Activities affecting informational privacy

1
Activities affecting informational privacy
Collection
dissemination
Processing
Monitoring
questioning
Aggregation
Secondary use
Exclusion
Proper
Contract
No-contract
Common law
Statutes
Trespass
CFAA
HIPAA
ECPA
GLB
Warshak v. U. S.
Whom may I exclude? Whom must I let in?
Improper
Breach of confidence
Intrusion on seclusion
Public disclosure of private facts
Misappropriation
False light
Unauthorized disclosure of sensitive information
Common law
Statutes
Whom must I exclude?
CFAA
HIPAA
ECPA
GLB
Negligence
2
Processing
Aggregation
Secondary use
Exclusion
Publicity to private life U. S. Dept. of Justice
v. Reporters Committee Russell v. Gregoire Paul
P. v. Verniero
3
Harms
Actual
Potential
Economic
Dignitary
Loss of freedom
Increased risk
Balance of power changes
Legally recognized
Not legally recognized
4
Privacy Perplexities

• We apply the label invasion of privacy to a
  wide variety of different types of harms.
• A company sells customer information despite its
  promise to the contrary.
• A newspaper publishing a rape victims name.
• Both are invasions of privacy in the sense that
  they involve unwanted disclosures of information
  however, the tradeoffs between harms and benefits
  are very different.

5
Different Tradeoffs

• The company was able to sell its customers
  information because such information is of
  considerable value for marketing and business
  planning.
• In considering whether to enforce the promise not
  to sell the information, one key question is
  whether the interest of the customers in
  non-disclosure outweighs the economic value of
  the information.
• Publishing the name of the rape victim, in
  contrast, causes great, enduring emotional harm.
• The harm would seem clearly to outweigh the
  general publics interest in newsworthy facts.
• In general, privacy involves a vast array of
  different tradeoffs between different harms and
  interests.

6
Warshak Issues What Are We Talking About?

• The Statute is 18 USC 2510 2522.
• This is Title III of the Omnibus Crime Control
  and Safe Streets Act of 1996 (Pub. L. No. 90-351,
  82 Stat. 211).
• This referred to both as the Wiretap Act and as
  the ECPA.
• ECPA because the Electronic Communications
  Privacy Act of 1986 (Pub. L. NO 99-508, 100 Stat.
  1848) amended Title III to include coverage of
  electronic communications.
• Given the amendment, the Wiretap Act reference
  is inaccurate.

7
Warshak v. U. S.

• What hurdle does the government have to get over
  to get access to e-mails?
• The highest hurdle is the requirement of a
  warrant requires probable cause to think a
  crime is being committed.
• May obtain the warrant, and get the e-mails
  without notice to the individual against whom the
  warrant is directed
• A lower hurdle is a court order specific and
  articulable facts showing reasonable grounds to
  believe that the communications are relevant
  to an ongoing criminal investigation.
• Question in Warshak do you have to give notice
  to the target before obtaining the information?
• Answer Yes.

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What Are We Talking About?

• The Electronic Communications Privacy Act 1986
  also added 18 USC 2701 2709, 2711 12.
• Some refer to this as the ECPA.
• I will use Wiretap Act for 18 USC 2510
  2522, and
• ECPA for 18 USC 2701 2709, 2711 12.

9
Warshak v. U. S.

• ECPA 2703(b) Search warrant without notice to
  the subscriber or, a grand jury or
  administrative subpoena with notice or a court
  order with notice.
• The court order may be issued if the government
  provides specific and articulable facts showing
  reasonable grounds to believe that the
  communications are relevant to an ongoing
  criminal investigation.