Main Index : Writings of Marie A. D'Amico, Esq.

Privacy of Personal Information

Marie D'Amico January 1997

If you're like the average consumer, you're concerned about the privacy of your personal information. While there may be debate as to what constitutes personal information, I define information as personal if you would object to its publication, other than to whom you sent it or to whom it was intended to be sent. Generally, most people consider their credit history, finances, medical history, and perhaps home telephone number personal information. What can be done to protect the widespread dissemination of personal information via the net is of increasing concern to users and non-users of the Internet.

Is There Any Current Legislation? Yes. There is some current legislation which covers specific types of personal information. The Fair Credit Reporting Act , 15 U.S. C. ß 1681 (1992) covers credit reports. The Privacy Act of 1974 , 5 U.S.C. ß 552a (1974, amended 1991) creates three consumer rights: (1) the right to be informed about the existence of records containing personal information, (2) the right to inspect and modify such records, and (3) the right to challenge the accuracy of the records. The Video Privacy Protection Act , 18 U.S.C. ß 2710 (1988) protects movies you rent. It provides that a video rental facility may not reveal the titles of the movies a customer has rented. The video rental facility may, however, reveal the genre of movies a customer rents for the exclusive use of marketing if the video rental service has provided the consumer with an opportunity to prohibit such disclosure. The Driver's Privacy Protection Act of 1994, 18 U.S.C. ß 123 (1995), which becomes effective in September 1997, prevents state motor vehicle departments from releasing personal information about any individual obtained by that department if the individual has contested such disclosure.

Various state statutes permit some type of protection of personal information. For example, in Indiana, the Fair Information Practices statutes provides that any state agency that maintains a personal information system shall, upon request and upon proper identification of any subject, grant such subject the right to inspect and challenge any information about him in the personal information system. For a listing of each state's privacy laws, try EPIC's website . In print, the Privacy Journal produces a complete book, with yearly updates of state and federal privacy laws and other privacy related information, called the Compilation of State and Federal Privacy Laws by Robert Ellis Smith. The Privacy Journal is located at PO Box 28577, Providence, RI 02908, (401) 274-786.

Is There Any Proposed Legislation? Yes. State senators Steve Peace (D-El Cajon Senate District 40) from California and Richard Codey (D-Essex) from New Jersey have introduced legislation in California and New Jersey to prohibit unauthorized sale of personal information. Both bills are in the legislative process. Under the current California constitution, all California citizens have certain inalienable rights, including the right to privacy. The bill would set up a task force to recommend legislation to perhaps prohibit a person or corporation from using or distributing for profit information concerning an individual, including his credit history, finances, or medical history, purchases, and travel patterns, without his consent.

In New Jersey, the proposed bill concerns mailing lists and suggests that no one can rent, sell, or otherwise release the names, addresses, or telephone numbers of individuals to any other person for use in commercial solicitation without the prior written or electronic consent of those individuals.

If you live in California or New Jersey, you can contact your state senator to give him input on these proposed bills:

Randy Chinn compiles material for the California bill. Pete Cammarano compiles material for the New Jersey bill.

In addition, on October 8th, 1996, three U.S. Senators (Bryan, Hollings, and Pressler) sent the Chairman of the Federal Trade Commission (FTC) a letter requesting the FTC conduct a study of possible violations of consumer privacy rights by companies that operate computer data bases.

What Does the Supreme Court Say? The Supreme Court has recognized a right of privacy in a number of landmark cases. In Griswold v. Connecticut , 381 U.S. 479 (1965), the Supremes concluded that although the Constitution does not explicitly protect a general right of privacy, the Bill of Rights creates a zone of privacy protecting marital relations. The Connecticut statute at issue (which made counseling of married persons in the use of contraceptives a crime) was held invalid.

In Roe v. Wade , 410 U.S. 113 (1973), the Court ruled the Constitution does not explicitly mention any right of privacy, but the Court has long recognized a right of personal privacy, or a guarantee that certain areas or zones of privacy, exist under the Constitution. The Court held the right of privacy included the abortion decision.

In Katz v. United States, 389 U.S. 351 (1967), the Court ruled that the Fourth Amendment protects people, not places. What one seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. The FBI had attached an electronic listening device to a public telephone booth from which Katz placed telephone calls.

In Whalen v. Roe , 429 U.S. 389 (1977), the Court held that New York could require a copy of every prescription of drugs that had a legal and an illegal use (such as methadone). The Court found the requirement was not an invasion of privacy because the information was adequately safeguarded.

Are There Privacy Organizations? Yes. There are many privacy organizations online which have extensive resources. The following is a list of some of the ones I found:

ACLU , American Civil Liberties Union, 132 W. 43rd St., New York, NY 10036, Phone: (212) 944-9800, Fax: (212) 869-9065, Email: aclu@aclu.org .

Center for Democracy and Technology , 1634 Eye St., NW, Suite 1100, Washington, D.C. 20006, Phone: (202) 637-9800, Fax: (202) 637-0968, Email: info@cdt.org .

Computer Professionals for Social Responsibility , PO Box 717, Palo Alto, CA 94301 Phone: (415) 322-3778, Fax: (415) 322-4748, Email: cpsr@cpsr.org .

EFF, Electronic Frontier Foundation , 1550 Bryan St., Suite 725, San Francisco, CA 94103, Phone: (415) 436-9333, Fax: (415) 436-9993, Email: ask@eff.org .

Electronic Privacy Information Center , 666 Pennsylvania Ave. SE, Suite 301, Washington, D.C. 20003, Phone: (202) 544-9240, Fax: (202) 547-5482, Email: info@eff.org .

Privacy International , 666 Pennsylvania Ave. SE, Suite 301, Washington, D.C. 20003, Phone: (202) 544-9240, Fax: (202) 547-5482, Email: pi@privacy.org .

Privacy Rights Clearinghouse , University of San Diego School of Law, Center for Public Interest Law, 5998 Alcala Park, San Diego, CA 92110-2492, Phone: (800) 773-7748 (CA only) or (619) 260-4160, Fax: (619) 298-5681, Email: prc@acusd.edu .

What Does The Public Say? They are concerned about privacy. In 1994, 84% of Americans said they were concerned about privacy, 51% were very concerned. A Lou Harris poll in 1991 revealed about 80% of Americans said they regarded privacy as a fundamental right. More than 70% believed they had lost control over their personal information and about 58% of Americans believed their credit reports were not protected adequately by existing legislation. Numbers obtained from EPIC . An evaluation of Harris polls over time demonstrate how increasingly concerned with privacy Americans have become. In 1970, 34% of American were concerned about invasions of privacy, this increased to 47% in 1977, 64% in 1978, 77% in 1983 and 79% in 1990. In 1990, a Harris poll showed that 79% of Americans regarded the right to privacy as a fundamental right equally as important as the right to life, liberty, and the pursuit of happiness specified in the Declaration of Independence. 79% of Americans would therefore agree with the contention that "If we rewrote the Declaration of Independence today, we would probably add privacy to the list of 'life, liberty, and the pursuit of happiness' as fundamental rights”

And where does all this invasion of privacy come from? Computers. Harris surveys from 1974, 1976, 1977, 1978, 1983, and 1992 indicate that 38%, 37%, 41%, 54%, 51%, and 68% of Americans, respectively, feel that "the present uses of computers are an actual threat to personal privacy in this country." Harris surveys from 1978, 1983, and 1992 show that 80%, 80%, and 89% respectively, of American strongly believe that computers allow improper access to confidential information. In those same years, 52%, 60%, and 66% of Americans strongly disagreed with the statement that information stored in computers is properly safeguarded.

in 1991, Time/CNN did a poll about public attitudes towards the sale of personal information. 93% of American believed "companies that sell information to others should be required by law to ask permission from individuals before making the information available." 90% of Americans believed "companies that collect and sell personal information should be prohibited by law from selling information about household income." 88% of Americans believe "companies should be required by law to make the information available to individuals so that possible inaccuracies may be corrected." 86% of Americans believe "companies should be prohibited by law from selling information about bill-paying history." Numbers courtesy of EPIC .

A poll by DIRECT found 83% of the survey participants said there should be a law requiring an opt-in procedure for names to be included on mailing lists. You can obtain a full copy of the report from DIRECT Survey, Cowless Business Media, 470 Park Avenue South, New York, NY 10016.

What Can I Do? You can take lots of practical measures to protect yourself. Use anonymous remailers to send personal email. Use a different screen name; America Online has this feature. Get an unlisted phone number; all the online services which allow you to find someone's phone number from their name take their information from published sources. If you want, you can also write to them and ask that your name be deleted from their lists. Use Pretty Good Privacy (PGP) to encrypt your messages. Use an alias when registering for online services; this way you not only protect your personal information but you can track to whom a service sells your name. You can opt out of mass mailings. Be careful not to give out personal information on your home page.

What Else Can I Do? Speak out. Use that keyboard and send messages to your elected officials. Some of the privacy organizations are gathering signatures in support of better protection of private information.

Send comments, questions, rants, etc. to me .