Internet Privacy Issues
The digital revolution has already changed contemporary society in numerous ways. One of the more important emerging issues is the need to balance the privacy concerns and rights of individuals against the rights of government and private sector entities to collect, store, and share various types of digital information about individuals, especially without their consent (Stein, 2011). In that regard, one of the sources of complication is that notions of privacy reflected in traditional sources of civil and criminal law evolved long before the prospect of digital communications and information storage. Nowadays, typical Internet and cellular telephone use generates informational trails that contain vast amounts of information about computer and cell phone users that is, at least arguably, entitled to the conceptual standard used in law: reasonable expectation of privacy (DeCew, 2008).
In the United States, the reasonable expectation of privacy concept has provided a crucial framework for the determination of privacy rights, but judicial intervention was required to apply it to traditional Fourth Amendment search and seizure analyses, just in the case of telephonic communications in the 1960s (DeCew, 2008). More generally, the right to privacy itself was also a product of judicial construct, since there is absolutely no reference to personal privacy in the U.S. Constitution. Rather, the opinion published by the U.S. Supreme Court in a 1965 case, Griswold v. Connecticut, introduced the concept of a penumbra of privacy construed from the intent and purpose of related provisions of constitutional rights (DeCew, 2008).
Privacy and the Distinction between Government and Non-Government Action
Another source of complication is the distinction between government action and those of non-governmental entities is the distinction between government action and non-governmental action in relation to any privacy rights of individuals. Specifically, Fourth Amendment (and all other) constitutional protections in the Bill of Rights pertain only to actions undertaken by agents or components of the government; they have no effect at all on actions undertaken by private entities (Larson, 2007). That is not to say that laws cannot be devised to protect privacy in the digital medium; but the prospect of doing so raises complex issues of competing interests, rights, and concerns.
In principle, non-governmental entities have much greater latitude in connection with the line separating individual privacy and corporate action in collecting and disseminating information (Larsen, 2007). For example, the Supreme Court very recently ruled that government law enforcement agents may not conduct warrantless tracking of individuals, such as through the use of tracking devices on private motor vehicles (Levin, 2012). Meanwhile, that restriction would not apply to restrict private companies, such as automobile insurance companies, from conducting similar forms of surveillance of driving habits of their insured (Larsen, 2007). Proponents of information privacy rights argue that the individual should have a recognizable reasonable expectation of privacy in the wealth of digital data that is now generated by ordinary electronic communications. They suggest that the laws necessary to protect informational privacy from unauthorized collection and use simply must catch up to the realities presented by modern digital technology exactly the way the laws now prohibiting unwarranted wiretapping of telephones once lagged behind the obvious implications of failing to incorporate the needs posed by modern technology into appropriate legislation (Levin, 2012).
Competing Interests and Positions
On balance, there are legitimate justifications for imposing limits on the unrestricted collection and commercial use of information generated by ordinary individuals engaging in communications patterns that are now fast becoming as ubiquitous as the telephone. It is reasonable to suggest that when people use their cell phones or communicate via their Internet service provider (ISP) account, they have a reasonable expectation of privacy in digital data pertaining to that use, such as the identity of every call or email recipient. On the other hand, businesses such as major search engines like Google, cellular telephone service providers, and government authorities alike that depend on information collection and analysis point out that there is a fundamental difference between data such as the conversational content of conversations or the identity of recipients and data such as the triangulated physical location of the user based on signals emanating from digital devices (Larsen, 2007).
The 27 nations of the European Union have recently moved in the direction of resolving that issue in favor of the importance of protecting individual privacy rights over certain digital information (Sengupta, 2012). Specifically, the proposed legislation would impose strict limitations on the legal authority of private (i.e. commercial) enterprises to collect and use information about individuals retrieved from myriad Internet applications. In addition to mandatory disclosure of any storage or use of information about individuals, the legislation would also entitle individual Internet users to retain greater control over whether and how information generated by their digital trails is used, and it includes rights of notice in the event any information properly stored is unintentionally released (Sengupta, 2012).
DeCew, J. “Privacy,” the Stanford Encyclopedia of Philosophy (Fall 2008 Edition),
Edward N. Zalta (ed.). Accessed online: http://plato.stanford.edu/entries/privacy/
Larsen, R. (2007). Our Own Worst Enemy: Asking the Right Questions About
Security to Protect You, Your Family, and America. New York: Grand Central
Sengupta, S. “Europe Weighs Tough Law on Online Privacy.” The New York Times
(January 23, 2012) Accessed online:
Stein, J. “Your Data, Yourself.” Time, Vol. 177, No. 11 (2011): 40 — 46.
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