THE ELECTRONIC DATA GIVE-AWAY
It is difficult scientifically to measure such a thing, but the taste for privacy seems to be dwindling. Or maybe, before electronic technology entered our lives, informational privacy was just a happenstance fact of life rather than a passion. Whatever the state of taste, I believe that mature adults, young adults, teens, and children, have privacy and data protection needs of which they may fail to be fully mindful or feel helpless to address on their own. With this in mind, consider the vast sweep of existing privacy and data protection statutes adopted by Congress, nearly all of which permits adults to waive or alienate their privacy rights. We have a great deal of privacy law aimed at regulating the flow of information, but only a small portion of it functions to protect the privacy people do not care or take care to protect. We are allowed to give privacy away.
Congress has enacted dozens of privacy protection statutes, resulting in a rich sectorby-sector patchwork quilt of special-purpose rules. (Congress has not followed the approach of the European Union, which has enacted several comprehensive multisector data-directives. In chapter 5, I described the Health Insurance Portability and Accountability Act (HIPAA), the federal health privacy statute. In chapter 8, I will assess the Children’s Online Privacy Protection Act (COPPA), a paternalistic statute designed to protect the informational privacy of young children and their households; and by way of comparison to COPPA, I will highlight features of other statutes—the Privacy Act of 1974, the Family Education and Right to Privacy Act of 1974, and the Video Privacy Act of 1988. Along with chapter 8, the present chapter explains why and how privacy laws matter, exploring the social and ethical significance of real and imagined technologies propelling the on-going phenomenon I call “the great privacy give-away.”
A complete list of major privacy protection laws enacted by Congress would include, chronologically: the Fair Credit Reporting Act (1970), regulating confidential credit reports; the Privacy Act (1974), regulating access to federal records; the Freedom of Information Act (FOIA, 1974), including privacy exemptions to a federal open records law; the Family Educational Rights and Privacy Act (FERPA, 1974), regulating access to school records; the Right to Financial Privacy Act (1978), regulating access to banking