Misconceptions About Privacy


Misconceptions with regard to privacy laws are many. First among them is that in America individuals believe they have a greater right to privacy than they are actually entitled to. Unlike elsewhere in the world, generally speaking, Americans place great emphasis on freedom of speech. As a result, our government is restrained constitutionally in its ability to limit others from "speaking" about us, unless such speech is false. Indeed, if we willfully provide others with information about ourselves, outside of certain limited situations, there is little we can do to prevent the disclosure of that information to others. Although legislation promises to gradually expand our privacy rights, these rights are currently rather circumscribed. To many this does not seem fair; it's a betrayal of the first degree when a survey company that called us for our "valued opinion" on foreign policy shares our personal information with telemarketers or for other purposes we didn't originally intend. Notwithstanding our sense of betrayal, absent carefully tailored laws designed to protect our personal information, such sharing is rarely illegal in the U.S.

Individuals should realize their personal information is a valuable commodity. All too often individuals are too eager to disclose personal information about themselves without recognizing the consequences. Recently people have become more aware of the value of their personal information by way of spam, junk mail, telemarketers, and identity theft. All those occurrences have started to make individuals realize we pay a price when we disseminate our personal information.

Given our limited privacy rights, I have great concern about how the scope of our Fourth Amendment privacy rights seem to be contracting further with the advent of new technology that permits others to peer into our homes and offices, listen to our conversations, or read our correspondence. Our increasing dependence on technology has certainly made our hectic lives more convenient - but it has also made our behavior and communications more susceptible to oversight.

Recently there have been numerous legal decisions that have focused on new technology, and, in particular, the privacy rights granted to individuals using it. We are all aware that we have a reasonable expectation of privacy when we have a telephone conversion using a wired telephone, but recently legal decisions have narrowed these rights. For example, one no longer has a reasonable expectation of privacy when conducting cordless telephone conversations, nor do they have privacy from electronically-enhanced telephoto lenses. There are also limited privacy rights when you are chatting with another using an instant messaging product. Moreover, the U.S. Patriot Act allows government the ability to more easily intercept certain electronic communications. The scope of our privacy rights in the use of new technology is currently being narrowed by the courts and by Congress. Since our legal protections against unreasonable search and seizure are partly dependent on our expectations of privacy, judicial and Congressional narrowing of our rights will undoubtedly lead to even narrower individual expectations of privacy.

The other significant misconception is that privacy laws and privacy policies are economically stifling and disadvantageous. I think several developments suggest otherwise. First, citizens of Canada and European countries have much greater protection of their personal information than Americans. Companies in these jurisdictions have had to contend with data and information regulation that far outstrips any comparable American scheme; yet this regulatory regime has not led to the collapse of these economies. Companies in these jurisdictions remain competitive both in their home countries and in America. Furthermore, data regulation will become a reality - if American policymakers don't demand it, European regulators and the globalization of world economies require it. To this end, American companies that do not immediately confront privacy issues will be competitively disadvantaged, either when they expand into regulated countries or when - as I believe will occur in the next several years - information collection and sharing practices become regulated in the United States. Indeed, companies that collect customer information today without express customer consent run the risk that future legislative and regulatory outcomes will require them to either expunge this valuable data, or they will be forced to retroactively obtain customer consent for the use of this data.

Finally, while it is largely true that the Internet itself is unregulated, businesses and business transactions and personal data flows are increasingly subject to regulatory oversight. The lack of uniform privacy regulation in this country is actually impeding both online commerce and the adoption of new technologies. The obligation to comply with the patchwork quilt of state laws is cumbersome, if not impossible. In the absence of uniform rules, I believe the operative consumer assumption is becoming that personal information will be collected, used, disseminated, and otherwise sold to the highest bidder. The evidence that this chills commerce is more than anecdotal.

Currently, when it comes to privacy in America, we don't have a standard set of rules for the road. Today, we are largely unaware of how our information will be used, what will be collected, how it will be shared with third parties, and whether any current privacy policy might change unilaterally without notice. Although some efforts have been made to develop industry standards, there is currently no default privacy rule. The absence of uniformity is chilling individual and corporate adoption of technology that could increase productivity or otherwise improve lives or industry.

When someone goes to the therapist, for example, they might be concerned about what information their insurer will share with their employer. This situation might make them hesitant to seek treatment. By having a standard set of rules that apply to privacy, society can address the privacy concerns of individuals and companies efficiently. This would provide individuals greater daily comfort when presented with situations where information must be disclosed.




The CTO Handbook. The Indispensable Technology Leadership Resource for Chief Technology Officers
The CTO Handbook/Job Manual: A Wealth of Reference Material and Thought Leadership on What Every Manager Needs to Know to Lead Their Technology Team
ISBN: 1587623676
EAN: 2147483647
Year: 2003
Pages: 213

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