EthicsBite™

With the nation’s first potential $100 billion IPO just around the corner and with that IPO based upon the premier and best social networking site, one has to recognize that this event is symbolic of a very new age in human interaction. At the same time, it should also remind us of a key challenge of the digital age: maintaining respect for the privacy of the individual.

Lest you think that I am about to attack Facebook, I have previously commended Mark Zuckerberg for defending that privacy. I am referring to the unbelievable requests made by potential employers for job candidates to provide their Facebook user ID and password to the interviewer. Zuckerberg rapidly responded to that news and stood up for his users’ privacy. Bravo!

Unfortunately our digital privacy dilemma does not hinge on Facebook’s founder alone. Information technology combined with mathematics and statistics has opened the door for corporations, governments and other individuals to find more information about you than you can imagine. Tracking your searches, learning your buying preferences, determining your likelihood of having particular medical problems, even observing you eating a hamburger in your backyard patio are all things we can now do.

The time for a national discussion of our right to privacy and what that really means is long overdue. I will try to contribute to that discussion in a series of posts on digital privacy. Particular points I will discuss include the following:

• That the right to privacy has already been established as a constitutional right;
• That technology assisted statistics has already made protecting and hiding your personal identity and personal identification information impossible;
• That the data that is collected on you in database warehouses around the globe is and ought to be yours and yours alone to surrender, no matter how it was collected;
• That the economic size and scale of companies such as Google renders “opting out” impractical and our laws ought to recognize that reality;
• That therefore the burden of maintaining privacy and security of identification should be on the organizations and corporations that provide services, not the individual; and
• That these principles must be established not just on the federal level but on the international level.

One of my first posts (My Big Data Footprint) opened the discussion of privacy in the digital world. Following the Seven Layers of Integrity^® framework, we should start with the law. Let’s first briefly review the historical basis for the constitutional right to privacy.

The concept of a right to privacy is commonplace in our thinking, but unlike many of our other rights (freedom of speech, right to peaceably assemble, right to bear arms), privacy is not actually enumerated in our constitution. However, the Ninth Amendment, part of the Bill of Rights, provides recognition of other individual rights without specific identification in the constitution itself: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  Privacy as a matter of physical space (versus digital) can also be read into the 4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….”

The right to privacy as a legal issue remained largely dormant until the Civil War, when the 14th Amendment provided an opening to the legal evolution of this right with these words “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Fourteenth Amendment, Section 1)

The first Supreme Court case involving the right to privacy was Griswold v. Connecticut, which centered on a Connecticut law forbidding the sale of contraceptives. In this 1965 case, Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, and another individual had been fined for violating the state law against sale of contraceptives. After taking the case to the state’s supreme court without success, Griswold filed at the Supreme Court, arguing that the Connecticut law was unconstitutional under the 14th Amendment. As part of the court’s favorable ruling, it established that the Connecticut law had violated a “right to privacy.”

The second major case that cited a right to privacy was the very case that established a woman’s right to an abortion: Roe v Wade (1973). In that landmark decision, the court ruled that that the right to privacy was protected under the “due process” clause in the 14th Amendment, and that this right to privacy included a woman’s right to an abortion.

The Constitution’s Bill of Rights, the Fourteenth Amendment and two pivotal Supreme Court cases in relatively recent decades have established a right to privacy. As with freedom of speech and freedom of the press, our starting point should always be to place a burden of compliance with that right not on the individual but on those who would restrict the individual’s rights. To do otherwise in the case of privacy would be unacceptable.