• Law, Policy -- and IT?

    Tracy Mitrano explores the intersection where higher education, the Internet and the world meet (and sometimes collide).


Abortion and Information Management

It is a title designed to catch attention, but the content has the purpose of drawing an important similarity to what most take as a distinction.

November 26, 2012

It is a title designed to catch attention, but the content has the purpose of drawing an important similarity to what most take as a distinction.  

Often when I discuss information management, or what I have categorized as type three privacy, Public Privacy Laws, with university officials, the initial thought, especially for a private institution, is that constitutional privacy does not apply.  In that instance, the kind of privacy to which they refer is the second type, Fourth Amendment.  True enough: the Fourth Amendment applies only to state institutions, including colleges and universities, and not private institutions.  Both can and should be modulated by institutional policy.  There are a couple of reasons why I recommend institutional policy about physical search and network monitoring.  The first is that the professions in the United States have sequestered education about law and medicine, and to a lesser degree business, until one has jumped through a thousand hoops to get into law or medical school.  This process is designed to boost the profile and prestige of law and medical schools at the turn of the last century, but it has had the effect of rendering a nation built on laws and medicine without adequate understanding of those areas to common people throughout their general education, either K-12 or collegiate.  In short, even though we expect people to live by laws, and say that there is no excuse of ignorance under the law, we do not adequately teach the law.  Therefore, it is important that the institution distill law and tradition down to something intelligible for its community.  With respect to network monitoring, it is critical to inform all members of the community, and especially faculty, of what is and is not done via the network.  While I respect institutional diversity, I also maintain that for research universities the default should be a policy and practice of not monitoring for content without cause.  It is important to instantiate that rule in express policy to support the values of free speech and inquiry that underscores missions.  

When I discuss privacy with staff, some people go to abortion, or what I have categorized as type one privacy law, Family Planning and Sexuality, because in common parlance that is where they have heard the term before.  Historically I have bent over backwards to distinguish this privacy type from the third privacy type, Public Law.  Public laws that protect certain types of records, I explain, has nothing to do with whether anyone has a right to abortion.  Similarly, when asked to speak to students or staff about social networking, and the term "privacy" comes up inevitably, then I find myself evoking the fourth type, that is the potential for civil law actions between individuals, such as "invasion of privacy," or defamation and libel.  Throw in a little "Internet law," such as the immunity provided to Internet Services Providers (construed liberally to include sites not just networks) under section 230 of the Communications Decency Act for these same actions, and before you know it the meaning of "privacy" torts is lost in the debate.  Finally, as the Federal Trade Commission begins to swim more forcefully in these waters, for example with concerns for how Facebook manipulates privacy settings on its sites or how Google has muddied its privacy policies by having so many different ones for different applications that seamlessly interchange, is what I have labeled the fifth area of privacy, Administrative Law.  You can imagine the confusion!

So today with the provocative title I would like to conclude this blog with a simple thought, turning conventional wisdom of differentiating various types of privacy laws on its head: notwithstanding the differences that as a matter of law must be observed, the fundamental common ground among and between all of these legal types may ultimately be what matters.  Respect for the essential dignity of the individual is the common thread that runs through all five types.  Personal autonomy, and the privacy in all of these areas, are what citizens require to have and exercise freedom and to meet public duties and discharge their civic obligations.  Privacy to make personal decisions about family planning and sexuality, rules about government intrusion into the home and on the Internet, protection of records that affect one's ability to get a job, loan or health care, laws that allow a person to defend themselves against scurrilous and false claims, or to protect the consumer from voracious corporate interests all serve individual autonomy.  In a global information economy, more and more of these issues revolve around the information about the person transmitted via the Internet.  That fact goes to how closely aligned these different types of legal privacy are.  Not always, but in important areas, the personal is political.  That which is political is also as much legal as it is cultural.  One type of privacy law informs the other, so that while we might be "sectoral" in our approach to information privacy, for example, it matters that we recognize the interconnectedness of privacy law writ large.  That is what abortion has to do with information management, or any one of the categories has to do with all of the others.  

While in our everyday jobs we must observe and educate about the distinctions, I am going to take a new tact at explaining the big picture first.  How we handle information about ourselves and the members of our community: faculty, staff, students and guests, will provide real meaning for the practices and a rational for the rules.  Other distinctions, for example between "privacy" and "security," can be better appreciated from a holistic perspective.  And because our missions are wrapped up in this mix, it gives significance to the work that we do, no matter what your role, or where you stand on the totem pole.  In these times of tremendous flux in higher education, it may also be time to remember the ties that bind and endure with purpose and meaning within a national and global community.  "Privacy," in all of its types, is hardly the least of those ties.  


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