Beyond terrorism: data collection and responsibility for privacy
| Date | 01 October 2006 |
| Pages | 377-394 |
| Published date | 01 October 2006 |
| DOI | https://doi.org/10.1108/03055720610716647 |
| Author | Cynthia M. Gayton |
| Subject Matter | Information & knowledge management |
LEGAL ASPECTS OF KNOWLEDGE
MANAGEMENT
Beyond terrorism: data collection
and responsibility for privacy
Cynthia M. Gayton
School of Engineering and Applied Sciences, George Washington University,
Washington, DC, USA
Abstract
Purpose – The purpose of this paper is to examine privacy rights and the relationship between those
rights and business and government interests in data collected from individuals.
Design/methodology/approach – This paper approaches legal issues from the perspective of the
consumer or citizen.
Findings – While conducting research for this paper, it was found that the issues facing the citizenry
on privacy protection have been addressed extensively in the not too distant past. The distinguishing
characteristic is the speed with which data can be collected and disseminated and the infinitely more
vast amount of personal data being collected not only by the government and businesses with whom
consumers conduct transactions, but also by independent data brokers.
Originality/value – Privacy rights are ephemeral and difficult to measure. Businesses, therefore,
appear to have difficulty determining the value of protecting consumers’ privacy. Additionally,
governments from which citizens derive many social services accumulate substantial personal
information given in exchange for those services. Businesses and governments are increasingly
negligent in protecting the data collected on individuals, which has been revealed by a series of
reported data breaches, disclosures, thefts, and surveillance activities. This paper addresses the
inherent value in protecting the privacy interests of individuals and proposes that more robust privacy
laws, derived from established tort law, be developed and used by concerned persons.
Keywords Data collection,Law, Privacy, Human rights, Knowledgemanagement, Consumers
Paper type Conceptual paper
Recent headlines capture it all: “Concerns raised over AT&T privacy policy,” “List of
data breaches grows,” “AOL technology chief, two others leave after data-privacy
breach,” “NSA has massive database of Americans’ phone calls,” and “Bush officials
defend financial monitoring.” The list goes on. The knowledge-economy is in the throes
of its own success, feeding a knowledge acquisition frenzy[1]. While the data breaches
by the government and industry may seem unrelated at first blush because the parties’
interests appear dissimilar, the failure of either adequately to secure and protect
essentially captive participants’ personal data reflects an increasing indifference to the
welfare of customers and citizens.
In a previous article, “Legal issues for the knowledge economy in the twenty-first
century” (Gayton, 2006), I identified privacy as a necessary ingredient for a prosperous
economy. Little by little, seemingly insignificant pieces of data are being collected by
not only the government entities and companies with whom consumers conduct
business, but third party data brokers. This article is about information privacy and
will address the commodity interest in personal information which can be transferred
The current issue and full text archive of this journal is available at
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Beyond
terrorism
377
VINE: The journal of information and
knowledge management systems
Vol. 36 No. 4, 2006
pp. 377-394
qEmerald Group Publishing Limited
0305-5728
DOI 10.1108/03055720610716647
to others for purposes about which individuals are uninformed and oftentimes to which
they have not consented. I will set forth the proposition that strong privacy practices
encourage the trust necessary to build a sound economy and a responsible government.
Initially, I will discuss some general privacy concerns and will outline the specific
definition of privacy used for the balance of the article. Next, I will point out the
benefits of privacy. The government’s interest in and legal restrictions on infringement
of privacy rights, cover the next sections, especially as it relates to the government’s
interest in monitoring terrorist activity. I will examine businesses interest in and
responsibility to its customers over the following sections, as well as the government’s
responsibility for protecting privacy. Finally, I will suggest a solution for consumers
and citizens to protect privacy interests under existing tort laws and conclude with
what will hopefully be a convincing assertion that privacy protection enhances the
welfare of the economy and reinforces good citizenship.
I. What is privacy?
According to Aristotle, privacy is a basic human desire. Because much of what is
considered human behavior necessarily occurs away from the public view, a society
that encourages privacy also encourages virtue, which was, to Aristotle, the ultimate
goal of human society. Hence, “[b]y way of law, ruling, and education, the public should
provide opportunities and resources to cultivate virtue. By facilitating the formin g of
families, ... a regime encourages kinship...; by allowing a free market, it invites
citizens to cultivate judgment and self-restraint; and by furnishing a liberal arts
education, it promotes moral and intellectual virtue” (Swanson, 1992, pp. 3-4). In other
words, allowing families and other domestic arrangements the freedom to prepare its
members for interaction with the public at large, e.g. by encouraging educatio n,
participation in civic activities, practicing religion, and respecting authority, the public
will reap the fruits of such a healthy domestic environment. In Aristotle’s view, privacy
does not mean to conduct oneself in a manner which would otherwise be abhorrent to
society, but rather, to encourage behavior that would benefit the public, e.g. learn
virtuous behavior[2].
Privacy assumes a prominent role in a knowledge society:
The human right to privacy assumes a new role and new meaning in the Knowledge Society
...[I]t is important to stress the existence of links among privacy, creativity and development
of tacit knowledge. It is in private that people can reflect most usefully on their experiences
and on the experiences of others. It is in private that for various cultural reasons people feel
safe to experiment with that reflection, test ideas and come to lasting conclusions. It is in
private that people play out their most personal emotions and relationships. Privacy is
important for creativity and for building up the reservoir of tacit knowledge. Therefore, it
must be in the interest of the Knowledge Society to carefully treat and protect the human
right to privacy (Szeremeta, 2005, p. 56).
For my purposes, I am going to use the definition of privacy set forth in an essay by
Samuel Warren and Louis Brandeis “The right to privacy,” of 1890, which, I think, will
capture the essence of Szeremeta’s view, with an additional twist: The privacy righ t is
a right to control information about oneself after which “include[s] protection against
unwarranted searches, eavesdropping, surveillance, and appropriation and misuses of
one’s communications” (Stanford Encyclopedia of Philosophy, 2002).
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