Activities affecting informational privacy

1. Activities affecting informational privacy Collection dissemination Processing Monitoring questioning Aggregation Secondary use Exclusion Proper Contract No-contract Common law Statutes Trespass CFAA ECPA HIPAA GLB Warshak v. U. S. Whom may I exclude? Whom must I let in? Improper Breach of confidence Intrusion on seclusion Public disclosure of private facts Misappropriation False light Unauthorized disclosure of sensitive information Common law Statutes Whom must I exclude? Negligence CFAA ECPA HIPAA GLB

2. Processing Aggregation Secondary use Exclusion Publicity to private life U. S. Dept. of Justice v. Reporters Committee Russell v. Gregoire Paul P. v. Verniero

3. Harms Actual Potential Economic Dignitary Loss of freedom Increased risk Balance of power changes Legally recognized Not legally recognized

4. Privacy Perplexities • We apply the label “invasion of privacy” to a wide variety of different types of harms. • A company sells customer information despite its promise to the contrary. • A newspaper publishing a rape victim’s name. • Both are invasions of privacy in the sense that they involve unwanted disclosures of information; however, the tradeoffs between harms and benefits are very different.

5. Different Tradeoffs • The company was able to sell its customers’ information because such information is of considerable value for marketing and business planning. • In considering whether to enforce the promise not to sell the information, one key question is whether the interest of the customers in non-disclosure outweighs the economic value of the information. • Publishing the name of the rape victim, in contrast, causes great, enduring emotional harm. • The harm would seem clearly to outweigh the general public’s interest in newsworthy facts. • In general, “privacy” involves a vast array of different tradeoffs between different harms and interests.

6. Warshak Issues: What Are We Talking About? • The Statute is 18 USC §§ 2510 – 2522. • This is Title III of the Omnibus Crime Control and Safe Streets Act of 1996 (Pub. L. No. 90-351, 82 Stat. 211). • This referred to both as the Wiretap Act and as the ECPA. • ECPA because the Electronic Communications Privacy Act of 1986 (Pub. L. NO 99-508, 100 Stat. 1848) amended Title III to include coverage of electronic communications. • Given the amendment, the “Wiretap Act” reference is inaccurate.

7. Warshak v. U. S. • What hurdle does the government have to get over to get access to e-mails? • The highest hurdle is the requirement of a warrant: requires probable cause to think a crime is being committed. • May obtain the warrant, and get the e-mails without notice to the individual against whom the warrant is directed • A lower hurdle is a court order “specific and articulable facts showing reasonable grounds to believe” that the communications are “relevant” to an ongoing criminal investigation. • Question in Warshak: do you have to give notice to the target before obtaining the information? • Answer: Yes.

8. What Are We Talking About? • The Electronic Communications Privacy Act 1986 also added 18 USC §§ 2701 – 2709, §§ 2711 – 12. • Some refer to this as the ECPA. • I will use “Wiretap Act” for 18 USC §§ 2510 – 2522, and • “ECPA” for 18 USC §§ 2701 – 2709, §§ 2711 – 12.

9. Warshak v. U. S. • ECPA §2703(b): Search warrant without notice to the subscriber; or, a grand jury or administrative subpoena with notice; or a court order with notice. • The court order may be issued if the government provides “specific and articulable facts showing reasonable grounds to believe” that the communications are “relevant” to an ongoing criminal investigation.