Page 30 - Privacy in a Cyber Age Policy and Practice

A CYBER AGE PRIVACY DOCTRINE 15

Another key principle is a ban on using insensitive information to
divine the sensitive (e.g., using information about routine consumer pur-
chases to divine one’s medical condition), because this is just as intrusive as
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collecting and employing sensitive information. This is essential because
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currently such behavior is rather common. Thus, under the suggested
law, Target would be prevented from sending coupons for baby items to
a teenage girl after the chain store’s analysis of her recent purchases sug-
gested she might be pregnant. 48
Kerr correctly points out that it would be exceedingly difficult to cover
the private sector by drawing on the Fourth Amendment and points,
instead, to the 1986 Electronic Communications Privacy Act (ECPA) to
show that Congress can enact laws that protect people from intrusion both
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by the government and by private actors. To further advance the cyber
age privacy doctrine, much more attention needs to be paid to private
actors. Privacy rights, like other rights, are basically held to be a source of
protection against the government, to protect people from undue intrusion
by public authorities. However, cybernation is increasingly carried out by
the private sector. There are corporations that make shadowing Internet
users—and keeping very detailed dossiers on them—their main line of
business. According to Slobogin,

Companies like Acxiom, Docussearch, ChoicePoint, and Oracle can pro-
vide the inquirer with a wide array of data about any of us, including: basic
demographic information, income, net worth, real property holdings, social
security number, current and previous addresses, phone numbers and fax
numbers, names of neighbors, driver records, license plate and VIN num-
bers, bankruptcy and debtor filings, employment, business and criminal
records, bank account balances and activity, stock purchases, and credit card
activity. 50

And these data are routinely made available to the government, including
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the FBI. Unless this private cybernation is covered, the cyber age privacy
doctrine will be woefully incomplete. 52
Given that private actors are very actively engaged in cybernation and
often tailor their work so that it might be used by the government (even
if no contract is in place and they are, hence, not subject to the limits
imposed on the government), extending the privacy doctrine beyond the
public/private divide is of pivotal importance for the future of privacy in
the cyber age. Admittedly, applying to the private sector similar restric-
tions and regulations that control the government is politically unfeasible.
However, as one who analyzes the conditions of society from a normative
viewpoint, I am duty bound to point out that it makes little sense to main-
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tain this distinction. Privacy will be increasingly lost in the cyber age,