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Digital dossiers and the dissipation of Fourth Amendment privacy
... innovaciones científicas y tecnológicas, las nuevas necesidades del comercio moderno, el desarrollo industrial y de los servicios a los ciudadanos ofrecidos por las administraciones del Estado, etc., han propiciado la creación de distintas bases de datos de carácter personal, cuyo contenido lo conforma la información privada sobre la identidad (nacimiento, muerte, estado civil, propiedades, permiso de conducir, etc.), la profesión, los datos económicos y fiscales, ideológicos, de salud, e incluso CEFD Cuadernos Electrónicos de Filosofía del Derecho valoraciones de la personalidad, convirtiéndose todo ello en lo que Solove denomina "digital dossiers" (Solove, 2002). ...
Resumen: Este trabajo pretende analizar el impacto que los nuevos entornos tecnológicos tienen sobre los derechos humanos. En primer lugar, exponemos brevemente los riesgos que contraen y cómo impactan las nuevas tecnologías en la vida las personas y a sus derechos. En segundo lugar, teniendo presente los beneficios que representa el progreso científico-tecnológico en muchas esferas de la vida humana y de la sociedad, aportamos algunas reflexiones sobre la incidencia y la repercusión que estos avances tienen para las instituciones y defensores de derechos humanos. Concluimos reivindicando la necesidad de un análisis y reflexión sobre la construcción jurídica que ha responder ante esos nuevos desafíos.
Abstract: The aim of this paper is to analyse the influence of new technological environments on human rights. Firstly, we outline the risks posed by new technologies, and how they impact on the lives and rights of people. Secondly, bearing in mind the benefits brought by scientific-technological progress to many spheres of human life and society, we offer a few reflections about the incidence and repercussion of these advances for human rights institutions and advocates. We conclude by arguing for the need for analysis and reflection about the legal construction that must respond to these new challenges.
... Moreover, marginal users join a Web that requires them to register for accounts with real names, be it a public assistance program, a job search assistant, or email. As several privacy scholars have argued (Battelle, 2005;Ohm, 2010;Solove, 2002), the tethering of people to real-name identities or account registration begs the question of whether individuals have adequate control over information flows. Once a company requires log-in credentials, it can rifle through the data trail that one has created, alter data, draw inferences about people, or expose one's data to harmful or risky scenarios. ...
Increasing broadband adoption among members of underserved populations remains a high priority among policymakers, advocates, corporations, and affected communities. But questions about the risks entailed in the flow of personal information are beginning to surface and shine light on the tension between broadband’s benefits and harms. This article examines broadband adoption programs at community-based and public institutions in the United States in order to understand the ways in which privacy and surveillance issues emerge and are engaged in these settings. While adults who enroll in introductory digital literacy classes and access the Internet at public terminals feel optimistic about broadband “opportunities,” they encounter “privacy-poor, surveillance-rich” broadband. Users experience myriad anxieties, while having few meaningful options to meet their concerns.
... The court based its understanding of privacy on the notion of secrecy, in that an individual would only have a reasonable expectation of privacy in information that was not exposed to the public (Solove, 2001). Relying on Katz (1967), the Supreme Court held in California v. Ciraolo (1986) that the mere likelihood of exposure to the naked eye diminishes or even negates the individual's expectation of privacy. ...
In the past ten years or so, mobile phone and Internet technologies have been instrumental in nearly every instance where people have gathered to demand political reform. With the help of ‘new social media’ applications, like Facebook and Twitter, Internet and mobile phone users can conduct real-time exchanges with millions of people across the globe. Following the Introduction, this Article begins, in Part II, with a discussion of how these tools were used by protesters around the world in 2011. Part III discusses how the same tools were used by governments, both democratic and authoritarian, to respond to the violence and mayhem during that year. In Part IV, I turn to a discussion of the relevant policy concerns, first in the American, then the Canadian, legal contexts. It is significant that Canada is the first country to complete an extensive investigation into Facebook’s privacy practices. As a result, Facebook users across the world now enjoy stronger privacy protections for their personal information, in terms of how it is collected, used and disclosed. In conclusion, in Part V, I note that this case has important implications for other online social networking sites, even those based in other countries, which are collecting and using the personal information of Canadians in a way that does not comport with Canadian privacy laws.
Borderless cloud computing technologies are exacerbating tensions between European and other existing regulatory models for data privacy. On the one hand, in the European Union (EU), a series of data localisation initiatives are emerging with the objective of preserving Europe’s digital sovereignty, guaranteeing the respect of EU fundamental rights and preventing foreign law enforcement and intelligence agencies from accessing personal data. On the other hand, foreign countries are unilaterally adopting legislation requiring national corporations to disclose data stored in Europe, in this way bypassing jurisdictional boundaries grounded on physical data location. The chapter investigates this twofold dynamic by focusing particularly on the current friction between the EU data protection approach and the data privacy model of the United States (US) in the field of cloud computing.
Recent emerging technology policies seek to diminish negative impacts while equitably and responsibly accruing and distributing benefits. Social scientists play a role in these policies, but relatively little quantitative research has been undertaken to study how social scientists inform the assessment of emerging technologies. This paper addresses this gap by examining social science research on ‘Big Data’, an emerging technology of wide interest. This paper analyzes a dataset of fields extracted from 488 social science and humanities papers written about Big Data. Our focus is on understanding the multi-dimensional nature of societal assessment by examining the references upon which these papers draw. We find that eight sub-literatures are important in framing social science research about Big Data. These results indicate that the field is evolving from general sociological considerations toward applications issues and privacy concerns. Implications for science policy and technology assessment of societal implications are discussed.
Relying on the corporate personhood doctrine, the U.S. Supreme Court has increasingly expanded the scope of rights granted to corporations and other forms of collective entities. While this trend has received widespread attention in legal scholarship and the media, there is no empirical research examining how people think about the rights of corporations. We investigated this issue in a series of three studies, each exploring a different constitutional right (religious liberty, privacy, and freedom of speech). In each study, we examined people’s willingness to grant rights in several types of business contexts (i.e., a ‘closely held’ family business, a large national corporation, for-profit and non-for-profit companies) and to different types of targets (i.e., employees, owners, and the company as a separate entity). We also looked at whether perceptions of corporate (versus individual) rights are affected by political ideology. Our results demonstrate that people are significantly and consistently less willing to grant the same scope of protection to companies versus people, particularly if these companies are for-profit large corporations. This tendency persisted among both liberals and conservatives. We identified ideological differences in the relations between employee and company rights: these were positively related among conservatives and more conflicting among liberals. Importantly, we found some evidence that people grant rights to companies because they want to protect the rights of individuals. Taken together these results indicate that, psychologically speaking, individuals (and not corporations) are the appropriate recipients of rights.
This Article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other despite the fact that many instances of government information gathering can implicate First Amendment freedoms of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case Boyd v. United States, in which the Supreme Court held that the government was prohibited from seizing a person's private papers. Over time, however, Fourth and Fifth Amendment protection has shifted, and countless searches and seizures involving people's private papers, the books they read, the websites they surf, and the pen names they use when writing anonymously now fall completely outside the protection of constitutional criminal procedure. Professor Solove argues that the First Amendment should protect against government information gathering that implicates First Amendment interests. He contends that there are doctrinal, historical, and normative justifications for developing what he calls "First Amendment criminal procedure." Solove sets forth an approach for determining when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide.
International flows of personal information on the Internet challenge the protection of data privacy and force divergent national policies and rules to confront each other. While core principles for the fair treatment of personal information are common to democracies, privacy rights vary considerably across national borders. This article explores the divergences in approach and substance of data privacy between Europe and the United States. Professor Reidenberg argues that the specific privacy rules adopted in a country have a governance function. The article shows that national differences support two distinct political choices for the roles in democratic society assigned to the state, the market and the individual: either liberal, market-based governance or socially-protective rights-based governance. These structural divergences make international cooperation imperative for effective data protection in cyberspace. Professor Reidenberg postulates that harmonization of the specific rules for the treatment of personal information will be harmful for the political balance adopted in any country and offers, instead, a conceptual framework for coregulation of information privacy that can avoid confrontations over governance choices. The theory articulates roles for institutional players, technical codes, stakeholder summits and eventually a treaty-level "General Agreement on Information Privacy" to develop mutually acceptable implementations of the universally accepted core principles. The article concludes with a taxonomy of strategies and partners to develop international cooperation and achieve a high level of protection for personal information in international data transfers.
Journalists, politicians, jurists, and legal academics often describe the privacy problem created by the collection and use of personal information through computer databases and the Internet with the metaphor of Big Brother-the totalitarian government portrayed in George Orwell's Nineteen Eighty-Four. Professor Solove argues that this is the wrong metaphor. The Big Brother metaphor as well as much of the law that protects privacy emerges from a longstanding paradigm for conceptualizing privacy problems. Under this paradigm, privacy is invaded by uncovering one's hidden world, by surveillance, and by the disclosure of concealed information. The harm caused by such invasions consists of inhibition, self-censorship, embarrassment, and damage to one's reputation. Privacy law has developed with this paradigm in mind, and consequently, it has failed to grapple effectively with the database problem. Professor Solove argues that the Big Brother metaphor merely reinforces this paradigm and that the problem is better captured by Franz Kafka's The Dial. Understood with the Kafka metaphor, the problem is the powerlessness, vulnerability, and dehumanization created by the assembly of dossiers of personal information where individuals lack any meaningful form of participation in the collection and use of their information. Professor Solove illustrates that conceptualizing the problem with the Kafka metaphor has profound implications both for the law of information privacy and for choosing legal approaches to solve the problem.
Building oil work in architectural theory, Professor Katyal demonstrates how attention to cities, neighborhoods, and individual buildings can reduce criminal activity. The field of cyberlaw, has been transformed by the insight that architecture can regulate behavior in cyberspace; Professor Katyal applies this insight to the regulation of behavior in real space. The instinct of many attorneys is to focus on criminal law as the dominant method of social control without recognizing physical constraints- constraints that are sometimes even shaped by civil law. Ironically, even an architectural problem ill crime control- "broken windows" -has prompted legal, not architectural, solutions. The Article considers four architectural concepts: increasing an area's natural surveillance, introducing territoriality, reducing social isolation, and protecting potential targets. These mechanisms work- in subtle, often invisible, ways to deter criminal activity and, if employed properly, could stymie the need for architectural self-help solutions that are often counterproductive because they increase overall crime rates. Professor Kalyal then illustrates specific legal mechanisms that harness the power of architecture to prevent crime. Distinguishing situations where the government acts as a builder, as a civil regulator, and as a criminal enforcer, the Article suggests solutions in a variety of legal fields, drawing oil property, torts, taxation, contracts, and criminal law. procurement and taxation strategies can promote effective public architecture; crime impact statements, zoning, tort suits, and contractual regulation may engender private architectural solutions as well. Criminal law, particularly through forfeiture, may also play a role. Several problems with architectural regulation are considered, such as the extension of social control and potential losses in privacy. Professor Katyal concludes by suggesting that local jurisdictions devote more attention to architecture as a constraint on crime instead of putting additional resources toward conventional law enforcement.
To determine whether sharing music over peer-to-peer networks such as Napster should be considered copyright infringement, we must first conclude that digital works are entitled to copyright protection. This Article argues against copyright protection for digital works because the economics of digital technology undercuts prior assumptions about the efficacy of a private property regime for information, a public good. Questioning the conventional wisdom that the two interests served by copyright, creation and public dissemination, are aligned, the Article reveals that the argument for copyright is primarily an argument for protecting content distributors in a world in which middlemen are obsolete. Copyright is no longer needed to encourage distribution because consumers themselves build and fund the distribution channels for digital content. With respect to the creation of music, this Article argues that exclusive rights to reproduce and distribute copies provide little if any incentive for creation, and that digital technology makes it possible to compensate artists without control.
In this Article, Professor Solove develops a new approach for conceptualizing privacy. He begins by examining the existing discourse about conceptualizing privacy, exploring the conceptions of a wide array of jurists, legal scholars, philosophers, psychologists, and sociologists. Solove contends that the theories are either too narrow or too broad. With a few exceptions, the discourse seeks to conceptualize privacy by isolating one or more common "essential" or "core" characteristics of privacy. Expounding upon Ludwig Wittgenstein's notion of "family resemblances," Solove contends that privacy is better understood as drawing from a common pool of similar characteristics. Rather than search for an overarching concept, Solove advances a pragmatic approach to conceptualizing privacy. According to Solove, when we talk about privacy, we are really talking about related dimensions of particular practices. We should explore what it means for something to be private contextually by looking at privacy problems: instances of particular forms of disruption to particular practices. Solove demonstrates how practices involving privacy have changed throughout history and explains the appropriate way to assess the value of privacy.
Supreme Court doctrine protects two seemingly distinct kinds of interests under the heading of privacy rights: one "substantive," the other "procedural." The Fourth Amendment guarantee against "unreasonable searches and seizures" has been generally interpreted to protect procedural privacy. Searches are typically defined as governmental inspections of activities and locations in which an individual has a reasonable expectation of privacy from observation. In the typical case, this reasonable expectation of privacy may be breached only where the government has acquired a quantitatively substantial objective basis for believing that the search would uncover evidence of a crime. Substantive privacy rights have not normally been considered in this inquiry.This Article argues that a focus on the quantitative basis for finding probable cause is incomplete. As a corrective, Professor Colb urges a vision of the Fourth Amendment reasonableness requirement that contains both substantive and procedural safeguards. This critique of the quantitative approach to Fourth Amendment jurisprudence suggests that the Court ought to engage in substantively balancing the interests served by particular classes of searches and seizures against the costs of such government activity for the individual's sense of security and privacy, even in cases in which the government must also have probable cause and a warrant before proceeding. Such an integration of substantive and procedural privacy, one that engaged in a Fourth Amendment inquiry regarding the intrusiveness of a search or seizure, would more effectively further the privacy values embraced by the Court's criminal procedure and substantive constitutional precedents.
Fourth amendment law currently pays little attention to claims of shared privacy. In this Article, Professor Coombs traces the development of the current atomistic approach through derivative standing and third-party consent cases. She suggests that current doctrine, and the Supreme Court's framing of the issues in such cases, assume that expectations of privacy belong only to individuals unless joint claims are legally formalized. She then reconstructs these areas of fourth amendment law, drawing upon feminist jurisprudence and its emphasis on human interconnectedness. Specifically, she proposes linking the standards for granting derivative standing with those for recognizing third-party consents to searches. She also proposes that certain relationships be presumptively protected in order to structure judicial decisionmaking and to encourage a more sympathetic approach to shared privacy claims.
Some economists and privacy advocates have proposed giving individuals property rights in their personal data to promote information privacy in cyberspace. A property rights approach would allow individuals to negotiate with firms about the uses to which they are willing to have personal data put and would force businesses to internalize a higher proportion of the societal costs of personal data processing. However, granting individuals property rights in personal information is unlikely to achieve information privacy goals in part because a key mechanism of property law, namely, the general policy favoring free alienability of such rights, would more likely defeat than achieve information privacy goals. Drawing upon certain concepts from the unfair competition-based law of trade secrecy, this article suggests that information privacy law needs to impose minimum standards of commercial morality on firms engaged in the processing of personal data and proposes that certain default licensing rules of trade secrecy law may be adapted to protect personal information in cyberspace.