LEGAL DIMENSIONS OF ONLINE PRIVACY
U.S. law governing online privacy is in a state of enormous flux. The Constitution contains no explicit right to privacy, though the Fourth Amendment protects Americans from illegal searches and seizure of personal records. Supreme Court decisions have created a variety of privacy rights, based on the Fourth Amendment and on the Fourteenth, which restricts the government from compelling individuals to disclose certain personal information. However, these rights apply to government actions, not the private sector. Hence, the U.S. lacks all-encompassing, federal data-privacy laws similar to those of the European Union (EU), as well as clear legal remedies for breaches of electronic-data privacy.
The Supreme Court has ruled that the Fourth Amendment protection of privacy holds where an individual has a "reasonable expectation" of privacy. However, since anyone can access the Internet, a Web user cannot have a "reasonable expectation" that his or her activities will be considered private, except if they occur on a limited network or when that user transmits information to a discrete Internet address. Thus data exchanged on electronic bulletin boards and chat rooms does not merit protection. In addition, any e-mail taken if a computer is seized is not protected.
One legal solution proposed to enhance privacy protection was the granting of intellectual property status to personal data. In other words, individuals would hold property rights to their personal data. However, this generates First Amendment concerns; in general, "data," or basic facts that are not part of a creative work, is not subject to ownership. Thus it is difficult to prevent Web sites from gathering and storing users' personal information.
The FTC, the chief governmental agency responsible for regulating personal data, has preferred to promote user control over personal data, rather than ownership rights to it. It has encouraged e-marketers to develop and post privacy statements that guarantee the security of personal data gathered online. But public-interest privacy advocates argue that this strategy will fail because few Web users even read privacy policies, many sites do not follow their own policies, and few policies guarantee enforcement. Noncompliant Web sites can be charged with engaging in deceptive trade practices, but the responsibility for forcing compliance rests with private citizens, who must lodge the suits to get results.
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