communications happen, the types of resource accessed the parties with whom communication occurs, etc.

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[t]he appropriate use of personal information under the circumstances. What is appropriate will depend on context, law, and the individual’s expectations; also, the right of an individual to control the collection, use, and disclosure of personal information."

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[t]he assurance that legal and constitutional restrictions on the collection, maintenance, use, and disclosure of behaviors of an individual — including his/her communications, associations, and transactions — will be adhered to by criminal justice agencies, with the use of such information to be strictly limited to circumstances in which legal process authorizes surveillance and investigation.

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refers to the social balance between an individual right to keep information confidential and the societal benefit derived from sharing information, and how this balance is codified to give individuals the means to control personal information.

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a personal construct that accrues to individuals, not to the information itself. In other words, a person may have the right to have certain personal information kept private by the state. That right does not accrue to the information itself. An individual's right to information privacy is a separate concept from the confidentiality rights that may apply to a corporation regarding its intellectual property or other business-related information which, if wrongfully disclosed or misappropriated, could result in economic harm.

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the ability of individuals to control personal information that is not knowable from their public presentations of themselves.

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the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.

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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.”

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.

International Covenant on Civil and Political Rights

Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR) states:

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No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

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Universal Declaration of Human Rights

Article 12 of the Universal Declaration of Human Rights states:

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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.

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UN Guidelines for the Regulation of Computerized Personal Data Files

The UN Guidelines for the Regulation of Computerized Personal Data Files recognize many of the same rights in information as the OECD Privacy Guidelines, providing in addition that

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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.

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United States

Constitutional Law

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.

First Amendment

First Amendment principles bear on privacy, both in the sense of protecting it, but more often in terms of overriding privacy protection in the interests of protecting speech and press.

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."

Fifth Amendment

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, but the Court has refused to interpret the self-incrimination clause as a source of privacy protection.

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.

Supreme Court Decisions

In an important decision in Whalen v. Roe, 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.” These two interests rest on the substantive due process protections found in the Fifth and Fourteenth Amendments.

Similarly, in Griswold v. Connecticut, 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.

Common law

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

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

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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.

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In 1905, a Georgia state court held that the right of privacy has its foundation in the instincts of nature and has been recognized intuitively.

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.”

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.” His primary finding is that:

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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.

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Prosser analyzed four distinct torts — intrusion upon seclusion, public disclosure of private facts, 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:

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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.

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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." 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.

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," 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.

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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.

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More recently, one commentator has defined privacy as a

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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.

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The U.S. Department of Commerce wrote:

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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.

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Courts have held that a corporation has no common law right of privacy.

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 also make a distinction between whether the information being addressed is personally identifiable information (PII) or non-personally identifiable information.

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

• The Privacy Act of 1974
• The Paperwork Reduction Act of 1980
• The E-Government Act of 2002
• The Homeland Security Act of 2002, which directed the Secretary of the Department of Homeland Security to designate a senior official with primary responsibility for privacy policy.
• The Intelligence Reform and Terrorism Prevention Act of 2004, which required the Director of National Intelligence to appoint a Civil Liberties Protection Officer and assigned this individual specific privacy responsibilities. The Act establish an information sharing environment to facilitate the sharing of terrorism-related information with protections for privacy and civil liberties.
• The Violence Against Women and Department of Justice Reauthorization Act of 2005, which instructed the U.S. Attorney General to designate a senior official with primary responsibility for privacy policy.
• The Transportation, Treasury, Independent Agencies and General Government Appropriations Act of 2005, which directed each agency whose appropriations were provided by the Act to designate a CPO with primary responsibility for privacy and data protection policy.
• The Implementing Recommendations of the 9/11 Commission Act of 2007, which recommended that the sharing and uses of information be guided by a set of practical policy guidelines that would simultaneously empower and constrain officials, closely circumscribing what types of information they would be permitted to share as well as the types of information they would need to protect. It instructed the heads of the Department of Defense, Department of Homeland Security, Department of Justice, Department of the Treasury, Department of Health and Human Services, and Department of State, as well as the Office of the Director of National Intelligence and the Central Intelligence Agency to designate no less than one senior officer to serve as a privacy and civil liberties officer.
• The Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA) requires that information acquired by an agency under a pledge of confidentiality and for exclusively statistical purposes shall be used by the agency only for such purposes and shall not be disclosed in identifiable form for any other use, except with the informed consent of the respondent.

Federal agencies

Several laws grant the FTC, FCC and other agencies regulatory authority over online privacy. The FTC has used its authority to prohibit unfair or deceptive trade practices and enforce promises made in corporate privacy statements on websites. The FCC, for its part, typically works with the providers of broadband access to the Internet — phone, cable and wireless network providers — and the Communications Act contains various provisions outlining consumer privacy protections. However, existing regulatory frameworks provide only a partial solution to consumer concerns and consist of a patchwork of potentially confusing regulations. For instance, online communications are subject to the Electronic Communications Privacy Act of 1986 (ECPA), but the privacy protections in the ECPA may not apply to the information that websites collect from individual website visitors.

The Gramm-Leach-Bliley Act's protections for personal financial data apply only to financial institutions (such as banks, credit institutions and non-bank lenders), even though non-financial institutions (such as data brokers) may possess comparable information but not subject to the same protections. And while traditional telephone and cable TV networks are subject to privacy protections, ISPs operating in an unregulated environment can theoretically obtain and share consumer data through technologies such as deep packet inspection.

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.

Source

• Connecting America: The National Broadband Plan, Ch. 4.

See also

• Anonymity
• Decisional privacy
• Financial privacy
• Fourth Amendment
• Information privacy
• Intellectual privacy
• Internet privacy
• Invasion of privacy
• Privacy and Biometrics: Building a Conceptual Foundation
• Privacy and Civil Liberties Oversight Board
• Privacy and civil liberties policy
• Privacy and Civil Liberties Policy Development Guide
• Privacy and Civil Liberties Policy Guidance Memorandum
• Privacy and Electronic Communications Directive
• Privacy and Electronic Communications Regulations 2003
• Privacy and the NII
• Privacy and the NII: Safeguarding Telecommunications-Related Personal Information
• Privacy awareness campaign
• Privacy
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• Privacy disclosure
• Privacy fundamentalist
• Privacy impact assessment
• Privacy policy
• Privacy pragmatist
• Privacy unconcerned
• Privacy‐enhancing technologies
• Proprietary privacy