The Law of Privacy Prof. Michael Madison – University of Pittsburgh School of Law – January 22, 2004 [1] What is privacy? [2] What law regulates privacy? [3] How does the law regulate privacy? [4] How might the law solve new privacy problems?

The Law of Privacy Prof. Michael Madison – University of Pittsburgh School of Law – January 22, 2004 [1] What is privacy? Broadly defined: an interest in shielding information about oneself from disclosure to others. (Privacy interests may include: publicity, anonymity, transparency, accuracy, solitude, intimacy, imagination, secrecy, dignity, physical separation) More specifically: Privacy can be defined best by focusing on the particular context(s) involved in a particular dispute over privacy. Where? [a] Home [where?] [b] Office [c] School [d] The street [e] A shopping mall [f] Your car [someone elses car?] Who? [a] The news media [b] The government [c] Your neighbors [d] Your employer [e] Your colleagues at work [f] Your classmates at school When? [a] Now [b] Tomorrow [c] A year from now [d] Yesterday [e] Five years ago What?

The Law of Privacy Prof. Michael Madison – University of Pittsburgh School of Law – January 22, 2004 [2] What law regulates privacy? Federal law Constitution of the United States (no explicit privacy right, but a zone of privacy recognized in its penumbras, including 1st, 3 rd, 4th, 5th, and 14th Amendments) [a] Griswold v. Connecticut (1965) (decisional privacy) (also Roe v. Wade (1973)) [b] Whalen v. Roe (1977) (information privacy) [c] Spatial privacy? Data privacy? Federal statutes (for example: Privacy Act, Buckley Amendment, COPPA, HIPAA, GLB, ECPA, VPPA) State law State constitutions may recognize explicit right to privacy (Georgia, Hawaii) State statutes and common (tort) law Local laws and regulations (for example: ordinances on soliciting anonymously) No law: Informal and socially-based privacy-protecting customs; technologies

The Law of Privacy Prof. Michael Madison – University of Pittsburgh School of Law – January 22, 2004 [3] How does the law regulate privacy? Types of solutions: Law may require waiving privacy interests. Law may enforce privacy interests. Typically, the law identifies relevant privacy interests to protect, identifies relevant interests supporting disclosure, and tries to balance both sets of issues in a single resolution. Particularly difficult problems: Can an individual own (and therefore sell) his or her own privacy rights? Should the default assumption be protect the privacy interest or compel waiver of the privacy interest? [Who should bear the cost of changing the default?] When should the law defer to informal or social norms, or to technological (barriers) (solutions)?

The Law of Privacy Prof. Michael Madison – University of Pittsburgh School of Law – January 22, 2004 [3] How does the law regulate privacy? Comparing US and European Union approaches to data privacy Issue: Database provider collects information about an individuals credit card use. The individuals database record contains errors. (1)What are the providers obligations to the individual? (2)Can the provider sell or license access to the database for profit? US: business-sector specific; designed to cure market problems Obligations of database provider depend on character of provider as, for example, a consumer reporting agency (Fair Credit Reporting Act); financial institution (Gramm Leach Bliley); or a covered entity in health care (HIPAA) EU approach: comprehensive principles; human rights foundation (Data Protection Directive/1996) Notice/awareness; choice/consent; access/participation; integrity/security; enforcement/remedy [Similar to Code of Fair Information Practices]

The Law of Privacy Prof. Michael Madison – University of Pittsburgh School of Law – January 22, 2004 [4] How might the law solve new privacy problems? Assumptions of the US legal system: [a] benefits from free flow of information [b] presumption that markets (bargains) should regulate that flow Create a market for privacy? How? Technological tools: give individuals the means to bargain Privacy rights: give individuals the legal leverage to bargain Compare: copyright law in the digital age