Page 23 - Privacy in a Cyber Age Policy and Practice

8 PRIVACY IN A CYBER AGE

question, it is viewed as a significant violation of the prevailing norms to
reveal or seek the information sans a preexisting relationship of affect or
specific business, such as the relationship between spouses or between an
individual and her doctor. For instance, data about a person’s medical con-
dition would be considered highly sensitive, as would information about
one’s political beliefs and conduct (e.g., voting) and personal thoughts.
Financial information would be ranked as less sensitive than medical
information, with publically presented information (e.g., license plates)
and routine consumer choices even less so.
These rankings are not based on “expectations of privacy,” what this or
23
that judge divines as societal expectations, or acts of Congress. Rather,
they reflect shared social values and are the product of politics in the good
24
sense of the term, of liberal democratic processes, and of moral dialogues.
(Individual nations may rank differently what they consider sensitive. For
example, France strongly restricts the collection of information by the gov-
ernment about race, ethnicity, and religion, even though its rationale is not
the protection of privacy but rather a strong assimilationist policy and sep-
aration of the state and church.) For those who analyze the law in terms of
the law and economics paradigm, disclosure of sensitive data causes more
harm to the person by objective standards than does the disclosure of data
that is not sensitive. Thus, disclosure of one’s medical condition may lead
one to lose one’s job or not be hired, to be unable to obtain a loan, or to
incur higher insurance costs, among other harms. By contrast, disclosure
of the kinds of bread, cheese, or sheets one buys may affect mainly the kind
and amount of spam one receives.
A reexamination of Kyllo helps highlight this principle. If one goes by
Katz, the legality of conducting thermal imaging from outside the home
depends on what one presumes personal and societal expectations to be.
At least in middle class American suburbs, people may consider such a
heat reading to be a violation of their expectations. If one clings to the idea
that “my home is my castle,” measuring the heat inside the home is indeed
a major violation of privacy. However, if one goes by the cyber age privacy
doctrine here outlined, such readings rank very low on sensitivity because
they reveal nothing about the resident’s medical, financial, or political pref-
erences, let alone their thoughts. In effect, they detect an extremely low
bandwidth of information (the term “bandwidth” here refers to a measure-
ment of the number of different types of information collected). The infor-
mation revealed is less consequential than what kind of cereal or which
brand of coffee the person purchased.
One may argue that information about the temperature inside a home
is actually particularly sensitive because it can reveal that a crime is being
committed. Preventing crime obviously contributes to the common good.