1. Privacy and ITs Discontents

2. Premise “The liberty of the individual is no gift of civilization. It was greatest before there was any civilization, though then, it is true, it had for the most part no value, since the individual was scarcely in a position to defend it. The development of civilization imposes restrictions on it, and justice demands that no one shall escape those restrictions.”  Sigmund Freud, Civilization and Its Discontents, 1929 “The liberty of the individual is no gift of civilization. It was greatest before there was any civilization, though then, it is true, it had for the most part no value, since the individual was scarcely in a position to defend it. The development of civilization imposes restrictions on it, and justice demands that no one shall escape those restrictions.”  Sigmund Freud, Civilization and Its Discontents, 1929

3. Argument  Neither technology nor the USA- Patriot Act have dramatically taken away your privacy  You never had much to begin with!  America society would benefit from a meaningful and comprehensive evaluation of the role that “information” is playing in economic, social, cultural and political relations.  “Privacy” law is inadequate for the task  Neither technology nor the USA- Patriot Act have dramatically taken away your privacy  You never had much to begin with!  America society would benefit from a meaningful and comprehensive evaluation of the role that “information” is playing in economic, social, cultural and political relations.  “Privacy” law is inadequate for the task

4. Challenge How can information (and its underlying technologies) serve democratic republican values? How can information (and its underlying technologies) serve democratic republican values?

5. From whence “privacy” in Western Culture?  Dynamic definition of culture  Control over nature  Interpreted though binary oppositions  Sex/Gender relations foundation  Women, because of childbearing functions, become more closely associated with nature, men with culture  Therefore, men control women  Patriarchal/paternalistic societies  Dynamic definition of culture  Control over nature  Interpreted though binary oppositions  Sex/Gender relations foundation  Women, because of childbearing functions, become more closely associated with nature, men with culture  Therefore, men control women  Patriarchal/paternalistic societies

6. Western Civilization  Ancient Greece  Clear public/private distinctions  Grounded in sex/gender relations  Women constitute private, men public  “Democracy” as a government construct originally built on this foundation  Ancient Greece  Clear public/private distinctions  Grounded in sex/gender relations  Women constitute private, men public  “Democracy” as a government construct originally built on this foundation

7. “I want to be alone…”

8. Brief History of Privacy in Western Civilization  Ancient Rome  Great imitators of Ancient Greece  Recreated the public/private sphere split  “Privacy” derives from the Latin: to be let alone” but applied only to the wealthy statesmen  With empirical twist  Great latifundia, or plantations  Slaves from conquest  “Citizens” of the Mediterranean  Ancient Rome  Great imitators of Ancient Greece  Recreated the public/private sphere split  “Privacy” derives from the Latin: to be let alone” but applied only to the wealthy statesmen  With empirical twist  Great latifundia, or plantations  Slaves from conquest  “Citizens” of the Mediterranean

9. Medieval Society:Does hierarchy equal respect? Dignity?

10. Dignity, based on Respect, based on Hierarchy  Hierarchical, organic, interdependent, cooperative political, social and economic relations  Contrary of “individualism”  Theocracy, not a democracy  But respect and dignity, knights and ladies  Dignity and respect precursor to European “privacy” society  Hierarchical, organic, interdependent, cooperative political, social and economic relations  Contrary of “individualism”  Theocracy, not a democracy  But respect and dignity, knights and ladies  Dignity and respect precursor to European “privacy” society

11. American Privacy Law: Quilt or Just Patchwork?

12. Civil Law: Tort  “The Right to Privacy”  Warren and Brandeis, Harvard Law Review 1890  A tort grounded in property?  Defamation, Slander and Libel  “intrusion upon a individual’s seclusion”  “public disclosure of private facts”  “false light”  “private gain of individual identity” *Contract law? Why not, copyright holders do!  “The Right to Privacy”  Warren and Brandeis, Harvard Law Review 1890  A tort grounded in property?  Defamation, Slander and Libel  “intrusion upon a individual’s seclusion”  “public disclosure of private facts”  “false light”  “private gain of individual identity” *Contract law? Why not, copyright holders do!

13. No contest First Amendment and entertainment and media-driven society  Extremely high standard: no truth and actual malice  Most people would be willing to see their information for a tuppence First Amendment and entertainment and media-driven society  Extremely high standard: no truth and actual malice  Most people would be willing to see their information for a tuppence

14. Constitutional Law  Fundamental Rights  Children’s schools, foreign language, no castration…  Griswold v. Connecticut, 1965  Privacy as a “penumbra” of 1, 3, 4, 5, 9 Amendment rights  Married couples right to contraception  Extended to non-married couples a few years later…  Fundamental Rights  Children’s schools, foreign language, no castration…  Griswold v. Connecticut, 1965  Privacy as a “penumbra” of 1, 3, 4, 5, 9 Amendment rights  Married couples right to contraception  Extended to non-married couples a few years later…

15. Constitutional Law  Roe v. Wade, 1973  Woman’s right to “privacy” in her own body, decriminalizing abortion before viability  Note: the term “privacy” no where in the constitution, therefore a construct of jurisprudence  Substantive due process  Equal protection jurisprudence  Lawrence v. Texas  Dignity?  Roe v. Wade, 1973  Woman’s right to “privacy” in her own body, decriminalizing abortion before viability  Note: the term “privacy” no where in the constitution, therefore a construct of jurisprudence  Substantive due process  Equal protection jurisprudence  Lawrence v. Texas  Dignity?

16. The Fourth Amendment and Electronic Communications  Katz v. U.S. (1967)  “Fourth Amendment protects people, not things”  Law enforcement must have a court order to tap a phone line for content  Precursor to the Omnibus Crime Control and Safe Streets Act of 1968, which was the…  Precursor to the Electronic Communications Privacy Act of 1986  Kyllo (2001)  Technology does not trump sanctity of home.  Katz v. U.S. (1967)  “Fourth Amendment protects people, not things”  Law enforcement must have a court order to tap a phone line for content  Precursor to the Omnibus Crime Control and Safe Streets Act of 1968, which was the…  Precursor to the Electronic Communications Privacy Act of 1986  Kyllo (2001)  Technology does not trump sanctity of home.

17. Legislative and Regulatory Privacy  Fair Credit Reporting Act (FCRA), Public Law No. 91-508  accuracy, fairness, and the privacy of personal information assembled by Credit Reporting Agencies  Privacy Act of 1974  established rules for the collection, use and disclosure of personal information held by federal agencies and specifically prohibited data matching of those government files  Fair Credit Reporting Act (FCRA), Public Law No. 91-508  accuracy, fairness, and the privacy of personal information assembled by Credit Reporting Agencies  Privacy Act of 1974  established rules for the collection, use and disclosure of personal information held by federal agencies and specifically prohibited data matching of those government files

18. Privacy Legislation  Freedom of Information Act of 1972  Family Education Rights Privacy Act (FERPA) of 1974  Computer Matching and Privacy Protection Act of 1988  Video Privacy Protection Act of 1988  Freedom of Information Act of 1972  Family Education Rights Privacy Act (FERPA) of 1974  Computer Matching and Privacy Protection Act of 1988  Video Privacy Protection Act of 1988

19. Communications Privacy Laws  Electronic Communications Privacy Act of 1986  Wiretapping Act of Internet  Cable Communications Privacy Act of 1989  Telephone Consumer Protection Act of 1994  Subscriber’s records  Electronic Communications Privacy Act of 1986  Wiretapping Act of Internet  Cable Communications Privacy Act of 1989  Telephone Consumer Protection Act of 1994  Subscriber’s records

20. Resurgence of Privacy Laws for Selected Content  Health Insurance Portability Accountability Act of 1996  Financial Modernization Act of 1999  Homeland Security Act of 2002  First federal statutory privacy officer  Health Insurance Portability Accountability Act of 1996  Financial Modernization Act of 1999  Homeland Security Act of 2002  First federal statutory privacy officer

21. History tells a different story about privacy: The Sixteenth Amendment

22. The Draft

24. From New Deal to the Regulatory State

26. Welfare  Aid to Dependent Families

27. Medicare

29. What does technology have to do with it? Digitization, meet packet switching, which hooks up with Ethernets and networking systems and the personal computer. Add hypertext transfer protocols and hypertext markup language, popular applications such as electronic mail, e-commerce and file share programs to the recipe, transform computing into communications, bake it through the miasma of late twentieth, post-modern American society and out comes the Information Age.

30. Signing of the USA-PATRIOT Act of 2001

31. USA-Patriot Act: Basics  Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Acts  Signed into law on October 26, 2001  One of the longest pieces of emergency legislation passed in one of the shortest periods of time in American history  Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Acts  Signed into law on October 26, 2001  One of the longest pieces of emergency legislation passed in one of the shortest periods of time in American history

32. The Basics  Ten Sections covering a variety of areas, including banking, money laundering, surveillance, border protection, victims’ support, information sharing within the infrastructure and the strengthening of criminal laws against terrorism.  Severability clause  To protect against the whole the potential constitutional violation of a single section  Ten Sections covering a variety of areas, including banking, money laundering, surveillance, border protection, victims’ support, information sharing within the infrastructure and the strengthening of criminal laws against terrorism.  Severability clause  To protect against the whole the potential constitutional violation of a single section

33. Definition of Terrorism  Act divides definition into two parts  Foreign  Domestic  For the purposes of our discussion, the definition for domestic terrorism is the more helpful to keep in mind.  Act divides definition into two parts  Foreign  Domestic  For the purposes of our discussion, the definition for domestic terrorism is the more helpful to keep in mind.

34.  Domestic  “the term `domestic terrorism' means activities…[that ] involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States…  Domestic  “the term `domestic terrorism' means activities…[that ] involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States…

35. Overview of Title II: Enhanced Surveillance Procedures Sharing of Information  Law enforcement with federal agencies  Obtaining Records  FERPA (507 of Title V)  FISA  ECPA  Rewording to Include Electronic Communications  “routing,” “network addresses,” “signaling” Sharing of Information  Law enforcement with federal agencies  Obtaining Records  FERPA (507 of Title V)  FISA  ECPA  Rewording to Include Electronic Communications  “routing,” “network addresses,” “signaling”

36. Patriot Act Amends Existing Legislation  FERPA  Family Education Records and Privacy Act 1974  FISA  Foreign Intelligence Surveillance Act 1978  ECPA  Electronic Communications Privacy Act 1986  FERPA  Family Education Records and Privacy Act 1974  FISA  Foreign Intelligence Surveillance Act 1978  ECPA  Electronic Communications Privacy Act 1986

37. Family Education Records and Privacy Act  Originally passed in 1974, subseq. amended  Historical foundation in anti-war protests protection for students’ records, “transparency” and access of those records for the individual student  Recognize shift from in loco parentis  Already existing “health and safety” exception for the individual student  Originally passed in 1974, subseq. amended  Historical foundation in anti-war protests protection for students’ records, “transparency” and access of those records for the individual student  Recognize shift from in loco parentis  Already existing “health and safety” exception for the individual student

38. New Exception to FERPA  U.S. Assistant Attorney General, or similarly ranked, obtains a court order relevant to terrorism investigation  Institution is not liable, no record need be maintained  Distinct from “health and safety exception” already existing  U.S. Assistant Attorney General, or similarly ranked, obtains a court order relevant to terrorism investigation  Institution is not liable, no record need be maintained  Distinct from “health and safety exception” already existing

39. Ancillary to FERPA  National Center for Education Statistics  Federal officials can have access to survey information, which is otherwise held confidential  Monitoring of Foreign Students  Full implementation of existing Immigration and Naturalization Service law regarding information about students  SEVIS Program  National Center for Education Statistics  Federal officials can have access to survey information, which is otherwise held confidential  Monitoring of Foreign Students  Full implementation of existing Immigration and Naturalization Service law regarding information about students  SEVIS Program

40. Foreign Intelligence Surveillance Act 1978  Early recognition, if not prescience, about the potential for terrorist activities on American soil or affecting American interests internationally  Terrorist exception to 4th A.  End-run around the constitution?  Early recognition, if not prescience, about the potential for terrorist activities on American soil or affecting American interests internationally  Terrorist exception to 4th A.  End-run around the constitution?

41. Foreign Intelligence Surveillance Act  FISA Court (pre-Patriot Act)  Seven federal judges  Post Patriot Act: eleven and with residence restrictions in contemplation of an increase in requests and need for quick process of them  Meet in closed session  Content of applications permanently closed  Example of Moussaoui Flight School case  Results in search warrant or subpoena  Post Patriot Act: reduced standard for approval  Under total circumstances, that is the issue  FISA Court (pre-Patriot Act)  Seven federal judges  Post Patriot Act: eleven and with residence restrictions in contemplation of an increase in requests and need for quick process of them  Meet in closed session  Content of applications permanently closed  Example of Moussaoui Flight School case  Results in search warrant or subpoena  Post Patriot Act: reduced standard for approval  Under total circumstances, that is the issue

42. Foreign Intelligence Surveillance Act 1978  Core concept:  Possible to circumnavigate traditional constitutional protections for search and seizure if it is possible to establish that the investigation is about “intelligence” and/or a connection to a “hostile foreign power;”  No showing of “probable cause” of criminal activity necessary  Core concept:  Possible to circumnavigate traditional constitutional protections for search and seizure if it is possible to establish that the investigation is about “intelligence” and/or a connection to a “hostile foreign power;”  No showing of “probable cause” of criminal activity necessary

43. Foreign Intelligence Surveillance Act 1978  Only statistics, and annual vice-president’s report to Congress of applications and approved;  Although records are sealed, annual reports that the Vice President makes to Congress on these warrants reveals that 13,000+ have been issued, 1,000 in 2000 alone, and in that time only one request has been turned down.  Only statistics, and annual vice-president’s report to Congress of applications and approved;  Although records are sealed, annual reports that the Vice President makes to Congress on these warrants reveals that 13,000+ have been issued, 1,000 in 2000 alone, and in that time only one request has been turned down.

44. Section 215  Business Records  FBI can seize with a court order certain business records pursuant to an investigation of “international terrorism or other clandestine intelligence activities…”  Prohibits record keeper to disclosure FBI action to anyone “other than those persons necessary to produce the tangible things under this section…”  Investigation “not to be conducted of a United States person solely upon the basis of activities protected by the first amendment…”  Business Records  FBI can seize with a court order certain business records pursuant to an investigation of “international terrorism or other clandestine intelligence activities…”  Prohibits record keeper to disclosure FBI action to anyone “other than those persons necessary to produce the tangible things under this section…”  Investigation “not to be conducted of a United States person solely upon the basis of activities protected by the first amendment…”

45. Electronic Communications Privacy Act of 1986  What is it?  Wiretapping Act for the Internet  What is the “Wiretapping Act?”  Olmstead 1928  Katz 1967  Omnibus Crime Control and Safe Streets Act of 1968 is the actual “Wiretapping Act”  ECPA brings those same legal protections of telephonic communications to electronic environment  What is it?  Wiretapping Act for the Internet  What is the “Wiretapping Act?”  Olmstead 1928  Katz 1967  Omnibus Crime Control and Safe Streets Act of 1968 is the actual “Wiretapping Act”  ECPA brings those same legal protections of telephonic communications to electronic environment

46. ECPA: What Does It Protect?  Ideally the privacy of communications in electronic media  Pre-Patriot Act list of exceptions  Usual course of business  But not disclosure to third parties  Wireless: distinction between listening and disclosing  Authorized law enforcement  Court or Administrative Order  Search Warrant or Subpoena  Executive Order 12333 Letter  Ideally the privacy of communications in electronic media  Pre-Patriot Act list of exceptions  Usual course of business  But not disclosure to third parties  Wireless: distinction between listening and disclosing  Authorized law enforcement  Court or Administrative Order  Search Warrant or Subpoena  Executive Order 12333 Letter

47. To Whom Does It Apply?  Statutory Language:  “…providers of Internet service to the public”  Does it apply to colleges and universities?  No case law on point  Anderson Consulting: EPCA does not apply  Digital Millennium Copyright Act as model for safe harbor distinctions?  General Rule  Act as if it does, but hold question as potential defense  Statutory Language:  “…providers of Internet service to the public”  Does it apply to colleges and universities?  No case law on point  Anderson Consulting: EPCA does not apply  Digital Millennium Copyright Act as model for safe harbor distinctions?  General Rule  Act as if it does, but hold question as potential defense

48. Patriot Act Amendments of ECPA  New “emergency” disclosure  “Imminent danger to life and limb”  New “required disclosure”  “Rubber-stamping subpoenas”  Below “probable cause”  “Routing:” Pen registers and trap and trace devices  Content is the constitutional question  New “emergency” disclosure  “Imminent danger to life and limb”  New “required disclosure”  “Rubber-stamping subpoenas”  Below “probable cause”  “Routing:” Pen registers and trap and trace devices  Content is the constitutional question

49. Patriot Act Amendments of ECPA  New “Computer Trespass” Disclosure  Owner/Operator consent for federal intervention  So long as owner/operator reasonably believes investigation is relevant to computer trespass  Investigation of it and no other  No authorization required  No limits set, e.g. stop  No restraint on return with authorization based on information gathered during the invited investigation  No guarantee it is constitutional  Sunset provision  New “Computer Trespass” Disclosure  Owner/Operator consent for federal intervention  So long as owner/operator reasonably believes investigation is relevant to computer trespass  Investigation of it and no other  No authorization required  No limits set, e.g. stop  No restraint on return with authorization based on information gathered during the invited investigation  No guarantee it is constitutional  Sunset provision

50. Observations about the USA- Patriot Act  Did not significantly diminish privacy  Didn’t have much to begin with!  Given its exposure in these troubled times, its best hope has been to make people aware of how little privacy they have…  And not only due to government surveillance but, perhaps more so, in the free market  Total Information Awareness and JetBlue case as examples…  Did not significantly diminish privacy  Didn’t have much to begin with!  Given its exposure in these troubled times, its best hope has been to make people aware of how little privacy they have…  And not only due to government surveillance but, perhaps more so, in the free market  Total Information Awareness and JetBlue case as examples…

51. Observations on (Information) Technologies  A “liberty” driven society and free marketplace has exploited technology for its ends  Telemarketers  Credit/Banking/Reporting  Spam  Technology not the cause of diminished privacy  But it illuminates and exacerbates the problem…if there is one?  Depends on your expectations…  A “liberty” driven society and free marketplace has exploited technology for its ends  Telemarketers  Credit/Banking/Reporting  Spam  Technology not the cause of diminished privacy  But it illuminates and exacerbates the problem…if there is one?  Depends on your expectations…

52. How does technology change privacy expectations?  Wireless  Open communications, who cares?  Cell phones  Remember the phone booth?  Internet  Cookies?  Trails?  Sniffing?  Wireless  Open communications, who cares?  Cell phones  Remember the phone booth?  Internet  Cookies?  Trails?  Sniffing?

53. American Privacy Law? Forget about it!  Patchwork, not a quilt  Not coherent or comprehensive  No overarching principles  Mired in complicated social issues, such as “family…”  Have to be a criminal to get a little?  Exceptions swallow rules  Transcripts for jobs  Health care for benefits  Banking for a loan…  Does not take account of technology and its impact on existing legal forms  property/privacy, copyright, criminal and civil law…  Patchwork, not a quilt  Not coherent or comprehensive  No overarching principles  Mired in complicated social issues, such as “family…”  Have to be a criminal to get a little?  Exceptions swallow rules  Transcripts for jobs  Health care for benefits  Banking for a loan…  Does not take account of technology and its impact on existing legal forms  property/privacy, copyright, criminal and civil law…

54. Contrast Chapter I, Article 8: “Dignity” of EU Human Rights… Article 8 Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.

55. Conclusion Information age presents all kinds of new legal and policy challenges which require a comprehensive assessment of the dynamic relationship between “information” and economic, social, political and cultural relations, with a focus on service to our foundational democratic republican vales.