Author–Ronald J. Hedges
I addressed the tension between law enforcement and individual rights in my last blog, Hi Tech Obligations: The Tug-of-War Between the Constitution and Law Enforcement. Now I want to begin a discussion of a similar tension between privacy rights of individuals and, to be blunt, what appears to be an all-pervasive societal interest in monitoring as much as possible on the Internet.
Let’s begin with privacy. I put quotation marks around that word in the title because there is no single definition of the term in the United States. The Bill of Rights has given rights to privacy interests against the federal and state governments and State constitutional have created similar rights. Beyond those, we have “sectoral” privacy rights in the United States that govern the use of certain information and are enforceable against certain persons or organizations. One example of a sectoral right is that created by the Health Insurance Portability and Accountability Act (HIPPA) with regard to protected health information (PHI). Moreover, various torts have been recognized which are intended to provide redress for invasions of privacy.
Against this amorphous and shifting individual right of privacy there exists what might be defined to be a privacy right of sorts for corporations. Corporations do not have the privacy rights of individuals, nevertheless, corporations have interests in information that constitute trade secrets that need to be confidential. Disclosure of this information can deprive a corporation of valuable assets or allow unfair competition.
How might these individual and corporate interests fare when “private” information comes to reside on the Internet perhaps as a result of an inadvertent communication or social media posting, or an intentional disclosure? There may or may not be a remedy of sorts against whoever released the information assuming that the perpetrator can be identified, found and held liable for the release. However, the information is none the less “out there.” It may have been propagated to various sites and locations and republished in whole or in part.
All this means that it would be useful to have a secure method of communication that would:
- Not be susceptible to hacking or the like.
- That would limit the number of individuals who could receive a communication.
- That could be safely and secured “destroyed.”
Whether that secure method exists and, if so, what it might be is a discussion for another time and place.
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