Global Networks and Local Values A Comparative Look at Germany and the United States (2001) / Chapter Skim
Currently Skimming:
6 Privacy and Freedom of Information
6 Privacy and Freedom of Information
Pages 133-169
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 133... ...
that formal values can be regarded as general principles by which individuals choose to live, while substantive values relate to specific aspects of one's environment and behavior.
|
From page 134... ...
A further distinction between the tensions described in this chapter and the one addressed in the preceding chapter is that the threat to privacy does not necessarily come about because of information made available by the government; it often derives from information collected by and/or shared between private parties.2 Privacy and freedom of information are not always in tension; in some instances, society's commitment to freedom of information is the key to maintaining a person's privacy. That is, if an individual can invoke FOI rights to learn what personal information the government holds about him or her and how it has used the information, the government can be held accountable for any misuse.
|
From page 135... ...
They can more readily put it into useful formats and tease out of disparate databases comprehensive and accessible profiles on private individuals and the actions of governmental bodies. 6.2 PRIVACY 6.2.1 The Values Involved Privacy is the epitome of a substantive value.
|
From page 136... ...
the sanction of society, merely the commitment of those who share the information. Confidentiality is a more formal and social concept, a set of rules that govern the use of information held by institutions about individuals and the conditions under which that information can be shared.
|
From page 137... ...
In order to meet a number of social, economic, and health needs, a society may allow access to some parts of health records by public health authorities, health researchers, fraud and abuse investigators, accreditation firms, and even law-enforcement agencies under some circumstances. Actually, electronic databases may provide for greater privacy protection in these instances than traditional paper records because it is easier to limit access to only certain parts of the patient record.
|
From page 138... ...
93-579) and the subsequent Privacy Protection Study Commission both focused on information collected and held by the government as the potential misuser of personal information.
|
From page 139... ...
Although earlier laws imposed different rules on public and private record keepers, more recent legislation dealing with the Internet largely removes that distinction. The 1997 Teleservices Data Protection Act6 implementing the European Union directive on the protec5The Federal Data Protection Commissioner's independence is laid down in sect.
|
From page 140... ...
Available online at |
From page 141... ...
law, privacy that is, the control of one's personal data is basically understood as a property right. Individuals can transfer or sell their property rights to a firm interested in its use or even to government, provided that the transfer is voluntary and the terms and conditions are fair.
|
From page 142... ...
The second approach is to allow individuals to bring lawsuits to protect their privacy rights and to recover damages for injuries resulting from violation of those rights. This approach decentralizes enforcement of privacy rights, but it may not be efficacious because it is difficult to prove cause, and the stakes involved in any particular invasion of personal privacy may be so small that individuals are unwilling to pay the costs of litigation (though efficiency can be increased when numerous injury cases are grouped into class actions)
|
From page 143... ...
Today, different structures exist for regulating personal data collection and use in each of these areas of activity from local exchange to long distance telephone companies to cable television companies and Internet service providers. That is certainly a source of confusion and chaos.
|
From page 144... ...
In so doing, it could reinforce the fundamental concepts of privacy sometimes lost or distorted in the past as individual sectors developed rules that weighed particular political, commercial, and even technical factors more heavily than privacy per se. Information technology is not only a threat to privacy; it can also provide the technical means for increasing one's privacy.
|
From page 146... ...
Second, if privacy protection relies on software that both client and provider must install, such as P3P, then it is viable as a privacy-protection mechanism only if a large number of Web site operators adopt the same software and a critical mass of users install it in some relatively brief initial period. The issue of timing is important because the value of the system grows with numbers of users (an illustration of positive network externalities discussed further in Chapter 7)
|
From page 147... ...
In the wellpublicized conflict between the European Union and the United States concerning e-commerce transactions, the European position embodied in the European Privacy Directive which stated that personal data cannot, in most instances, be transferred out of the European Union to countries that do not provide an "adequate" level of privacy protections was efi2Article 26 of the European Privacy Directive provided several exceptions to this general prohibition. In particular, transfers of personal data to third countries that do not ensure an adequate level of protection can take place anyway if (1)
|
From page 148... ...
Within Europe, this is precisely what happened. The Council of Europe prepared its Convention for the Protection of Individuals with Regard to Automated Processing of Personal Data, and the European Union used its power to legislate the Directive on Data Protection.
|
From page 149... ...
Finally, it should be noted that the traditional international treaty process is slow and cumbersome, certainly more so than the process of reaching agreement within the European Union. Few who are familiar with the International Telecommunications Union or the World Trade Organization would view a similar approach to privacy protection as practical, particularly within the context of the rapidly evolving technical environment of the Internet.
|
From page 150... ...
For example, the Children's Online Privacy Protection Act, which was passed in 1999, makes the Commission responsible for rulemaking and requires any Web site or online service that is directed to children to obtain parental consent before collecting personal information from children under the age of 13. Self-regulatory approaches can be more decentralized and flexible than governmental regulation, and thus more responsive to particular circumstances.
|
From page 151... ...
However, some of these advocates are willing to agree to a system with "opt-in" provisions, which requires individuals to agree explicitly to the collection or use of personal information. (Industry usually argues for "opt-out" provisions that permit collection or use of personal information unless individuals explicitly object.)
|
From page 153... ...
Federal Trade Commission has committed itself to reviewing allegations of noncompliance with safe-harbor principles made by privacy selfregulatory organizations; the Commission will be looking to see whether the alleged actions amount to violations of the FTC Act prohibiting unfair or deceptive acts or practices in commerce. In this context, all of the usual tools available to the FTC can be applied, including administrative ceaseand-desist orders prohibiting the challenged practices, as well as pursuing complaints in U.S.
|
From page 156... ...
The proposal also fails to ensure that individual consumers will be able to access personal information obtained by businesses." The controversy illustrates what is bound to be a continuing debate between those who see hybrid regulation as the answer to the conflicting approaches and inconsistent regulations between one country and another, and those who see it as a threat to the existing protections that national regulation provides in at least some countries. Experience gained in these next years with the Safe Harbor agreement may well provide important evidence for future decisions on whether or not to use this approach.
|
From page 157... ...
Tools for searching, filtering, organizing, and analyzing data can produce intermediate products that, in a very practical sense, make the raw data significantly more accessible and, in so doing, make freedom of information as much a practical reality as a formal commitment or value. However, these new technical tools create two problems.
|
From page 158... ...
Thus there is an overriding public interest in easy and inexpensive access to primary legal information. An important and ongoing controversy related to the public's right to legal information is the issue of who may hold a copyright on information subject to disclosure under freedom-of-information laws.
|
From page 159... ...
But information collected and maintained by public agencies can be granted a private copyright when it is material actually written by private individuals. In the United States, some courts have held that certain state and local laws can sometimes be copyrighted, and have forced third parties to refrain from reproducing or distributing primary legal information contained in such statutes and court decisions.
|
From page 160... ...
On the other hand, if the interest in access to public records is purely commercial and unrelated to the democratic and integrative functions of freedom of information, then one might argue that protection of individual privacy should be given greater weight. In addition to facilitating the mining of databases for personal information, technological advances affect the balance of rights in two other ways.
|
From page 161... ...
The Government's Proposals for a Freedom of Information Act," presented to Parliament by the Chancellor of the Duchy of Lancaster by Command of Her Majesty, December 1997. Available online at |
From page 162... ...
That is, to what extent is the practice of one's profession the way one thinks, how one creates, what one's personal style is like a public activity for which the researcher must be accountable? Where should we draw the line between legitimate access and inappropriate revelation of one's personal information and idiosyncrasies?
|
From page 163... ...
But the digital representation of public documents means that they can be searched, stored, and combined at will. Moreover, if these files are available online, access becomes so comfortable that it can become a routine operation for citizens.
|
From page 164... ...
The Modest Effect of Globalization Although the Internet has had a strong impact on national policies concerning free speech and privacy, its effect on FOI policies is much weaker because it is the disclosure of information held by local governments that is often at issue. Global networks do not change the local character of the source.
|
From page 165... ...
Nonetheless, the strategy has already been successful in several cases. For example, in 1994, the German Federal Freedom of Access to Environmental Information Act was adopted,39 implementing a European Union directive granting access to environmental information held by public authorities.40 35Electronic FOIA Amendments Act of 1996, P.L.
|
From page 166... ...
Specifically, it may be withheld if the release of the information affects the "confidentiality of the proceedings of public authorities, international relations and national defence; public security; matters which are, or have been, sub judice, or under inquiry (including disciplinary inquiries) , or which are the subject of preliminary investigation proceedings; commercial and industrial confidentiality, including intellectual property; the confidentiality of personal data and/or files; material supplied by a third party without that party being under a legal obligation to do so; material the disclosure of which would make it more likely that the environment to which such material related would be damaged." In addition, requests for information may be refused "where it would involve the supply of unfinished documents or data or internal communications, or where the request is manifestly unreasonable or formulated in too general a manner." 4iAkteneinsichts- und Informationszugangsgesetz (AIG)
|
From page 167... ...
PRIVACY AND FREEDOM OF INFORMATION 167 parts, which benefit from a highly developed, efficient public-information system at all levels of the administration." In addition, public-sector information may itself be a vehicle for economic growth, as the public sector is the biggest single producer of information in areas such as legislation, statistics, culture, finance, geography, transport, and research. Box 6.10 provides more discussion.
|
From page 168... ...
So far, the pertinent international rules are silent with respect to copyrighting governmental information; neither the TRIPs agreements under the WTO treaty,44 the Berne treaty,45 nor the 44The TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization signed in Morocco on 15 April 1994.
|
From page 169... ...
107-56~. Reflecting congressional concern that the legislative tools available to law enforcement were inadequate in an advanced-technology environment in which terrorists can freely travel and operate relatively free of the constraints imposed by national borders, the act expanded government authority to monitor Internet traffic, to compel disclosure of information contained in public and private records if approved by the judicial branch, and to share information collected in grand jury investigations with "any Federal law enforcement, intelligence, protective, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of his official duties."47 This legislation has implications for privacy interests of individuals vis a vis government, and a number of public interest groups have strongly criticized this legislation for weakening protection for these interests.48 In addition, in the freedom of information domain, the Bush administration has promulgated a policy that "discretionary decision by [a federal]
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.