Privacy in a Free Country: In Search of Reasonable Principles

Policy Reports | Privacy

No. 243
Monday, April 30, 2001
by Solveig Singleton


  1. See generally Amitai Etzioni, The Limits of Privacy (New York: Basic Books, 1999).
  2. U.S. v. Toscanino, 500 F.2d 267 (2nd Cir. 1974) holding that district court must consider the question of whether its jurisdiction was illegally obtained by kidnapping.
  3. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. IV.
  4. See, e.g., Washington v. Nordskog, 76 Wash. 472, 136 P. 694 (Wash. 1913), wiretapping by the Seattle Times of a detective agency did not violate the law for malicious injury to property because wiretapping does not injure property.
  5. Olmstead v. United States, 277 U.S. 438 (1928).
  6. Olmstead was controversial in its day, as well. See generally Robert M. Pitler, "Independent State Search and Seizure Constitutionalism: The New York State Court of Appeals Quest for Principled Decisionmaking," 62 Brooklyn Law Review, 1, 45-47 (1996), describing response of state governments to Olmstead.
  7. 387 U.S. 294 (1967).
  8. California v. Greenwood, 486 U.S. 35, 39 (1988); California v. Ciraolo, 476 U.S. 207, 211 (1986); Oliver v. United States, 466 U.S. 170, 177 (1984).
  9. See, e.g., Anthony G. Amsterdam, "Perspectives on the Fourth Amendment," 58 Minnesota Law Review, 349, 384-85 (1974) stating that the expectation-of-privacy theory is so circular that it "obviously [can have] no place in... a theory of what the Fourth Amendment protects;" see also United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting), "The [Fourth Amendment] analysis must ... transcend the search for subjective expectations ....".
  10. Jay Bookman, "In Your Face: The Ways Surveillance Equipment Can Scan, Tape, Track and Profile You," Atlanta Journal and Constitution, March 25, 2001, p. D1. A house with unusually intense warm spots in the attic or basement may be suspected of harboring an array of special lamps and marijuana plants. A similar heat signature might be given off by tropical fish tanks or equipment for growing legal plants.
  11. Berni Dwan, "Prepare for Screen Warfare," Irish Times, October 9, 2000, p. 8. All computer screens give off radio-frequency waves that can be captured by an antenna directed towards a particular monitor or room. The signals can be captured from another office in the same building or from a building across the street.
  12. Lawrence Lindsey, "The Money-Laundering Conundrum: Mugging Privacy in the Assault on Crime?" in The Future of Financial Privacy: Private Choices versus Political Rules (Washington, D.C: Competitive Enterprise Institute, 2000), p. 166.
  13. The Office of Management and Budget has passed guidelines on federal information-gathering. The eerie-sounding rule stipulates that "the racial and ethnic categories should be comprehensive in coverage and produce compatible, nonduplicative, exchangeable data across Federal agencies." See
  14. David Beers, "Protecting Privacy by Cutting Back Census Operations," November 2000.
  15. Jennifer Goldblatt, "Freeport, Maine-Based L.L. Bean among Catalog Merchants Extending Reach," Virginian-Pilot, August 5, 2000.
  16. It is easy enough to disable cookies or be warned when one is about to be placed. If you are using Netscape Navigator, go to the taskbar and click on "Edit." Select "Preferences," go to "Advanced." Next click on "Cookies" and select "Disabled," or ask to be warned before your browser accepts a cookie. If you are using Internet Explorer, go to "Internet Options" and select "Security." Go to "Custom" and scroll down to "Cookies," again, select "Disabled" or ask for a warning.
  17. See Rep. James Leach, "Identity Theft Vexes Lenders, Consumers," Mortgage Servicing News, November 2000, p. 4, "Despite [the] profusion of Federal and State statutory authority . . . there is little evidence that law enforcement agencies have made combating this crime a priority. A recurring theme at last week's hearing was the difficulties encountered by victims of identity theft and the financial institutions that bear the losses in obtaining redress, either because financial thresholds established by prosecutors' offices have not been met or because resources are simply being directed elsewhere." See also Jackie Hallifax, "Task Force Grapples with Privacy Issues in Technology Age," Associated Press State and Local Wire, December 15, 2000, which outlines better enforcement methods for identity theft.
  18. Stephen E. Arnold, "Internet Users at Risk: The Identity/Privacy Target Zone." ASAP, January 1, 2001, p. 24.
  19. Brian Krebs, "People Want More Control Over Personal Info Online," Newsbytes, August 21, 2000.
  20. Paul Rubin and Tom Lenard, Privacy and the Commercial Uses of Information (Washington, D.C.: Progress and Freedom Foundation, forthcoming in 2001).
  21. See, e.g., Peter Raducha, "Preliminary Results of a Nationwide Survey of Youth," Global Youth Action Network, July 2000; and Frank Newport, "Economy, Education, Health, Crime and Morality Most on Americans' Minds This Election Year," Gallup News Service, June 22, 2000.
  22. See, e.g., "Caught with the Cookie Jar," National Journal's Technology Daily AM Edition, April 4, 2001, p. 4, "Web analysis service Web Side Story found that in over 1 billion page views cookies were disabled just .68 percent of the time"; "Mining for Privacy Gold," San Francisco Business Times, March 9, 2001, p. 21, noting that 3 percent of Americans opt out of marketing mailings; Carey Adams, "The Internet and Security," Access Control & Security Systems Integration, November 2000, stating that 18 percent never change their passwords, 33 percent only when forced to do so, and 17 percent only once per year, while 22 percent have passwords that can be cracked in seven minutes or less; and Krebs, "The Future of Consumer Privacy," reporting that 9 percent use encryption, 5 percent use software that hides their identity.
  23. Rubin and Lenard, Privacy and the Commercial Uses of Information.
  24. Krebs, "The Future of Consumer Privacy," reporting that 10 percent of those who know about cookies take steps to block them.
  25. Ryan James, "Safety on the Net," Toronto Sun, June 8, 2000, p. 66, describing Privada survey reporting that "27 million adults gave up using the Internet for lack of privacy last year, and that over half of all Net users gave up an online transaction because they were asked for information they didn't feel comfortable giving out."
  26. Harris Interactive, Inc./Privacy Leadership Council Poll, December 20, 2000, p. 6 (on file with the author).
  27. "Commissioned Research Confirms Privacy Is a Key Issue Influencing Consumer Influence of Internet Billing," Canada Newswire, January 16, 2001.
  28. "Motor Insurance Gets into Fast Lane," Marketing Week, March 29, 2001, p. 59.
  29. Joris Evers, "U.S. Beats Europe in Online Privacy Protection,", January 24, 2000.
  30. Larry D. Rosen & Michelle M. Weil, "Public Interest in the Information Superhighway," (1995), at
  31. Kate Fitzgerald, "Poll: Consumers Sharply Divided on Privacy Issue," Advertising Age, November 13, 2000, pp. 80, 88.
  32. "EU Preparing Plans for Battling Cybercrime," Deseret News, December 13, 2000, p. A13, also noting that 3 percent of Europeans believe the Internet is secure.
  33. Rubin and Lenard, Privacy and the Commercial Uses of Information.
  34. See also "Customer Benefits from Current Information Sharing by Financial Services Companies," December 2000 (Conducted for the Financial Services Roundtable).
  35. Sherman Fridman, "Most Workers Don't Mind Workplace Online Monitoring," BizReport, May 8, 2000, at .
  36. See Curtis Cotton, "Electronic Mail in the Workplace: Employer Monitoring vs. Employee Privacy," p. 1, at
  37. Association of Certified Fraud Examiners, Report to the Nation: Occupational Fraud and Abuse (1997), p. 5; see also Steve Myers, "Workers Blamed in Store Thefts," News and Observer, Raleigh, N.C., December 22, 2000, p. B1, citing study showing $11 billion nationwide in losses due to employee theft from retailers alone in 1999.
  38. Joseph G. Schmitt, "Escaping the Privacy Bind: An Outline for Employers," Corporate Risk Spectrum, December 2000, p. 18.
  39. Patricia Monaghan, "Big Brother Is Reading Your E-mails," Irish Times, September 7, 2000, p. 13, quoting Simon Stuart of Softech Telecom.
  40. Al Berg, "Pulling the Plug on Surfing and Spam," Information Security, April 2000, p. 57.
  41. Ibid.
  42. Kenneth Bredemeier, "Billing Arrangements Are Up to the Employer," Washington Post, February 2, 2001, p. E3; see also Berg, "Pulling the Plug on Surfing and Spam," citing another study showing increase in monitoring among 200 businesses surveyed.
  43. Allison R. Michael and Scott M. Lidman, "Monitoring of Employees Still Growing," National Law Journal, January 29, 2001, p. B9, citing American Management Association survey from April 2000.
  44. Ibid.
  45. Because of the Americans with Disabilities Act, it is not legal to fail to promote or hire someone because of a disability that does not affect his or her ability to perform a job.
  46. See, e.g., Paul Starr, "Health and the Right to Privacy," 25 American Journal of Law and Medicine, 193, 198 (1999).
  47. Daniel B. Klein and Jason Richner, "In Defense of the Credit Bureau," Cato Journal, 12 (1992), pp. 402-7, discussing Consumers Union study "What Are They Saying about Me," April 29, 1991.
  48. Ibid., pp. 403-04.
  49. Ibid., pp. 405-07. The PIRG study also failed to identify the source of the errors and reported anecdotes featuring consumers' unconfirmed assertions that their reports contained errors.
  50. Ibid., pp. 407-08.
  51. T. Shawn Taylor, "E-Lessons: Love Notes and Other Internet Faux Pas Could Lead to Embarrassment or Worse - You Could Get Fired," Chicago Tribune, February 14, 2001, p. C1.
  52. See Doe by Doe v. B.P.S. Guard Services, 945 F.2d 1422, 1427 (8th. Cir. 1991), secret camera in models' private dressing room is invasion of privacy; Harkey v. Abate, 346 N.W.2d 74, 76 (Mich. Ct. App. 1983), hidden surveillance device in dressing room is highly offensive interference with privacy; and Speer v. Department of Rehabilitation & Correction, 646 N.E. 2d 273, 274 (Ohio Ct. Cl. 1994), monitoring in areas such as restrooms states a valid claim for invasion of privacy.
  53. See Smyth v. The Pillsbury Co, 914 F. Supp 97 (E.D. Pa. 1996), dismissing wrongful discharge claim.
  54. See e.g. Michael J. Smith et al., University of Wisconsin & Madison Department of Industrial Engineering, "Electronic Performance Monitoring and Job Stress in Telecommunications Jobs, 1, 5, 20 (1990), stating that monitored workers reported more wrist, neck and back problems and had higher incidence of stress-related mental conditions; see also Melanie Payne, "New View of Surveillance," Sacramento Bee, January 22, 2001, p. 1, reporting statement of researcher Carl Botan of Purdue's Center for Education and Research in Information Assurance and Security that employees who know of monitoring tend to think the employer is more interested in quantity of work than quality.
  55. 18 U.S.C. section 2511(1)(a)-(d); see also Pascale v. Carolina Freight Carriers Corp., 898 F. Supp. 276 (D.C. N.J. 1995).
  56. Arias v. Mutual Central Alarm Svcs, Inc., 1998 U.S. Dist. LEXIS 14414 (1998), aff'd 202 F. 3d 553 (2d. Cir. 2000).
  57. Michael and Lidman, "Monitoring of Employees Still Growing," describing statutes proposed in California and passed in Connecticut, as well as the "Notice of Electronic Monitoring Act" proposed in the Senate and in Congress.
  58. See a survey of such proposals in S. Elizabeth Wilborn, "Revisiting the Public/Private Distinction: Employee Monitoring in the Workplace," 32 Georgia Law Review. 825, 849-864 (1998).
  59. Two cases consistent with this theory include Ritter v. Rush-Presbyterian-St. Luke's Med. Ctr., 532 N.E.2d 327, 331 (Ill. App. Ct. 1988), holding that the doctor-patient privilege disallows communications out of court between a doctor and his patient's legal opponent; and Alexander v. Knight, 177 A.2d 142, 146 (Pa. Super. Ct. 1962) (same).
  60. "Rights to privacy are valid claims against unauthorized access that have their basis in the right to authorize or decline access. These rights are justified by rights of autonomous choice . . . expressed in the principle of respect for autonomy. In this respect, the justification of the right to privacy is parallel to the justification of the right to give an informed consent." Tom Beauchamp and James Childress, Principles of Biomedical Ethics, 4th ed. (New York: Oxford University Press, 1994), p. 410; see also p. 406 (defining privacy as "a state or condition of physical or informational inaccessibility").
  61. See, e.g., Territory v. Corbett, 3 Mont. 50 (Mont. 1877), wherein doctor/patient privilege was not recognized at common law.
  62. Hammonds v. Aetna Cas. & Sur. Co., 243 F. Supp. 793, 801 (N.D. Ohio 1965), finding implicit contractual obligation that "any confidential information gained through the relationship will not be released without the patient's permission"; and Doe v. Roe, 400 N.Y.S.2d 668, 674 (Sup. Ct. 1977), finding that the doctor's duty to keep patient's information confidential was violated when doctor reported patient's thoughts and feelings.
  63. Lawrence Gostin & James Hodge, "The 'Names' Debate: The Case for National HIV Reporting In the United States," 61 Albany Law Review 679, 687 (1998).
  64. See, e.g., Simonsen v. Swenson, 177 N.W. 831 (Neb. 1920), finding that doctor does not breach duty of confidentiality by reporting contagious diseases.
  65. U.S. General Accounting Office, "Medical Records Privacy: Access Needed for Health Research, but Oversight of Privacy Protections Is Limited," Report to Congress, February 1999, p. 1.
  66. See Benjamin Banahan and Suzy Buckovich, "Patient Privacy, Confidentiality and Security," Drug Topics, February 21, 2001, p. 77.
  67. See Sue Blevins and Robin Kaigh, "The Final Federal Medical Privacy Rules: Myths and Facts," Institute for Health Freedom, February 2001, p. 3.
  68. Banahan and Buckovich, "Patient Privacy, Confidentiality and Security," p. 77.
  69. Ibid.
  70. See generally, John C. Goodman and Gerald L. Musgrave, Patient Power (Washington, D.C.: Cato Institute, 1992).
  71. Market-based reforms would include reducing the role of government subsidies, encouraging individuals to shop for policies on their own rather than through their employers, and medical savings accounts.
  72. Lynn M. Paltrow, "Pregnant Drug Users, Fetal Persons and the Threat to Roe v. Wade," 62 Albany Law Review 999, 1055 (1999); see also "Report of American Medical Association Board of Trustees, Legal Interventions During Pregnancy," 264 Journal of the American Medical Association 2663, 2667 (1990).
  73. Mia M. McFarlane, "Mandatory Reporting of Domestic Violence: An Inappropriate Response for New York Health Care Professionals," 17 Buffalo Public Interest Law Journal, 1, 24 (1998/1999).
  74. Drew Clark, "HHS Will Accept Comments on Medical Privacy," National Journal's Technology Daily P.M. Edition, February 26, 2001, p. 5.
  75. Hogan & Hartson L.L.P., "Hogan & Hartson Health Law Advisory," December 22, 2000, p. 4, describing need for authorization, and noting "Authorization is not required when communication to an individual occurs face-to-face with an individual, concerns products or services of a nominal value, or concerns health-related products and services of the covered entity or a third party," so long as certain disclosure requirements are met.
  76. Robert Pear, "Medical Industry Lobbies to Rein in New Privacy Rules," New York Times, February 12, 2001, pp. A1, A19.
  77. Peter Schnitzler, "Insurers, Others Brace for Privacy Standards: HIPAA Compliance Could Be Complicated," Indianapolis Business Journal, January 8, 2001, p. 19A, quoting Wes Rishel of the Gartner Group putting costs at $43 billion.
  78. See, e.g., Phyllis Schlafly, "At Stake in New HHS Privacy Regulations," Washington Times, February 24, 2001, p. A13.
  79. Before HIPAA, for example, Medicare would release records to state or federal agencies or law enforcement upon receipt of documentation of the agency's intent to comply with the Privacy Act of 1974. Testimony of Aronovitz at 5.
  80. Blevins and Kaigh, "The Final Federal Medical Privacy Rules: Myths and Facts."
  81. See Mark A. Hall, "Should the Law Restrict Insurers' Use of Genetic Information? A Guide to Public Policy," draft paper on file with author, p. 15: "The law protects as confidential the communications between patients and doctors, but does not protect the privacy of medical information per se. The reason is that, although medical information in the abstract is private and important, the greatest social harm is chilling patients' willingness to consult a doctor." See also "What Washington Has in Store for Benefits Managers in 2001," Managing Benefits Plans, February, 2000, p. 2: "Research by several health care privacy advocates says 17 percent of consumers pay for care that would otherwise be covered by their insurance, or choose not to seek care, because they fear their condition or treatment will be improperly disclosed."

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