C. Legal implications of personal-information collection
1. Personal information is part of who we are.
The Fourth Amendment says we have a right to be secure in our person, papers, property, and effects. Is personal information in the penumbra of "person, papers, property, and effects"? If information about us is our property, what property rights do we have, and what is required to surrender those rights? When we share information, whether knowingly or unknowingly, do we waive our right to prevent unlimited dissemination of the information? Is the waiver valid for third parties as well as for the original collectors of the data? Similarly, do we waive some or all privacy rights when we willingly and voluntarily communicate personal information?
"In Griswold, the Supreme Court invalidated a state statute prohibiting the use of contraceptive devices and the giving of medical advice regarding their use. Although the federal Constitution contains no explicit reference to a 'privacy' right, the court found implicit in the Bill of Rights provisions cited in the ballot argument — the First, Third, Fourth, and Ninth Amendments — 'zones of privacy' emanating from what it called the 'penumbras' of the specific constitutional guarantees. The court located with those 'zones of privacy' personal decisions made by married persons regarding the use of birth control devices. (Griswold v. Connecticut, supra, 381 U.S. at p. 484 [14 L.Ed.2d at pp. 514-515.)"[1]
2. "[F]ederal constitutional law provides no protection of an individual’s information privacy from invasion by the private sector...
... [F]irst, because of the state action doctrine, and second, because it is unclear to what extent the Constitution actually protects information privacy.... [S]tatutes... govern specific sectors of personal information, such as consumer credit, education, cable programming, electronic communications, videotape rentals, and motor vehicle records. But it turns out that none of these statutes substantially constrains a transacting party from collecting the information."[2]
3. An exception to the Electronic Communications Privacy Act allows transactional records to be freely disclosed to anyone “other than a governmental entity."[3]
"(c) Exceptions for disclosure of customer records. A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))...
(2) with the lawful consent of the customer or subscriber;
(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service...
(6) to any person other than a governmental entity."[4]
[1] Hill v. National Collegiate Athletic Assn., 7 Cal. 4th 37-38 (Cal. 1994).
[2] Kang, supra, at 1230,1232.
[3] 18 USCS § 2702.
[4] 18 USCS § 2702(c)(2, 3, 6).
D. Identifiable and non-identifiable personal information: the myth of anonymity
The Fourth Amendment says we have a right to be secure in our person, papers, property, and effects. Is personal information in the penumbra of "person, papers, property, and effects"? If information about us is our property, what property rights do we have, and what is required to surrender those rights? When we share information, whether knowingly or unknowingly, do we waive our right to prevent unlimited dissemination of the information? Is the waiver valid for third parties as well as for the original collectors of the data? Similarly, do we waive some or all privacy rights when we willingly and voluntarily communicate personal information?
"In Griswold, the Supreme Court invalidated a state statute prohibiting the use of contraceptive devices and the giving of medical advice regarding their use. Although the federal Constitution contains no explicit reference to a 'privacy' right, the court found implicit in the Bill of Rights provisions cited in the ballot argument — the First, Third, Fourth, and Ninth Amendments — 'zones of privacy' emanating from what it called the 'penumbras' of the specific constitutional guarantees. The court located with those 'zones of privacy' personal decisions made by married persons regarding the use of birth control devices. (Griswold v. Connecticut, supra, 381 U.S. at p. 484 [14 L.Ed.2d at pp. 514-515.)"[1]
2. "[F]ederal constitutional law provides no protection of an individual’s information privacy from invasion by the private sector...
... [F]irst, because of the state action doctrine, and second, because it is unclear to what extent the Constitution actually protects information privacy.... [S]tatutes... govern specific sectors of personal information, such as consumer credit, education, cable programming, electronic communications, videotape rentals, and motor vehicle records. But it turns out that none of these statutes substantially constrains a transacting party from collecting the information."[2]
3. An exception to the Electronic Communications Privacy Act allows transactional records to be freely disclosed to anyone “other than a governmental entity."[3]
"(c) Exceptions for disclosure of customer records. A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))...
(2) with the lawful consent of the customer or subscriber;
(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service...
(6) to any person other than a governmental entity."[4]
[1] Hill v. National Collegiate Athletic Assn., 7 Cal. 4th 37-38 (Cal. 1994).
[2] Kang, supra, at 1230,1232.
[3] 18 USCS § 2702.
[4] 18 USCS § 2702(c)(2, 3, 6).
D. Identifiable and non-identifiable personal information: the myth of anonymity
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