Lesson 14 - Privacy 2:

Informational Privacy

Consider 4 cases:

Your local supermarket offers a "No-coupon discount card" for customers who fill out an application. On the application, you list your name, your sex, your income, your employment, and the company gives you a card. Using the card, you then make purchases for the next year. The supermarket then compiles the data about your purchases, and sells it to marketers. You have not been notified that they intend to use the information like this; nor have you explicitly consented to this use.
Your credit card company has the same information about you -- you supplied it when you got your credit card. Imagine it now collects the data about your purchases, and then sells it to marketers.
Your local video store keeps data about the videos you rent. It then sells to marketers your name and address, along with list of films that you have rented.
A credit card company enters into an agreement with the IRS, to report to the IRS people whose spending habits change dramatically. The IRS then uses that data to help it decide which returns will be subject to audit.

All four cases raise the problem of *informational privacy* -- the question how much control, if any, does the law give you over the collection, and dissemination, of information about you that you have willingly given over to someone else. The answer in general is quite simple: Not much. American law in the main gives individuals very little control over what others can do with the information collected about them.

This lack of protection distinguishes American law from most European democracies. "Data protection" is an important part of European human rights law. But with slight exceptions, it is not an important part of our tradition. The exception is case (3): Because of the outrage over the publication of Judge Robert Bork's video rentals when he was nominated for a seat on the Supreme Court, Congress passed the Video Privacy Protection Act of 1988, which makes it a crime to release individualized data about the videos any individual may rent or buy.

At least that part of your "record" is protected: but not what books you check out at the library, or what your purchases at the grocery store are, or what movies you use your credit card to buy tickets for. These remain unregulated by the law.

Next time, how this lack of protection might affect the net.

authors:

Larry Lessig David Post Eugene Volokh

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