From: <jy2050@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Tue, 26 Apr 2005 22:04:07 -0400

Paper 2: How To Protect Privacy

How to Protect the Right of Privacy

I.	Overhaul of the Constitution

      It is difficult to admit that a monumental achievement such as
the Bill of Rights is currently a badly functioning Constitution.
However, as the protector of rights of citizens, especially in the
realm of privacy protection, it is exactly that.
Justice Douglas found the right of privacy in the penumbras of the
1st, 3rd, 4th and 5th Amendment, and such interpretation is given
support through the 9th Amendment which states that there are
fundamental rights that are not enumerated. Privacy might have
fared better had Douglas not found such rights in the penumbras,
exposing the inadequacy of the Bill of Rights. This might have led
to a constitutional amendment where the right of privacy is clearly
included in the Constitution as a fundamental right of the
individual. Just as regulating civil rights through the commerce
clause has backfired on the civil rights movement, using the
penumbras of the bill of rights has proven to be inadequate.
The Supreme Court justices construed the right of privacy narrowly
since the 18th Century document gave little room for interpretation
that would make the Bill suitable for modern society.
	Privacy is a difficult word to define but it can be divided into 4
categories: territorial privacy; bodily privacy; privacy of
communications; and information privacy .
The Bill of Rights does contain clauses that relate to territorial
privacy, bodily privacy but is silent about the protection of the
latter two. Therefore, the latter two will not be constitutionally
protected unless there is a new amendment. Moreover the first two
categories are also inadequately protected since technology
develops at such rapid pace and society changes beyond the
allowable reading of the amendments. Therefore, congress must
insert a separate clause and add the word “privacy” into the
Constitution.
        However in the absence of such constitutional amendment, it
is the role of the Supreme Court justices to uphold the protection
of privacy. Legislation by the legislators is always the preferred
method but one of the functions of the Supreme Court is the
upholding of fundamental rights. We are living in an era where the
UN Convention , the OECD  and other international forum are
recognizing privacy as a fundamental right. In this era, utilizing
the 9th Amendment is not judicial legislation but the rightful
interpretation of the Constitution and should not be compared with
other areas of judicial legislation which were problematic. In this
context, the Supreme Court justices are neglecting their duty to
society.
	Whether it is through judicial interpretation or constitutional
amendment, the Unites States Constitution must conform to society’s
need. What is such need? What do the citizens believe is the role of
the Constitution? Society’s demand is for it to become the protector
of the individual, but its historical, limited function as the
guardian against the federal government has become a crippling
limitation. It is making us conform to the Constitution.

II.	Protection of Privacy Through Legislation and the Creation of a
Four Part Test:

         In the absence of constitutional protection, an alternative
method of protecting privacy is through legislation. However, like
the Bill of Rights, the Privacy Act of 1974 falls short of
protecting the privacy of individuals. It only protects data that
is held by federal agencies.  Moreover, it suffers from a “lack of
personal data ombudsman to enforce it.”
Therefore, the ideal solution would be to expand or create new
legislation that would encompass private companies as well as state
agencies. Moreover, the act must also include the formation of a
commission, much like the Securities and Exchange Commission that
oversees the compliance with the Securities and Exchange Act.
What would be the difficulty such a commission would face? It would
be hard for a commission to compel the federal agencies to reveal
their records because they would simply argue that it is a matter
of national security. However, there are measures that would
alleviate the potential of privacy violation. As for federal
agencies, the act must contain a clear clause that defines the
limit of data mining. Currently, the act allows agencies to use the
data mined for “routine use”, and in the absence of a commission
that cracks down on privacy intrusion, such wording is given
expansive meaning. The Privacy Commissioner of Canada has suggested
a four part test  that should be included in the regulation of
privacy. In any potential privacy intrusion, the act by federal
agencies must meet the following requirement:

1)	It must be demonstrably necessary in order to meet some specific
need.
2)	It must be demonstrably likely to be effective in achieving its
intended purpose.
3)	The intrusion on privacy must be proportional to the security
benefit to be derived.
4)	It must be demonstrable that no other, less privacy-intrusive
measure would suffice to achieve the same purpose.

Such a test would put the burden of proof on federal agencies and
disallow data mining for over-expansive purposes. More importantly,
it allows the victim of privacy intrusion to prove that a less
intrusive measure could have been implemented.
	Moreover, another provision that needs to be added is the general
prohibition of sharing of information between agencies, whether
federal or private, because allowing such practices encourage data
mining that is not tailored towards a valid, public need.

III.	A General Privacy Protection Standard on Internet Websites

         Another means to protect privacy is to create a standard
which private companies have to meet and a special logo approved by
the newly setup commission would be included in the front page of
their website that would allow consumers to know that the company
is in compliance with privacy protection.

IV.	Conclusion

         It is daunting to create a privacy protected regime out of
scratch. However, we should all wake up and humbly look around us.
Other countries have started adopting privacy protection measures
which we should take note of. We shouldn’t wait until violations to
privacy become unbearable to change our policy. That will lead to
fascism.


by Jang Hyuk Yeo
How to Protect Privacy.doc

-----------------------------------------------------------------
Computers, Privacy, and the Constitution mailing list