Information Privacy Laws
Encyclopedia
Information privacy
laws cover the protection of information
on private individuals from intentional or unintentional disclosure or misuse. The European Directive on Protection of Personal Data
, released on July 25, 1995 was an attempt to unify the laws on data protection within the European Community. As a result, customers of international organizations such as Amazon and eBay in the EU have the ability to review and delete information, while Americans do not. In the United States the equivalent guiding philosophy is the Code of Fair Information Practice
(FIP). This was developed by the Office of Technology Assessment in response to concerns about the potential for electronic surveillance.
The difference in language here is important: in the United States the debate is about privacy where in the European Community the debate is on data protection. Moving the debate from privacy to data protection is seen by some philosophers as a mechanism for moving forward in the practical realm while not requiring agreement on fundamental questions about the nature of privacy.
The basic principles of data protection in the EU are:
Despite the data protection requirements European national ID schemes include data coding standards with religion as a defined (but unused in the EU except in Greece) field.
Because of this, in theory the transfer of personal information from the EU to the US is prohibited when equivalent privacy protection is not in place in the US. In practice, data is transmitted from the EU to the US, India and other data havens. What is required is that the non-EU organization have a data protection or privacy policy. American companies that would work with EU data must comply with the Safe Harbour framework. The core principles of data protected are limited collection, consent of the subject, accuracy, integrity, security, subject right of review and deletion.
, the Personal Information Protection and Electronic Documents Act
(PIPEDA) went into effect on 1 January 2001, applicable to federally regulated organizations. All other organizations were included on 1 January 2004. The PIPEDA brings Canada into compliance with the requirements of the European Commission's directive
on data privacy.
PIPEDA specifies the rules to govern collection, use or disclosure of the personal information in the course of recognizing the right of privacy of individuals with respect to their personal information. It also specifies the rules for the organizations to collect, use, and disclose personal information.
The PIPEDA apply to:
The PIPEDA Does NOT apply to
As specified in PIPEDA:
"Personal Information" means information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.
"Organization
"means an association, a partnership, a person and a trade union.
"federal work, undertaking or business" means any work, undertaking or business that is within the legislative authority of Parliament. Including
The PIPEDA gives individuals the right to:
The PIPEDA requires organizations to:
(ECHR) provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions. The European Court of Human Rights
has given this article a very broad interpretation in its jurisprudence
. According to the Court's case law the collection of information by officials of the state about an individual without his consent always falls within the scope of Article 8. Thus, gathering information for the official census
, recording fingerprint
s and photograph
s in a police register, collecting medical data or details of personal expenditures and implementing a system of personal identification has been judged to raise data privacy issues.
Any state interference with a person's privacy is only acceptable for the Court if three conditions are fulfilled:
The government is not the only entity which may pose a threat to data privacy. Other citizens, and private companies most importantly, engage in far more threatening activities, especially since the automated processing of data became widespread. The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data
was concluded within the Council of Europe
in 1981. This convention obliges the signatories to enact legislation concerning the automatic processing of personal data, which many duly did.
As all the member states of the European Union
are also signatories of the European Convention on Human Rights
and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data
, the European Commission
was concerned that diverging data protection legislation would emerge and impede the free flow of data within the EU zone. Therefore the European Commission decided to harmonize data protection regulation and proposed the Directive on the protection of personal data
, which member states had to transpose into law by the end of 1998.
The directive
contains a number of key principles with which member states must comply. Anyone processing personal data must comply with the eight enforceable principles of good practice. They state that the data must be:
Personal data covers both facts and opinions about the individual. It also includes information regarding the intentions of the data controller towards the individual, although in some limited circumstances exemptions will apply. With processing, the definition is far wider than before. For example, it incorporates the concepts of "obtaining", "holding" and "disclosing".
All EU member states adopted legislation pursuant this directive or adapted their existing laws. Each country also has its own supervisory authority to monitor the level of protection.
adapted its existing law, no. 78-17 of 6 January 1978 concerning information technology, files and civil liberties".
the Data Protection Act 1984
was repealed by the Data Protection Act 1998 (Information Commissioner
). Due to changes in the law, employers must inform staff in advance if they plan to monitor their emails, phone calls and Internet use. The Home Office
has published a consultation paper
detailing whom it believes should have access to private data and for how long. This proposal goes beyond the current access to such information by MI5
, MI6
, GCHQ
, and HM Revenue and Customs. The new proposals would extend the number of agencies that can access this communications data to include other agencies with crime-fighting roles. Simon Davies, director of Privacy International
, called the plans “a systematic attack on the right to privacy.”
is not a member of the European Union
(EU) or of the European Economic Area
, it has partially implemented the EU Directive on the protection of personal data
in 2006 by acceding to the STE 108 agreement of the Council of Europe
and a corresponding amendment of the federal Data Protection Act. However, Swiss law imposes less restrictions upon data processing than the Directive in several respects.
In Switzerland, the right to privacy is guaranteed in article 13 of the Swiss Federal Constitution
. The Swiss Federal Data Protection Act (DPA) and the Swiss Federal Data Protection Ordinance (DPO) entered into force on July 1, 1993. The latest amendments of the DPA and the DPO entered into force on January 1, 2008.
The DPA applies to the processing of personal data by private persons and federal government agencies. Unlike the data protection legislation of many other countries, the DPA protects both personal data pertaining to natural persons and legal entities.
The Swiss Federal Data Protection and Information Commissioner in particular supervises compliance of the federal government agencies with the DPA, provides advice to private persons on data protection, conducts investigations and makes recommendations concerning data protection practices.
Some data files must be registered with the Swiss Federal Data Protection and Information Commissioner before they are created. In the case of a transfer of personal data outside of Switzerland, special requirements need to be met and, depending on the circumstances, the Swiss Federal Data Protection and Information Commissioner must be informed before the transfer is made.
Most Swiss cantons have enacted their own data protection laws regulating the processing of personal data by cantonal and municipal bodies.
. In the United States, access to private data contained in for example third-party credit reports may be sought when seeking employment or medical care, or making automobile, housing, or other purchases on credit terms. Although partial regulations exist, there is no all-encompassing law regulating the acquisition, storage, or use of personal data in the U.S. In general terms, in the U.S., whoever can be troubled to key in the data, is deemed to own the right to store and use it, even if the data were collected without permission. For instance the Health Insurance Portability and Accountability Act of 1996
(HIPAA), the Children's Online Privacy Protection Act of 1998
(COPPA), and the Fair and Accurate Credit Transactions Act of 2003
(FACTA), are all examples of U.S. federal laws with provisions which tend to favor information flow efficiencies and operational profits over the rights of individuals to control their own personal data.
The Supreme Court interpreted the Constitution to grant a right of privacy to individuals in Griswold v. Connecticut
. Very few states, however, recognize an individual's right to privacy, a notable exception being California
. An inalienable right to privacy is enshrined in the California Constitution
's article 1, section 1, and the California legislature has enacted several pieces of legislation aimed at protecting this right. The California Online Privacy Protection Act
(OPPA) of 2003 requires operators of commercial web sites or online services that collect personal information on California residents through a web site to conspicuously post a privacy policy
on the site and to comply with its policy.
The safe harbor arrangement
was developed by the United States Department of Commerce
in order to provide a means for U.S. companies to demonstrate compliance with European Commission directives and thus to simplify relations between them and European businesses.
(HIPAA) was enacted by the U.S. Congress in 1996. HIPAA is also known as the Kennedy-Kassebaum Health Insurance Portability and Accountability Act (HIPAA-Public Law 104-191), effective August 21, 1996. The basic idea of HIPAA is that an individual who is a subject of individually identifiable health information should have:
One difficulty with HIPAA is that there must be a mechanism to authenticate the patient who demands access to his/her data. As a result, medical facilities have begun to ask for Social Security Numbers from patients, thus arguably decreasing privacy by simplifying the act of correlating health records with other records. The issue of consent is problematic under HIPAA, because the medical providers simply make care contingent upon agreeing to the privacy standards in practice.
applies the principles of the Code of Fair Information Practice to credit reporting agencies. The FCRA allows individuals to opt out of unwanted credit offers:
Because of the Fair and Accurate Credit Transactions Act
, each person can obtain a free annual credit report
.
The Fair Credit Reporting Act has been effective in preventing the proliferation of specious so-called private credit guides. Previously, private credit guides offered detailed, if unreliable, information on easily identifiable individuals. Before the Fair Credit Reporting Act salacious unsubstantiated material could be included, in fact gossip was widely included in credit reports. EPIC has a FCRA page. The Consumer Data Industry Association, which represents the consumer reporting industry, also has a Web site with FCRA information.http://www.cdiaonline.org
The Fair Credit Reporting Act provides consumers the ability to view, correct, contest, and limit the uses of credit reports. The FCRA also protects the credit agency from the charge of negligent release in the case of misrepresentation by the requester. Credit agencies must ask the requester the purpose of a requested information release, but need make no effort to verify the truth of the requester's assertions. In fact, the courts have ruled that, "The Act clearly does not provide a remedy for an illicit or abusive use of information about consumers" (Henry v Forbes, 1976). It is widely believed that in order to avoid the FCRA, ChoicePoint was created by Equifax at which time the parent company copied all its records to its newly created subsidiary. ChoicePoint is not a credit reporting agency, and thus FCRA does not apply.
The Fair Debt Collection Practices Act
similarly limits dissemination of information about a consumer's financial transactions. It prevents creditors or their agents from disclosing the fact that an individual is in debt to a third party, although it allows creditors and their agents to attempt to obtain information about a debtor's location. It limits the actions of those seeking payment of a debt. For example, debt collection agencies are prohibited from harassment or contacting individuals at work. The Bankruptcy Abuse Prevention and Consumer Protection Act
of 2005 (which actually gutted consumer protections, for example in case of bankruptcy resulting from medical cost) limited some of these controls on debtors.
(ECPA) establishes criminal sanctions for interception of electronic communication. However, the loopholes are so large as to render the Act effectively meaningless. For example, consent can be implied to any reading of electronic communications by accepting employment with an organization that practices surveillance against its employees.
In the US additional statutes cover various types of private information. For example, the Family Education Rights and Privacy Act (FERPA), enacted in 1974, requires parent or adult student consent to access student records for most purposes.
Several US federal agencies have privacy statutes that cover their collection and use of private information. These include the Census Bureau, the Internal Revenue Service, and the National Center for Education Statistics (under the Education Sciences Reform Act). In addition, the CIPSEA statute protects confidentiality of data collected by federal statistical agencies.
that went into effect in October 1998, includes, for example, the requirement to create government data protection agencies, registration of databases with those agencies, and in some instances prior approval before personal data processing may begin. In order to bridge these different privacy approaches and provide a streamlined means for U.S. organizations to comply with the Directive, the U.S. Department of Commerce in consultation with the European Commission developed a "safe harbor" framework. The safe harbor - approved by the EU in July 2000 - is a way for U.S. companies to comply with European privacy law
s.
Privacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
laws cover the protection of information
Information
Information in its most restricted technical sense is a message or collection of messages that consists of an ordered sequence of symbols, or it is the meaning that can be interpreted from such a message or collection of messages. Information can be recorded or transmitted. It can be recorded as...
on private individuals from intentional or unintentional disclosure or misuse. The European Directive on Protection of Personal Data
Directive 95/46/EC on the protection of personal data
The Data Protection Directive is a European Union directive which regulates the processing of personal data within the European Union...
, released on July 25, 1995 was an attempt to unify the laws on data protection within the European Community. As a result, customers of international organizations such as Amazon and eBay in the EU have the ability to review and delete information, while Americans do not. In the United States the equivalent guiding philosophy is the Code of Fair Information Practice
FTC Fair Information Practice
The United States Federal Trade Commission's Fair Information Practice Principles are guidelines that represent widely-accepted concepts concerning fair information practice in an electronic marketplace.- Introduction :...
(FIP). This was developed by the Office of Technology Assessment in response to concerns about the potential for electronic surveillance.
The difference in language here is important: in the United States the debate is about privacy where in the European Community the debate is on data protection. Moving the debate from privacy to data protection is seen by some philosophers as a mechanism for moving forward in the practical realm while not requiring agreement on fundamental questions about the nature of privacy.
The basic principles of data protection in the EU are:
- For all data collected there should be a stated purpose
- Information collected by an individual cannot be disclosed to other organizations of individuals unless authorized by law or by consentConsentConsent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
of the individual - Records kept on an individual should be accurate and up to date
- There should be mechanisms for individuals to review data about them, to ensure accuracy. This may include periodic reporting
- Data should be deleted when it is no longer needed for the stated purpose
- Transmission of personal information to locations where "equivalent" personal data protection cannot be assured is prohibited
- Some data is too sensitive to be collected, unless there are extreme circumstances (e.g., sexual orientation, religion)
Despite the data protection requirements European national ID schemes include data coding standards with religion as a defined (but unused in the EU except in Greece) field.
Because of this, in theory the transfer of personal information from the EU to the US is prohibited when equivalent privacy protection is not in place in the US. In practice, data is transmitted from the EU to the US, India and other data havens. What is required is that the non-EU organization have a data protection or privacy policy. American companies that would work with EU data must comply with the Safe Harbour framework. The core principles of data protected are limited collection, consent of the subject, accuracy, integrity, security, subject right of review and deletion.
Canada
In CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, the Personal Information Protection and Electronic Documents Act
Personal Information Protection and Electronic Documents Act
The Personal Information Protection and Electronic Documents Act is a Canadian law relating to data privacy. It governs how private sector organizations collect, use and disclose personal information in the course of commercial business. In addition, the Act contains various provisions to...
(PIPEDA) went into effect on 1 January 2001, applicable to federally regulated organizations. All other organizations were included on 1 January 2004. The PIPEDA brings Canada into compliance with the requirements of the European Commission's directive
European Union directive
A directive is a legislative act of the European Union, which requires member states to achieve a particular result without dictating the means of achieving that result. It can be distinguished from regulations which are self-executing and do not require any implementing measures. Directives...
on data privacy.
PIPEDA specifies the rules to govern collection, use or disclosure of the personal information in the course of recognizing the right of privacy of individuals with respect to their personal information. It also specifies the rules for the organizations to collect, use, and disclose personal information.
The PIPEDA apply to:
- The organizations collects, uses or disclosure in the matter of commercial use.
- The organizations and the employee of the organization collect, use, or discloses in the course of operation of a federal work, undertaking or business.
The PIPEDA Does NOT apply to
- Government institutions to which the Privacy Act applies.
- Individuals who collect, use, or disclose personal information for personal purpose and use.
- Organizations which collect, use, or disclose personal information only for the purpose of journalist, art or literary.
As specified in PIPEDA:
"Personal Information" means information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.
"Organization
Organization
An organization is a social group which distributes tasks for a collective goal. The word itself is derived from the Greek word organon, itself derived from the better-known word ergon - as we know `organ` - and it means a compartment for a particular job.There are a variety of legal types of...
"means an association, a partnership, a person and a trade union.
"federal work, undertaking or business" means any work, undertaking or business that is within the legislative authority of Parliament. Including
- a work, undertaking or business that is operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada;
- a railway, canal, telegraph or other work or undertaking that connects a province with another province, or that extends beyond the limits of a province;
- a line of ships that connects a province with another province, or that extends beyond the limits of a province;
- a ferry between a province and another province or between a province and a country other than Canada;
- aerodromes, aircraft or a line of air transportation;
- a radio broadcasting station;
- a bank;
- a work that, although wholly situated within a province, is before or after its execution declared by Parliament to be for the general advantage of Canada or for the advantage of two or more provinces;
- a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces; and
- a work, undertaking or business to which federal laws, within the meaning of section 2 of the Oceans Act, apply under section 20 of that Act and any regulations made under paragraph 26(1)(k) of that Act.
The PIPEDA gives individuals the right to:
- understand the reasons why organizations collect, use, or disclose personal information.
- expect organizations to collect, use or disclose personal information in a reasonable and appropriate way.
- understand who in the organizations pays the responsibility for protecting individuals' personal information.
- expect organizations to protect the personal information in a reasonable and security way.
- expect the personal information held by the organizations to be accurate, complete, and up-to-date.
- have the access to their personal information and ask for any corrections or have the right to make complain towards the organizations.
The PIPEDA requires organizations to:
- obtain consent before they collect, use, and disclose any personal information.
- collect personal information in a reasonable, appropriate, and lawful ways.
- establish personal information policies that are clear, reasonable,and ready to protect individuals' person information.
Europe
The right to data privacy is heavily regulated and actively enforced in Europe. Article 8 of the European Convention on Human RightsEuropean Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
(ECHR) provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions. The European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
has given this article a very broad interpretation in its jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
. According to the Court's case law the collection of information by officials of the state about an individual without his consent always falls within the scope of Article 8. Thus, gathering information for the official census
Census
A census is the procedure of systematically acquiring and recording information about the members of a given population. It is a regularly occurring and official count of a particular population. The term is used mostly in connection with national population and housing censuses; other common...
, recording fingerprint
Fingerprint
A fingerprint in its narrow sense is an impression left by the friction ridges of a human finger. In a wider use of the term, fingerprints are the traces of an impression from the friction ridges of any part of a human hand. A print from the foot can also leave an impression of friction ridges...
s and photograph
Photograph
A photograph is an image created by light falling on a light-sensitive surface, usually photographic film or an electronic imager such as a CCD or a CMOS chip. Most photographs are created using a camera, which uses a lens to focus the scene's visible wavelengths of light into a reproduction of...
s in a police register, collecting medical data or details of personal expenditures and implementing a system of personal identification has been judged to raise data privacy issues.
Any state interference with a person's privacy is only acceptable for the Court if three conditions are fulfilled:
- The interference is in accordance with the law
- The interference pursues a legitimate goal
- The interference is necessary in a democratic society
The government is not the only entity which may pose a threat to data privacy. Other citizens, and private companies most importantly, engage in far more threatening activities, especially since the automated processing of data became widespread. The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data
Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data
The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of the Council of Europe of 1981 extended the safeguards for everyone's rights and fundamental freedoms, and in particular the right to the respect for privacy, taking account of the increasing...
was concluded within the Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
in 1981. This convention obliges the signatories to enact legislation concerning the automatic processing of personal data, which many duly did.
As all the member states of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
are also signatories of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data
Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data
The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of the Council of Europe of 1981 extended the safeguards for everyone's rights and fundamental freedoms, and in particular the right to the respect for privacy, taking account of the increasing...
, the European Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
was concerned that diverging data protection legislation would emerge and impede the free flow of data within the EU zone. Therefore the European Commission decided to harmonize data protection regulation and proposed the Directive on the protection of personal data
Directive 95/46/EC on the protection of personal data
The Data Protection Directive is a European Union directive which regulates the processing of personal data within the European Union...
, which member states had to transpose into law by the end of 1998.
The directive
European Union directive
A directive is a legislative act of the European Union, which requires member states to achieve a particular result without dictating the means of achieving that result. It can be distinguished from regulations which are self-executing and do not require any implementing measures. Directives...
contains a number of key principles with which member states must comply. Anyone processing personal data must comply with the eight enforceable principles of good practice. They state that the data must be:
- Fairly and lawfully processed.
- Processed for limited purposes.
- Adequate, relevant and not excessive.
- Accurate.
- Kept no longer than necessary.
- Processed in accordance with the data subject's rights.
- Secure.
- Transferred only to countries with adequate protection.
Personal data covers both facts and opinions about the individual. It also includes information regarding the intentions of the data controller towards the individual, although in some limited circumstances exemptions will apply. With processing, the definition is far wider than before. For example, it incorporates the concepts of "obtaining", "holding" and "disclosing".
All EU member states adopted legislation pursuant this directive or adapted their existing laws. Each country also has its own supervisory authority to monitor the level of protection.
France
FranceFrance
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
adapted its existing law, no. 78-17 of 6 January 1978 concerning information technology, files and civil liberties".
United Kingdom
In the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
the Data Protection Act 1984
Data Protection Act 1984
The Data Protection Act 1998 is a United Kingdom Act of Parliament which defines UK law on the processing of data on identifiable living people. It is the main piece of legislation that governs the protection of personal data in the UK...
was repealed by the Data Protection Act 1998 (Information Commissioner
Information Commissioner
The role of Information Commissioner differs from nation to nation. Most commonly it is a title given to a government regulator in the fields of freedom of information and the protection of personal data in the widest sense.-Canada:...
). Due to changes in the law, employers must inform staff in advance if they plan to monitor their emails, phone calls and Internet use. The Home Office
Home Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
has published a consultation paper
Green paper
In the Commonwealth, the Republic of Ireland and the United States a green paper is a tentative government report of a proposal without any commitment to action; the first step in changing the law...
detailing whom it believes should have access to private data and for how long. This proposal goes beyond the current access to such information by MI5
MI5
The Security Service, commonly known as MI5 , is the United Kingdom's internal counter-intelligence and security agency and is part of its core intelligence machinery alongside the Secret Intelligence Service focused on foreign threats, Government Communications Headquarters and the Defence...
, MI6
Secret Intelligence Service
The Secret Intelligence Service is responsible for supplying the British Government with foreign intelligence. Alongside the internal Security Service , the Government Communications Headquarters and the Defence Intelligence , it operates under the formal direction of the Joint Intelligence...
, GCHQ
Government Communications Headquarters
The Government Communications Headquarters is a British intelligence agency responsible for providing signals intelligence and information assurance to the UK government and armed forces...
, and HM Revenue and Customs. The new proposals would extend the number of agencies that can access this communications data to include other agencies with crime-fighting roles. Simon Davies, director of Privacy International
Privacy International
Privacy International is a UK-based non-profit organisation formed in 1990, "as a watchdog on surveillance and privacy invasions by governments and corporations." PI has organised campaigns and initiatives in more than fifty countries and is based in London, UK.-Formation, background and...
, called the plans “a systematic attack on the right to privacy.”
Switzerland
While SwitzerlandSwitzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
is not a member of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
(EU) or of the European Economic Area
European Economic Area
The European Economic Area was established on 1 January 1994 following an agreement between the member states of the European Free Trade Association and the European Community, later the European Union . Specifically, it allows Iceland, Liechtenstein and Norway to participate in the EU's Internal...
, it has partially implemented the EU Directive on the protection of personal data
Directive 95/46/EC on the protection of personal data
The Data Protection Directive is a European Union directive which regulates the processing of personal data within the European Union...
in 2006 by acceding to the STE 108 agreement of the Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
and a corresponding amendment of the federal Data Protection Act. However, Swiss law imposes less restrictions upon data processing than the Directive in several respects.
In Switzerland, the right to privacy is guaranteed in article 13 of the Swiss Federal Constitution
Swiss Federal Constitution
The Federal Constitution of 18 April 1999 is the third and current federal constitution of Switzerland. It establishes the Swiss Confederation as a federal republic of 26 cantons , contains a catalogue of individual and popular rights , delineates the responsibilities of the...
. The Swiss Federal Data Protection Act (DPA) and the Swiss Federal Data Protection Ordinance (DPO) entered into force on July 1, 1993. The latest amendments of the DPA and the DPO entered into force on January 1, 2008.
The DPA applies to the processing of personal data by private persons and federal government agencies. Unlike the data protection legislation of many other countries, the DPA protects both personal data pertaining to natural persons and legal entities.
The Swiss Federal Data Protection and Information Commissioner in particular supervises compliance of the federal government agencies with the DPA, provides advice to private persons on data protection, conducts investigations and makes recommendations concerning data protection practices.
Some data files must be registered with the Swiss Federal Data Protection and Information Commissioner before they are created. In the case of a transfer of personal data outside of Switzerland, special requirements need to be met and, depending on the circumstances, the Swiss Federal Data Protection and Information Commissioner must be informed before the transfer is made.
Most Swiss cantons have enacted their own data protection laws regulating the processing of personal data by cantonal and municipal bodies.
United States
Data privacy is not highly legislated or regulated in the U.S.United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. In the United States, access to private data contained in for example third-party credit reports may be sought when seeking employment or medical care, or making automobile, housing, or other purchases on credit terms. Although partial regulations exist, there is no all-encompassing law regulating the acquisition, storage, or use of personal data in the U.S. In general terms, in the U.S., whoever can be troubled to key in the data, is deemed to own the right to store and use it, even if the data were collected without permission. For instance the Health Insurance Portability and Accountability Act of 1996
Health Insurance Portability and Accountability Act
The Health Insurance Portability and Accountability Act of 1996 was enacted by the U.S. Congress and signed by President Bill Clinton in 1996. It was originally sponsored by Sen. Edward Kennedy and Sen. Nancy Kassebaum . Title I of HIPAA protects health insurance coverage for workers and their...
(HIPAA), the Children's Online Privacy Protection Act of 1998
Children's Online Privacy Protection Act
The Children's Online Privacy Protection Act of 1998 is a United States federal law, located at .The act, effective April 21, 2000, applies to the online collection of personal information by persons or entities under U.S. jurisdiction from children under 13 years of age...
(COPPA), and the Fair and Accurate Credit Transactions Act of 2003
Fair and Accurate Credit Transactions Act
The Fair and Accurate Credit Transactions Act of 2003 is a United States federal law, passed by the United States Congress on November 22, 2003, and signed by President George W. Bush on December 4, 2003, as an amendment to the Fair Credit Reporting Act...
(FACTA), are all examples of U.S. federal laws with provisions which tend to favor information flow efficiencies and operational profits over the rights of individuals to control their own personal data.
The Supreme Court interpreted the Constitution to grant a right of privacy to individuals in Griswold v. Connecticut
Griswold v. Connecticut
Griswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...
. Very few states, however, recognize an individual's right to privacy, a notable exception being California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
. An inalienable right to privacy is enshrined in the California Constitution
California Constitution
The document that establishes and describes the duties, powers, structure and function of the government of the U.S. state of California. The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which...
's article 1, section 1, and the California legislature has enacted several pieces of legislation aimed at protecting this right. The California Online Privacy Protection Act
Online Privacy Protection Act
The California Online Privacy Protection Act of 2003 , effective as of July 1, 2004, is a California State Law. According to this law, operators of commercial websites that collect personally identifiable information from California's residents are required to conspicuously post and comply with a...
(OPPA) of 2003 requires operators of commercial web sites or online services that collect personal information on California residents through a web site to conspicuously post a privacy policy
Privacy policy
Privacy policy is a statement or a legal document that discloses some or all of the ways a party gathers, uses, discloses and manages a customer or client's data...
on the site and to comply with its policy.
The safe harbor arrangement
Safe Harbor Principles
US-EU Safe Harbor is a streamlined process for US companies to comply with the EU Directive 95/46/EC on the protection of personal data.Intended for organizations within the EU or US that store customer data, the Safe Harbor Principles are designed to prevent accidental information disclosure or loss...
was developed by the United States Department of Commerce
United States Department of Commerce
The United States Department of Commerce is the Cabinet department of the United States government concerned with promoting economic growth. It was originally created as the United States Department of Commerce and Labor on February 14, 1903...
in order to provide a means for U.S. companies to demonstrate compliance with European Commission directives and thus to simplify relations between them and European businesses.
HIPAA
The Health Insurance Portability and Accountability ActHealth Insurance Portability and Accountability Act
The Health Insurance Portability and Accountability Act of 1996 was enacted by the U.S. Congress and signed by President Bill Clinton in 1996. It was originally sponsored by Sen. Edward Kennedy and Sen. Nancy Kassebaum . Title I of HIPAA protects health insurance coverage for workers and their...
(HIPAA) was enacted by the U.S. Congress in 1996. HIPAA is also known as the Kennedy-Kassebaum Health Insurance Portability and Accountability Act (HIPAA-Public Law 104-191), effective August 21, 1996. The basic idea of HIPAA is that an individual who is a subject of individually identifiable health information should have:
- Established procedures for the exercise of individual health information privacy rights.
- The use and disclosure of individual health information should be authorized or required.
One difficulty with HIPAA is that there must be a mechanism to authenticate the patient who demands access to his/her data. As a result, medical facilities have begun to ask for Social Security Numbers from patients, thus arguably decreasing privacy by simplifying the act of correlating health records with other records. The issue of consent is problematic under HIPAA, because the medical providers simply make care contingent upon agreeing to the privacy standards in practice.
FCRA
The Fair Credit Reporting ActFair Credit Reporting Act
The Fair Credit Reporting Act is a United States federal law that regulates the collection, dissemination, and use of consumer information, including consumer credit information. Along with the Fair Debt Collection Practices Act , it forms the base of consumer credit rights in the United States...
applies the principles of the Code of Fair Information Practice to credit reporting agencies. The FCRA allows individuals to opt out of unwanted credit offers:
- Equifax (888) 567-8688 Equifax Options, P.O. Box 740123 Atlanta GA 30374-0123.
- Experian (800) 353-0809 or (888) 5OPTOUT P.O. Box 919, Allen, TX 75013
- Trans Union (800) 680-7293 or (888) 5OPTOUT P.O Box 97328, Jackson, MS 39238.
Because of the Fair and Accurate Credit Transactions Act
Fair and Accurate Credit Transactions Act
The Fair and Accurate Credit Transactions Act of 2003 is a United States federal law, passed by the United States Congress on November 22, 2003, and signed by President George W. Bush on December 4, 2003, as an amendment to the Fair Credit Reporting Act...
, each person can obtain a free annual credit report
Annualcreditreport.com
Annualcreditreport.com is a website jointly operated by the three major U.S. credit reporting agencies, Equifax, Experian, and TransUnion. The site was created in order to comply with their obligations under the Fair and Accurate Credit Transactions Act to provide a mechanism for American...
.
The Fair Credit Reporting Act has been effective in preventing the proliferation of specious so-called private credit guides. Previously, private credit guides offered detailed, if unreliable, information on easily identifiable individuals. Before the Fair Credit Reporting Act salacious unsubstantiated material could be included, in fact gossip was widely included in credit reports. EPIC has a FCRA page. The Consumer Data Industry Association, which represents the consumer reporting industry, also has a Web site with FCRA information.http://www.cdiaonline.org
The Fair Credit Reporting Act provides consumers the ability to view, correct, contest, and limit the uses of credit reports. The FCRA also protects the credit agency from the charge of negligent release in the case of misrepresentation by the requester. Credit agencies must ask the requester the purpose of a requested information release, but need make no effort to verify the truth of the requester's assertions. In fact, the courts have ruled that, "The Act clearly does not provide a remedy for an illicit or abusive use of information about consumers" (Henry v Forbes, 1976). It is widely believed that in order to avoid the FCRA, ChoicePoint was created by Equifax at which time the parent company copied all its records to its newly created subsidiary. ChoicePoint is not a credit reporting agency, and thus FCRA does not apply.
The Fair Debt Collection Practices Act
Fair Debt Collection Practices Act
The Fair Debt Collection Practices Act , et seq., is a United States statute added in 1978 as Title VIII of the Consumer Credit Protection Act...
similarly limits dissemination of information about a consumer's financial transactions. It prevents creditors or their agents from disclosing the fact that an individual is in debt to a third party, although it allows creditors and their agents to attempt to obtain information about a debtor's location. It limits the actions of those seeking payment of a debt. For example, debt collection agencies are prohibited from harassment or contacting individuals at work. The Bankruptcy Abuse Prevention and Consumer Protection Act
Bankruptcy Abuse Prevention and Consumer Protection Act
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 , is a legislative act that made several significant changes to the United States Bankruptcy Code...
of 2005 (which actually gutted consumer protections, for example in case of bankruptcy resulting from medical cost) limited some of these controls on debtors.
ECPA
The Electronic Communications Privacy ActElectronic Communications Privacy Act
The Electronic Communications Privacy Act is a United States law.- Overview :The “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or...
(ECPA) establishes criminal sanctions for interception of electronic communication. However, the loopholes are so large as to render the Act effectively meaningless. For example, consent can be implied to any reading of electronic communications by accepting employment with an organization that practices surveillance against its employees.
Computer Security, Privacy and Criminal Law
The following summarized some of the laws, regulations and directives related to the protection of information systems:- 1970 U.S. Fair Credit Reporting ActFair Credit Reporting ActThe Fair Credit Reporting Act is a United States federal law that regulates the collection, dissemination, and use of consumer information, including consumer credit information. Along with the Fair Debt Collection Practices Act , it forms the base of consumer credit rights in the United States...
- 1970 U.S. Racketeer Influenced and Corrupt Organization (RICO) ActRacketeer Influenced and Corrupt Organizations ActThe Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization...
- 1974 U.S. Privacy ActPrivacy Act of 1974The Privacy Act of 1974, 5 U.S.C. § 552a, Public Law No. 93-579, establishes a Code of Fair Information Practice that governs the collection, maintenance, use, and dissemination of personally identifiable information about individuals that is maintained in systems of records by federal agencies...
- 1980 Organization for Economic Cooperation and Development (OECD) Guidelines
- 1984 U.S. Medical Computer Crime Act
- 1984 U.S. Federal Computer Crime Act (strengthened in 1986 and 1994)
- 1986 U.S. Computer Fraud and Abuse ActComputer Fraud and Abuse ActThe Computer Fraud and Abuse Act is a law passed by the United States Congress in 1986, intended to reduce cracking of computer systems and to address federal computer-related offenses...
(amended in 1986, 1994, 1996 and 2001) - 1986 U.S. Electronic Communications Privacy Act (ECPA)Electronic Communications Privacy ActThe Electronic Communications Privacy Act is a United States law.- Overview :The “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or...
- 1987 U.S. Computer Security Act
- 1988 U.S. Video Privacy Protection ActVideo Privacy Protection ActThe Video Privacy Protection Act was a bill passed by the United States Congress in 1988 as and signed into law by President Ronald Reagan...
- 1990 United Kingdom Computer Misuse ActComputer Misuse Act 1990The Computer Misuse Act 1990 is an Act of the Parliament of the United Kingdom, introduced partly in response to the decision in R v Gold & Schifreen 1 AC 1063 . Critics of the bill complained that it was introduced hastily and was poorly thought out...
- 1991 U.S. Federal Sentencing GuidelinesFederal Sentencing GuidelinesThe Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors in the United States federal courts system...
- 1992 OECD Guidelines to Serve as a Total Security Framework
- 1994 Communications Assistance for Law Enforcement ActCommunications Assistance for Law Enforcement ActThe Communications Assistance for Law Enforcement Act is a United States wiretapping law passed in 1994, during the presidency of Bill Clinton...
- 1995 Council Directive on Data Protection for the European Union (EU)Directive 95/46/EC on the protection of personal dataThe Data Protection Directive is a European Union directive which regulates the processing of personal data within the European Union...
- 1996 U.S. Economic and Protection of Proprietary Information Act
- 1996 Health Insurance Portability and Accountability ActHealth Insurance Portability and Accountability ActThe Health Insurance Portability and Accountability Act of 1996 was enacted by the U.S. Congress and signed by President Bill Clinton in 1996. It was originally sponsored by Sen. Edward Kennedy and Sen. Nancy Kassebaum . Title I of HIPAA protects health insurance coverage for workers and their...
(HIPAA) (requirement added in December 2000) - 1998 U.S. Digital Millennium Copyright Act (DMCA)Digital Millennium Copyright ActThe Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
- 1999 U.S. Uniform Computer Information Transactions Act (UCITA)
- 2000 U.S. Congress Electronic Signatures in Global National Commerce Act ("ESIGN")Electronic Signatures in Global and National Commerce ActThe Electronic Signatures in Global and National Commerce Act is a United States federal law passed by the U.S. Congress to facilitate the use of electronic records and electronic signatures in interstate and foreign commerce by ensuring the validity and legal effect of contracts entered into...
- 2001 U.S. Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) ActUSA PATRIOT ActThe USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...
In the US additional statutes cover various types of private information. For example, the Family Education Rights and Privacy Act (FERPA), enacted in 1974, requires parent or adult student consent to access student records for most purposes.
Several US federal agencies have privacy statutes that cover their collection and use of private information. These include the Census Bureau, the Internal Revenue Service, and the National Center for Education Statistics (under the Education Sciences Reform Act). In addition, the CIPSEA statute protects confidentiality of data collected by federal statistical agencies.
"Safe Harbor" Privacy Framework
Unlike the U.S. approach to privacy protection, which relies on industry-specific legislation, regulation and self-regulation, the European Union relies on comprehensive privacy legislation. The European Directive on Data ProtectionDirective 95/46/EC on the protection of personal data
The Data Protection Directive is a European Union directive which regulates the processing of personal data within the European Union...
that went into effect in October 1998, includes, for example, the requirement to create government data protection agencies, registration of databases with those agencies, and in some instances prior approval before personal data processing may begin. In order to bridge these different privacy approaches and provide a streamlined means for U.S. organizations to comply with the Directive, the U.S. Department of Commerce in consultation with the European Commission developed a "safe harbor" framework. The safe harbor - approved by the EU in July 2000 - is a way for U.S. companies to comply with European privacy law
Privacy law
Privacy law refers to the laws which deal with the regulation of personal information about individuals which can be collected by governments and other public as well as private organizations and its storage and use....
s.