Cash Value 1/10 of a Cent

goombah99 writes "It happens all-too-often that the govenment and companies negligently reveal citizen's private information on their websites. When collection of this information is something required by law there is an obligation to protect it. But is privacy a 'property' and does its loss require compensation? Wired news reports 'The Supreme Court will hear oral arguments Wednesday over whether the federal government should reimburse individuals whose sensitive data was disclosed illegally, even if no harm can be proven. At issue before the court, according to privacy advocates, is how valuable privacy really is.'"

Comments

The Issue

[Oculus Habent]

Privacy isn't a property - it is a privilege. This is evidenced by taking away certain levels of privacy from criminals... You can find out information about the location of a federal prisoner through the Freedom of Information Act; neighbors must be notified when some sex offenders move into an area - thus limiting their privacy...

I think the wording is odd in that statement. It isn't privacy that is a property, it's the information that is a property. Privacy is a means to protect that information, and failing to protect personal "property" that someone is required to provide is my issue here. Just as if the government required a key to your house and then made then available for duplication.

Re:The Issue

[Planesdragon]

Privacy isn't a property - it is a privilege. This is evidenced by taking away certain levels of privacy from criminals...

You're so right, and then so wrong.

Privacy isn't a right per-se, but it certainly is more than a mere priviledge. Privacy is a presumption that is often necessary for a citizen to enjoy their most important right--that of quiet and safe enjoyment of their own life.

And criminals are a horrible example of "it's not like property." We violate oodes of a prisoner's rights--that's how we penalize folk who break the law.

It isn't privacy that is a property, it's the information that is a property.

False, I believe. Mere information should be public domain--if I want to find out, oh, what your telephone number is, there shouldn't be any penalty whatsoever if someone tells it to me.

Re:The Issue

[larry bagina]

Privacy isn't a property - it is a privilege.

It's not a privilege, it's an inalienable right. It's granted to you by your existance. It can only be taken away by due process or your own abdication of it.

Privilege implies you have to be a good little boy before it applies to you, and that it can be taken away at any time for any reason.

Re:The Issue

[SeXy_Red]

I believe that privacy is neither property or a privilege, but a right. Like many rights, it does have its limits. In the US, you have the right to free speech, but, if your free speech infringes on someone elses same right, then your right is then taken away.

And criminals are a horrible example of "it's not like property." We violate oodes of a prisoner's rights--that's how we penalize folk who break the law.

So true, the criminals gave up there privacy rights when they commited a crime. A sexual malester lost his rights the minute he commited a perverted act, because his right to privacy would infringe on others rights to safety.

Re:The Issue

[Oculus Habent]

Hrm...

I see your point, but I want to add some additional definition to muddy the waters...

Privacy isn't a natural right. I do consider it stronger than a generic privilege, so I would like to call it a governed right. That is, privacy may not be inherent to existence, but it should be to our government. Privacy is something I would rather not lose.

I concede on the criminals point. We do take away rights - governed or natural.

I still think that privacy is a method rather than an object. Some information should be free - indeed I can go to SuperPages and look up a phone number or a name from a number. I can go to Google, type in a phone number, and bring up a name and driving directions.

With the phone number as an example, I have the option to request a level of privacy - an unlisted number. Privacy becomes the mechanism by which you cannot find my phone number without having been granted certain privilege. The privilege to find an unlisted number comes with additional responsibility and, most importantly, accountability. This is where the government comes in.

The government knows your phone number. They know your social security number (hopefully), bank account numbers, your credit card numbers - all the pieces of information that you may wish to be private. If, then, we assume that privacy is a right - govered or natural - then the government must take steps to secure our information if we wish it so, and if privacy is a right, the presumption must be that we do wish it.

Re:The Issue

[Lifewish]

And yet different ownership of critical information is, to use a very cliched example, what makes systems like RSA work. You don't want the world and his wife able to get at your bank account. Only in a perfect communist state could information be free - and then only because it's valueless. There would be nothing to protect.

I like the point on rights as priveleges by the way. Only addition I'd like to make is that this only works because power is outsourced to the government. Personally, I find the most appropriate model for this sort of issue is to consider the government as a very large company. Then we can see that "rights" just represent power that hasn't left the hands of the individual yet.

Now there's a depresing thought...

Re:The Issue

[sfjoe]

Privacy isn't a right per-se...

It most certainly IS a right. It is not specifically enumerated in the Bill of Rights but it is one of the most primary of the unenumerated rights as specified in the 9th Amendment.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Re:The Issue

[Planesdragon]

. You don't want the world and his wife able to get at your bank account.

I don't want, and I shold be able to prevent, anyone from _effecting_ my bank account.

If everyone and their brother knows exactly how much is in my bank account, but cannot do anything more then send me an offer for a short-term loan or a "special cash rate" for a purchase, then all of my rights remain intact.

Re:The Issue

[BlowChunx]

"Mere information should be public domain--if I want to find out, oh, what your telephone number is, there shouldn't be any penalty whatsoever if someone tells it to me."

My phone number is just information, but calling me every 10 minutes would be an invasion of my privacy. My home address and work address are just information, but stalking me (because you know how to find me...) is and invasion of my privacy.

We all have personal information, but it's the abuse of that information that is the issue here. And if the government makes it easier to collect that information, and it leads to abuse of that information, then the government is liable.

Re:The Issue

[Myopic]

The Supreme Court has consistently held that privacy is a right of Americans, guaranteed implicitly by the Constitution.

I agree with the Supreme Court.

Re:The Issue

[Myopic]

Point of order: a sexual molester (you misspelled that word) loses his rights when he is *convicted* of committing a perverted act.

Re:The Issue

[RealProgrammer]

Privacy isn't a property - it is a privilege.

The Fourth Amendment would tend to disagree:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Privacy is a Right, like the Rights to Believe, to Communicate, to Move, to stay and Fight, and to Own Property. These are enumerated specifically, and it was the belief of the Framers that they are inherent in being a human. They set forth cases in which those rights could be limited, such as for convicts, slaves, and in time of war.

The issue is not whether you have a right to privacy. The issue is whether the government, having already collected the otherwise private information, is free to pass that information on to others.

Re:The Issue

[davidstrauss]

A sexual malester lost his rights the minute he commited a perverted act, because his right to privacy would infringe on others rights to safety.

First, like another reply, the guarantee of rights is lost on conviction, not commission. That standard allows us to prevent convictions of murders in self-defense and other murky offenses. Second, the nature of something being a "perverted act" (by anyone's definition) is not a constitutionally-sound basis for a law (see Lawrence v. Texas). The basis for molestation laws is the harm to the molested person, not the act of molestation itself. Thus, what would otherwise be molestation in a consentual situation where both people are after the age of consent is just normal sexual contact. (Disclaimer: IANAL.)

Re:The Issue

[Gramie2]

It's not a privilege, it's an inalienable right. It's granted to you by your existance. It can only be taken away by due process or your own abdication of it.

Makes it a rather alienable right, rather than an unalienable one. An inalienable right is one that cannot be taken away.

Re:The Issue

[Planesdragon]

It's not a privilege, it's an inalienable right.

Bullocks.

If you tell me your phone number, and I tell someone else, I have invaded your privacy, but I certainly haven't infringed upon your rights--and there should be no consequnece to me.

The government, of course, is a special case--but so are spouses, doctors, lawyers, and priests--who DO have legal authority to mainatin your privacy.

Re:The Issue

[jnana]

so what you're saying is that there is no such thing as an inalienable right, since there clearly is no 'right' that has has never been nor could be taken away.

Re:The Issue

[Oculus Habent]

The issue there is when does the availability of that information start interfering with your life?

If everyone has access to your medical records, even if they can't change them, we could start getting to a Gattaca style world; where people are discriminated against based upon their genetic profile.

We could make laws that say having access to certain information can't affect your decisions, but that is easily circumvented by finding or creating other "reasons" to select a differen, "better" individual.

Total access to purchasing history could make companies vulnerable to attack. If someone knows you recently purchased a certain router or operating system, they could use known exploits against you immediately. They still can now, but the limitation of that information makes that action more difficult.

Privacy secures certain other freedoms. A total lack of privacy could cause substantial issues.

Re:The Issue

[kramer]

Privacy isn't a property - it is a privilege. This is evidenced by taking away certain levels of privacy from criminals...

By that logic --

Freedom is a privledge. This is evidenced by taking away freedom from convicted criminals.

Voting is a privledge. This is evidenced by taking away voting rights from convicted criminals.

Living is a privledge. This is evidenced by taking away life from convicted murderers.

Just because it can be taken away doesn't mean it's a privledge. The constitution guarantees not to take life, liberty, or property without due process of law. The argument here is that privacy is property, and illegally releasing it amounts to a taking of said property.

Re:The Issue

[voidptr]

It depends on the state. If you really need to find out, use AgeOfConsent.com for your particular situation.

Re:The Issue

[Anonymous Coward]

In the US, you have the right to free speech, but, if your free speech infringes on someone elses same right, then your right is then taken away.

A problem with the legal system in the US is this mindset that exercising your rights can't infringe on someone else's rights. How's that? So if you have the right to peace and quiet and I have the right to chainsaw firewood in my back yard, whos rights win out? The one with the most legal clout? Yes, exactly. In other words, the one with the most money.
That's the hard part about living in harmony. You have to give a little to get a little in return. If nobody budges then... well! You have what we have today in the USA. Too many people pissed off at each other, no community, nobody talks, hair trigger road rage, what a messed up state of society.
I think we need to change our thinking on what freedoms people have and don't have. Some freedoms are mutually exclusive and that's life.

Re:The Issue

[jnana]

There is great precedent for taking literal things like 'papers' -- which was synonymous with (sometimes personal or private) information in that day -- and interpreting them in light of the different context in which we live today. Hence, 'papers' is interpreted to mean more today than it did 200 years ago, just like 'speech' in the first amendment means more than it did 200 years ago. Fortunately, interpreters of the constitution are generally not as literal minded as you!

Tree falls in the forest

[Nadsat]

"If someone rummages through all your stuff, nothing's taken, but they find out information about you, (yet) you can't show actual damages.

If a tree falls in the forest and no one hears it, does it make a noise? Did some one ever come up with an answer to that age old parabole? If not, I don't think the Supreme Court any time soon will wrap its hands around an ancient Zen koan.

Whats good for the goose

[ignipotentis]

Is good for the Gander... If companies can make money by selling private information, then they can lose it by releasing it publicy if they are not authorized.

Gamming the system

[Anonymous Coward]

Suppose I
1. copyright all my personal data
2. put it in a database
3. ad a PGP signature to bring in the DMCA
4. Sue everybody and his dog who sells or distibutes said information
5. Profit?

I think so

[IANAL(BIAILS)]

It shouldn't really matter if no damage can be proven to the people... I would think the Court should award punative damages to punish for the illegal disclosure, and hopefully 'encourage' them not to do such a thing again.

Another good article

[exhilaration]

Check out This excellent article on Slate.com about Supreme Court arguments regarding a family's right to privacy after an individual's death.

It's also really funny.

Good for security

[rastakid]

I think this is a wise move, since the companies and governments will probably take a more pro-active stance for security. If security was already an issue in the past at a given company/government, they will probably do even more work to secure it even better. And those who didn't care about security, really need to start looking for some security administrators. Remember: money makes the world go 'round.

Before they answer that...

[PSaltyDS]

"At issue before the court, according to privacy advocates, is how valuable privacy really is."

...make it clear to the Judges, Lawyers, and Representatives involved that their decision WILL apply to THEIR personal data! I really believe they forget that sometimes. There was a /. article, which I'm too lazy to look up now, about a District Atourney who ruled getting personal data from someone's trash was not actionable. His attitude changed when a group of activists raided HIS trash and published what they found.

Any technology distinguishable from magic is insuficiently advanced.

Re:Before they answer that...

[exhilaration]

This might be article you're talking about: Portland's top brass said it was OK to swipe your garbage--so we grabbed theirs.

The DA thought it was funny, the mayor and chief of police didn't.

Oh come on

[SeXy_Red]

My personal information is worth atleast 2/10 of a cent :P

this is stupid

[Anonymous Coward]

what the hell? so, what it sounds like is that unless your a paris hilton or michael jackson, they don't really give a shit about you because you're not worth enough to sue anyone.

privacy is privacy and it should apply to all equally. who determines what the cost was? for famous person it's pretty easy to prove lose, but for the average joe, we're just fucked. fuck that noise

disclaimer: I did not RTFA

The value of privacy.

[FreeLinux]

It should be fairly easy to place a dollar value on privacy. First we can geta value by looking at what marketers (or marketeers) are charging companies for your information. A list of 10,000 names and phone numbers can cost a mortgage company's telemarketing department tens of thousands of dollars. So, it's rather simple to place a dollar amount on the value on an individuals information. Compound that value with the multiple of times that the information was disclosed and throw in a percentage for damages and you find that privacy has a rather high cost.

And yes, they should reimburse people for breaches. Stupidity should definitely be painful.

Buck Doe?

[Colymbosathon ecplec]

Ok, I know this is a serious matter, but did he have to pick "Buck Doe"? Sounds like a porn star for bestiality movies!

If semantics say

[way2trivial]

because it can be taken away.. it's a privilege.
then why is it the death penalty flies in the face of our constitutional rights?

(your rights can be taken away too ya know)

It Has To Be Made A Property, For Sure

[tds67]

But is privacy a 'property' and does its loss require compensation?

Absolutely, unequivocally "YES" on both counts.

We live in an increasingly Corporate culture, where it's always "the economy stupid." We have become global Corporate citizens instead of citizens of any one particular country. Privacy is not respected by the machinery of business, and those of you out there who have ever worked with or in a Marketing department know what I'm talking about.

It took a law to put the brakes on telemarketers, and God knows what it will take to stop spam, if that's even possible. But by making privacy a "property" that has monetary value, we can finally put it on the radar screens of Big Business.

Privacy Act only applies to use by the Government!

[anti-tech]

The lawsuit concerns disclosure of a person's SSN. However, in a written response from my US Senator, I was informed that any company, anywhere can DEMAND your SSN as a condition for services, e.g. I go the the doctor's office and the doctor can require my SSN before seeing me, I apply for a lease on an apartment, the lease company can require my SSN as a condition on the application. There are absolutely no restrictions for companies requiring/requesting this information, and there are no regulations on how they must then safeguard it! I was told that if the kid cutting my grass wants my SSN as a condition, he can require it (of course this is a silly example, but is perfectly legal, according to current US laws. Either that or my Senator and the government websites I was directed to are seriously flawed.) Now, I routinely refuse to provide the info and challenge them to deny me service (with a crowded waiting room, etc), but it isn't a good way work with some businesses. (normally they just want the number because it makes it easy for assigning a unique number for their databases)

The privacy act applies to government use of our information, not private corporations. And the SSA told me while Congress passed laws governing the use of SSN, Congress never bothered passing legislation authorizing the SSA to enforce the laws.

If I can locate the document, I will try to provide the rest of the info, but I have to go take my blood pressure medicine.

Harm

[MonkeyINAbaG]

even if no harm can be proven.
How can you disprove harm in this case?
A social security number is an American's entire life and worth, as far as law and government are concerned.
Without it, you arent even a vote.

Privacy is a Constitutional Right

[PingXao]

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

That's article IX or the U.S. COnstitution. The fact that trroubling issues of privacy and technology didn't arise until 220 years later doesn't mean jack shit to me. Article IX makes it quite clear that the notion of a "Right to Privacy" must certainly exist. How dare anyone disparage my beleif that it is my right? The time is drawing near when politicians who ignore the Constitution and the judges who are bought right along with them, will have to account for their actions. And I'm not talking about violence here. I'm talking about a second Constitutional Convention. Something that strikes fear into the heart of every politician and every greed head in the land.

A Second Constitutional Convention would do us a world of good. And possibly a world of hurt as well, but the medicine must be strong for what we've allowed this nation to mutate into. All it would take is a two-thirds vote of the states. The day is coming. It might not be right around the corner, but it is coming.

But who owns the info

[panxerox]

since databases are now copyrighted, if a company collects the info don't they now own it?

Constitutional Right?

[gradji]

The amazing thing about this whole debate is that there is no clear constitutional right for privacy (at least in the U.S.).

Consequently, it is not clear what the basis will be for any Supreme Court judgement in this case. Usually the Supreme Court rules when two or more Constitutional rights are at odds with each other (e.g. 10th vs. 16th ... usually State's Rights (10th) is involved) ... or when a particular phrasing in the Constitution is deemed "ambiguous" (1st Amendment ... what is "speech") ... but neither is the case for privacy.

So a key question is whether the Supreme Court, through its judgement(s), can establish such an expliit right ... or do we require Congressional action?

Personally, I think we need more federal legislation and/or Constitional Amendments safe-guarding our privacy rights. In recent years, we've seen a piece-meal movement toward achieving such a goal (most notably, rights protecting student/criminal records) but it should be a concerted agenda. This will become a much more pressing need as the availability of sophisticated, cost-effective information technology increases. Can you imagine *physical* stores creating databases based on security camera recordings? It's not far-fetched (Vegas casinos already do it)

privacy is a right?

[gyratedotorg]

not trying to sound like a troll, but to all the people saying that privacy is a right, i ask you this: a right granted by whom?

fyi, the united states bill of rights says absolutely nothing about privacy. neither does the constitution. a bit scary, but its true. look it up.

the 4th amendment to the bill of rights sorta hints at privacy, but its obvious that our forefathers could not even begin forsee the type of privacy issues we deal with today.

Burden of proof and cost of recovery

[goombah99]

When the maximum an individual can recover is $1000, the value of trying to prove one was injured only makes sense in a class action.

But if each individual has to prove harm this becomes prohibitive. Say if my SS is left exposed for a few months on a web site, and later my identity is stolen. Can I prove that one caused the other? Not likely.

It seems like certain information shoul dbe designated as must-be-kept-secure and its very exposure shifts the burden of proof that no harm was done to the government.

Of course as a practical matter this could get sticky if one day say a server containing all of the SSN numbers were hacked or a disgruntled employee posted them.

The Real Question of Questions

[Anonymous Coward]

So what you're saying with the tree metaphor is that if a crime has been committed, and no one is affected by it, why is it a crime in the first place?

If private information is released, and no one is affected by it, then why is it a problem to release private information in the first place?

This creates its own self-serving logic... which logically (and it doe smake sense) gives right to let the supreme court release what they want.

However, if it is a problem to release private inforamtion... then let's step back: why should government have this private information to begin with? Do they actually *need* these certain things? Control for the sake of control? Is technology and thirst for statistics driving the need for more and more details... which inherently run into the problems or corruption and misuse that we seeing arise in such cases as this article?

Damages?

[erroneus]

What damages are shown in cases of rape? What if, for example, I raped someone but was careful not to do any physical damage? I know that doesn't seem possible but just indulge me for a moment. Let's just assume such a thing was accomplished.

Now then, if no "damage" was done, was there a crime? You're damned right!! Something was done against an unwilling individual that made them feel quite uncomfortable and would rather you hadn't done it. It was without consent, immoral and while no "damage" was done, it was still a violation of that other person's will. In fact, asside from degrees of severity, I see no difference between the crime of rape and the crime of stealing, selling or otherwise abusing my personal information. When there is so much about a person that defines a personality, I have realized that anything as simple as a [portable cell] phone number is actually a part of a person's identity... as much as a person's address, place of work, the car he drives or the people he knows. It's a part of the definition of a person. Using and abusing that person constitutes an abuse of that person.

Is this an extreme opinion? Maybe... I don't know... it's a question of where you want to draw the line. But consider how uncomfortable you might feel about life if you knew something about yourself was out there somewhere being abused.

Re:Privacy Act only applies to use by the Governme

[ChrisKnight]

Two weeks ago a position opened at AT&T in my area, with a set of skill requirements that was rather hard to find in my area. Consequently I received calls from thirteen different recruiters over a three day span. I was flattered.

Each and every one of them told me that AT&T required my SSN along with my resume in order to apply for the job. I told every one of them that it wasn't going to happen. (I only had to hang up on one for not being willing to at least accept my choice.)

A company can, and will, demand anything they can get away with. It is up to us to take a stand and tell them that we have a right to refuse to do business with them as well.

-Chris

Compensation culture

[zaphod_es]

It is about time that we all started to think about the question of compensation/damages. Far too many people seem to think it is a bit like winning the Lotto. That guy bumped me so I claim whiplash and a $1m settlement.

People should receive fair damages or reimbursement of losses sustained through the negligence or incompetence of others. It is not right that they culprit is "fined" and the proceeds passed to the victim.

If a Government causes damage by revealing private information it should compensate the victim even if it is only a token amount for embarrassment. If the misbehavior is so bad that it deserves a punitive settlement I see no reason for that to be paid to the victim. There are many better ways of distributing these windfalls.

If a department loses a chunk of its budget through malicious or arrogant disclosure of personal information it might start asking who was responsible and trying to prevent future abuses. There is no need to turn it into a get rich scheme and a honeypot for ambulance chasing lawyers.

ZB

If it can be sold, it has value: "free" offers

[Lord Bitman]

If my personal information can be sold, it has value and I should always be paid for its use- the price is up to me, not the company doing the selling. (Imagine if you gave your car to a dealer to have it serviced, and when you got it back, they had installed a tracking device which delivered targetted advertising to you 24/7. Don't you need to agree to things like that before-hand? They can't just say "We've decided that the irritation you may feel is worth ten dollars, so here")

If my information has value, no offer should be allowed to use the term "free!" if your personal information will be sold by the company. If they sell it, it has cash value to them, and so the deal is not "free".

In Italy privacy is guararteed by law

[pioppo]

We have a law since 1996, it's number 675.

In Italy people can't collect, use, process, sell and give away your personal information without your explicit written consent collected in advance.

For some data, the state is exempt by default (those strictly needed for tax and justice work).

Sensitive information (sexual, religious, about health and politics, and so on) is protected by special regulation.

Violating this law could result in penalties or prison, depending on gravity of violation.

This is very useful for spam too: many italian spammers have been already fined 250EUR for each spam email they sent (this money has been given to spammed people) plus legal costs.

Privacy vs . Intellectual Property

[NoSuchGuy]

because it is so hard to put a price on an abstract concept such as privacy or to prove damages in absence of others' misuse of that data.

What about Intellectual Property and Copyright?

The RIAA bills you $150.000 a song by distribution via Kazza

SCO belives that they have such an abstract thing as Intellectual Property of the Linux kernel because they granted some companies (IBM) access to source code...

As mentioned above about my private data: If it can be sold, it has value!

NoSuchGuy

fast forward

[Lord_Dweomer]

Ok, lets take a hypothetical situation here. Lets say 5 years from now this sort of thing is actually in place, where we get compensated when our privacy is abused. Big companies will obviously be hurt the most because they will be most visible. But what happens when they end up making a deal with some "third party affiliate" who has no such restrictions, or who accidentally leaks your information overseas, where there is no such compensation? And what happens if those overseas people sell the information back to the big corporations? I mean, they can claim they got the information from someone who claims you opted in, yet they're overseas so there's nothing that can be done about it.

Michael Jackson's Privacy

[tekrat]

So, lemme get this straight.... If someone publishes personal information illegally, the most a person can sue for is $1000, *and* they have to prove damages?

Well, so that means that if someone were to publish Michael Jackson's personal info, or Carmen Electra's home telephone number, or President Bush's cell phone, the most that any of those celebrities could get is $1000?

I think not.

So, *why* is Michael Jackson's right to privacy more valuable than mine? Or is this yet another issue where the rich are protected by law, but the common citizens are not protected by law?

I think there's a huge double standard going on here, particulary if the RIAA can claim millions of dollars of damages per song, but I can't claim millions of dollars of damages when TRW sells my credit history to a telemarketer.

I think there's a huge double standard going on here, if celebrities can sue for privacy, but the average joe cannot.