AFFIRMATIVE COUNTERPLAN COURTS ANSWERS 44
COURT COUNTERPLAN IS AN UNACCEPTABLE APPROACH TO PRIVACY PROTECTION
WE CANNOT DEPEND ON THE COURTS TO PROTECT PRIVACY
Denise Caruso, The New York Times, August 30, 1999, SECTION: Section C; Page 5; TITLE: TECHNOLOGY: Digital Commerce; Consumers keep saying they want personal information kept private. What will it take to get industry to listen? // acs-EE2001
But in a 2-1 ruling published on Aug. 18, which has obvious implications for the data-hungry Internet economy, the United States Court of Appeals for the 10th Circuit said that rules protecting consumers from having information like the numbers they call and the services they subscribe to used without their permission interfered with the phone companies' First Amendment rights to free speech.
"Although we may feel uncomfortable knowing that our personal information is circulating in the world," the ruling said, "we live in an open society where information may pass freely."
One wonders how many circuit court judges would be willing to have the form and substance of their phone bills "pass freely" among the employees of U S West or its partners.
The court's decision does not allow U S West and others to sell proprietary customer data to outsiders, but it does give the telephone companies permission to scrutinize this highly personal data -- data gathered only as a byproduct of subscribing to their services -- without the subscribers' explicit permission. Not incidentally, it gives the companies an enormous edge over others selling competing services.
Mr. Kennard said he was disappointed that the court came down on the side of the business interests of telephone companies. "If that's the way privacy laws will be interpreted," he said, "then I think consumers will have a lot to worry about."
PERM-JUDICIAL REMEDIES WORK BEST WHEN THEY COMPLEMENT LEGISLATION
Gregory Shaffer, Assistant Professor of Law, University of Wisconsin Law School, Winter, 2000; Journal of International Law, 25 Yale J. Int'l L. 1, "Globalization and Social Protection: The Impact of EU and International Rules in the Ratcheting Up of U.S. Privacy Standards," EE2001-hxm lxnx
Nonetheless, judicial and administrative remedies can complement market and legislative measures. The mere threat of judicial or administrative intervention can significantly contribute to changes in business practice. Even where this threat is limited in practice, human resources departments and in-house and external counsel will make businesses aware of its potential and, generally, foster business compliance with formal law. This can lead to changed business practice. n157 The EU Directive alters the institutional balance in the United States, spurring such changes.
USING THE COURTS TO SOLVE THE PROTECTION OF PERSONAL INFORMATION WOULD LEAD TO COURT CLOG, RENDERING THEM INADEQUATE
Gregory Shaffer, Assistant Professor of Law, University of Wisconsin Law School, Winter, 2000; Journal of International Law, 25 Yale J. Int'l L. 1 , "Globalization and Social Protection: The Impact of EU and International Rules in the Ratcheting Up of U.S. Privacy Standards," EE2001-hxm lxnx
Yet there are limits to relying on courts. n155 Application of a balancing test in a tort or property case - with judges balancing, on a case-by-case basis, privacy concerns against the benefits of free data flows - would be time-consuming and expensive. It would use up limited judicial resources and reallocate them away from legal claims in other areas. Moreover, even with relatively clear legislative guidelines, given the virtually infinite number of transactions in which data privacy concerns arise, courts could not possibly handle all conflicts. Judicial budgets and staffs are finite. n156 And, in any case, most individuals would not have the time and financial means to pursue them.
THE SUPREME COURT HAS A DISMAL RECORD OF PROTECTING PRIVACY
Nadine Strossen, law professor at New York Law School AND president of the American Civil Liberties Union, PANEL DISCUSSION: CONTEMPORARY CHALLENGES TO PRIVACY RIGHTS, New York Law School Law Review , 1999, 43 N.Y.L. Sch. L. Rev. 195, EE2001-JGM, P.204
All of these privacy invasions that I have laid out reflect the lack of comprehensive privacy protection in our legal instruments and doctrines, starting with the Constitution. Moreover, our legal system does not even provide systematic privacy protection in a piecemeal fashion, securing the full range of privacy rights individually, if not as part of a broader guarantee. After all, that famous Brandeis pronouncement with which I started was written in a dissent, n32 not a majority opinion. Although that particular dissenting opinion was subsequently turned into the law of the land on the specific privacy issue at stake, n33 the Court's constitutional privacy doctrines, on the whole, have been quite disappointing.