Solutions for Digital Privacy

Proposed Solutions

Avner Levin and Mary Jo Nicholson as well as Viktor Mayer-Schoenberger advocate for U.S. legislation to protect citizens from the public and private sectors. Levin and Nicholson propose the Canadian privacy laws as the paradigm—as they are the middle ground between EU and U.S. laws. Levin and Nicholson’s proposal is that Canadian laws share American concerns about “Big Brother” government yet also address European concerns about private sector abuse of personal information.

• Potential Problems:
  • Congress would need to pass legislation against the wishes of private-interests (private companies that retain personal information, Google, Yahoo, etc.). Thus, this could be difficult to pass.
• Potential Benefits:
  • Seems the best way of protecting individual’s privacy rights.

Jisuk Woo and Jonathan Zittrain (in his forthcoming book) argue that the right not to be identified should be the most important privacy issue on the internet. Woo proposes policy measures that ensure anonymity for individual users’.

• Potential Problems:
  • Appears to contradict United States v. Zeigler
    • Issue: Does individual have right to privacy if committing illegal activities on public domain? (ie company computer, company wireless, etc.)
• Potential Benefits:
  • Seemingly the closest to Warren and Brandeis concept of “the right to be let alone.”
  • In the spirit of State of New Jersey v. Shirley Reid

Alessandro Acquisti proposes economic incentives through third parties handling of personal information.

• Potential Problems:
  • Market forces can be structurally flawed. Thus, this could potentially lead to money-making schemes at the expense of individual privacy.
• Potential Benefits:
  • Presumably easier and quicker to pass into law (than Levin and Nicholson’s proposal) because less adverse effect on influential special-interest groups.
  • Sometimes the market is the most efficient option.

Synthesis: These solutions are not necessarily incompatible. That is, if there is a way of combining the ideal of the Canadian model with Zittrain’s belief that “U.S. digital privacy law should be in the spirit of Chapman v. United States” and also incorporate economic incentives for this to happen—that may be the answer.

Recent Court Cases Illustrating Views on Digital Privacy

See full article Court Cases on Privacy

• In United States v. Simons, the ruling was that employees do not have a reasonable expectation of privacy when it comes to their work related electronic communications
• In United States v. Gourde, 440 F.3d 1065, 1077 (9th Cir. 2006) it was found that "for most people, their computers are their most private spaces"
• In 2007, United States v. Zeigler. In this case, an employee had accessed child pornography websites from his workplace computer. His employer noticed his activities, made copies of the hard drive, and gave the FBI the employee's computer. At his criminal trial, Ziegler filed a motion to suppress the evidence because he argued that the government violated his Fourth Amendment rights. The Ninth Circuit allowed the lower court to admit the child pornography evidence. After reviewing relevant Supreme Court opinions on a reasonable expectation of privacy, the Court acknowledged that Ziegler had a reasonable expectation of privacy at his office and on his computer, however, the court found that: "In this context, Ziegler could not reasonably have expected that the computer was his personal property, free from any type of control by his employer. The contents of his hard drive, like the files in Mancusi, 392 U.S. at 369, were work-related items that contained business information and which were provided to, or created by, the employee in the context of the business relationship. Ziegler’s downloading of personal items to the computer did not destroy the employer’s common authority. Ortega, 480 U.S. at 716. Thus...the employer, could consent to a search of the office and the computer that it provided to Ziegler for his work"
• In 2007, State of New Jersey v. Shirley Reid. In the case, prosecutors asserted that Shirley Reid broke into her employer’s computer system and changed its shipping address and password for suppliers. The police discovered her identity after getting a subpoena to the internet provider, Comcast Internet Service. The lower court suppressed information from the internet service provider that linked Reid with the crime. The New Jersey appellate court agreed with this decision. As a result, New Jersey offers greater privacy rights to computer users than most federal courts. Although this case does not directly discuss the Fourth amendment, it illustrates that some states are providing more privacy protection to computer users than the federal courts. It also illustrates that case law on privacy in workplace computers is still evolving.

Summary of These Decisions and U.S Privacy Laws

See full article History of U.S. Privacy Laws

Americans are skeptical of having the government have their information but OK having business handle it [1]. That is, in the US privacy protection is essentially liberty protection, i.e. protection from government [2]. Moreover, American privacy law has never fully embraced privacy within relationships; it typically views information exposed to others as no longer private.[3] This is not that surprising since U.S. Privacy law historically focused on protecting the liberty of each individual citizen from the government.