Page 53 - Privacy in a Cyber Age Policy and Practice

38 PRIVACY IN A CYBER AGE

In many of these situations as a rule, no cybernation takes place due to
informal practices, the technological limitations of collection mechanisms,
or lack of a motive for cybernation—not necessarily because cybernation
is banned unless authorized by a judge. This at least used to be the case for
many tollbooth and speed camera operators who had no reason to keep
the information, let alone combine it with other information or analyze
it. However, typically the statutes and court rulings stemming from the
prevailing privacy doctrine contain nothing to prevent secondary usages of
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such information. The absence of cybernation is either driven by custom
or economic motives that are easily reversed if data brokers, the press, or
even divorce lawyers seek access to the information. The CAPD indicates
that points of collection should be required to erase information immedi-
ately after primary use or after a given period of time and should be banned
from sharing it. An exception should be included for situations in which
public authorities declare a state of emergency, such as after a terrorist
attack, during the commission of a crime, or if a child has been kidnapped.
Even during such a period of exception, sharing should be limited to the
relevant public authorities. To reiterate, this is often already the de facto
practice; however, for each category of information collection, it should be
made law.
Before turning to the examination of a similar category—that of high
volume, low sensitivity, and low cybernation collection—that requires dis-
tinct treatment, this chapter shall show that the CAPD provides a more
systematic rationale for cases of information collection than does the odd
assortment of prevailing rationales employed by the courts to deal with
the very same cases. The courts provide different rationales for different
cases that seem highly similar from the CAPD point of view, because they
all concern low volume, low sensitivity, noncybernated information—and
should therefore be allowed.
In Schmerber v. California the court ruled that blood tests used to eval-
uate a suspect’s blood-alcohol content are not an undue imposition on an
individual’s privacy per se; although the collection of a blood sample con-
stitutes a Fourth Amendment search, there was justification for the police
officer to arrest the defendant and collect a sample, on the grounds that
“the test chosen to measure petitioner’s blood-alcohol level . . . imposed
virtually no risk, trauma or pain, and was performed in a reasonable man-
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ner by a physician in a hospital.” In Kyllo, the Court ruled that because
the thermal imaging device used to survey the temperature in a private
home was not yet in general public use, the use of that device without a
warrant under the circumstances constituted an unreasonable search. In
the Court’s words, “where, as here, the Government uses a device that is
not in general public use, to explore details of a private home that would