Collective Privacy

Privacy and Security, Networks, the Internet, and Cloud Computing and Internet

Article Snapshot

Author(s)

Lior Strahilevitz

Source

in The Offensive Internet: Speech, Privacy, and Reputation, Saul Levmore and Martha C. Nussbaum, eds., Boston: Harvard University Press, 2011

Summary

This article analyzes the way courts have handled group privacy issues and proposes shifting to a consent-based system.

Policy Relevance

In order to maintain a consistent and fair approach for dealing with collective privacy issues, both legislators and courts should apply an individual consent standard. Under this individual standard, private information is only disclosed with his or her approval and is redacted when approval is lacking.

Main Points

  • Collective privacy issues arise when the disclosure of a single piece of information affects the potential privacy rights of multiple individuals. In such situations, the question becomes, whose consent is required in order to disclose the confidential information?
     
  • Examples of collective privacy range from disclosures made on social media sites to governmental disclosure of Guantanamo Bay detainees. Two such issues have been addressed by United States courts, and are described below.
     
    • When the United States government faced requests for revealing the list of Guantanamo Bay detainees who were alleging they had been tortured, the detainees were split on consenting to disclosure: some wanted the government to disclose their names, some did not.
       
    • Another example occurred in South Dakota, where an individual convicted of incest was required to sign up as a sex offender. The local government wanted him to be registered with the specific tag of incest, but the victim of the crime objected, stating that such disclosure could identify her as the victim.
       
  • In regard to the Guantanamo Bay detainees, the government refused to disclose the list based on the privacy concerns of only some individuals on the list who did not want their information disclosed. When the issue went to court, the Federal Court of Appeal for the 2nd Circuit ruled in favor of the government, holding that the full list could remain confidential even when some members of the list wanted their identities revealed.
     
  • Contrary to the ruling in the 2nd Circuit, in South Dakota, the state Supreme Court held that the potential privacy rights of one individual were not enough to prevent disclosure. The Court held that the incest tag was allowable, even though it was possible it might reveal the identity of the victim.
     
  • These two rulings proffer different standards for how to deal with collective privacy issues, and come to almost opposite conclusions. In doing so, neither case cited or referenced the other, and both cases failed to respect the privacy rights of the individuals involved.
     
  • A better and more unified approach to dealing with collective privacy issues would be to increase reliance on personal consent. This would result in different solutions to both of the above issues, but would maintain the strength of privacy rights in the face of joint information.
     
    • In regard to the Guantanamo Bay detainees problem raised above, a consent-based approach would require the disclosure of a detainee list including the names of all individuals who consented to have their names publicized and require the redaction of all names where consent is lacking.
       
    • In regard to the incest tag, a consent-based approach would favor the victim, requiring a more general sex offender tag unless the victim consented to the disclosure of information via the more specific label.
       

 

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