Page 16 - Privacy in a Cyber Age Policy and Practice

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A Cyber Age Privacy Doctrine

A. Introduction

1. Focus on Use

A privacy doctrine built for the cyber age must address a radical change
in the type and scale of violations that the nation—and the world—face,
namely that the greatest threats to privacy come not at the point that
personal information is collected, but rather from the secondary uses of
such information. Court cases such as Katz, Berger, Smith, Karo, Knotts,
Kyllo—and most recently Jones—concern whether the initial collection of
information was legal. They do not address the fact that legally obtained
personal information may nevertheless be used later to violate privacy and
that the ways such information is stored, combined with other pieces of
information (“collated”), analyzed, and distributed often entail very sig-
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nificant violations of privacy. Whereas a considerable number of laws and
court cases cover these secondary usages of information, they do not come
together as a coherent doctrine of privacy—and most assuredly they do not
address the unique challenges of the cyber age. 2
True, collected personal information was subject to secondary abuses
even when it was largely paperbound (e.g., in police blotters or FBI files).
Indeed, when Warren and Brandeis published their groundbreaking 1890
article in the Harvard Law Review, considered the “genesis of the right
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of privacy,” they were not concerned about gossip per se (a first order
privacy violation), but about the wider distribution of intimate details
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through the media (a secondary usage). However, the digitization of
information, the widespread use of the Internet and computers, and the
introduction of artificial intelligence systems to analyze vast amounts of
data have increased the extent, volume, scope, and kinds of secondary
usages by so many orders of magnitude that it is difficult to find a proper