The problem of terrorism has heightened the need for security. The need for improved security has led officials at all levels of government to consider, and to implement, surveillance programs. In 2002, the New York City Police Department (NYPD) created a Counterterrorism Bureau. The Bureau’s Lower Manhattan Security Initiative of networked surveillance has been controversial. Civil libertarians and privacy advocates have raised concerns. What is the fate of privacy with the massive use of surveillance cameras and other monitoring technology in America’s premier city? In response to concerns about the program, in February 2009, the NYPD issued proposed voluntary Public Security Privacy Guidelines. The Guidelines were weak on genuine privacy protection restrictions. They were an inadequate instantiations of the “fair information practice” ideals reflected in US federal privacy statutes and in the data protection laws of Canada and the EU. If the NYPD is going to operate on the basis of privacy guidelines, it needs guidelines that articulate for the police themselves and for the affected public why privacy in public places matters. The starting point could be Rousseau’s notion that pervasive surveillance opens the door to the misery of perpetual judgment. Not everything the NYPD says it is doing seriously affects privacy interests, but those interests need to be specifically understood; and intrusive policies need to be justified beyond the broad assertion that there is no expectation of privacy in public places and non intimate activities. New York could be a model for other municipalities how to take privacy seriously when observation imposes the Rousseavian burdens and when security seems essential.
{"title":"Driven into Society: Philosophies of Surveillance Take to Streets of New York","authors":"Anita L. Allen","doi":"10.37974/ALF.84","DOIUrl":"https://doi.org/10.37974/ALF.84","url":null,"abstract":"The problem of terrorism has heightened the need for security. The need for improved security has led officials at all levels of government to consider, and to implement, surveillance programs. In 2002, the New York City Police Department (NYPD) created a Counterterrorism Bureau. The Bureau’s Lower Manhattan Security Initiative of networked surveillance has been controversial. Civil libertarians and privacy advocates have raised concerns. What is the fate of privacy with the massive use of surveillance cameras and other monitoring technology in America’s premier city? In response to concerns about the program, in February 2009, the NYPD issued proposed voluntary Public Security Privacy Guidelines. The Guidelines were weak on genuine privacy protection restrictions. They were an inadequate instantiations of the “fair information practice” ideals reflected in US federal privacy statutes and in the data protection laws of Canada and the EU. If the NYPD is going to operate on the basis of privacy guidelines, it needs guidelines that articulate for the police themselves and for the affected public why privacy in public places matters. The starting point could be Rousseau’s notion that pervasive surveillance opens the door to the misery of perpetual judgment. Not everything the NYPD says it is doing seriously affects privacy interests, but those interests need to be specifically understood; and intrusive policies need to be justified beyond the broad assertion that there is no expectation of privacy in public places and non intimate activities. New York could be a model for other municipalities how to take privacy seriously when observation imposes the Rousseavian burdens and when security seems essential.","PeriodicalId":179517,"journal":{"name":"Information Privacy Law eJournal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127477365","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Consumers have a dim understanding of how companies share personal information. To "shine a light" on information sharing practices, the authors employed a unique California law to survey the information sharing practices of 112 businesses. This follow-on study to a similar, smaller survey in 2007, found that four years after the law took effect, compliance is uneven. Fifty-three companies did not respond to the request at all. Only six companies disclosed how they shared information with third parties for their direct marketing purposes. Thirty-nine companies informed us that they do not share information, 5 provided an opt-out option for third party sharing, and 9 responses were categorized as "other."
{"title":"Exploring Information Sharing through California’s 'Shine the Light' Law","authors":"Lauren Thomas, C. Hoofnagle","doi":"10.2139/SSRN.1448365","DOIUrl":"https://doi.org/10.2139/SSRN.1448365","url":null,"abstract":"Consumers have a dim understanding of how companies share personal information. To \"shine a light\" on information sharing practices, the authors employed a unique California law to survey the information sharing practices of 112 businesses. This follow-on study to a similar, smaller survey in 2007, found that four years after the law took effect, compliance is uneven. Fifty-three companies did not respond to the request at all. Only six companies disclosed how they shared information with third parties for their direct marketing purposes. Thirty-nine companies informed us that they do not share information, 5 provided an opt-out option for third party sharing, and 9 responses were categorized as \"other.\"","PeriodicalId":179517,"journal":{"name":"Information Privacy Law eJournal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129016499","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Certain distributors of popular file-sharing programs have repeatedly failed to prevent, and may have knowingly caused and perpetuated, inadvertent file-sharing, Inadvertent sharing cannot be remediated by self-regulation by distributors of file-sharing programs because certain distributors have repeatedly violated every set of self-regulations proposed - including a Code of Conduct and a set of Volutary Best Practices that they drafted. Three critical defects are present in every released version of the LimeWire 5 file-sharing program: (1) every version is dangerously unpredictable and can share all of a user's personal document, image, video, and audio files just by being installed, (2) every version violates critical provisions of the LimeWire's own Voluntary Best Practices, (3) every version contains a feature that LimeWire itself knew to be a needlessly dangerous of means of ensuring that one reasonable mistake by a child could inadvertently share thousands of a family's most sensitive personal files. In short, the problem of inadvertent sharing has persisted for nine years because distributors of file-sharing programs like LimeWire LLC have repeatedly responded to even the most serious and well-documented concerns about inadvertent sharing with half-measures, misrepresentations, whitewash, and other conduct that, considered in its entirety, could strongly suggest bad faith - an intent to cause and perpetuate inadvertent sharing. Consequently, the widespread, well-documented breaches of national, military, corporate, and family security caused by inadvertent sharing may be nothing more - or less - than the acceptable 'collateral damage' of schemes intended to trick users into sharing popular music and movies. Congress should pursue a two-pronged remedial strategy. First, this issue should be formally referred to law-enforcement agencies possessing relevant civil and criminal enforcement authority. And Congress should support efforts to amend H.R. 1319, The Informed P2P User Act, in order to grant the Federal Trade Commission additional targeted enforcement powers.
{"title":"Inadvertent File Sharing Over Peer-to-Peer Networks: How it Endangers Citizens and Jeopardizes National Security, Testimony Before the U.S. House Committee on Oversight and Government Reform","authors":"T. Sydnor","doi":"10.2139/ssrn.1443289","DOIUrl":"https://doi.org/10.2139/ssrn.1443289","url":null,"abstract":"Certain distributors of popular file-sharing programs have repeatedly failed to prevent, and may have knowingly caused and perpetuated, inadvertent file-sharing, Inadvertent sharing cannot be remediated by self-regulation by distributors of file-sharing programs because certain distributors have repeatedly violated every set of self-regulations proposed - including a Code of Conduct and a set of Volutary Best Practices that they drafted. Three critical defects are present in every released version of the LimeWire 5 file-sharing program: (1) every version is dangerously unpredictable and can share all of a user's personal document, image, video, and audio files just by being installed, (2) every version violates critical provisions of the LimeWire's own Voluntary Best Practices, (3) every version contains a feature that LimeWire itself knew to be a needlessly dangerous of means of ensuring that one reasonable mistake by a child could inadvertently share thousands of a family's most sensitive personal files. In short, the problem of inadvertent sharing has persisted for nine years because distributors of file-sharing programs like LimeWire LLC have repeatedly responded to even the most serious and well-documented concerns about inadvertent sharing with half-measures, misrepresentations, whitewash, and other conduct that, considered in its entirety, could strongly suggest bad faith - an intent to cause and perpetuate inadvertent sharing. Consequently, the widespread, well-documented breaches of national, military, corporate, and family security caused by inadvertent sharing may be nothing more - or less - than the acceptable 'collateral damage' of schemes intended to trick users into sharing popular music and movies. Congress should pursue a two-pronged remedial strategy. First, this issue should be formally referred to law-enforcement agencies possessing relevant civil and criminal enforcement authority. And Congress should support efforts to amend H.R. 1319, The Informed P2P User Act, in order to grant the Federal Trade Commission additional targeted enforcement powers.","PeriodicalId":179517,"journal":{"name":"Information Privacy Law eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133362907","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Access to sensitive micro data should be provided using remote access data enclaves. These enclaves should be built to facilitate the productive, high-quality usage of microdata. In other words, they should support a collaborative environment that facilitates the development and exchange of knowledge about data among data producers and consumers. The experience of the physical and life sciences has shown that it is possible to develop a research community and a knowledge infrastructure around both research questions and the different types of data necessary to answer policy questions. In sum, establishing a virtual organization approach would provided the research community with the ability to move away from individual, or artisan, science, towards the more generally accepted community based approach. Enclave should include a number of features: metadata documentation capacity so that knowledge about data can be shared; capacity to add data so that the data infrastructure can be augmented; communication capacity, such as wikis, blogs and discussion groups so that knowledge about the data can be deepened and incentives for information sharing so that a community of practice can be built. The opportunity to transform micro-data based research through such a organizational infrastructure could potentially be as far-reaching as the changes that have taken place in the biological and astronomical sciences. It is, however, an open research question how such an organization should be established: whether the approach should be centralized or decentralized. Similarly, it is an open research question as to the appropriate metrics of success, and the best incentives to put in place to achieve success.
{"title":"Balancing Access to Data and Privacy; A Review of the Issues and Approaches for the Future","authors":"J. Lane, C. Schur","doi":"10.2139/ssrn.1460714","DOIUrl":"https://doi.org/10.2139/ssrn.1460714","url":null,"abstract":"Access to sensitive micro data should be provided using remote access data enclaves. These enclaves should be built to facilitate the productive, high-quality usage of microdata. In other words, they should support a collaborative environment that facilitates the development and exchange of knowledge about data among data producers and consumers. The experience of the physical and life sciences has shown that it is possible to develop a research community and a knowledge infrastructure around both research questions and the different types of data necessary to answer policy questions. In sum, establishing a virtual organization approach would provided the research community with the ability to move away from individual, or artisan, science, towards the more generally accepted community based approach. Enclave should include a number of features: metadata documentation capacity so that knowledge about data can be shared; capacity to add data so that the data infrastructure can be augmented; communication capacity, such as wikis, blogs and discussion groups so that knowledge about the data can be deepened and incentives for information sharing so that a community of practice can be built. The opportunity to transform micro-data based research through such a organizational infrastructure could potentially be as far-reaching as the changes that have taken place in the biological and astronomical sciences. It is, however, an open research question how such an organization should be established: whether the approach should be centralized or decentralized. Similarly, it is an open research question as to the appropriate metrics of success, and the best incentives to put in place to achieve success.","PeriodicalId":179517,"journal":{"name":"Information Privacy Law eJournal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128203734","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Under the inevitable disclosure doctrine, a court may enjoin a person accepting employment with a direct competitor of a former employer to protect a trade secret. Most states that have adopted the doctrine do not limit its application. Such broad application of the doctrine can be harsh and unfair if the former employee lacked any intent to disclose a trade secret. Moreover, it encourages frivolous lawsuits by employers and discourages bargained-for non-compete agreements. Some states, notably California, citing these policy concerns, have declined to adopt the doctrine. This extreme approach is equally troublesome because it ignores that the protection of trade secrets is vital to society. This article advocates for a common-sense application of the doctrine that considers its two competing policy interests: A person's right to work and the protection of trade secrets. States should adopt the doctrine, but limit its application to encourage the formation of noncompete agreements, discourage frivolous lawsuits, and protect a person's right to choose their profession and employer. This could be accomplished with a strict standing requirement, by barring an injunction against employment when it would harm public health or welfare, and by applying several factors to determine the equities of an injunction. This would correctly balance the competing policy interests of trade secret holders and their employees.
{"title":"The Inevitable Disclosure Doctrine: A Common-Sense Application that Considers the Rights of Trade Secret Holders and Employees","authors":"Eduardo M. Gonzalez","doi":"10.2139/SSRN.1364726","DOIUrl":"https://doi.org/10.2139/SSRN.1364726","url":null,"abstract":"Under the inevitable disclosure doctrine, a court may enjoin a person accepting employment with a direct competitor of a former employer to protect a trade secret. Most states that have adopted the doctrine do not limit its application. Such broad application of the doctrine can be harsh and unfair if the former employee lacked any intent to disclose a trade secret. Moreover, it encourages frivolous lawsuits by employers and discourages bargained-for non-compete agreements. Some states, notably California, citing these policy concerns, have declined to adopt the doctrine. This extreme approach is equally troublesome because it ignores that the protection of trade secrets is vital to society. This article advocates for a common-sense application of the doctrine that considers its two competing policy interests: A person's right to work and the protection of trade secrets. States should adopt the doctrine, but limit its application to encourage the formation of noncompete agreements, discourage frivolous lawsuits, and protect a person's right to choose their profession and employer. This could be accomplished with a strict standing requirement, by barring an injunction against employment when it would harm public health or welfare, and by applying several factors to determine the equities of an injunction. This would correctly balance the competing policy interests of trade secret holders and their employees.","PeriodicalId":179517,"journal":{"name":"Information Privacy Law eJournal","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116885542","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Data protection is one of the most discussed topics today. European citizens are affected by data processing in every part of their daily life. But, in case of misuse of their personal data, are they aware of the rights that protect them? European data protection rules can be found in the European Charter of Fundamental Rights, in the European Convention on Data Protection of the Council of Europe, in the OECD Guidelines, in the Directive on Data Protection 95/46, in the EU Charter of Fundamental Rights and in the case law of the ECJ and the ECHR. European citizens are protected by different public international law rules, as well as by national and by EU norms. Complex legal constructions and difficult overarching structures hinder the understanding of data protection provisions, especially as regards newly developed information exchange systems in Police and Judicial Cooperation. The paper will demonstrate the confusing legal situation and recent developments in this field. A final section will summarize the legal difficulties currently arising in this context.
{"title":"Confusing Fundamental Rights Protection in Europe: Loopholes in European Fundamental Rights Protection Exemplified on European Data Protection Rules","authors":"Franziska Boehm","doi":"10.2139/SSRN.1348472","DOIUrl":"https://doi.org/10.2139/SSRN.1348472","url":null,"abstract":"Data protection is one of the most discussed topics today. European citizens are affected by data processing in every part of their daily life. But, in case of misuse of their personal data, are they aware of the rights that protect them? European data protection rules can be found in the European Charter of Fundamental Rights, in the European Convention on Data Protection of the Council of Europe, in the OECD Guidelines, in the Directive on Data Protection 95/46, in the EU Charter of Fundamental Rights and in the case law of the ECJ and the ECHR. European citizens are protected by different public international law rules, as well as by national and by EU norms. Complex legal constructions and difficult overarching structures hinder the understanding of data protection provisions, especially as regards newly developed information exchange systems in Police and Judicial Cooperation. The paper will demonstrate the confusing legal situation and recent developments in this field. A final section will summarize the legal difficulties currently arising in this context.","PeriodicalId":179517,"journal":{"name":"Information Privacy Law eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133842170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the privacy consequences of the diffusion of smart grid and smart metering technologies. It illustrates how high resolution electricity usage information can be used to reconstruct many intimate details of a consumer's daily life, and provides examples of how that information could be used in ways potentially invasive of an individual's privacy. The article then examines the nature of existing protections for such information, and evaluates their adequacy in protecting against some of these potentially invasive uses. The article concludes that state legislators and public utility commissions should examine the codes of conduct governing utility disclosure of consumer information in their various jurisdictions to address this new privacy threat.
{"title":"Privacy and the New Energy Infrastructure","authors":"E. Quinn","doi":"10.2139/SSRN.1370731","DOIUrl":"https://doi.org/10.2139/SSRN.1370731","url":null,"abstract":"This article examines the privacy consequences of the diffusion of smart grid and smart metering technologies. It illustrates how high resolution electricity usage information can be used to reconstruct many intimate details of a consumer's daily life, and provides examples of how that information could be used in ways potentially invasive of an individual's privacy. The article then examines the nature of existing protections for such information, and evaluates their adequacy in protecting against some of these potentially invasive uses. The article concludes that state legislators and public utility commissions should examine the codes of conduct governing utility disclosure of consumer information in their various jurisdictions to address this new privacy threat.","PeriodicalId":179517,"journal":{"name":"Information Privacy Law eJournal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121220913","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The mobility of skilled labor across firms has been identified as an important source of regional advantage. Scholars have shown how cultural, economic, and legal conditions (such as the nonenforceability of covenants not to compete) affect the development of high tech sectors that are geographically concentrated. This paper explores to what extent these theories are applicable to the movement of skilled labor across national borders. This inquiry is relevant because the United States enacted the Economic Espionage Act in 1996, and this Act has been used to prosecute non-US skilled workers for theft of trade secret. The Act has application to mobility within the United States as well. To what extent are justifications for the Economic Espionage Act of 1996 mitigated by its effects on labor mobility and the accompanying transfer of knowledge and technology? This paper addresses this question through a theoretical discussion of international trade and mobility of labor and knowledge across borders and an assessment of the case law under the Economic Espionage Act. The author criticizes the Act because of its effect on the transfer of knowledge and makes the case for open borders to promote the mobility of knowledge. Several policy implications are drawn for limits on the Economic Espionage Act, including extraterritorial application of state trade secret law and federal patent law.
{"title":"Open Borders, Intellectual Property, & Federal Criminal Trade Secret Law","authors":"Shubha Ghosh","doi":"10.2139/SSRN.1334101","DOIUrl":"https://doi.org/10.2139/SSRN.1334101","url":null,"abstract":"The mobility of skilled labor across firms has been identified as an important source of regional advantage. Scholars have shown how cultural, economic, and legal conditions (such as the nonenforceability of covenants not to compete) affect the development of high tech sectors that are geographically concentrated. This paper explores to what extent these theories are applicable to the movement of skilled labor across national borders. This inquiry is relevant because the United States enacted the Economic Espionage Act in 1996, and this Act has been used to prosecute non-US skilled workers for theft of trade secret. The Act has application to mobility within the United States as well. To what extent are justifications for the Economic Espionage Act of 1996 mitigated by its effects on labor mobility and the accompanying transfer of knowledge and technology? This paper addresses this question through a theoretical discussion of international trade and mobility of labor and knowledge across borders and an assessment of the case law under the Economic Espionage Act. The author criticizes the Act because of its effect on the transfer of knowledge and makes the case for open borders to promote the mobility of knowledge. Several policy implications are drawn for limits on the Economic Espionage Act, including extraterritorial application of state trade secret law and federal patent law.","PeriodicalId":179517,"journal":{"name":"Information Privacy Law eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132861108","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court of Canada's recent "sniffer dog" decisions expose two key flaws in its s. 8 jurisprudence. First, it has failed to develop a sophisticated understanding of the different interests that privacy is designed to protect. This led it to set out procedural rules that both over- and under-protect the privacy interests implicated by canine sniffs. By requiring reasonable suspicion before using dogs to detect drugs concealed in anonymous containers, the Court severely restricted the ability of police to investigate drug crime in a context where the risk and magnitude of informational harm is low. The Court's approach is under-protective, in contrast, in relation to non-anonymous sniffs. In the absence of ex ante checks on the discretion of front-line investigators, the reasonable suspicion standard provides insufficient protection against the harms of arbitrary selection and discriminatory profiling.The second flaw is the Court's failure to foster a more dynamic, co-operative, and modest relationship with Parliament in regulating investigative powers. In interpreting both the common law and s. 8, the Court could easily have taken a more minimalist approach. What harm would come from finding that anonymous sniffs attract no reasonable expectation of privacy? If people believed that such sniffs should be regulated, they could lobby their elected representatives to do so. Similarly, had the majority found no common law power to conduct non-anonymous sniffs without warrants or reasonable suspicion, Parliament would likely have been moved to act. In so doing, it may very well have crafted a more detailed, nuanced, and protective regulatory regime than the one imposed by the Court.In commenting on these cases, I set out a taxonomy of the concepts of privacy relevant to s. 8. The taxonomy's organizing principle is simple: privacy is described in relation to the discrete interests that it protects. Not surprisingly, this may not tell us precisely how those interests should be balanced against countervailing concerns, such as the detection and deterrence of crime, but it should help us to achieve a more optimal accommodation between them.
{"title":"Conceptions of Privacy: A Comment on R. v. Kang-Brown and R. v. A.M.","authors":"S. Penney","doi":"10.29173/ALR243","DOIUrl":"https://doi.org/10.29173/ALR243","url":null,"abstract":"The Supreme Court of Canada's recent \"sniffer dog\" decisions expose two key flaws in its s. 8 jurisprudence. First, it has failed to develop a sophisticated understanding of the different interests that privacy is designed to protect. This led it to set out procedural rules that both over- and under-protect the privacy interests implicated by canine sniffs. By requiring reasonable suspicion before using dogs to detect drugs concealed in anonymous containers, the Court severely restricted the ability of police to investigate drug crime in a context where the risk and magnitude of informational harm is low. The Court's approach is under-protective, in contrast, in relation to non-anonymous sniffs. In the absence of ex ante checks on the discretion of front-line investigators, the reasonable suspicion standard provides insufficient protection against the harms of arbitrary selection and discriminatory profiling.The second flaw is the Court's failure to foster a more dynamic, co-operative, and modest relationship with Parliament in regulating investigative powers. In interpreting both the common law and s. 8, the Court could easily have taken a more minimalist approach. What harm would come from finding that anonymous sniffs attract no reasonable expectation of privacy? If people believed that such sniffs should be regulated, they could lobby their elected representatives to do so. Similarly, had the majority found no common law power to conduct non-anonymous sniffs without warrants or reasonable suspicion, Parliament would likely have been moved to act. In so doing, it may very well have crafted a more detailed, nuanced, and protective regulatory regime than the one imposed by the Court.In commenting on these cases, I set out a taxonomy of the concepts of privacy relevant to s. 8. The taxonomy's organizing principle is simple: privacy is described in relation to the discrete interests that it protects. Not surprisingly, this may not tell us precisely how those interests should be balanced against countervailing concerns, such as the detection and deterrence of crime, but it should help us to achieve a more optimal accommodation between them.","PeriodicalId":179517,"journal":{"name":"Information Privacy Law eJournal","volume":"196 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116355974","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Many online privacy problems are rooted in the offline world, where businesses are free to sell consumers' personal information unless they voluntarily agree not to or where a specific law prohibits the practice. In order to gauge Californians' understanding of business practices with respect to the selling of customer data, we asked a representative sample of Californians about the default rules for protecting personal information in nine contexts. In six of those contexts (pizza delivery, donations to charities, product warranties, product rebates, phone numbers collected at the register, and catalog sales), a majority either didn't know or falsely believed that opt-in rules protected their personal information from being sold to others. In one context - grocery store club cards - a majority did not know or thought information could be sold when California law prohibited the sale. Only in two contexts - newspaper and magazine subscriptions and sweepstakes competitions - did our sample of Californians understand that personal information collected by a company could be sold to others. Respondents who shopped online were less likely to say that they didn't know the answer to the nine questions asked than those who never shopped online. In about half of the cases, those who shopped online answered correctly more often than those who do not shop online. Professor Alan Westin has pioneered a popular "segmentation" to describe Americans as fitting into one of three subgroups concerning privacy: privacy "fundamentalists" (high concern for privacy), "pragmatists" (mid-level concern), and the "unconcerned" (low or no privacy concern). When compared with these segments, Californians are more likely to be privacy pragmatists or fundamentalists, and less likely to be unconcerned about privacy. Fundamentalists were much more likely to be correct in their views of privacy rules. In light of this finding, we question Westin's conclusion that privacy pragmatists are well served by self-regulatory and opt-out approaches, as we found this subgroup of consumers is likely to misunderstand default rules in the marketplace.
{"title":"Research Report: What Californians Understand About Privacy Offline","authors":"C. Hoofnagle, J. King","doi":"10.2139/SSRN.1133075","DOIUrl":"https://doi.org/10.2139/SSRN.1133075","url":null,"abstract":"Many online privacy problems are rooted in the offline world, where businesses are free to sell consumers' personal information unless they voluntarily agree not to or where a specific law prohibits the practice. In order to gauge Californians' understanding of business practices with respect to the selling of customer data, we asked a representative sample of Californians about the default rules for protecting personal information in nine contexts. In six of those contexts (pizza delivery, donations to charities, product warranties, product rebates, phone numbers collected at the register, and catalog sales), a majority either didn't know or falsely believed that opt-in rules protected their personal information from being sold to others. In one context - grocery store club cards - a majority did not know or thought information could be sold when California law prohibited the sale. Only in two contexts - newspaper and magazine subscriptions and sweepstakes competitions - did our sample of Californians understand that personal information collected by a company could be sold to others. Respondents who shopped online were less likely to say that they didn't know the answer to the nine questions asked than those who never shopped online. In about half of the cases, those who shopped online answered correctly more often than those who do not shop online. Professor Alan Westin has pioneered a popular \"segmentation\" to describe Americans as fitting into one of three subgroups concerning privacy: privacy \"fundamentalists\" (high concern for privacy), \"pragmatists\" (mid-level concern), and the \"unconcerned\" (low or no privacy concern). When compared with these segments, Californians are more likely to be privacy pragmatists or fundamentalists, and less likely to be unconcerned about privacy. Fundamentalists were much more likely to be correct in their views of privacy rules. In light of this finding, we question Westin's conclusion that privacy pragmatists are well served by self-regulatory and opt-out approaches, as we found this subgroup of consumers is likely to misunderstand default rules in the marketplace.","PeriodicalId":179517,"journal":{"name":"Information Privacy Law eJournal","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114794937","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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