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Privacy LawPrivacy Law
Ray Everett-Church,ePrivacy Group, Inc.Introduction 96
Privacy Law Basics 96
Privacy Defined 96
Constitutional Privacy 96
Common-Law Privacy 97
Privacy Laws in the United States and Abroad 97
International Privacy Law 98
Cross-Border Data Flow 99
Balancing Privacy and Law Enforcement 99
ECPA 100
FISA 100
Business Issues Under Wiretap Laws 100
Privacy Issues for Businesses 100
Employee Privacy Policies 101
Developing an Employee Privacy Policy 101Consumer Internet Privacy 101
Browser Privacy Issues 101
IP Addresses and Browser Data 102
Cookies 102
Web Bugs 103
Ad Networks 103
Privacy Policy Fundamentals 104
Chief Privacy Officers 104
Trustmarks 105
Federal Trade Commission 105
Conclusion 105
Glossary 106
Cross References 106
References 106INTRODUCTION
Understanding privacy is a true challenge, in no small part
because of the difficulty in defining the concept of privacy
itself. The textbook definition of privacy only begins to
scratch the surface of a deeply complex issue, made all
the more complex because of the strong personal feelings
evoked by privacy breaches. Accounting for privacy con-
cerns can be a daunting task, especially when one is build-
ing Internet-based services and technologies for which
success can depend on not offending consumers’ mercu-
rial sensibilities about the value of their privacy versus
the value of those services that depend on free-flowing
personal data.
This chapter discusses the roots of privacy law, includ-
ing the various ways that privacy matters are dealt with
under constitutional law, statutes, and common law. With
the fundamentals established, the rest of this chapter dis-
cusses how many of those principles have come to be ap-
plied in today’s Internet-oriented privacy terrain and how
businesses must prepare for doing business in this new
environment.PRIVACY LAW BASICS
Privacy Defined
TheMerriam-Webster Dictionary of Lawdefines privacy as
“freedom from unauthorized intrusion: state of being let
alone and able to keep certain especially personal matters
to oneself.” Within this broad “state of being let alone,”
particular types of privacy intrusion have been recognized
under law. How one defends oneself against intrusions
differs, however, based on who is doing the intruding.Constitutional Privacy
Even though one will find no trace of the word “privacy”
in the U.S. Constitution, a series of Supreme Court deci-sions beginning in the 1920s began to identify the modern
concept of privacy. As the court refined its views on the
subject, it found the idea of privacy within the spirit of
the Constitution’s protections, if not in the plain language
of the document. In 1928, in a landmark wiretapping case
(Olmstead v. United States,1928), Supreme Court Justice
Louis Brandeis articulated the following ideas in some of
the most important words ever written about privacy:The makers of our Constitution undertook to
secure conditions favorable to the pursuit of
happiness. They recognized the significance of
man’s spiritual nature, of his feelings and of his
intellect. They knew that only a part of the
pain, pleasure and satisfactions of life are to be
found in material things. They sought to protect
Americans in their beliefs, their thoughts, their
emotions, and their sensations. They conferred,
as against the Government, the right to be let
alone — the most comprehensive of rights and
the right most valued by civilized men. (Brandeis
dissenting,Olmsteadat 478)Brandeis’s phrase “the right to be let alone” is one of
the most often-repeated ideas in privacy and has influ-
enced the court’s inquiry beyond the plain words of the
Bill of Rights to find other privacy rights that are logi-
cal extensions of the meaning contained in the original
words, including the following:The First Amendment right of free speech has been read
to include the right to speak anonymously. Free speech
has also been interpreted in reverse: You have the right
to not be forced to say certain things.
The First Amendment right of free association means
that you can join clubs and affiliate yourself with any-
one you choose. Inherent in that right, according to the96