Once upon a time, a private eye was needed if someone wanted to trail a person’s every step. But today, computers can do this in a fraction of the time, storing, sifting through and analyzing a person’s digital tracks. From our email to our electronic transactions, information about us passes through numerous hands. And with every set of hands comes an opportunity to grab the information, copy it and reuse it.
Technological innovation has always posed challenges to privacy. With each era has come a fresh threat. Our Founding Fathers were concerned with the interception of their written letters. More than 100 years later, information about private conversations on early telephones was easy prey for operators, who patched through individual calls. Yet eventually our laws evolved to protect the privacy of information that could be gathered about our personal affairs.
Now that another century has passed, information about our words, associations and activities moves through cyberspace. And again, information risks being intercepted and passed on to others. Once more, it is time for our laws to evolve, to meet the new demands of the Information Age and to ensure that our private affairs remain private.
Following the Flow of Our Digital Information
Like water, information flows. It moves into and out of government hands. However, we don’t have a map that shows us exactly what personal information the government collects or maintains about us, or where it goes. But we do know that government records contain numerous details about our activities.
Our personal information flows to the government through many streams. We hand over information in order to use a government service, register for a parks program or get a license. We create government records about ourselves without even thinking about it; for example, through electronic tolling that records the precise dates and times when we travel on the Tacoma Narrows Bridge or Route 167. Sometimes when we purchase a product, such as cold medicine, we must provide identification and a record of our transaction ends up on a log available to the government.
In some instances, our personal information streams into government hands even without our knowledge. Through contracts with corporate data aggregators such as ChoicePoint, the government can purchase detailed profiles about individuals built from a variety of sources.
Program by program, the collection of each piece of information may make sense. But no matter how the government obtains information, it is increasingly difficult for individuals to control who knows what about their private affairs.
Government officials have become the gatekeepers to a vast pool of personal information. They are the ones to decide whether the records should be protected, combined with other data or made available to the public at large for any and all uses. Problems also can arise when pieces of personal information are combined and reused for reasons other than why they were collected.
Sloppy Records – Garbage In, Garbage Out
Sometimes, public or private agencies collect government records and match them through a common piece of information, such as an identification number or name. However, the original government data itself may not necessarily be accurate. A clerk may have made an error when entering the information. Or the data may not be complete because of limitations imposed by the technology, as I learned firsthand when told by the Social Security office that my legal name had too many characters and had to be changed to fit its computer system.
Inaccuracies too often lead to serious problems for individuals. Just having similar names can cause two people accidentally to be rolled into a single identity in a government record. A traveler with a name similar to an alleged terrorist can get placed on a watchlist and be pulled aside for extra security screening at the airport. Individuals with common Hispanic or Arab names have found themselves denied goods or services because of erroneous matches with the Treasury Department’s Office of Foreign Assets Control list.
Through disclosure laws, much of the information the government collects about a person is available to anyone in the public, who can publish it online or sell it to others — who in turn combine it with still more data.
Consider problems that can arise with background check services, which run a name against various public records. If information about a person has not been updated to show that a criminal conviction was overturned, for example, he or she could lose out on a job opportunity, be turned down for a loan or denied an apartment. And victims of identity theft are especially vulnerable to harms resulting from misinformation in their records.
Where Attention Is Needed
In the Information Age, personal data are constantly traveling and morphing. Individuals can take some steps to protect their privacy. But ultimately, laws and regulations must catch up with the changing realities of information distribution technologies.
Our laws need to address some critical questions. Who can access the information? How long should the information be retained? Should it be exempt from public disclosure?
Technological change is inevitable, but the loss of our fundamental freedoms is not. As government agencies adopt new technologies, threats to our liberties should be addressed before implementation, not after privacy has been compromised. Such concerns are often pushed aside by claims of efficiency (“The project will take longer”) and economics (“The project will cost more”). But freedom remains priceless. Our laws and policies must keep pace with technology.
Christina Drummond is the director of the Technology and Liberty Project of the American Civil Liberties Union of Washington Foundation. The project focuses on a number of civil liberty issues ranging from informational privacy to freedom of expression online. To learn more about the project, or to express an interest in providing pro bono assistance on policy or litigation matters, visit the Technology section of www.aclu-wa.org.
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