Expert Opinions on Digital Privacy

Jonathan Zittrain

Jonathan Zittrain believes U.S. digital privacy law should be in the spirit of Chapman v. United States. In this case, a police search of a rented house for a whiskey still was found to be a violation of the Fourth Amendment rights of the tenant, despite the fact that the landlord had consented to the search. The Court refused to find that the right against intrusion was held only by the absentee owner of the place intruded — rather, it was held by the person who actually lived and kept his effects there.

Jisuk Woo

Jisuk Woo believes that the right not to be identified should be the most important concept that privacy consists of on the internet. By not being identified, he hopes that individuals can protect themselves from the potential risk and threat of surveillance of their activities. He believes that the modern concept of privacy has set as its main goal freedom from the government, and although citizens may be concerned about internet privacy, they willingly give up their privacy for consumer convenience and other monetary benefits. Therefore, policy measures for network privacy should focus on ensuring individual users’ search for anonymity by recognizing the right to be silent about their identities and the right to disguise their identities rather than providing restrictions on easily identifiable external forces and institutions. Woo

Avner Levin and Mary Jo Nicholson

Avner Levin and Mary Jo Nicholson write that in Canada, privacy protection is focused on individual autonomy through personal control of information. Therefore, they propose the Canadian model as a conceptual middle ground between the EU and the US, as a basis for future American privacy protection. They find U.S. privacy protection to be primarily motivated by the protection of liberty; In the EU, the protection of privacy is mainly the protection of one’s dignity. Canadians occupy the middle ground between the EU and the US, sharing American concerns about “Big Brother” government, while also having deep concerns about private sector abuse of their personal information. As a result, they find that Canadians identify privacy with a sense of control that enables them as individuals to set limits upon both the public and the private sector. Levin and Nicholson

Richards and Solove

Richards and Solove's Privacy's Other Path: Recovering the Law of Confidentiality explore how and why privacy law developed so differently in America and England. They trace the diverging paths as a result of Samuel Warren and Louis Brandeis' The Right to Privacy as well as William Prosser's Privacy.

Alessandro Acquisti

Alessandro Acquisti says “by generating incentives to handle personal information in a new way, appropriate legal intervention can allow the growth of the market for third parties providing solutions that anonymize off-line information but make it possible to share on-line profiles. By designing the appropriate liabilities, that intervention can also fight the tendency of “trust-me” or self-regulatory solutions to fail under pressure. If privacy is a holistic concept (Scoglio, 1998), only a holistic approach can provide its adequate protection: economic tools to identify the areas of information to share and those to protect; law to signal the directions the market should thereby take; and technology to make those directions viable” [1]

Viktor Mayer-Schoenberger

Viktor Mayer-Schoenberger says that “Only privacy statutes covering both the private and the public sector and encompassing all stages of the use of personal information - from collection and processing to retention and transferal - are seen as capable of containing and mitigating the danger to our privacy. So-called omnibus data protection is often bolstered with stringent auditing and enforcement procedures. The result is complex legal regimes that private and public sector users of personal information have to comply with in many industrial and post-industrial nations around the world, from Canada, Argentina and Chile to Hong Kong to Australia and New Zealand such legislation has been enacted, partially in response to public fears of large scale data collection and retention; in Europe, the European Union (EU) Data Protection Directive, passed in 1995, obligates all twenty-seven member nations of the EU to pass stringent omnibus privacy laws. In nations where such comprehensive data protection regimes are still absent, like the United States, privacy advocates hope that media reports and general citizen unease over the threat to information privacy ultimately produce the ferment for political and legislative action. At the same token, such a response is fraught with two substantial problems: political inertia due to collective action hurdles and potential structural overreach combined with limited actual impact. Mayer-Schoenberger