A Brief History ofInformation Privacy

IC211

Colonial America

Eavesdropping

“listen[ing] under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales”

Colonial America

Governmental searches

“They may, unless the general government be restrained by a bill of rights, or some similar restrictions, go into your cellars and rooms, and search, ransack, and

measure, everything you eat, drink, and wear. They ought to be restrained within

proper bounds.” – Patrick Henry

Fourth Amendment

“The rights of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and

no warrants shall issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Census

Mail

“The constitutional guaranty of the right of the people to be secure in their papers

against unreasonable searches and seizures extends to their papers, thus

closed against inspection, wherever they may be.”

- Ex parte Jackson (1877)

Telegraph

Boyd v. United States (1886)

“It is not the breaking of doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right to personal security, personal liberty and

private property…. [A]ny forcible and compulsory extortion of a man’s own testimony or of his private

papers to be used as evidence to convict him of crime or to forfeit his goods, is within the

condemnation of that judgement. In this regard the Fourth and Fifth Amendment run almost into

each other.”

Warren and Brandeis: “The Right to Privacy” (1890)

“Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous

mechanical devices threaten to make good the prediction that ‘what is whispered in the

closet shall be proclaimed fromthe house-tops.”

Warren and Brandeis: “The Right to Privacy” (1890)

“The common law secures to each individual the right of determining … to what extent his

thoughts, sentiments, and emotions shall be communicated to others, [based on] the more general right of the individual to be left alone.”

Warren and Brandeis:“The Right to Privacy” (1890)

1. Intrusion upon seclusion2. Public disclosure of private facts3. False light or “publicity”4. Appropriation

“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs … is subject to liability … if the intrusion would be highly

offensive to a reasonable person

The Telephone

“Subtler and more far reaching means of invading privacy have become available to the

government. Discovery and invention have made it possible for the government, by

means far more effective than stretching upon the rack, to obtain disclosure in court of what

is whispered in the closet.”- Justice Brandeis, dissenting

Olmstead v. United States (1928)

The Computer

1. Data collected lawfully w/ consent2. Data should be relevant and accurate3. Purpose stated at time of collection4. Data not disclosed w/o permission5. Data should be protected6. Individuals informed about policies7. Individuals can rectify errors or problems8. Collecting agency accountable for these

Recent Events!

• Edward Snowden: classified NSA documents

• Section 215 of Patriot Act:– Private parties must disclose any “tangible thing” relevant to

terrorism investigation (with FISC approval)

• Phone record “meta-data” are collected in bulk, based on Section 215.

• How are computers different? If at all? What is meta-data?