Legal Issues - Constitutional Issues: Privacy And Freedom Of Expression

CONSTITUTIONAL ISSUES: PRIVACY AND FREEDOM OF EXPRESSION

The U.S. Constitution contains no explicit guarantee of privacy. However, case law establishes privacy rights implicit in the provisions of the Bill of Rights and Fourteenth Amendment. The spread of e-commerce has led many consumers to make their sensitive personal information available on the Web. In the U.S., the security of such information is generally guaranteed by voluntary privacy policies enacted by Web sites themselves and by industry self-policing. Technologies, such as "cookies" track users online habits to compile user profiles. Personal data can be transferred or sold to third parties without an individual's consent or even knowledge.

Some U.S. online privacy-protection laws do exist, such as the Children's Online Privacy Protection Act and the Health Insurance Portability and Accountability Act of 1996, but they have been difficult to implement.

Many European nations possess data-protection laws that govern an individual's rights over the use of personal information stored in computers. The European Union's Data Protection Act (1998) mandates that Web sites gathering personal information about users must notify individuals of this practice and user consent is required to collect sensitive, personal data. In addition, member states are directed to block data transmissions to other countries, including the U.S., if they are deemed to lack adequate privacy protection laws.

The U.S. and the EU worked out a compromise, "safe-harbor" agreement to resolve the problem. American companies can transmit data online to EU members as long as their privacy policies accord with certain EU privacy-protection principles. Participation is voluntary, with the American businesses registering their compliance with the U.S. Department of Commerce.

Online marketers and law-enforcement agencies often oppose enhanced privacy protection, because it impedes their ability to gather data in cyberspace. New technologies, such as IPV6, may further erode the anonymity of Internet users by using expanded IP addresses that include the unique serial number of each computer's network-connection hardware, imprinting each data transmission with a user's "electronic fingerprint."

Monitoring of digital communications had been a touchy subject, but after September 11, 2001, governmental leaders moved quickly to reinforce the security of information networks and to deploy greater Internet surveillance in hopes of identifying and tracking suspected terrorists. In October 2001, the Bush administration passed anti-terrorism legislation that established the basis for a massive, domestic intelligence-gathering system incorporating the FBI, CIA, and Treasury Department law enforcement agencies. It decreased legal privacy safeguards in place since Watergate, and permitted governmental agencies freer rein in gathering electronic information and financial records and monitoring Internet communications, sometimes even without a warrant. The move set off alarms among critics concerned about the erosion of privacy rights.

The other constitutional issue at the forefront of cyberlaw debates was the extent to which expression should be regulated online. The founding vision of the Internet was as an untrammeled information super-highway. To a great extent, First Amendment free-speech guarantees fostered this attitude in the U.S., where online content has not been highly regulated. The exceptions concerned speech considered harmful to minors, which was addressed by the 1996 Communications Decency Act and the 1998 Child Online Protection Act; both laws faced First Amendment challenges. Filtering software has also been used to shield certain users from undesirable online content.

Other countries showed less reluctance to regulate online content, particularly hate speech directed against specific groups. Many EU members, such as Germany and France, prohibit Web sites from featuring pro-Nazi messages, for example. And China erected a "Great Firewall" that blocks access to unacceptable sites worldwide. This approach generated wide disagreement between many nations and the U.S., home to many sites deemed "undesirable" or "harmful."

In 2000, the Supreme Court ruled that computer source code qualified as protected speech under the First Amendment. However, the court also recognized the government's legitimate interest in regulating source code, especially in circumstances where national security interests were at stake.