Privacy

 

There are many facets to the privacy issues.  With respect to personal privacy we are concerned about protecting the individual against privacy intrusions from other individuals, from government entities, from business enterprises, from various institutions and from the criminal element.  At the heart of this is the question of ownership of information.

                                                                                                    

At the outset we must lay the foundation for discussion.  We need a definition of the word and we need a set of guiding principles.  And we will see that the two are inextricably intertwined.  Lawrence Snyder in Fluency in Information Technology (p. 481) offers this definition: “Privacy is the right of people to choose freely under what circumstances and to what extent they will reveal themselves to others.”  Not everyone, however, accepts this definition.  Some dispute the assertion that privacy is a right.

                                                                                                   

The question of whether or not privacy is a right of individuals leads us, then, to the second matter – a set of guiding principles.  A good place to start is the Bill of Rights of the U.S. Constitution.  It is the touchstone for legal cases involving computer forensics.  And it was forged in the crucible of controversies regarding the rights of individuals in terms of life, liberty and property.

                                                                                                   

Even though the kinds of privacy issues we wrestle with today were undreamed of in the 1780’s, the historical context of the Bill of Rights is quite instructive.  After the basics of the Constitution had been hammered out in the summer of 1787, it became clear to many that it would not be ratified and adopted as the law of the land unless concerns relating to the rights of the individual were addressed.  “Opponents of ratification quickly seized upon the absence of a bill of rights, and Federalists, especially Madison, soon realized that they must offer to add amendments to the Constitution after its ratification. Only by making such a pledge were the Constitution's supporters able to achieve ratification in such closely divided states as New York and Virginia.” {History.com: http://www.history.com/topics/bill-of-rights

3/13/13}  The Bill of Rights was introduced to the 1st United States Congress by James Madison as twelve articles.  Ten were adopted as amendments to the Constitution and came to be known as the Bill of Rights.  An eleventh as adopted in 1992.

                                                                                                   

In terms of direct lineage, the legal precedents for the Bill of Rights go all the way back to 1100 and King Henry I of England.  Under the Anglo Saxon kings there had always been a strong measure of give and take between the king and the earls with respect to decision making within the realm.  This changed drastically when William of Normandy conquered England, though local centers of power persisted.  In order to cement his position as king by gaining the support of the barons, his son Henry issued the Charter of Liberties binding the king to laws regarding the treatment of nobles and church officials.  This was the forerunner of the Magna Carta which English nobility forced upon King John in 1215.

                                                                                                   

These compacts in England set the stage by delimiting the power of the king over his subjects, though at this point the chief focus was the relationship of the king to nobility.  Over time rights were extended to citizens in general.  These were codified, for example in the Petition of Right (1628) and the English Bill of Rights (1689), which were forerunners to the Bill of Rights added to the U.S. Constitution in 1791.  In none of these documents, however, was a “right to privacy” enumerated.

                                                                                                    

The key document regarding the right to privacy is the essay “The Right to Privacy” by Samuel Warren and Louis Brandeis in the Harvard Law Review in 1890 {http://www.jjllplaw.com/The-Right-to-Privacy-Warren-Brandeis-Harvard-Law-Review-1890.html ; http://law.scu.edu/site/dorothy-glancy/File/Privacy.pdf}.   (Brandeis would later become an Associate Justice of the U.S. Supreme Court).  Warren and Brandeis describe the right to privacy as “the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others,” or, in short, the “right to be let alone.”  They see this as the natural extension of the right to life, “a recognition of man’s spiritual nature,” and as “the right to an inviolate personality.”

                                                                                                    

“Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, -- the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession -- intangible, as well as tangible.”

                                                                                                   

This recognition of a person’s spiritual nature and the right to an inviolate personality are critical to discussions about information ethics.  It verifies this principle:

Privacy is the cornerstone of selfhood.

Invasions of privacy are attacks on the selfhood of the individual and devalues that individual, both in the eyes of the public and in the eyes of the person herself.

                                                                                                   

A recognition of the roots of the right to privacy, for the IT professional, means that the ethical issues are not simply a matter of law, but of human decency and respect for others.  The ethical person cannot glibly claim “I have not broken any laws” and then, with impunity violate the privacy of others.  A respect for the right to an inviolate personality places the discussion on a higher moral ground.  This is especially true when it comes to the privacy of minors and youth.  It may be “legal” to publish everything that was placed into the public domain by an unthinking youngster; but is it ethical? {This point needs to be expanded – can there be something defined akin to statutory rape?  I.e., to the effect that persons who post something while they are young and foolish should have the right to remove that material from the public domain}

                                                                                                    

Warren and Brandeis point out that with the advance of technology and civilization in new ways comes the need to re-examine and refine our understanding of the rights of the individual in the society of the day.  A precipitating element in their day was the advances in photo technology and the widespread availability of gossip-oriented publications.  In their words, “Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.”  Today we are looking at these same problems on steroids!  With the proliferation of the means both to invade privacy and to publish material as print, photos, audio and video the protection of the privacy of the individual requires corresponding {need a word here that means matching in sufficient measure} effort.

                                                                                                   

There are other ways in which the privacy issue becomes more complicated in today’s world.  IT-savvy businessmen have discovered the immense profits to be found in the trafficking of private information both at the individual and the aggregate levels.  This brings property rights into the discussion, as well as potentially fraudulent business practices.

 

{{Unfinished essay – notes on additional topics to cover

 

Also – need to point out that often people allow certain things to be done because they do not realize what it is that is being done.  {find the article about users revolt against new privacy policy which shows how unaware they were of the laxness of the pre-existing privacy policy}

 

Another topic – who “owns” personal medical information?  Should patients have access to all their medical information?

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Posted August 28, 2013