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< | REVISED--READY FOR REVIEW |
| | I. INTRODUCTION |
| | Internet data mining touches on all three components of privacy discussed in class: (1) secrecy, (2) anonymity, and (3) autonomy, which in turn are intertwined with personal freedom. Freedom and autonomy are desirable and true freedom requires meaningful choice. The challenge and desire then is to determine and implement the legal paradigm that provides people with the best meaningful choice and freedom with respect to their privacy. |
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< | Privacy issues arise in part because of reasonable expectations of privacy for certain activities. For example, when a woman posts photos to a Facebook profile and that site states that people can control who can see their profile and photos she has a reasonable expectation of privacy when those privacy options are exercised. Conversely, if a man uses an online username “BOYSRCH” along with his photograph, which is accessible by anyone, he should not be surprised if such is used against him by his employer with a policy that prohibits homosexuality. This type of activity does not have a reasonable expectation of privacy and no legislative reform is necessary to protect such publically revealed information. |
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> | Privacy issues arise in part because of reasonable expectations of privacy for certain activities.
What does this mean? It
appears to be tautology.
For example, when a woman posts photos to a Facebook profile and that site states that people can control who can see their profile and photos she has a reasonable expectation of privacy when those privacy options are exercised. Conversely, if a man uses an online username “BOYSRCH” along with his photograph, which is accessible by anyone, he should not be surprised if such is used against him by his employer with a policy that prohibits homosexuality. This type of activity does not have a reasonable expectation of privacy and no legislative reform is necessary to protect such publically revealed information.
Maybe or maybe not. The
discharge here is occurring not because of a policy against
homosexuality, but a policy against disclosure of homosexuality, the
so-called "Don't ask, don't tell" nonsense. It's not a very good
example of the principle, whatever it is, that you're supposedly
illustrating. |
| | Aside from the reasonable expectations of privacy, people should be entitled to maintain their privacy as a natural right in certain matters that they do not choose to disclose. For example, the identity of products that a person purchases over the internet should be protectable as a natural right—irrespective of any disclosures that would eliminate a reasonable expectation of privacy—should that person choose privacy. |
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> | What process of
distinction separates the "natural right" situations, whatever that
phrase is supposed to mean here, which is unexplained, from those in
which you would apply the equally-misadopted "reasonable expectation"
idea? You don't give any underlying logic for your conclusions, as
usual, you just pronounce them, as though assertion were a substitute
for analysis. |
| | II. EXEMPLARY PRIVACY OPTIONS FOR GOVERNING DATA MINING
Various privacy options, e.g., absolutely prohibiting data mining, unlimited data mining, opt-in, nakedness, and opt out systems have some difficulties either in theory and/or in practical administration. The current unlimited and unknown to many internet data mining violates fundamental human rights. See generally Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791, 2486 (U.S. 1992) (“Throughout this century, this Court also has held that the fundamental right of privacy protects citizens against governmental intrusion [into certain areas].”). |
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> | Whatever reproductive privacy has to do with privacy, government intrusion has little to do, given our general constitutional dogma, with activities by non-government parties. Once again, an analytic issue is assumed away rather than dealt with.,\ |
| | A per se outright ban on all data mining is also problematic. This is a more difficult issue than the former but with the ideal that true freedom means individual choice, one must recognize that people should be free to allow monitoring and use of information if after being fully informed they subjectively perceive that such monitoring benefits them more than it costs them. |
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> | I would have thought the
initial issue was whether data-miners possess constitutional rights
to learn, cogitate and teach what they have learned and
inferred. |
| | An “opt-out” system is undesirable for the basic reason that people are simply provided with too many complex (often probably intentionally so) adhesion form-contracts to be expected to carefully read and understand such, resulting in effectively no choice and nearly unlimited data mining in such a system.
Finally nakedness impermissibly negates personal choice to maintain privacy (although it would reduce incentives to gather the information). |
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> | This is no more than a
brief and fairly insensitive paraphrase of points I initially made.
No thinking here yet. |
| | III. AN OPT-IN SYSTEM PROVIDES THE BEST ANALYTICAL PARADIGM
An opt-in system provides the best internet privacy option. As a default starting position, people are entitled to privacy and they must take action before such privacy is relinquished. Of course there are legitimate reasons that persons would want to know certain information about a person—such as the credit history and ability of a prospective tenant to pay rent. Another example might include the political (and possibly even personal activities) of a public figure such as a U.S. Senator. In the former case, however, the tenant is choosing to disclose certain personal information to the landlord through contract. In the latter case the U.S. Senator is voluntarily relinquishing certain privacy rights by becoming a public figure (the Senator’s formerly personal information becomes relevant to the public because the Senator’s behavior could directly affect the public). |
| | The legislation would, however, allow those private entities to mine data (purchase the ability to store, use, and sell the information) if after being fully informed a person believed that it was in her best interest to sell that information and opted-in. Some people may desire to have special offers sent to them for future purchases of similar products while others may be persuaded by discounted prices or even cash payments for the information. The opt-in choice would perhaps require that to opt-in the person would be redirected to a federally maintained website that provided in understandable and brutally descriptive terms (drafted as part of the legislation) what the information could be collected, used for, by whom, and potential consequences thereof. There could also be an option, each time referred to the “opt-in” website to register a single time to preclude all companies from making future offers to mine data from that IP address. |
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> | Why spend all these
words on something that needs no further explanation, unless because
you have nothing of your own to say? Would it not have been
sufficient to state that European data protection principles are
preferable to North American ones? And would that not have led
predictably to some discussion of the real politics here, which you
have not so far mentioned and might be therefore thought to have
tuned out completely while I was discussing them in
class? |
| | V. CONCLUSION
While not free of concerns, an opt-in system provides the best choice, freedom, and overall autonomy for individuals in society. |
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> | An improvement over
previous efforts only to the extent that there are no glaring
inaccuracies. There are no new points made, no analysis of any
legal, political, or technical issues that I didn't myself discuss,
no new information gathered, and nothing new proposed or
investigated. Low effort, low commitment, slight improvement.
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