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On Privacy Today: While Technology Hits Home Runs, Public Policy Strikes Out

Baseball fans, particularly those in the Detroit area, may have been struck recently with news that All-Star slugger Prince Fielder is going through a divorce. Was this just another case of some overpaid, spoiled, out-of-touch athlete causing a public scene and bringing painful attention to his private life?

No. Actually, this was not the case.

It all started last week when veteran teammate Torii Hunter was answering questions on a local radio show about Fielder’s recent struggles at the plate. Hunter defended his teammate, suggesting Fielder was bravely dealing with off-the-field issues.

Ok, no big deal, right?

Well, Detroit Free Press sports columnist and best-selling author Mitch Albom explained:

“Soon after, a blog report surfaced that Fielder had filed for divorce back in May. Fielder did not reveal this. But someone did a search through court records near his off-season home in Florida. There, because the law demands it, paperwork had to be filed. And there, because the law demands it, that paperwork is accessible to anyone who knows how to properly search for it.”

So that’s how the public found out about Fielder’s divorce. But this is not just an incident that could only happen to a celebrity. This can happen to anyone. For years, companies have been diligently accessing, aggregating and using public court records to amass dossiers on individuals across the country.

Of course, having public access to court records is a major ingredient to an open society. And in the past, the concept of “practical obscurity” made accessing public records—such as Fielder’s divorce records—fairly cumbersome. First off, a given person would have to have a specific target, locate the courthouse in which said records resided, likely request access face-to-face with another human being, and then perhaps pay a fee before finally accessing said data. You really needed a damn good reason to seek it out.

Now, technology has changed all of that. Anyone with some decent Google skills can find just about any document in minutes.

The idea of practical obscurity is nothing new. In 2006, Danny Weitzner defined it this way: “Practical obscurity is legal doctrine that one may have a privacy interest in the compilation of information (aka a dossier) even though each piece of information composing the dossier is itself publicly available.” And here’s the Supreme Court case, DoJ v. Reporters Comm for Free Press, in which practical obscurity was first articulated. Fitting it involved journalists.

Interesting work has been done on the difficult issues surrounding practical obscurity by computer scientist Harlan Yu, who has worked to try to free up public records while also protecting the privacy of citizens. In a 2010 interview discussing his work improving the Public Access to Court Electronic Records system, Yu said,

“The courts need to be a lot more serious about applying their own rules in their own courts to protect the privacy of citizens. The main problem is that in the past, even though these records weren’t available publicly and made freely available, there were already entities in the courtrooms essentially mining this information. For example, in bankruptcy cases, there were already data aggregators looking through court records every day, finding Social Security numbers, and adding this information into people’s dossier but out of the view of the public. Bringing this privacy issue to the forefront, even if these documents aren’t yet publicly available, will make a big impact on protecting privacy of citizens who are involved in court cases.”

Could Congress step in?

In looking at parallel and pressing privacy policy issues such as the Electronic Communications Privacy Act (ECPA)—passed in 1986!— or reassessing the third-party doctrine—a legacy, in part, from a Supreme Court case in 1979!—can we be optimistic?

True, there have been attempts to pass ECPA reform, and Justice Sonia Sotomayor, in her concurring opinion to U.S. v. Jones, said of the third-party doctrine, “This approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”  Additionally, in an NPR report on Wednesday, University of Washington Law Prof. Orin Kerr and Stanford University Law Prof. Jennifer Grannick made the case for why revisiting Smith v. Maryland—one of the standard-bearing cases setting the precedent for the third-party doctrine—is paramount in this age of smartphones and ubiquitous data connectivity.

But on the whole, we really haven’t seen substantive legislative movement.

What’s clear is the technology is changing, but our public policy is not. Technology is not the problem. Much of Harlan Yu’s work, for example, uses technology to both free up public documents and protect privacy. Much of our public policy, in the meantime, continues to be based on outdated realities.

As Grannick points out, Smith v. Maryland was about spying on a single person with a specific piece of technology. In a world where our intelligence services have the capability, means and motivation to collect everything and our businesses have the economic drivers and technology to learn as much about their consumers and potential consumers as possible, it’s clear an update is needed if we want to retain any pixel of anonymity or obscurity at all.

“First of all, what's a "public figure" anymore?” Albom rightfully asked. “With reality TV, everyone is a camera lens away from celebrity. Does that mean everyone surrenders all rights to privacy?” Reality TV, nothing! What about the very nature of social networks and video services such as YouTube? Not to mention the almost daily revelations of NSA surveillance programs?

And keep in mind, it was a fairly muted comment from a well-wishing teammate that started the privacy breach of the Prince Fielder family turmoil.

I’m sure all Fielder wants to do is hit some towering home runs and to keep his family life from being breached. If we’re not careful and we don’t start reassessing some of our public policies, any one of us could end up in his shoes...er, um, spikes.

photo credit: Keith Allison via photopin cc

Written By

Jedidiah Bracy, CIPP/E, CIPP/US

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