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A Cyber Age Privacy Doctrine

  • Amitai Etzioni
Chapter
Part of the Palgrave Macmillan’s Studies in Cybercrime and Cybersecurity book series (PSCYBER)

Abstract

A privacy doctrine built for the cyber age must address a radical change in the type and scale of violations that the nation—and the world—face, namely that the greatest threats to privacy come not at the point that personal information is collected, but rather from the secondary uses of such information. Court cases such as Katz, Berger, Smith, Karo, Knotts, Kyllo—and most recently Jones—concern whether the initial collection of information was legal. They do not address the fact that legally obtained personal information may nevertheless be used later to violate privacy and that the ways such information is stored, combined with other pieces of information (“collated”), analyzed, and distributed often entail very significant violations of privacy.1 Whereas a considerable number of laws and court cases cover these secondary usages of information, they do not come together as a coherent doctrine of privacy—and most assuredly they do not address the unique challenges of the cyber age.2

Keywords

Personal Information Secondary Usage Sensitive Information License Plate Fourth Amendment 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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Notes

  1. 1.
    Amitai Etzioni, “The Privacy Merchants: What Is to Be Done?” University of Pennsylvania Journal of Constitutional Law 14, 4 (March 2012): 929.Google Scholar
  2. 2.
    Peter P. Swire, “Katz Is Dead. Long Live Katz”, Michigan Law Review 102, 5 (2004): 904, 912. (“The increasing storage of telephone calls is part of the much broader expansion since 1967 of stored records in the hands of third parties. Although there are no Supreme Court cases on most of these categories of stored records, the Miller and Smith line of cases make it quite possible that the government can take all of these records without navigating Fourth Amendment protections”) Some scholars have suggested that Fourth Amendment restrictions should apply to subsequent use, although the analysis is not sufficiently developed in the courts to constitute a meaningful privacy doctrine.CrossRefGoogle Scholar
  3. Harold J. Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment, 74 Tex. L. Rev. 49 (1995–1996). (“If the state can obtain the information only through means constituting a search or seizure, then use restrictions should apply, confining the governmental authorities to uses consistent with the [Fourth] Amendment’s reasonableness requirement.”)Google Scholar
  4. 3.
    NTO, “The Virginia ‘Right of Privacy’ Statute,” Virginia Law Review 38 (1952): 117.CrossRefGoogle Scholar
  5. 4.
    Samuel D. Warren and Louis D. Brandeis, “The Right of Privacy,” Harvard Law Review 4 (1890): 193.CrossRefGoogle Scholar
  6. 5.
    For an excellent overview of how advances in information and communication technologies have rendered obsolete the privacy laws (and the doctrines on which these laws are based) of the 1980s and 1990s, see Omer Tene, “Privacy: The New Generations,” International Data Privacy Law 1 (2011): 15–27. For a discussion of how these changes have particularly affected the privacy expectations of the “Facebook generation,” seeCrossRefGoogle Scholar
  7. Mary Graw Leary, “Reasonable Expectations of Privacy for Youth in a Digital Age,” Mississippi Law Journal 80 (2011): 1033.Google Scholar
  8. 6.
    This is of course not a terribly new position—legal scholars have been discussing the implications for privacy and the Fourth Amendment of the Internet since its introduction as publicly available technology. See Lawrence Lessig, Code and Other Laws of Cyberspace, (Basic Books, 1999), 222–23 and Laurence H. Tribe, “The Constitution in Cyberspace, Keynote Address at the First Conference on Computers, Freedom, & Privacy” (March 26, 1991) (transcript available at www.sjgames.com/SS/tribe.html).Google Scholar
  9. 7.
    Erin Smith Dennis, “A Mosaic Shield: Maynard, the Fourth Amendment, and Privacy Rights in the Digital Age,” Cardozo Law Review 33 (2012): 737. See also Google Scholar
  10. Orin Kerr, “The Mosaic Theory of the Fourth Amendment,” Michigan Law Review 111 (2012): 311, 320 (“Under mosaic theory, searches can be defined collectively as a sequence of discrete steps rather than as individualized steps. Identifying Fourth Amendment search requires analyzing police actions over time as a collective ‘mosaic’ of surveillance.”);Google Scholar
  11. Madelaine Virgina Ford, “Mosaic Theory and the Fourth Amendment: How Jones Can Save Privacy in the Face of Evolving Technology,” American University Journal of Gender, Social Policy & the Law 19 (2011): 1351;Google Scholar
  12. Bethany L. Dickman, “Untying Knotts: The Application of Mosaic Theory to GPS Surveillance in United States v. Maryland” American University Law Review 60 (2011): 731.Google Scholar
  13. 11.
    Catharine A. MacKinnon, “Reflections on Sex Equality Under Law,” Yale Law Journal 100 (1991): 1281, 1311.CrossRefGoogle Scholar
  14. 12.
    Linda C. McClain, “Inviolability and Privacy: The Castle, the Sanctuary, and the Body,” Yale Journal of Law and the Humanities 7 (1995): 195, 209.Google Scholar
  15. 13.
    Amitai Etzioni, “The Bankruptcy of Liberalism and Conservatism,” Political Science Quarterly 128 (2013): 39.CrossRefGoogle Scholar
  16. 14.
    Christopher Slobogin, “Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity,” Mississippi Law Journal 72 (2002): 213.Google Scholar
  17. Scott E. Sundby, “Everyman’s Fourth Amendment: Privacy or Mutual Trust between Government and Citizen?” Columbia Law Review 94 (1994): 1751, 1758–89;CrossRefGoogle Scholar
  18. Bethany L. Dickman, “Untying Knotts: The Application of Mosaic Theory to GPS Surveillance in United States v. Maryland,” American University Law Review 60 (2011): 731.Google Scholar
  19. 17.
    For a critical analysis of the “Information Sharing Paradigm” that has arisen in law enforcement and intelligence community since 9/11, see Peter P. Swire, “Privacy and Information Sharing in the War on Terrorism,” Villanova Law Review 51 (2006): 260.Google Scholar
  20. 18.
    Alexander Aleinikoff, writing in 1987, argued that the courts had entered the “age of balancing.” “Balancing has been a vehicle primarily for weakening earlier categorical doctrines restricting governmental power to search and seize.” T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing,” Yale Law Journal 96 (1987): 943, 965. Many civil libertarians have argued that post-9/11, Fourth Amendment rights are being systematically eroded in the name of national security. See Jay Stanley, “Reviving the Fourth Amendment and American Privacy,” ACLU (May 28, 2010), http://www.aclu.org/blog/national-security-technology-and-liberty/reviving-fourth-amendment-and-american-privacy See alsoCrossRefGoogle Scholar
  21. Orin S. Kerr, “An Equilibrium-Adjustment Theory of the Fourth Amendment,” Harvard Law Review 125 (2011): 476, 478. (“The theory of equilibrium-adjustment posits that the Supreme Court adjusts the scope of Fourth Amendment protection in response to new facts in order to restore the status quo level of protection. When changing technology or social practice expands government power, the Supreme Court tightens Fourth Amendment protection; when it threatens government power, the Supreme Court loosens constitutional protection”)Google Scholar
  22. 19.
    See Amitai Etzioni, The Limits of Privacy (New York: Basic Books, 1999).Google Scholar
  23. 22.
    American Bar Association, ABA Standards for Criminal Justice: Law Enforcement Access to Third Party Records Standards, 3rd ed. (2013), http://www.americanbar.org/content/dam/aba/publications/criminal_justicesee_standards/third_party_access.authcheckdam.pdfGoogle Scholar
  24. 23.
    Shaun Spencer raises concerns about legislating privacy protections. See Shaun Spencer, “Reasonable Expectations and the Erosion of Privacy,” San Diego Law Review 39 (2002): 843, 860. (“Given the powerful influence of various lobbies opposed to strong privacy protection, that role may best be described as a sine qua non. That is, unless the public has a strong desire for privacy in a particular area, attempts to pass legislation establishing that area as a private sphere are doomed to fail… To the extent that legislatures base privacy legislation on social values and norms, they necessarily rely on the same changing expectations as the judicial conception of privacy”)Google Scholar
  25. 24.
    Amitai Etzioni, From Empire to Community: A New Approach to International Relations (New York: Palgrave Macmillan, 2004): 67–71.Google Scholar
  26. 31.
    The preceding examples are laid out in Peter P. Swire, “Katz Is Dead. Long Live Katz,” Michigan Law Review 102, 5 (2004): 908–916.CrossRefGoogle Scholar
  27. 37.
    Orin S. Kerr, “The Mosaic Theory of the Fourth Amendment,” 111 Michigan Law Review 3 (December 2012), 333.Google Scholar
  28. 38.
    Matthew D. Lawless, “The Third Party Doctrine Redux: Internet Search Records and the Case for a ‘Crazy Quilt’ of Fourth Amendment Protection,” UCLA Journal of Law & Technology 2 (2007): 1.Google Scholar
  29. 47.
    Marcy Peek, “Passing Beyond Identity on the Internet: Espionage and Counterespionage in the Internet Age,” Vermont Law Review 28 (2003): 91, 94 (evaluating ways to resist discriminatory marketing in cyberspace); Marcia Stepanek, “Weblining,” BusinessWeek (April 3, 2000), http://www.business-week.com/2000/00_14/b3675027.htm. (A data broker company Acxiom matches names against housing, education, and incomes in order to identify the unpublicized ethnicity of an individual or group.); Nicholas Carr, “Tracking Is an Assault on Liberty, With Real Dangers,” Wall Street Journal (August 7–8, 2010), p. W1. (“It used to be… you had to get a warrant to monitor a person or a group of people. Today, it is increasingly easy to monitor ideas.”);Google Scholar
  30. Amitai Etzioni, “The Privacy Merchants: What Is to Be Done?” University of Pennsylvania Journal of Constitutional Law 14, 4 (2012): 929, 948–50.Google Scholar
  31. 49.
    Orin S. Kerr, “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution,” Michigan Law Review 102 (2004): 801, 871–2.CrossRefGoogle Scholar
  32. 50.
    Christopher Slobogin, “Government Data Mining and the Fourth Amendment,” University of Chicago Law Review 75 (2008): 317, 320.Google Scholar
  33. 52.
    For further discussion on these matters, see Amitai Etzioni, “The Privacy Merchants,” 929; Amitai Etzioni, “The Bankruptcy of Liberalism and Conservatism,” Political Science Quarterly 128 (2013): 39 (discussing the collapse of the public-private divide).CrossRefGoogle Scholar
  34. 56.
    Peter P. Swire, “A Reasonableness Approach to Searches after the Jones GPS Tracking Case,” Stanford Law Review Online 64 (2012): 57.Google Scholar
  35. 57.
    Gary T. Marx, “Ethics for the New Surveillance,” The Information Society: An International Journal 14 (1998): 171, 178.CrossRefGoogle Scholar
  36. 60.
    Amitai Etzioni, The Limits of Privacy (New York: Basic Books, 1999).Google Scholar
  37. 61.
    Anna C. Henning, “Compulsory DNA Collection: A Fourth Amendment Analysis,” Congressional Research Service R40077 (2010): 2.Google Scholar

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© Amitai Etzioni 2015

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  • Amitai Etzioni

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