Law, Policy—and IT?

Access to medical journals so that inventors, including high school students, can innovate to save lives. Access to copyright materials for the purposes of not-for-profit education as an expanded understanding of the fair use exception in statutory law and further embellished in the doctrine of transformative use in current case law.

In higher education there is no more well-known privacy law than the Family Education Rights Privacy Act, or "FERPA." Established in the 1970s to protect against abuses law enforcement made against students involved in the civil rights and anti-war movements, this early public privacy law fits into type 3 of the five categories I established in earlier blogs.

Remember the movie "Sex, Lies and Videotape"? I invoke its poetic meter to frame a discussion of civil action privacy law. Type 4, you will recall, involves civil actions, individuals against individuals, in state court actions known as "torts." These laws, famously framed out of a 1890 law review article, were the first time the term "privacy" came directly into named U.S. laws. Putting on my historian's hat, I have argued that this occurrence was not the result of a notion of privacy being "discovered" -- notions of privacy date back to ancient times in Western Culture, and the term itself is derived from Latin -- but because modern, urban, industrial society at the turn of the last century, driven largely by technological developments, not the least of which was photography, encroached so significantly on cultural mores that the law was called upon as a defense to shore up those norms.

Yesterday the World Wide Web Consortium named privacy expert and the Ohio State University Law Professor Peter Swire Co-Chair of its Tracking Protection Working Group. With a stellar reputation and a mountain of integrity, Swire's appointment is as good a move as anyone can hope for in what is a technically complicated and politically contentious situation.

This week the Senate Judiciary Committee will work on amendments to the Electronic Communications Privacy Act, commonly referred to as "ECPA." When passed in 1986 it updated the Omnibus Crime Control and Safe Streets Act of 1968, the first "wiretap" federal law. This law codified procedures for the rule the Supreme Court established in the landmark Katz v. U.S. case that created a Fourth Amendment privacy right in electronic communications, telephony principally in that day. In my cheat sheet on different kinds of privacy law outlined in the last couple of previous blogs, this would be type 2 privacy law.

It is a title designed to catch attention, but the content has the purpose of drawing an important similarity to what most take as a distinction.

With the holiday in the rearview mirror, I had time to reflect on the four categories of privacy law proffered in the last blog. One more came to mind as I was driving up I 95 near D.C., appropriately so, because it is about administrative law. Allow me, for the record, to copy and paste the ones that I included in the last blog and add this one to it, with a little description. It matters because administrative law may come to play a more significant role in governance of Internet companies that either the legislature or the judiciary.

In a working group list service, some of the privacy professional around higher education have been enjoying a lively discussion about "privacy." This blog is a good place to share thoughts to all of you.