Privacy Law in a Nutshell
Authors:
Soma, John T. / Rynerson, Stephen D. / Kitaev, Erica
Edition:
2nd
Copyright Date:
2014
11 chapters
have results for privacy
Chapter One. Introduction 9 results (showing 5 best matches)
- In this Nutshell, we divide the study of privacy into four parts. First, we begin by examining the history of privacy law. More specifically, we explore the definitions of privacy from a wide array of jurists, philosophers, legal scholars, psychologists, economists, and sociologists. This is followed by a discussion of the historical trends in privacy, including: a general discussion of the development of international privacy rights; the European Union’s view on privacy; the United States’ view on privacy; the Organization for Economic Co-operation and Development (OECD) guidelines; and the collection, retention, accuracy, and use of privacy information. The first part concludes with a discussion of the technological impact on privacy.
- Most law students will receive only tangential schooling on the subject of privacy law. Criminal procedure discusses the constitutional limits on where police can go and what evidence the police can collect in criminal investigations under Fourth Amendment searches and seizures; reproductive, sexual and family privacy is deemed a subset of First and Fourteenth Amendment jurisprudence; and privacy in cyberspace is often treated as a subset of intellectual property or communications law. None of these particular courses, however, are aimed at providing students with a systemic framework through which broader debates about privacy issues can be examined. As a result, privacy problems are often not well articulated and we, who are being affected by privacy intrusions, are faced with the lack of a convincing account of what is at risk when privacy is threatened and what exactly the law must do to solve these problems. Rather than using a narrow, topical framework that isolates specific...
- It is vital that both lawyers and the public in general become familiar with the study of privacy law. First, with the increasing rapidity of technological advancement and ever-greater exchanges of information, notions of privacy are being challenged as never before. Through the collection, manipulation, and dissemination of personal information, commercial and government entities are gaining more influence over individual autonomy and decision making. As members of a democratic society we have the choice, through studying and understanding privacy laws, to shape the kind of society we desire as we move ever deeper into the Information Age. Second, and flowing in large part from the first trend, public concern over invasions of privacy has grown tremendously in the last few decades. Privacy concerns appear with increasing frequency on the legislative agendas of Congress and state legislatures, and garner increased media attention with each subsequent revelation about theft or misuse...
- Third, we provide an overview of international privacy law for comparison with the United States’ standards and views on privacy. Canada, the European Union, Mexico, Japan, South Korea, China, and India are all analyzed. Notwithstanding the philosopher Ayn Rand’s observation that, “[c]ivilization is the progress toward a society of privacy,” privacy does not have a universal meaning that is the same across all cultures. Indeed, the significance of privacy in a particular nation depends on the social importance attached to the context in which privacy concerns are raised. Also in this chapter, we review legal developments, business perspectives, and concerns regarding transborder privacy data flows. Transborder data flows include the transfer of data containing personal or sensitive information from an entity in one nation to an entity in another. This is an area of both increasing economic significance and regulation around the world.
- Before venturing into the complex and difficult task of defining privacy one must understand why the topic is important and why privacy law is one of the most exciting developing fields of legal study. Professor Roger Clarke, a pioneer in the field of privacy and information technology, describes individual privacy as consisting of four dimensions: the psychological, the sociological, the economic, and the political. Psychologically, people need private space to preserve a sense of individual identity. Sociologically, people require the opportunity to connect and interact with others, but without the continual threat of being observed. These dimensions of privacy have long been recognized. Indeed, as the Eighteenth Century British philosopher Jeremy Bentham wrote in describing his vision of the ultimate prison (the “Panopticon”), “the most important point [is] that the persons to be inspected should always feel themselves as if under inspection ….” ...have privacy in their choice...
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Chapter Two. History and Definitions 92 results (showing 5 best matches)
- Critics of reductionism suggest that by conceding the non-existence of a true right to privacy and, instead, attempting to derive it from a cluster of other rights, the reductionists are undermining the overall goal of protecting privacy. In this view, deriving a privacy remedy as a result of some other right’s violation obscures the extent of current legal protection for privacy privacy. Reductionism is also criticized as giving the erroneous impression that the concern with privacy is a modern, and particularly Western, phenomenon. By treating privacy only as a label for selected aspects of other basic rights, reductionism is seen as threatening to undermine belief in the distinctness and importance of privacy for privacy’s sake, as well as exposing privacy protections to the risk of being eroded by collateral changes in the law governing the underlying rights reductionists are otherwise trying to ground their definition on.
- In 2006, the US-based Electronic Privacy Information Center and the UK-based Privacy International have completed the most comprehensive survey of global privacy to date. The survey, titled “The Privacy & Human Rights Report,” tracked developments in 70 countries, assessing the state of surveillance and privacy. The purpose of the report is to recognize countries where privacy protection is of high priority and those countries whose privacy efforts have lagged behind in privacy protection. This global report, along with country specific privacy reports, can be found at https://www.privacyinternational.org/reports.
- Warren and Brandeis did not demand the recognition of an absolute right to privacy, in part because the word privacy does not appear in the U.S. Constitution. Rather they sought to ground privacy in the common law right to life, a right enunciated in the Declaration of Independence, and formally recognized by the Fifth Amendment to the Constitution. Warren and Brandeis, recognizing this potential inconsistency, articulated six limitations on the right to privacy. First, the right to privacy generally permits publication of public material. Matters of general or public interest do not facilitate an unwarranted invasion of individual privacy—the very event Warren and Brandeis sought to protect. Second, “the right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel.” ...invasion of privacy through oral...
- Privacy definitions can be analyzed two different ways: interpretively and conceptually. Interpretively viewing privacy concentrates on examining the evolution of privacy jurisprudence in the common law and the courts’ explorations of the concept—particularly Brandeis’s dissent in and forward. A purely conceptual analysis focuses on the search for a privacy definition whose foundation rests on general philosophical grounds and hence, can be used to evaluate and make sense of privacy debates arising not just from a particular legal tradition, but within any political or legal system. In this Nutshell, privacy is approached with both interpretive and conceptual analysis in an effort to provide an explanation of the numerous definitions currently pervading privacy discourse.
- Reductionists believe the more expansive conceptions of privacy are vague, ambiguous, or indeterminate. Motivated by views of what ought to be protected from intrusion through the recognition of rights, reductionists assert that privacy can be reduced to other concepts and rights. An argument in favor of this theory is that it affords greater protection of privacy rights within existing legal frameworks than anti-reductionist theory. By viewing privacy as being the sum of a broad collection of already acknowledged rights, a violation of privacy is actually the violation of another right, which is clearly redressable.
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Chapter Three. U.S. Legal Basis of Privacy 176 results (showing 5 best matches)
- [T]he Fourth Amendment cannot be translated into a general constitutional “right to privacy.” That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person’s general right to privacy—his right to be let alone by other people—is, like the protection of his property and of his very life, left largely to the law of the individual States.
- The FTC charged Google with using deceptive tactics, and violating its own privacy promises to consumers. As part of its settlement agreement with the FTC, Google agreed to obtain users’ consent before sharing user information with third parties, it would undergo audits every two years over a period of twenty years to assess its privacy and data protection practices, and implement a comprehensive privacy program to protect the privacy of consumers’ information. This was the first time an FTC settlement order required a company to implement a comprehensive privacy program for consumer protection.
- The International Association of Privacy Professionals (IAPP) was founded in 2000 to define, promote, and improve the privacy profession. Growing very rapidly, the IAPP is the world’s largest association of privacy professionals, with over 12,000 members from 78 countries. The IAPP provides a forum to allow members to share best practices, issues, and trends with other privacy professionals and offers training and certification programs on privacy law.
- Arguably, privacy was always highly valued by American society; however, the U.S. Supreme Court did not specifically recognize an independent right to privacy until the latter half of the Twentieth Century. In the landmark privacy case, , 381 U.S. 479 (1965), Justice Goldberg, joined by Chief Justice Warren and Justice Brennan (in their concurring opinion) found the Ninth Amendment to be the source of the right to privacy, starting a line of privacy cases that continue to dominate all analysis of individual privacy rights vis-à-vis federal and state governments.
- Although numerous proponents of privacy rights have argued over the years that the Constitution should be interpreted to create an individual right to control information regarding one’s self, there has been little support for such a right from the Supreme Court. , 429 U.S. 589 (1977), was the first case in which the Court squarely faced the question of whether the constitutional right to privacy encompasses the collection, storage, and dissemination of information in government databases. was also the first decision in which the Court acknowledged that the constitutional right of privacy consists of two branches: informational privacy and privacy-autonomy.
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Chapter Three. U.S. Legal Basis of Privacy Part 2 18 results (showing 5 best matches)
- Privacy Impact Assessments: Official Guidance
- Privacy Impact Assessment for the United States Visitor and Immigrant Status Indicator Technology (US–VISIT) Program
- See Data Privacy and Integrity Advisory Committee Charter
- Does the HIPAA Privacy Rule Protect Genetic Information?
- Authorities and Responsibilities of the Chief Privacy Officer
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Chapter Four. International Privacy 113 results (showing 5 best matches)
- Canada’s Privacy Act governs personal privacy in the public sector. The Act was passed in 1983 to “extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information.”
- A more comprehensive Indian data privacy law is in the works. The Indian Government has established a planning commission on privacy law to study international privacy laws, analyze existing Indian legal provisions, and make specific proposals for incorporation into future Indian law. October 2012, the group released a report and informal draft privacy legislation making recommendations for a regulatory framework, but the legislation is still under consideration.
- As the “right to privacy” has evolved from a “right to be let alone” to the right to control other’s use and dissemination of one’s personal data, so too has the economic and technological background of the world changed. Now that global data networks are ubiquitous, personally identifiable data is no longer tied to the locality of its owner or even to the owner’s nation of residence. Exchanges of personal data regularly cross national borders, often between countries where the “right to privacy” means two different things. This chapter considers how international and non-U.S. privacy protection regimes operate, both on their own and where they intersect with U.S. privacy law.
- The realization that market forces would create both challenges and opportunities for privacy rights happened during the 1970s, when the OECD began to see arguments over national privacy laws in the context of trade negotiations. On September 23, 1980, after several years of negotiations, the OECD Council approved its proposed Guidelines, which aspired to harmonize national data protection legislation, protect human rights, and facilitate international data transfers. The Guidelines try to bring commonality to the of privacy protections in participating countries without attempting to design a complete regulatory framework. The Guidelines are only a “soft law” agreement and do not legally bind the signatories; however, these Guidelines also represent a pragmatic consensus that inconsistent privacy laws can be a barrier to economic development.
- • although national laws and policies may differ, Member countries have a common interest in protecting privacy and individual liberties, and in reconciling fundamental but competing values such as privacy and the free flow of information;
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Chapter Five. Current Privacy Challenges, Developing Technologies & Future Trends 53 results (showing 5 best matches)
- With the quickening pace of technological development, any attempt to divide challenges to privacy into concrete categories of present, imminent, and remote-but-approaching, threats, is by its very nature an exercise in artifice. However, there are certain issues that are clearly more manifest than others. This chapter explores these ongoing and upcoming challenges and contemplates what lies ahead in the field of privacy law.
- As noted in Chapter 1, it has been said that “[c]ivilization is the progress toward a society of privacy.” In these times of rapid technological developments, the accuracy of this statement will likely be tested as never before during the coming decades. If history is any guide, however, the cause of privacy protection will likely advance in certain areas, while retreating in others.
- State Statutes Relating to Radio Frequency Identification (RFID) and Privacy
- FTC Staff Report Recommends Ways to Improve Mobile Privacy Disclosures
- As discussed in Chapter 3, privacy policies are becoming more prevalent and even mandatory in a number of states. These privacy policies are intended to inform the consumer of how the company will use and store any personal information that it collects during the business relationship. Consumers, however, are using this privacy policy in some instances as a cause of action in identity theft suits against these companies, arguing that the policies create a contract between the consumer and the company. Under a breach of contract claim, the consumer must prove a legal obligation on the part of the company defendant to the consumer plaintiff, a breach of that obligation, and an injury resulting from such breach.
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Half Title 1 result
Outline 51 results (showing 5 best matches)
Index 146 results (showing 5 best matches)
Acknowledgments 1 result
- We owe our thanks to those who have helped us on this Nutshell. University of Denver, Sturm College of Law, research associate Jonathan Gray, assisted us in numerous drafts, as well as the final draft, by suggesting many revisions, as well as organizing and tracking the normal plethora of last minute changes. Law students Alexandra Molina and Morgan Batcheler greatly assisted with early drafts. Thanks go to Associates Tina Amin and Aaron Thompson, with Baker Hostetler LLP, Denver, for their extensive research and editing. Our thanks also go to Cindy Goldberg, Administrative Assistant to the Privacy Foundation for her ever-present support and helpful comments.
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- Publication Date: March 3rd, 2014
- ISBN: 9780314289421
- Subject: Privacy Law
- Series: Nutshells
- Type: Overviews
- Description: The Privacy Nutshell briefly reviews the historical roots of privacy, and then examines each of these U.S. privacy statutes and regulations. Virtually all governments and businesses face privacy considerations as technology continues to evolve. Legal issues related to privacy are exploding on the U.S. legal scene. The EU has a long history of a strong regulatory privacy regime. The U. S., however, follows a sectoral approach to privacy, whereby Congress responds to each privacy “crisis” with a new statute and set of regulations. This sectoral approach has resulted in a unique series of privacy rules for different areas of society. The Privacy Nutshell is an excellent introductory guide to the legal privacy world.