Legal Approach to Privacy on the Internet


In investigating the issue of privacy on the Internet, one common approach has been to focus on legal principles that apply in certain situations in the real world, and then to attempt to apply these same principles to the virtual world. While some of these discussions have focused purely on legal issues that may arise out of apparent breaches of privacy on the Internet, others have attempted to draw ethical conclusions out of the legal principles that are examined.

An example of this is the work of Robert McArthur (2001), who has taken the concept of reasonable expectation of privacy from the real world, and then used this principle to examine two forms of Internet activity ” browsing the World Wide Web and sending and receiving e-mail. McArthur suggests that there are two essential principles against which any apparent breach of privacy in the real world must be judged, and if either one of these two principles apply, then there has been no legal breach of privacy. McArthur calls these the Mischance Principle and the Voluntary Principle.

The Mischance Principle ” we cannot reasonably expect to maintain privacy over that which another person could discover, overhear, or come to know without concerted effort on his/her part to obtain this information.

The Voluntary Principle ” if I choose to decrease the relative amount of privacy for myself and information under my control by exposing it to view, I thereby decrease the reasonableness of any expectation that this privacy will be observed . (McArthur, 2001, pp. 124-125)

In his discussion of browsing the World Wide Web, McArthur suggests that since it is now widely known that one s Web browsing history can be tracked through the use of cookies and other software, browsing the World Wide Web is essentially a public activity, and thus falls foul of the Voluntary Principle. Unless I take specific measures to conceal my identity or to block the tracking software, then I have chosen to reveal this information about myself. Thus, it is, legally speaking, unreasonable to expect privacy in this domain and it is not a breach of my privacy for someone to collect this click-stream data.

In his discussion of sending and receiving e-mail, McArthur suggests that it is common knowledge that this medium of communication is not secure. As evidence of this, he points to the fact that many major companies have put in place programs to monitor their employees e-mails, that many e-mail messages are erroneously intercepted by the technology that is employed by law enforcement agencies to intercept the e-mail of suspected criminals, that backup tapes that may contain e- mails are not securely stored, and so on. McArthur again draws on the Voluntary Principle to assert that it is unreasonable to expect privacy in e-mail; if I entrust material to an e-mail while knowing that the global e-mail system is not secure, then I have chosen to reveal this information, and my privacy has not been breached if the material in that e-mail becomes public. The biggest problem with a discussion like this is that what is the case is based on what is actually true at the present time. While it is of some interest to know what the law does and does not allow, in discussions such as this we are generally far more interested in what ought to be the case, rather than what is the case. And discussions of law are almost invariably discussion about what is, rather than about what ought to be. In discussing the transfer of child pornography through the Internet, for example, while it may be of interest to know what laws would apply to those engaged in the practice, the main reason that this is of interest is because of an already formed moral judgement ” that engaging in the trade of child pornography is wrong, and thus the interest in what laws might apply is actually an interest in preventing the trade of child pornography through the Internet. If it was to turn out that there were no laws that applied to the trade of this material, then it is likely that there would be a call for laws to be passed that would ban the trade of child pornography on the Internet. Criminal laws that apply to the dealings on the Internet have their basis in moral principles, as in fact do all criminal laws. It is because of a prior moral judgment that engaging in a particular action is wrong and that criminal laws are established in the first place. Thus, in examining the issue of privacy in the use of computers and privacy on the Internet, the primary interest is always likely to be in a moral issue ” what is the right and wrong thing to do ” rather than in a legal issue ” what is legal and illegal. So, while it may be true that e-mail, for example, is not a fully secure communication medium, that is a statement about what is the case and not about what ought to be the case. McArthur points out that many companies monitor the e-mail of their employees, and that law enforcement agencies may intercept innocent e-mails while attempting to intercept the e-mail of criminals. This may well be true, but it does not even attempt to answer the question of whether companies ought to monitor employees e-mail, or whether law enforcement agencies ought to try to intercept e-mail sent by suspected criminals. Similarly, the fact that one s Internet browsing habits may be recorded by software placed on Web sites and downloaded to the browser s computer, does not answer the question of whether such software ought to be placed on Web sites.

There are other more practical problems faced by the legal approach to privacy on the Internet. The most obvious of these problems is the issue of jurisdictional boundaries. Laws are always limited in their scope, in that they only apply within a particular jurisdiction. What is legal in one country may be illegal in another. This will always create problems when dealing with an international medium such as the Internet. E-mails are routinely sent between countries as part of legitimate business concerns; workers may legitimately browse Web sites that are hosted by a computer located in another jurisdiction; material may pass through computers located in several different countries when being transferred from one person to another; and many companies employ staff in off-shore operations located in countries that are geographically and politically remote from the location of the company head office. What laws ought to apply, what laws could apply, to these sorts of operations?

Suppose that I work and reside in country A, where certain practices such as employer e-mail monitoring are considered an infringement upon the right to privacy and have been made illegal. While attempting to organise a business trip to country B, I send e-mails to various companies and organisations within that country. In country B, e-mail monitoring is both legal and common practice, and thus my incoming e-mails are read by a number of people apart from the intended recipients. Has my privacy been breached? I may say that it has been and quote the law in country A, where such practices are illegal, but the same laws do not apply in country B. When dealing with a fundamental right such as the right to privacy, it seems inadequate to suggest that the answer to the question of whether the right to privacy has been infringed upon is dependent upon the physical location of the sender or recipient. If the e-mails are transmitted from country A to country B via a computer physically located in country C, then the situation becomes even more complex.

A focus on purely legal issues of privacy becomes even more ridiculous in the case of a multi-national company, for a manager might be legally entitled to monitor the e-mails of some of their staff but not others. Suppose a manger is dealing with staff that are physically located in the same two countries (A and B) that were mentioned previously. On the legal approach, the manager would not infringe upon anyone s right to privacy if they monitored all e-mails sent and received by staff in country B, including all e-mails sent to staff in country B by staff in country A, yet the mangers would infringe upon the right to privacy of their staff if they monitored any e-mails sent or received by staff in country A. A junior staff member located in country A, sending identical instructions to staff members in both country A and B, would have their right to privacy infringed upon if their supervisors were to monitor the e-mails received by staff in country A, yet would not have their right to privacy infringed upon if their supervisors monitored the identical e-mails received by staff in country B. Such a situation defies all logic.

While there are some extremely worthwhile points raised in discussions of the legal issues of privacy, I hope that this discussion has shown that a legally based discussion cannot answer the fundamental ethical questions raised by the issue of privacy and the Internet. To attempt to answer such questions, and to sidestep the practical problems of the legal approach, it is necessary to determine what ought to be the case, rather than what is the case. In order to answer that question, it will be necessary to examine the concept of privacy, and to attempt to come to some understanding of why privacy is an ethically important concept, and thus how questions of privacy on the Internet ought to be addressed.




Electronic Monitoring in the Workplace. Controversies and Solutions
Electronic Monitoring in the Workplace: Controversies and Solutions
ISBN: 1591404568
EAN: 2147483647
Year: 2005
Pages: 161

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