Page 24 - Privacy in a Cyber Age Policy and Practice

A CYBER AGE PRIVACY DOCTRINE 9

And given that in 2011 fewer than half of violent crimes and less than 20
percent of property crimes in the United States were resolved, some may
well hold that public authorities are not excessively indulged when deal-
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ing with crime. As for harm to the individuals involved, they would be
harmed only if they had a right to commit a crime. The arguments against
the notion that crimes committed in a home (e.g., spousal abuse) deserve
more protection than ones committed in public have already been dis-
cussed. What is new here is that historically, when the Constitution was
written, searching a home required a person to enter or peep, which would
entail a high level of intrusiveness because the intruder could not help
but note other potentially sensitive information besides whether a crime
was being committed. However, technologies that have a very narrow
and crime-specific bandwidth (e.g., dogs that sniff for bombs or sensors
that measure abnormal levels of heat) and are, hence, minimally intru-
sive should be allowed. One may disagree with this line of analysis but
still accept the basic point that the less-intrusive collection of insensitive
information should be tolerated, while the collection of highly sensitive
information should be banned.
Many court cases treat the voluntary release of information to others
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as if the information disclosed—including phone numbers dialed, cop-
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ies of written checks, documents given to an accountant, newspaper
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records, and even papers held by a defendant’s attorney —all had the
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same level of sensitivity. A privacy doctrine that follows the principles
here outlined would grant persons more say about the secondary usages of
sensitive information, while recognizing that the less sensitive information
may be used and passed on without the individual’s explicit consent.
Over the years, Congress has pieced together privacy law by address-
ing the protection of one kind of sensitive information at a time, rather
than treating all kinds in a comprehensive fashion. Thus, in 1973, the
Department of Health, Education and Welfare developed the Code of Fair
Information Practices to govern the collection and use of information by
the federal government. The principles of the code were incorporated in
the Privacy Act of 1974, which “prohibits unauthorized disclosures of the
records [the federal government] protects. It also gives individuals the
right to review records about themselves, to find out if these records have
been disclosed, and to request corrections or amendments of these records,
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unless the records are legally exempt.” The Privacy Act applies only to the
federal government and has not been expanded to include records kept by
the private sector. In 1986, the Electronic Communications Privacy Act
(EPCA) restricted wiretapping, regulated government access to electronic
communication stored by third parties, and prohibited the collection of
communications content (i.e., what was said, not who was called) by pen