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Poe, Gary A.
Privacy in database designs :
b a role based approach
h [electronic resource] /
by Gary A. Poe.
[Tampa, Fla] :
University of South Florida,
Title from PDF of title page.
Document formatted into pages; contains 298 pages.
Dissertation (Ph.D.)--University of South Florida, 2008.
Includes bibliographical references.
Text (Electronic dissertation) in PDF format.
ABSTRACT: Privacy concerns have always been present in every society. The introduction of information technology information has enabled a reduction in the cost of gathering information, management of that information and the permitted that same information to become increasingly portable. Coupled with these reductions of cost has been an increase in the demand for information as well as the concern that privacy expectations be respected and enforced through security systems that safeguard access to private-type data. Security systems enforce privacy expectations. Unfortunately there is no consensus on a definition of privacy making the specification of security often over broad and resulting in the loss of critical functionality in the systems produced. This research expands the understanding of privacy by proposing a replicable type-based taxonomy of privacy that is grounded in philosophy and law. This type-based system is applied to a Role Based Access Control System to specify and control access to data in a in a hospital setting as a proof of concept.
Mode of access: World Wide Web.
System requirements: World Wide Web browser and PDF reader.
Co-advisor: Rosann Collins, Ph.D.
Co-advisor: Donald Berndt, Ph.D.
Access Control Systems
x Information Systems & Decision Sciences
t USF Electronic Theses and Dissertations.
Privacy in Database Designs: A Role Based Approach by Gary A. Poe A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy Department of Information Systems/Decision Sciences College of Business University of South Florida Co-Major Professor: Rosann Collins, PhD. Co-Major Professor: Donald Berndt, PhD. Ellis Blanton, PhD. Stanley Birkin, PhD. Date of Approval: November 30, 2007 Keywords: Privacy, Security, Taxonomy, Access Control Systems, Philosophy, Law, RBAC, Role Based Access Control Copyright 2008, Gary A. Poe
i Table of Contents List of Tables ................................................................................................................ ..... vi List of Figures ............................................................................................................... .... vii Abstract ...................................................................................................................... ...... viii Chapter 1: Introduction ....................................................................................................... .1 1.0 Introduction ........................................................................................................1 1.1 Technology Change and Privacy: Three Examples ...........................................4 1.1.1 Example One: The Telephone ............................................................6 1.1.2 Example Two: The Computer and Database ......................................8 1.1.3 Example Three: Medical Information and Information Portability ........................................................................................15 1.2 Difficulties with the Existing Defini tion of the Nature and Purpose of Privacy ............................................................................................................18 1.2.1 Reason One: Privacy is a Value That is Socially Constructed .........21 1.2.2 Reason Two: The Defining of the Nature and Purpose of Privacy is a Work in Progress. ........................................................22 1.2.3 Reason Three: Privacy Supports Not One but Many Purposes ........23 1.2.4 Reason Four: Privacy is a Pe rspective Tthat Orders Life .................24 1.2.5 Reason Five: Privacy is a Bo th a Value and a Process Which Produces Data ..................................................................................24 1.2.6 Reason Six: Privacy is Not a Rational Concept ................................25 1.3 Privacy Research in the Information Sciences .................................................26 1.4 Purpose of the Study ........................................................................................29 1.4.1 Intended Audience ............................................................................30 1.4.2 Problems and Opportunities ..............................................................30 1.4.3 Address the Calls for a Be tter Understanding of Privacy .................30 1.4.4 Integrate Legal and Busine ss Knowledge and Research in Privacy .............................................................................................31 1.4.5 Increase Privacy Management Capability ........................................33 1.4.6 Design Privacy into the Tools of Business to Ensure Privacy ..........35 1.5 Nature of the Study ..........................................................................................37 1.6 Anticipated Contributions ................................................................................39 1.6.1 Address the Calls for a Be tter Understanding of Privacy .................39 1.6.2 Integrate Legal and Busine ss Knowledge and Research in Privacy .............................................................................................40 1.6.3 Increase Privacy Management Capability ........................................41
ii 1.6.4 Increase the Ability to Desi gn Privacy into Business Tools .............41 1.6.5 Proof of Construct .............................................................................43 1.7 Outline of the Rest of the Proposal ..................................................................43 Chapter 2: Philosophy and Law of Privacy .......................................................................44 2.1 Philosophy and Privacy....................................................................................45 2.1.1 Philosophy Is .....................................................................................45 220.127.116.11 Rigor in Philosophical Research ........................................46 2.1.2 Philosophical Underpinnings in Privacy: Epistemology ..................48 18.104.22.168 Reductionism and Non Reductionism ...............................49 22.214.171.124 Non Reductionist Conceptualizations ................................50 126.96.36.199 Schoeman School ...............................................................51 188.8.131.52 The Coherentist School Â– Foundationalism v. Coherentism ......................................................................52 2.1.3 Philosophical Basis of Privacy: Ontology and Axiology .................54 184.108.40.206 Lockian Privacy .................................................................56 220.127.116.11 Lockean Control Based Privacy.........................................58 18.104.22.168 Kantian Privacy ..................................................................60 22.214.171.124 Kantian State of limited access ..........................................61 126.96.36.199.1 Anticipatory Concerns Â– Limited Access ...........63 188.8.131.52.2 Non-Anticipatory Concerns Self Consciousness ...................................................64 184.108.40.206 Lockian and Kantian Privacy Combined: Promoting Relationships ....................................................................67 220.127.116.11.1 What is Autonomy? ............................................68 18.104.22.168.2 Autonomy While Considering Entering the Relationship .................................................68 22.214.171.124.3 Rachels ................................................................71 126.96.36.199.4 Fried ....................................................................71 188.8.131.52.5 Reiman ................................................................72 184.108.40.206.6 Benn ....................................................................74 220.127.116.11.7 Inness ..................................................................76 2.2 Philosophy and Rights, Claims and Entitlements ............................................79 2.2.1 Rights, Claims and Entitlements Determine Behavior .....................80 2.2.2 Rights, Claims and Entitlements Embody Values That Define Conduct .............................................................................................82 2.2.3 Privacy Rights, Claims and Entitlements are Defined by Their Ontological and Axiological Basis ..........................................83 2.3 Law and Privacy ..............................................................................................86 2.3.1 Purpose and Nature of Law...............................................................87 2.3.2 Rigor in Legal Research ....................................................................91 18.104.22.168 Doctrinarism ......................................................................91 22.214.171.124 Empirical Legal Research ..................................................93 126.96.36.199 Legal Research in the Case Study Tradition ......................95
iii 2.3.3 Changes in What is Private in American Law: A Case Study ..........99 188.8.131.52 Confidences........................................................................99 184.108.40.206 Castle Doctrine .................................................................100 220.127.116.11 Sentiments and Thoughts .................................................101 18.104.22.168 U.S Constitution ...............................................................102 22.214.171.124.1 The Right to be Let (Left) Alone ......................104 126.96.36.199.2 The Developing of State Mandated Privacy Warren and Brandeis .......................105 188.8.131.52.4 Personal Rights of Privacy Â– Constitutional Protections ...............................109 184.108.40.206.4 The First Amendment Protections: Privacy and Association ...............................................113 2.4 Summary ........................................................................................................116 Chapter 3: The New Construct of Privacy .......................................................................119 3.0 Proposal of a New Conceptualization of Privacy ..........................................119 3.1 The Model ......................................................................................................123 3.1.1 Relational Privacy ...........................................................................123 220.127.116.11 The purpose ......................................................................123 18.104.22.168 The relationship entitie s and characteristics of the relationship .....................................................................123 22.214.171.124 Philosophy Type ..............................................................125 126.96.36.199 Character of Information ..................................................126 188.8.131.52 Representative Laws and Court Rulings ..........................127 3.1.2 Privilege Privacy .............................................................................128 184.108.40.206 The purpose ......................................................................128 220.127.116.11. Role characteristics in terms of control and access ........133 18.104.22.168.1 For dissemination of information ......................133 22.214.171.124.2 For non dissemination of information...............134 126.96.36.199 Character of information ..................................................134 188.8.131.52 Representative Laws and Court Rulings ..........................135 3.1.3 Intellectual Privacy .........................................................................138 184.108.40.206 The purpose ......................................................................138 220.127.116.11 The relationship entitie s and type of relationship ............142 18.104.22.168 Role characteristics of Intellectual Privacy in terms of control and access ......................................................143 22.214.171.124 Character of Information ..................................................144 126.96.36.199 Representative Laws and Court Rulings ..........................145 3.1.4 Secret Privacy .................................................................................146 188.8.131.52 The Purpose .....................................................................146 184.108.40.206 The relationship enti ties and character of the relationship .....................................................................148 220.127.116.11 Philosophy type ................................................................149 18.104.22.168 Role characteristics in terms of control and access .........149
iv 22.214.171.124 Character of information ..................................................150 126.96.36.199 Representative Laws and Court Rulings ..........................150 3.1.5 Transitory Privacy ...........................................................................158 188.8.131.52 The purpose ......................................................................158 184.108.40.206 Character of information ..................................................162 220.127.116.11 The relationship enti ties and type of entities ...................162 18.104.22.168 Philosophy type ................................................................163 22.214.171.124 Role characteristics in terms of control and access .........163 126.96.36.199.1 Define ................................................................164 188.8.131.52.2 Construct ...........................................................164 184.108.40.206.3 Protect ...............................................................165 220.127.116.11.4 Change ..............................................................168 18.104.22.168.5 Orderly change ..................................................168 22.214.171.124 Representative Laws and Court Rulings ..........................172 126.96.36.199.1 Right to associate ..............................................173 188.8.131.52.2 Communications Decency Act .........................174 184.108.40.206.3 Gramm Leach Bliley .........................................177 220.127.116.11.4 HIPAA ..............................................................179 3.2 How the Model Works: A Basic Analysis of Privacy Using Access and Control ..........................................................................................................183 3.2.1 Access to the Entity and their Information .....................................185 3.2.2 Control over Information ................................................................186 3.2.3 How the various privacies re late in terms of control and access .............................................................................................187 3.3 Conclusion .....................................................................................................189 Chapter 4: A Proposed Evaluation ...................................................................................190 4.0 Proposal..........................................................................................................190 4.1 Introduction ....................................................................................................191 4.2 Functional Specifications ...............................................................................192 4.3 The CIA Triad ................................................................................................193 4.3.1 Confidentiality ................................................................................195 4.3.2 Integrity ...........................................................................................195 4.3.3 Availability .....................................................................................196 4.3.4 Additions to the CIA Triad .............................................................196 4.4 How the design and implementation of security is accomplished .................198 4.4.1 Access Control Models and Their Methods ....................................198 4.4.2 Mandatory Access Control .............................................................199 4.4.3 Discretionary Access Control .........................................................201 4.4.4 Role Based Access Control .............................................................204 4.5 Research on Role Based Data Access ............................................................206 4.5.1 Development of Roles in a RBAC ..................................................207 4.5.2 Administration of RBAC systems ..................................................209 4.6 Proposed Demonstration ................................................................................213
v Chapter 5: Design, Testing, Results .................................................................................217 5.0 Introduction Â– Evaluation Design Science Framework .................................217 5.1 Operationalizing the Model ...........................................................................218 5.1.1 How to Classify Data ......................................................................218 5.2 Empirical Study .............................................................................................227 5.2.1 Interview Strategy ...........................................................................229 5.2.2 Distinctions between the two hospitals ...........................................233 5.2.3 Conclusions of the First Interviews ................................................234 5.2.4 Conclusions from the Second Round of Interviews .......................237 5.3 Evaluation ......................................................................................................240 5.3.1 Admissions Clerk ............................................................................240 5.3.2 Unit Secretary .................................................................................243 5.3.3 Unit Nurse .......................................................................................246 5.3.4 Unit Supervisor ...............................................................................249 5.3.5 Nurse Manager ................................................................................251 5.3.6 Director of Nursing .........................................................................255 5.3.7 Chief Nursing Officer .....................................................................258 5.3.8 Doctor accessing Patients ...............................................................261 5.3.9 Lab ..................................................................................................263 5.3.10 Risk Management Team ...............................................................265 5.3.11 Research Team ..............................................................................267 5.4. Conclusion ....................................................................................................269 Chapter 6: Contributions, Lim itations and Future Research ..........................................271 6.0 Introduction ....................................................................................................272 6.1 Contributions..................................................................................................272 6.2 Limitations .....................................................................................................274 6.3 Future Research .............................................................................................275 References .................................................................................................................... ....276 Appendices .................................................................................................................... ...294 Appendix A ..........................................................................................................295 Appendix B ..........................................................................................................298 About the Author ................................................................................................... End Page
vi List of Tables Table 1 Zones of Limited Access ..................................................................................... 66 Table 2 Summary of Philosophical Theories of Privacy that Combines the Lockian (control) and Kantian (a ccess) Perspectives ........................................................ 79 Table 3 Rigor ................................................................................................................. ... 93 Table 4 Standards for Legal Empirical Research ............................................................. 95 Table 5 Comparison between Grounded Th eory and Doctrinal Analysis ........................ 97 Table 6 Legal Remedies and Translation ........................................................................ 106 Table 7 Privacy Types and Purposes .............................................................................. 122 Table 8 Comparison of Secrecy Paradigm with Relative Secrecy Doctrines ................. 152 Table 9 Control Over Access .......................................................................................... 185 Table 10 Access to Entity I ............................................................................................. 186 Table 11 Access to Entity II ............................................................................................ 186 Table 12 Access to Entity III .......................................................................................... 187 Table 13 Confidence and Posession ............................................................................... 221 Table 14 Questions for Classification of Data ................................................................ 226 Table 15 Results .............................................................................................................. 240 Table 16 Tool and Hospital Access ................................................................................ 241 Table 17 Unit Secretary Results ..................................................................................... 245 Table 18 Unit Nurse ........................................................................................................ 24 7 Table 19 Unit Supervisor ................................................................................................ 250 Table 20 Nurse Manager ................................................................................................. 254 Table 21 Director of Nursing .......................................................................................... 257 Table 22 Chief Nursing Officer ...................................................................................... 260 Table 23 Doctor-accessing Patients ................................................................................ 262 Table 24 Lab .................................................................................................................. 264 Table 25 Risk Management Team .................................................................................. 266 Table 26 Research Team ................................................................................................. 268 Table 27 Tool and Hospital Classification ...................................................................... 270
vii List of Figures Figure 1 Interactivity of Individual and Society Privacy Expectations ............................ 22 Figure 2 Hevner's Design Science Model ......................................................................... 37 Figure 3 Philosophy .......................................................................................................... 46 Figure 4 Epistemological School s of Thought in Privacy ................................................ 49 Figure 5 Taxonomy of Limited Access ............................................................................ 63 Figure 6 Relationship Decision Tree ................................................................................ 67 Figure 7 What Laws, Norms and Agreements Do ............................................................ 85 Figure 8 Relationships between Rights, Control and Limited Access .............................. 86 Figure 9 Basic Privacy Model ......................................................................................... 121 Figure 10 Purposes of Privilege Privacy ......................................................................... 129 Figure 11 Purpose of Transitory Privacy ........................................................................ 158 Figure 12 Transitory Privacy's Effect on Inti mate, Privilege, Secret and Intellectual Property .......................................................................................................... 163 Figure 13 Functional Specifications and the Information Security Architecture ........... 193 Figure 14 Access Control Systems ................................................................................. 199 Figure 15 Comparison of MAC and DAC ...................................................................... 203 Figure 16 Access Mechanism Family ............................................................................. 204 Figure 17 How RBAC Works ......................................................................................... 205 Figure 18 Desired Information ........................................................................................ 220 Figure 19 Collection Entity ............................................................................................. 221 Figure 20 Possessary Type Data ..................................................................................... 222 Figure 21 Confidence Type Data .................................................................................... 223
viii Privacy in Database Design s: A Role Based Approach Gary A. Poe ABSTRACT Privacy concerns have always been pres ent in every society. The introduction of information technology information has enable d a reduction in the cost of gathering information, management of that information and the permitted that same information to become increasingly portable. Coupled with thes e reductions of cost has been an increase in the demand for information as well as th e concern that privacy expectations be respected and enforced through security syst ems that safeguard access to private-type data. Security systems enforce privacy expect ations. Unfortunately there is no consensus on a definition of privacy making the specifi cation of security often over broad and resulting in the loss of criti cal functionality in the syst ems produced. This research expands the understanding of privacy by propos ing a replicable type-based taxonomy of privacy that is grounded in philosophy and law. This type-based system is applied to a Role Based Access Control System to specify an d control access to data in a in a hospital setting as a proof of concept.
1 Chapter 1: Introduction 1.0 Introduction Every firm, profit and nonprofit, has al ways required information. Today one problem faced by organizations is how to obt ain, manage and use information that is nominated as private information. With private information the firm faces the following questions every day: What makes an item of information private info rmation? How must they safeguard their customersÂ’ and employeesÂ’ sensitive data? While companies recognize that information privacy is a vital management issue for todayÂ’s organizations, how do we manage privacy? Do our systems meet current privacy expectations? The pr ivacy environment in which firms must operate is dynamic and c onstantly evolving. When does the firm correctly anticipate change s in privacy standards and avoid being managed by the environment? How do we evaluate proposed deci sions and actions to ensure that they are privacy compliant? While acknowledging that privacy consists of a complex web of political, social, and legal issues which impact the firm daily Â– what is the character of this environment and how can a better unders tanding of this environment be achieved? Firms recognize that protection of privacy co uld create a competitive advantage for the firm Â– how can we create a sustainable competitive advantage with a privacy strategy? How do we design and implement such a strategy? In addition to these questions, the tools and design techniques used to manage private information as well as the mechanism of designing privacy into these tools are in their infancy. Privacy concerns are addressed haphazardly and in non systematic ways
2 (Kayworth et al, 2005) usually at the later stages of system design by placing control mechanisms over a pre-designed data model. Privacy is often designed on a case by case, instance by instance basis using bottom up development and no top down methods to manage the direction of the project. A bette r tool or design met hodology would assist the firm to manage its environment but how do we improve existing tools or create new tools that design privacy into organiza tional structures and systems? It has been observed that a societal adoption of a signi ficant technological advancement can affect social values (I nglehard, 1977). Technologi cal development in management information systems and the reduc tion of costs realized through their use in the areas of communication, procurement of information, processi ng and storage have enabled greater efficiency and effectivene ss in business and fuel ed their adoption and use. This adoption of information technology ha s produced a change in values. In general, people have become angry and frustr ated because societal norms and laws have been ill equipped to deal with the changes (Spencer, 2002 and Zweig 2002)). Part of this conflict has produced an increased effort in the enforcement of existing privacy laws but has also resulted in the proliferation of ne w laws protecting privacy. Because a business operates in a sea of law and societal norms, this makes it difficult and at times impossible to manage the enterprise. As a result, incr easingly costs are expanding to provide privacy protections for data as a response to these changes. Decisions ar e increasingly more difficult to make as often priv acy considerations have become part of the decision even though what is or is not private is often not clear. Finally, busi nesses are increasingly
3 recognizing that privacy protec tions are a cost of doing busin ess both from the standpoint of being a good moral citizen as well as from the viewpoint that the failure to do so will result in high social and mone tary cost to the enterprise. This effect on values is demonstrated as concerns about privacy have increased despite the fact that government has made ef forts to protect privacy and business have undertaken efforts to manage privacy. Polls conducted by Louis Harris and Associates show increasingly individuals hold a concern th at their private lives are being exposed. In 1978, 64 percent interviewed in the Harris Poll expressed co ncern about their privacy being violated. In 1995, over 80 pe rcent interviewed expressed that same concern (Harris Equifax, 1993). The growing concern stems fr om the increased use of interconnected media used in business and personal activit ies (Federal Register, 2000). In 2005 this concern was not abated. Nati onally, 67 percent were concer ned over privacy of their medical records, 52 percent fear medical insu rance information would be used to limit their opportunities, only 30 percen t were willing to share hea lth information with health professions not directly involved with thei r case and only 27 percent were willing to share health records with drug companies (F orester Research, 2005). That interconnected media is embodied in a variet y of information technologies. In the remaining of this chapter I wi ll provide background on the concept of privacy to illustrate the problem privacy faces in an environment of rapid technological change and show the development of the c oncept of privacy in light of technological changes in Information Systems. Following th at I will point out that defining what is privacy has proven very difficult, demonstrati ng there is no precise definition of privacy
4 and point out some of the reasons for why there is no agreed upon definition. Next I will outline the privacy research in Information Syst ems pointing out that research in the field of privacy is of vital importance but such research is in its infancy. Anticipated contributions of this work will follow, afte r which I will present how I will conduct the study. 1.1 Technology Change and Privacy: Three Examples Following are three examples of how in formation technologies have created changes that impact privacy. The first example shows that adopted technological change has increased technical capabilities that have permitte d invasions into places traditionally thought as private areas. These invasions have forced a reconsideration of the question of what is privacy Â– that is what places are privat e, what type of information is protected as private an d under what circumstance is information protected as private. For each iteratio n of technical change, the scope of protection of privacy has been modifi ed to accommodate technological change and preserve traditional notions of privacy. The second example shows that the adop tion of technological change is often made without any consideration or th e foresight of how those increased capabilities enabled by t echnological change impact upon traditionally held values, norms and laws that were define d when technological capabilities were not as refined. Technological change has enabled an expanded use of certain types of information due to the increased abil ity to control and compile information.
5 Because of the previous inability to c ontrol or compile this information, this information was deemed to be private-even if it was in the public domain or in the possession of an entity but no formal law or norm prohibited its use. To preserve the status quo and while harnessing new technological capabilities, new restrictions in the form of norms, guidelin es and statutes have been placed on the compilation and subsequent use of informa tion to ensure privacy many of which have been found to be inadequate. Ques tions exist how do we create effective guidelines and restrictions th at ensure values and norms but are flexible enough to permit technological change? In the third example, technology cha nges affecting information use causes corresponding effects upon society, particular ly the roles and relationships created by society to protect and ensure privac y. The third example demonstrates that unless change is managed, t echnological change creates change in those roles and relationships. Certain roles and relationshi ps in society require privacy protection to function optimally. Institutions that encompass these roles and relationships have evolved rules of behavior that pr otected this information. The adoption of information technology change and the hunge r for the information have disabled the effectiveness of these institutional rulesthwarting both the ability of the institution and the individual to contro l sensitive information. As a response, information providers have adopted count er measures. These counter measures have included the withholding of info rmation, the delay of disseminating
6 information and the providing of inaccurate information all of which have harmed the effectiveness of the institutions serving the information providers. 1.1.1 Example One: The Telephone This example shows that adopted technological change has permitted invasions into places traditionally thought as pr ivate areasunder the control of the individual. Each such invasion has forced a reconsideration of the definition of privacy that is what places, what in formation and under what circumstance is information protected as private. U pon each iteration of technical change, protection of privacy has been modified sometimes to accommodate technological change, to preserve traditiona l notions of privacy with restrictions placed upon technology use to preserve the control of the individual. The invention of the telephone and its a doption by society occurred in 1876. The telephoneÂ’s advance as an information technology was immediately grasped and incorporated into its every day operations. In 1877, construction of the first regular telephone line from Boston to Somerville, MA, was completed. By the end of 1880, there were 47,900 telephones in the United States. Service between Bost on and Providence had been established by 1881. Service between New York and Chicago was initiated in 1892, while service between New York and Boston started in 1894. Transc ontinental service by overhead wire was not inaugurated until 1915. Most consumers of phone service were commercial enterprise. Home us e lagged largely due to availa bility and cost but in the 1920Â’s the presence of the phone in the home was more common.
7 In 1928, government agents seized a telephone convers ation of a known bootlegger through the placement of a wiretap on the phone line. The wire tap, enabled police to listen to conversations taking place on the telephone. In his prosecution, the bootlegger sought to have the conversations of this activity excl uded from evidence on the ground his right to privacy was violated by the action of pl acing a wiretap on his phone line and listening to hi s telephone conversation. The Supreme Court of the United States upheld his conviction using traditional notions of privacy of the time. Traditional notions of privacy protected places from being intruded upon and as such required a physical trespass into the home of the person to occur. Because the wiretap was made outside the home there was no physical trespass. In this case the Â“seizureÂ” of the conversati on took place outside the individualÂ’s home there was no privacy violation. A second protection of privacy was that persons were protected from unlawful seizures of tangible items such as personal papers and effects. What was seized here was not tangible what was sei zed was his conversation an intangible item not entitled to protection. Justice Brandeis advocated a broad in terpretation of the Fourth Amendment privacy protections to insure that the gove rnment refrained from intruding into the privacy of the individual. In his dissent in the Olmstead v. United States, Justice Brandeis stated (Olmstead v. United States, 1928): The makers of our Constitution undertook to secure conditions favorable to the pursuit of ha ppiness. They recognized the significance of man's spiritual natu re, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be f ound in material things. They sought to protect Americans in their beli efs, their thoughts, their emotions
8 and their sensations. They conf erred, as against the government, the right to be let alone the mo st comprehensive of rights and the right most valued by civilized me n. To protect that right, every unjustifiable intrusion by the gove rnment upon the privacy of the individual, whatever the mean s employed, must be deemed a violation of the Fourth Amendment.Â” What Brandeis was in effect saying is we must recognize the potential for this new technology and reconcile the changes th is technology brings with our value of privacy that a person has the ri ght to be left alone. Bra ndeis' position in the Olmstead dissent was a minority opinion at the time. This opinion gradually gained momentum over time. In 1965, in the case Griswold v. Connecticut (381 U.S. 479, 1965) opinion, Justice William O. Dougla s citing Brandeis found a penumbral right to privacy emanating from the Constitution and its First, Fourth and Fifth Amendments. Later in 1967, in United States v. Katz, the 1928 decisi on of Olmstead v. United States (389 U.S. 347) was overturned when the judges adopted Brandeis' minority opin ion as the decision of the Katz court. The Court in Katz rec ognized that regardless of technological change, people have a right to privacy even if technology exposes them to some degree. 1.1.2 Example Two: The Computer and Database The second example shows that the adop tion of technological change is often made without the foresight of how t hose increased capabilities enabled by technological change impact upon tradit ionally held values, norms and laws. Technological change has enabled an expanded use of certain types of information due to the increased ability to control and compile information. Because of the previous inability to c ontrol or compile information, information
9 was deemed to be private-ev en if it was in the public domain or in the possession of an entity as far as the rule of la w applied even though no formal law or norm prohibited its use. While new restrictions in the form of norms, guidelines and statutes have been placed on the compilati on and subsequent use of information to ensure privacy many of these laws have been found to be inadequate. Questions exist how do we create effective guidelines and restrictions that ensure values and norms but are also flexible e nough to permit tech nological change? The Katz opinion occurred at the time people was developing a new awareness that a portion of their private life was subject to being exposed to others. This awareness surfaced in the early 1960's when the advent of computer technology th at made it feasible to aggregate and process data in ways neve r before imagined. Research on the creation and use of computerized data bases, which had begun in the 1950Â’s fueled concerns over Â“Big BrotherÂ” collecting information on citi zens and invading and controlling their lives. This reached a fever point in the mid 1960Â’ s when stories emerged of the federal government constructing super computers and operating them on the individual information of its citizens. A realization wa s made by the general public that the Federal Government, in its course of doing busin ess had many unconnected data stores on individual people. Should these islands of in formation be merged, various details of a personÂ’s life could become exposed as a result of the merger. Citizens and legislators alike began to contemplate the ways this information if compiled could be abused.
10 A report entitled Records, Computers and the Rights of Citizens (Department of Health, Education and Welfare, 1973) issued by the, made specific recommendations for laws that would implement and enforce the code. Specifically they recommended that governmental organizations that kept au tomated databases on individuals enact safeguards to protect this data and be requi red to report to the public each year what databases they were keeping and what info rmation they were co llecting. Additionally they set out rights of people whose informa tion was stored would have over the access to and correction of data. This report recommended a code of fair practice be enacted by Congress for automated personal data systems. For this Code of Fair Practices four principals were enumerated: There must be no personal data record-keep ing system whose existence is secret. There must be a way for an individual to find out what information about him is in a record and how it is used. There must be a way for an individual to prevent information about him that was obtained for one purpose from being used or made available for other purposes without his consent. There must be a way for an individual to correct or amend a re cord of identifiable information about him. Any organization creating, maintaining, using, or disseminating records of identifiable personal data must assure the reliability of the data for their intended use and must take precaution to prevent misuse of the data.
11 In response to this report, The Privacy Act of 1974 was enacted to insure that individual privacy was maintained in light of the technical advances in the creation and use of computerized databases (Electronic Privacy Information Center, 2003). The Act was far from comprehensive. The Act only applied to U.S. citizens and permanent residents. Not all federal agencies, and no stat e and local agencies are covered by the act, although all federal, state and local agencies are subject to limits placed on the use of Social Security numbers (Privacy Act of 1974, Â§7, 2003). Government controlled companies like the Post Office, the militar y, Executive agencies like the Department of Education, the FDA and the FBI, executive departments; inde pendent regulatory agencies and government controlled corporations ar e all exempt. Of the agencies under the umbrella of the Privacy Act, only the databases of thos e agencies which retrieved information by the name of the individual or a personal identifier of the individual (this schema was referred to in the act as a system of records) were subject to its provisions. Should a database contain this information but that information not be retrieved by the individualÂ’s name or a personal identifier, that database would be exempt from this act so as to create a huge privacy gap. The Act required publication in the Federa l Register notice that the agency was keeping such records and include the details of their systems, the records and the intended uses of the system. People were allo wed to submit data, views and arguments to the agency. An emasculating provision of th is act was how change would be managed. Any proposed changes did not require a publicat ion but only required notice to be sent to a committee in the House and Senate as we ll as to the Office of Management and
12 Budget.1 These bodies were charged to evaluate the probable and possi ble effect of the proposed action on the rights of individuals only. These bodies did not have authority over the agency, no direct ability to stop the proposed action or any ability to propose a compromise solution. Other provisions of the act limited the co llection and use of the information of individuals by the government a nd provided means in which the individual could monitor governmental activity through requirements of disclosure by government to the individuals of both the information held in their files and its use by the government. Any individual who has access to any records the agency held on him, be allowed to review the record and make copies. If the record were incomplete or inaccurate, the individual could ask the record be corre cted and the agency had 10 da ys to respond by either making the change or telling them why they refuse to make the change. The agency must also provide a name of a supervisor in which to appeal the action taken. If appeal is taken action must be completed within 30 days unl ess extended for good cause. If the appeal is unsuccessful, the agency must tell the individual how they can pursue this matter in court. The act required agencies to keep accurate records of when, to whom it has disclosed personal records maintained five years or the lifetime of the record what ever is longer. Agencies are also required to mainta in only the minimal amount of information relevant and necessary for its operation. When the information can have an adverse effect upon the individual, effort must be taken to collect the information from the individual 1 Notices to the House would go to the Committee on Government Operations of the House of Representatives. Notices to the Senate would go to the Committee on Government Affairs of the Senate.
13 directly. When collecting this information directly, the agency must tell the law which gives them the authority to co llect the information, the uses of the information and the effects that might result from the data not being provided. Other co llection restrictions include the collection of records describing how an individual exerci ses rights guaranteed by the first amendment and places limits on da ta sharing between government agencies. The act provided both civil as well as criminal penalties for its violation. Many of the shortcomings of the act are contained in the paragraphs above. As significant as those may appear, there were more. The act required the creation of the Privacy Protection Study Commission whose purpose was to submit recommendations to Congress regarding further implementations a nd enforcement. The act also required the President to submit a report every two years on the oversight of the Privacy Act. The first and only report made by Privacy Protection Study Commission was a report that was issued in 1977. This report concluded that the act was a great step forward but it failed to bring about the benefits intended (P rivacy Protection Commission, 2007). The shortcomings of the act were the result of th e fact that much of the actÂ’s language was unclear and a key term Â“systems of recordsÂ” 2enabled wholesale violations of individual privacy. No action was subsequently taken by Congress to address th ese shortcomings or limitations. The ActÂ’s requirement of the President submitting a report every two years 2 The Privacy Act applied only to databases where database records were retrieved by name, Social Security Number or other individually identifiabl e information. These records were the systems of records. If a record contained this information but could be retrieved by another manner that did not use a system of record, it was not subject to the provisi ons of the act. Conceivabl y a governmental agency could circumvent the act in this manner causing harm to the individual.
14 on the oversight of the Privacy Act was re pealed in 1995 (Public Law 104-66, 1995). To date there is limited oversight of the Act. Use for Law Enforcement and the routine use exception continue to erode the effectiveness of the Privacy Act of 1974. Effective law enfor cement requires the ability to exclude criminals from the files that invol ve the investigation of them by a law enforcement agency. Agencies use the law en forcement exception to justify exception to the provision of the act. The effects of 9/11 and the Patriot Act has further limited the ability to keep this provision narrow and ha ve opened up new and greater exceptions. Agencies can only disclose information to others if they either have the individualÂ’s permission or the disclosure m eets one of twelve conditions outlined in the act. Examples of such permissible disclosure include a disclosure pursuant to a court order, a disclosure to Congress, a disclo sure of compelling circumstances affecting someoneÂ’s health or safety. Agencies also can disclose information if it is for a routine use an exception that agencies have abused. R outine use is defined in the Act as "the use of such record for a purpose which is co mpatible with the purpose for which it was collected." This phrasing can often lead to "m ission creep" for a system of records, in which the routine uses for a particular data base gradually increase until its scope is far greater than its orig inally stated goals (Electronic Privacy Information Center, 2003). While it is a requirement of law that routine us es be stated in the Federal Register this requirement is met with broad sweeping la nguage which can justify any use under the sun. While some court decisions have limite d how broadly an agency can describe
15 "routine uses" (Britt v. Naval I nvestigative Service, 1989) a la rge number of uses can still be covered by a short, general statement. 1.1.3 Example Three: Medical Inform ation and information portability Technology changes affecting informati on use causes corresponding effects upon society, particularly the roles and relati onships created by society to protect and ensure privacy. The third example demons trates that unless technological change is managed it will recreate roles and relati onships. Certain roles and relationships in society require privacy protection to function optimally. Institutions have evolved rules of behavior that protect ed private information. Technology change and the hunger for the information it can produce have disabled the effectiveness of these institutional rulesthwarting both the ability of the institution and the individual to control sensitive information. As a response, information providers have adopted counter measures. These counter measures have included the withholding of information, the delay of disseminating information and the providing of inaccurate information all of which have harmed the effectiveness of the institutions serving the information providers. The increased use of privat e insurance in the mid 1960Â’s altered the doctor patient relationship by adding new participants in to the relationship such as insurance companies, HMOs, self-insuring companies, ending the era when all medical information remained between the doctor and patient. For a variety reasons such as cost containment, risk management, fiscal responsibility, efficien t practice of medicine and or the need to monitor professional practice abuse, the disclosure of medical information and
16 information given in pursuit of medical trea tment was required to be disclosed to these third parties. These third parties had no dire ct relationship to the patient and no incentive to protect the patientÂ’s information. In ma ny cases third parties often profited greatly from having access to this information through e ither its use or its dissemination with the patient bearing the entire expense (El ectronic Privacy Information Center, 2003). Information technology lowered the cost to share information and created new ways to aggregate and use information. This better enabled better us e of information in ways never before imagined. Information t echnology enabled more reviews to take place of the physician work, and enabled health care organizations to be better able to follow and to review practice guidelines and util ization standards comp liance by physicians (Field, 1994). Information technology also allo wed more information to be shared outside the medical caregiver context. Insuran ce companies increasingly ask for more information and use that information to assess risk and implement policy of insurability. Employers are increasingly using private me dical information. Employers can assess their employeeÂ’s potential in new ways. Em ployers can use the st udies compiled from computerized medical records to compare the performance of different managed care plans (Field, 1994). In addition, employers may use this information to screen workers for preexisting susceptibility to wo rkplace health hazards (Field, 1994). The concern that interconnected medi cal and insurance information systems caused medical privacy erosion surfaced during th e debate of the Health Security Act in 1994. The debates evidenced a concern that th e increased ease of transmitting and sharing individual health information resulted in an increase in concern regarding privacy and
17 confidentiality of that information (Federal Register, 2000). It wa s found that increased protection of medical information access and us e was necessary for the quality of medical care to increase (Rotenberg, 1994). What fueled the debate was the recogniti on that the United States as a country expends about one trillion dollars on health care each year (Hoekendorf, 1996). Despite these expenditures, healthcare outcomes in the United States fail to achieve high outcomes. In fact when ranked with other coun tries, the United States fails to outperform and in many cases lagged far behind other c ountries in results obt ained despite those countries expending less mone y in total and per capita (Federal Register, 2000).. When obtaining medical treatment patient s must participate with a medical caregiver. For the optimal treatment effects to occur an accurate a nd full disclosure of relevant facts must be provided by the patient to the treatment giver. It was also found that many of these fact and information re quired to be provided by the patent to the caregiver are of a personal and sensitive na ture (Federal Register, 2000). In studies conducted by the United States Department of Health and Human Services a relationship between trust and treatment outcome was found. When the patient has high trust in the provider, more information and more accurate information is provided to the medical provider by the patient. On high trust situations patients seek care earlier. When the trust is low the patient withholds information, knowingly gives inaccurate information or delays or fails to get treatment. As accurate and full disclosure of information and prompt seeking of medical care is a prerequisite of delivery of quality medical care, it was concluded that health care professionals who lo se the trust of their patients cannot deliver
18 high quality care (Federal Re gister, 2000). It was specifi cally found that the medical community in the United States had lost the trus t of its patients due to the belief that their privacy in their medical information was violated (Federal Register, 2000). During this study, patients voiced great c oncern over the dissemination of their medical information to others outside of the patient caregiver relati onship. Many patients noted stories of harm that had come to th em by individuals or company or companies acting upon this information. Firings, demotions, loss of upward mobility in the workplace, decreased insurability, loss of in surance, humiliation are just a few of the effects that have been suffered by indivi duals when this information has became disseminated. In many cases individuals and their families admitted to having delayed treatment or failed to seek treatment resulting in more illness, spread of illness to others, loss of productivity, greater medical costs and in some cases premature death. In a separate study, the United States Department of Health and Human Services has noted these same concerns (Federal Register, 2000). In an effort to foster improved health care information privacy and increase the quality of medical information HIPAA was enacted in 1996. 1.2 Difficulties with the Existing Definiti on of the Nature and Purpose of Privacy Gerty expressed the problem faced by lawy ers and judges when they attempt to define the nature and purpose of privacy, Â“Â…comes not from the conceptÂ’s meagerness, but from its amplitude, for it has a protean capaci ty to be all things to all lawyers.Â” And he also provides the warning, Â“A legal con cept will do us little good if it expands like a gas to fill up the available spaceÂ” (Gerty, 1977).
19 This problem expands beyond lawyers and judges. Take any group of people and ask them to define the nature and purpose of privacy and you will get varied responses. It should come as no surprise that philosophers and legal scholars have attempted to define the nature and purpose of privacy and have failed to reach a consensus. W.A. Parent, a philosopher, defined privacy as a condition of not having undocumented personal knowledge about one possessed about another (Parent, 1983). It has not been widely accepted. To others control over information is the basis of their definition of privacy. Fried saw privacy as control over personal information about oneÂ’s self (Fried, 1968). Westin another advocate of control proffers that information privacy is the claim that individuals or groups have to determine th e conditions under which information about themselves is communicated to others (Westin, 1967). Froomkin centered on what happens after the proper releas e of information. Privacy accordi ng to him is the ability to control the acquisition and release of info rmation about oneÂ’s self (Froomkin, 2000). Privacy has been defined as a necess ary condition for the construction of autonomous individuals. This is described in the literature as priv ate psychological space (Zweig and Webster, 2002), or as a conditi on necessary for the construction of self (Reiman, 1976), a place to construct their identity (Goffman, 1957) intellectual privacy (Cohen, 2003) or emotional space. Privacy has be en seen as a right: a right to be left alone, a right to autonomous choice regarding intimate matte rs, the right to autonomous choice regarding personal matters (Froomkin, 1996). Privacy has been characterized as an individual interest in a voiding disclosure of personal matters and an interest in independence in making certain kinds of important decisions (Whalen v Roe, 1977).
20 Others define it as a limit on what is known and who may know about one's personal affairs (Gross, 1971). These philosophers discuss this type of privacy in terms of access to the person and information about the person. Still another group of philosophers focus on privacy as a condition necessary to form relationships. Rachels sees privacy as ne cessary to maintain the variety of social relationships that we want to have (Rachels, 2006). Fried sees the title to information about oneself and protected by privacy provides the necessary something to the relationship Â“ ... intimacy is the sharing of information a bout one's actions, beliefs, or emotions which one does not shar e with all, and which one has the right not to share with anyone" (Fried, 1968). Reiman finds that privacy protects the indivi dualÂ’s interest in becoming, being and remaining a person (R eiman, 1976). Inness defines privacy as a defensive action, protecting intimacy and ensu ring freedom of action and the protection of our autonomy (Inness, 1992). There are many reasons why there is no consensus on a single definition of the nature and purpose of privacy. Some of the reasons discussed here are: the nature and purpose of privacy is socially constructed c oncept through a process that is influenced from forces within and without society and a lthough the concept is socially constructed it varies both within and across cultures. The defining of the nature and purpose of privacy is a work in progress. Privacy is multidimensi onal in purpose. It is not only a value that has many dimensions but also is a perspectiv e that orders life. Pr ivacy is a value and process that produces data. It is difficult to translate any value into a control mechanism. Privacy is particularly difficult because the translation process is often attended by self
21 interest and politics. Ofte n time these specifications are purposefully poorly done. Privacy is a value that encompasses many dive rse values and purposes and is not a single valued concept. Finally, definitions and right s of privacy change as technology changes 1.2.1 Reason One: Privacy is a value that is socially constructed Social construction is subject to influences both from within and without societal boundaries. These influences cause conceptions of what is private often to vary across cultures and within the culture itself. Conceptions of privacy are socially constructed (Bezanson, 1991, Scanlon, 1975, Rachels, 1975). This social c onstruction is from the summation of all entities in society and is not the conception of privacy of any one individual of that society. As an illustration, in law, Justice Harlan explaine d that reasonableness of the individualÂ’s expectation of privacy entailed a two-part, e xpectation-driven test. First, the defendant must have an actual or subject ive expectation of privacy. S econd, the expectation must be "one that society is prepared to recognize as "reasonableÂ” (Katz v. United States, 1967). This illustrates the symbiosis between the expectation of the i ndividual and societyÂ’s conception of privacy. What a society deems as private is ultimately constructed from the views of its members. While each member of society has their own personal, actual, and subjective perspective as to what is or is not private for it to reap to a level where it is respected and protected, society must sanction that individual view as being reasonable. The conception of the nature and purpose of priv ate is not static. As change occurs in the privacy expectations of individuals so will the construction of privacy change (Spencer, 2002). This change occurs during the periods where individuals expr ess and assert their
22 perceived conceptions of privacy. During this process societal opinion is examined in light of the assertions made. Some of the new ideas of privacy grow, while others fail to flourish and die. It is only when the majority or dominant opinion of society accepts that individual opinion that a social expectat ion of privacy is formed. Therefore the construction of privacy is an interactive process between the individua l and society itself influenced by forces that influence society itself Individual Execrations of Privacy Societal Expectations of privacy Is influenced by Figure 1 Interactivity of Individual and Society Privacy Expectations 1.2.2 Reason Two: The defining of the nature and purpose of privacy is a work in progress. The definition of privacy is a work in progress. The definitions of privacy are difficult because not all indivi duals within society agree with the social construction while social construction determines the exte nt to which people are expected to expose their lives, their pers onalities, their attributes and th eir behavior to public scrutiny (Schauer, 2000). Often entities will express their disagreement openly and work to effect changes in its definition and application even after specification. Additionally an individual entity or group of entities with power and purpose can affect a change in a societys conception of privacy. It has been observed that individuals and groups who use cutting edge technology and knowle dge of the legal process have affected societal change in the past (Spencer, 2002).
23 The environment where privacy is cons tructed is also undergoing constant change. Technological change places pressure s on and affects social values through the changes it makes in economic and social sy stems making what is private a moving target (Inglehard, 1977). As technologi cal capabilities increase tr aditional conceptions of privacy have undergone change. "People's s ubjective expectations of privacy tend to reflect the amount of privacy they subjectively e xperience; and as advances in the technology of monitoring and searching have made ever more intrusive surveillance possible, expectations of privacy ha ve naturally diminishedÂ” (Rosen, 2000). Because privacy is socially constructed, privacy varies across different cultures, even between strata with in a society, as it is a product of vary ing social and cultural understandings (Schauer, 2000) as each cultur e has its own unique environment. What is private appears to depend upon the situation, th e type of privacy i nvasion and the parties involved which has lead to the conclusion that privacy is contextually specific. 1.2.3 Reason Three: Privacy Supports Not One but Many Purposes Privacy as a value does not support a singl e purpose. One reason for the lack of consensus on the nature and purpose of pr ivacy is privacy supports many different purposes, sometimes simultaneously and sometim es these purposes conflict. The nature and purposes of privacy include: Privacy stems out of respect, fairness and responsibility due toward others (Innes, 1992). Privacy emphasi zes that a person is an agent free to act who is only responsible to othe rs in cases of necessity or agreement (Nissenbaum, 1998). Privacy is the value that a person should be ab le to construct and shape relationships with others (Reiman, 1976). Privacy also emphasizes the value that the individual should be
24 able to construct his own self. Privacy also recognizes with in limits, each individual has the right to determine the extent of hi s thoughts, sentiments and emotions be communicated to others (Brande is and Warren, no year). Hist orically privacy has been used to protect a personÂ’s property and liberty (W arren and Brandeis, no year). It is also a value that ensures structures that support pr ivacy which in turn ensure a desired way of life such as the ability to have intimate rela tionships, or to read, study or develop one self in private. Without privacy, life as we know a nd enjoy it would be very different and less desirable (Inness, 1992). With each purpose th e specification of th e value of privacy varies contributing to why ther e is no consensus on a single definition of the nature of privacy. 1.2.4 Reason Four: Privacy is a perspective that orders life. Through privacy, daily life is regime nted through social and technical mechanisms that arbitrate which data (and in formation) is produced (Agre, 1998). Once a value is created it becomes a perspective that orders life. Â“Â…( privacy is) Â… infects our way of experiencing the social world and which affects social life in profound and subtle ways. As a social concept it has normativ e and descriptive functions that interact with one another. Th e concept of privacy regulates institutions, practices activitie s and social and individual life generally. It controls what people feel they have legitimate access to and in this way fosters both possibilities and limitations.Â” (Schoeman, no year) 1.2.5 Reason Five: Privacy is a both a va lue and a process which produces data Privacy is a social technical process that produces data. Privacy is translated into definitions, laws and norms (Agre, 1997). These laws and norms create roles of
25 acceptable and unacceptable behavior that are char acterized as rights. It is through rights privacy becomes the arbitrator of what data and information is useable and what data is off limits. Data and information that is desi gnated as not available and useable is private while all other data is public da ta available for all to use. It is difficult to translate any value into a control mechanism. This difficulty is increased because the translation and interpreta tion process is attend ed by self interests and politics. Additionally confounded definitions of privacy are often created to obtain personal agendas when consensus cannot be met. In the specification of control mechanisms values of privacy are translated into laws and norms enabling the realizati on of desired values of privacy. 1.2.6 Reason Six: Privacy is Not a Rational Concept We cannot forget that the people who com pose society and define their nature and purpose of privacy are both rational and em otional beings. As a result privacy as a concept and construct has both rational and emotional elements. For many people, the personal natures of the decisions which accompany privacy do not wholly allow a person to coldly remove the emotion from the deci sion. Often a person develops his opinion of privacy, at least in part, in an irrational manner, and subjec t to their whims and emotions (Inness, 1992). Additionally society is not largely composed of mature rational thinkers. Many more people make their decisions on privacy not on rational thought but on the feeling that they have about the decision. A dditionally the construction of the nature and purpose of privacy at least on the part of indi viduals is often motivated by self interest. Many times individuals looking at the calcu lus of the situation will weigh out the
26 advantages and disadvantages of privacy l ooking for the advantages to them not the benefits that would accrue to others or benefit the whole of society. 1.3 Privacy Research in the Information Sciences While the field of Information Sciences recognizes that privacy issues present pressing issues to business and is a critical area of research, past research is sparse, inadequate, single paradigmatic in nature, a nd possesses few theories. Privacy as a term does not have a single agreed upon definition; nor is there an espoused epistemology, ontology or axiology. Little research on the topic of privacy has been done in the Information Sciences despite MasonÂ’s statement that privacy resear ch was one of the most important "ethical issues of the information age" (Mason, 1986). Links between organizational privacy practices, individual perceptions of those practices and soci etal responses have been recognized (Smith et al, 1996). Davison in 2003 observed that studies in privacy appear not to be keeping pace with the growing intere st in privacy (Davison et al, no year). As late as 2005, Greenaway has characterized the pr esent stream of research has been proven insufficient and the research relies upon a si ngle paradigm to explain all organizational level privacy behaviors (Greenaway and Chan, 2005). When privacy research pursued, it is generally discontinuous with previous studies. While there have been numerous studies conducted in privacy in the MIS tradition, this researcher c ould find no MIS work building upon previously completed studies in privacy other than an acknowledge ment that other researchers had done some type of privacy research. As a result there is a paucity of theory in the Information
27 Science discipline to guide the understandi ng of organizational information privacy behavior (Greenaway and Chan, 2005). While ca lls for a new theory have been made to assist in the understanding of similarities and differences in the information privacy approach among firms (Milne and Culnan, 2002) only Greenaway has offered research in this area that provides new theory. In an effort to assist with privacy co ncerns, privacy research has increased in many academic fields. In each of these disciplines, they have in place a definition of what is privacy, what is private information, and wh at is the value of privacy. In some fields, their definitions reference definitions in ot her disciplines most notably law referencing philosophy on this topic. But in MIS research, we have not referenced another discipline nor have we adopted a definition of privacy. At best, only a handful or researchers have attempted to define privacy or what private information is or what values privacy is supportive. All that exists ar e general sweeping statements exist about privacy based upon control. As way of example, Greenaway uses the definition that privacy is the ability of the individual to personally cont rol information about them (Greenaway, 2005). Hu and Teo adopt WestinÂ’s definition that priv acy is an individualÂ’s ability to control the terms by which their personal informati on is acquired and used (Westin 1967). MIS research has not focused on the axio logy of privacy having only tangentially commented on the importance of privacy and the values that privacy supports. Other disciplines have directly explor ed the values privacy supports directly and from that focus on values, they have defined privacy in ways outside that of control The following is just a sampling of what has been offered as a defini tion of privacy in past research from fields
28 outside of MIS through the focus on values: Priv acy is the right invaded (Prince Albert v. Strange, 1849). Privacy pertains to the regimentation of dive rse aspects of everyday life through social technical mechanism by which data is produced (Agre, 1998). Personal privacy is simply another exte nsion of property rights; like in come and wealth, privacy is an emanation of each manÂ’s ownership over his own life (Newhard, 2004). It has been described as a right: a right to be left alone, a right to autonomous choi ce regarding intimate matters, a right to autonomous c hoice regarding persona l matters Froomkin, 1996). "(Privacy is) part of the inner pers on" (Emerson, 1979). It is the freedom from unreasonable constraints on the construction of ones identity (Clarke, 1994). Privacy can be an interest: Â“the individual interest in avoiding disclosure of personal mattersÂ” and Â“the interest in independence in making certa in kinds of important decisionsÂ” (Whalen v. Roe, 1977). Â“Privacy is the condition of not having undocumented personal knowledge about one possessed by anotherÂ” (Parent, 1983). Studies need to be conducted on what is the value of privacy research and what values does privacy support. This will clarify what is privacy and the understanding of the construct of privacy an d enable us to construct a better construct. Writers in other disciplines before es pousing theory, have often discussed the philosophical concepts they believe that are di rectly related to res earch such as ontology, epistemology, values, ideologies, history, pol itics, and social and cultural contexts (Patterson, 2000; Paul & Marfo, 2001; Slife & Williams, 1995; Smeyers & Verhesschen,, 2001). Slife and Williams observe that the hermeneutic philosopher Gadamer (Gadamer, no year) contends that before the developmen t of theory there is always an operative
29 understanding of truth. It is this (pre)understand ing of truth that makes it possible to frame any method at all. Wit hout this understanding we could not formulate any method because we would not know what the method should be likeÂ—or that we even need a method. This means that understandings of truth produce methods, rather than methods producing truth. Methods, incl uding the scientific method, are only devices we use to convince others and ourselves that our id eas are in some sense sound. Methods do not establish the truth of the matter (Efinger et al, 2004). In philosophy privacyÂ’s epistemology has been exhaustively studied but to date, no attempt been made in MIS research to examine the basic epistemological basis of our construct of privacy. An examination of priv acyÂ’s epistemology will not only help us in the choice of methods in which to conduct res earch but also through an specification of an epistemology a paradigms for research will be established. Those paradigms will improve our understanding of privacy. The unde rstanding of the epistemology of privacy will enable the development of theories of priv acy in the MIS discipline. It will assist us in the choice of methods to study the concept. Another benefit of this examination is that it will allow us to compare justifications for truth and understand seeming similar studies that differ in conclusions that are in fact not based on the facts of the study but on the epistemology of the researcher. 1.4 Purpose of the Study This section will identify th e audience to which this study is directed and after specifying the audience will specify problems that need to be solved.
30 1.4.1 Intended Audience A study of privacy in the MIS tradition can be directed to both the business community and the technical community. It can also be directed to the legal community, particularly where laws impact upon business an d business operations. I will address this proposal to all of these audiences. 1.4.2 Problems and Opportunities To the business and technical community privacy presents many opportunities to the organization that can mana ge the problems of privacy. So me of the problems that can be addressed from this study include the following: 1.4.3 Address the calls for a bett er understanding of privacy. Despite MasonÂ’s statement that privacy is one of the most important ethical issues of the day (Mason, 1986), MIS field have not made our statement as what constitutes privacy. We as a discipline are calling for more theory on privacy to support organizational privacy research, but we have no epistemology, ontology nor do we discuss what the value of pr ivacy is. Where privacy defini tions have been attempted it has been defined only in terms of control. When we have conducted research, our research does not build upon past research. To address this problem an exploration of the epistemology of privacy adopted from philosophy will be undertaken. From th is a new multi dimensional construct of privacy which encompasses relationships, pr ivilege relationships, personal development and expression, business secrets and public life will be proposed one that will be grounded in philosophy and supported by law wh ich establishes role s of behavior.
31 1.4.4 Integrate Legal and Business K nowledge and Research in Privacy The adoption of new media involves the shifting or blurring of the boundaries of public and private. (Meyrowitz, 1985). Due to increases in technical capacity to gather, transfer, store and farm information, a pressu re exists to both assure and protect the fundamental values that compose privacy. As a response, seemly endless streams of new laws are being enacted to ensure traditional values, to protect existing norms, and clarify privacy boundaries. Responding to changes in social and lega l privacy mandates has become an ever increasing cost of doing business. Business has high motivations to act in this manner as the penalty for non compliance is high. When any system is found to be insufficient almost certain loss in money and time will occu r to the business due to legal action Â– real or threatened. Other losses incl ude the inability to attract a nd keep customers, effects on employee productivity, morale and retention, and the inability to keep up with other key players in the industry. In a firm both the busine ss side and the IT side of the firm need to make adjustments in strategy, tactics and ope rations to meet these mandates for privacy. Business lacks the language and understanding of law to fully recognize these mandates, to interpret and define what is required and to anticipate how best to implement privacy measures in a manner that protects legally and socially mandated privacy protections. This lack of understanding of law also hinders business in making assessments on whether the proposed measures are sufficient to meet both the mandated and anticipated future privacy standards. One cost borne by a firm is the seemingly constant rework of plans and in place systems to meet mandated privacy standards resulting in substantial
32 costs in time, effort and money. To avoid thes e costs and to ensure socially and legally mandated privacy, businesses have resorted to implementing plans and systems that are overly specified, costly to implement only to fi nd the resulting system fails to meet the requirements for the business, is cumbersome to use, full of vulnerabilities, and prone to be reworked and redesigned at great cost when the next unanticipated change is mandated. Laws are that are enacted by legislatures often interpreted by lawyers and judges are done by individuals with no understanding of the implications on the business community. These same individuals do not understand how business operates let alone how their law, or the application or interp retation of law will affect business. Strong criticism has been levied by the business community toward the legal/legislative community on these issues. Recently a call ha s been made in the legal community to bring together both the legal and business schoo ls of thought to create a single integrated legal/managerial school of thought (Hollowa y, 2005). From the business side the purpose is to promote a better understanding of law by business decision makers. This would assist business decision makers in the making of decisions that are compatible with law and policy. A second purpose is to provide be tter tools and methodologies to evaluate that both the decisions made and the conse quences of the decision are compatible with law and policy. The end result would enable decision makers to better weigh decisions against the public polic y and promote better decisions that affect society growth, stability and direction For the legal and policy practit ioner, the purpose is to promote a better understanding of business theory and methodology so that th e impact of law and policy
33 on business theory and methodology can be bette r assessed. It would also assist lawyers and legal decision makers understand how lega l advice and legal anal ysis can assist the process of business decision making. These goals would assist in th e alleviation of the trend toward pervasive regulat ion of the workplace by law an d better instruct law in how it impacts business theory and directives The end result would promote a better integration of law and business (Holloway, 2005) This study will assist in reaching those goals. A specified privacy basis in philosophical and legal terms as well as a better specified construct of privacy will enable both law and business a better understanding of privacy and make clearer the requirements that must be met to enable legal and business privacy solutions to be propose d, selected, implemented more effectively and efficiently and understood more completely. Less time and effort will be spent on reworking systems to add unanticipated functionality or in designing into systems the requirements to meet mandated functionality for both the present and the future. Finally this will provide a better way to exploit technological change and preserve status quo or at least reconcile status quo with technological changes. 1.4.5 Increase Privacy Management Capability Privacy management is a skill required to meet the problems and opportunities faced by the firm. In many cases privacy management is a potential competitive advantage. With mandates from law and society for increased privacy protections, business find themselves involved with solving problems or exploiting opportunities. In some instances a businessÂ’ ability to meet privacy concerns can provide them a competitive advantage over firms that do not meet thes e concerns. These problems, opportunities or
34 potential competitive advantage can result from creating better relationships with external customers or creating an better work ing environment for its employees. Business strategies are frequently adopted to respect various privacy interests of its external customers. These strategies incl ude building better cust omer relationships and loyalty, developing and sustaining trust, promoting an image that engenders favorable attitudes toward the business, assisting in the development of brand to name a few. This is especially effective when the company is able exceed the privacy expectations of its customers yet gain maximum benefit for itself. Because individuals have a great concern over the erosion of their priv acy, privacy standards and cont rols can create, build and sustain these conditions especially when us ed as a methodology of maximizing the value of the customer relationship. Employers are always looking for ways to increase productivity. In knowledge creation environments, creativity has been found to be stifled when too much control is placed over the individual. The line between wh at is seen as an invasion of privacy and what is not is critical when developing the optimal work environmen t for the creation of knowledge. Worker productivity, morale and sati sfaction suffers when privacy is invaded in the workplace. Business however has difficulty in developing these relationships because of these types of questions: How do we capitalize on cons umers concerns for privacy and create a sustainable competitive advantage? How do we construct privacy strategies that encompass the concerns of the external cust omer that enable the solving of problems, exploitation of opportunities a nd create competitive advantages? How do we provide for
35 worker privacy concerns yet retain need ed control over the workplace? How do we implement and enforce privacy yet rema in competitive with our rivals? This study will give business a ne w tool to address problems and opportunities presented by privac y. When initiatives are taken often they fail due to unanticipat ed functionality and requirements and the inability to develop solu tions with existing understandings and tools. Being able better m odel privacy and from those models create information tools that support the business strategy of capitalizing on consumer and employee concerns over their privacy invasions will result in substantial benefits accruing to business. The specifications of privacy provided by this paper will enable businesses to construct a strong privacy strategy, develop a sound tactical plan and execute th e plan to its best potential. 1.4.6 Design privacy into the tools of business to ensure privacy How do we design privacy into our informa tion tools? A problem exists of how to implement technical controls on private inform ation and solve the i ssues of planning for privacy in the initial design stage. Should th is be accomplished, the result would be lower costs of implementing privacy safeguards, increased performance of systems using privacy safeguards, fewer security concerns fewer security breaches and less risk of failure. Presently privacy is designed into the system after the data model has been established. Once the data model is completed, a database tool is implementing on top of the data often using a system of views, priv ileges and security tools to ensure privacy. Other methods are a series of triggers whic h utilizing programming to enable those with the correct access codes to obtain informa tion they desire. Oracle has introduced a concept called the Virtual Private Database which matches roles and permits greater
36 abilities to program security into the system but this too is done after the fact. New methods include notifications issued when certa in information is accessed but this suffers as a check on the system and is not proact ive. The problems with these after the fact systems are numerous. First is they are very expensive to design and implement. Risk of failure is high due to the fact privacy is not designed at the inception of the system. Privacy controls and protections are placed ove r the data model. Often these are custom designed. Holes and vulnerabilities ar e often found once the product has been implemented. Other times the tool fails to provide the level of privacy mandated by law or expected by consumers or fails to provi de a required level of service or both. This study will assist in the creat ion of tools, the planning and construction of infrastructure and systems, and the applications of these to the problems and opportuniti es of the business I propose to create a role based info rmation technology design tool composed of law and social norms and information technology design. This tool will design privacy into the information as well as into the mechanisms that sit on top of the information. Each data attribute will have a sensitivity level as well as certain possible data values with in the range of possible data attributes. I propose that the userÂ’s role and view inst ead of being a first level protection is but a third level of privacy prot ection. This tool will enable the an evaluation of the instantiati on to be made regarding its compliance with legal and social no rms, its ability to cope with changing environments, The tool will enable more effective designs, at less cost in term of money, time and resources. The tool will enable better designs in terms of quality. Designs constructed will meet the strictures of society and law, be better able to withstand changes made in the environment by technology changes and the accompanying legal change s made to insure traditional values.
37 1.5 Nature of the Study This research study will be conducte d using Design Science methodology. Hevner (Hevner, no year) presented a framework fo r understanding, eval uating, and executing Design Science research in IT. Design Scien ce in the context of Information Technology is ultimately concerned with the constructi on of solutions to problems as well as the creation and exploitation of opportuniti es in the business environment. Improvements and/or Extensions of Theories or Methods Environment Design Science Research Knowledge BaseBusiness Â•Problems Â•Opportunities Â•Organizational Context Â•Business ProcessesTechnology Â•Infrastructure Â•Information Systems Â•Applications Â•Communications Architecture Â•Constructs Â•Models Â•Methods Â•Instantiations Â•Empirical Methods Â•Measures Â•Validation Criteria Construction Â•Design as a Search Process Â•Design as an ArtifactEvaluation Â•Analytic Studies Â•Experiments Â•Case Studies Â•Simulations Â•Field Studies AssessRefine Business Needs Applicable Theory & Methods Implementation of Design Artifact in Environment Relevance RigorTheoretical Foundations Research Methodologies Figure 2 Hevner et al Design Science Model Business seeks solutions to problems. Pr oblems are the difference between where we are and where we want to be. Business also needs to explo it known opportunities and to create new opportunities. These can exist in the organizational context or in the
38 business process themselves. For business to meet its objectives efficiently and effectively, technology must be aligned with the business structure and business strategy. There are often issues in the infrastructu re, information systems, applications and communications architecture that must be solved in order to better meet business problems and opportunities. Design Science can accomplish this directly through the solving of a business or technology problem or opportunity through the construction of a solution. The solution created can extend human a nd social capabilities or these solutions can modify the environment to enable a new solution (Heavner, no year). Indirectly these problems can be solved and opportunities cr eated and exploited through design science by the creation of new ways to evaluate propos ed solutions. Another indirect solution to problems and opportunities is through the creat ion of new and or be ttering our existing theoretical foundations or through new and or better research methodol ogies. The goal of design science is to have thes e new artifacts (solutions, ne w evaluation techniques, better theoretical foundations or re search methodologies) become adopted and Â“cause humans to abandon their previous problem produci ng behavior and devi cesÂ” (Fuller, 1992). The knowledge base is used in design sc ience to construct both the search and solutions to problems and opportunities and to create new opport unities. The knowledge basis of Design Science is composed of Theoretical Foundations and Research Methodologies. Theoretical foundations in clude constructs, models methods and Instantiations. Constructs provide a language in which problems and solutions are defined and communicated; Models enable understanding and the explor ation of effects of design decisions and changes. Methods provide gui dance to solve problems. Instantiations
39 demonstrate feasibility as well as provide empi rical evidence that the artifact achieves its purpose, or enables the researcher to learn a nd study the real world and how the artifact affects it. Each of these will be examin ed with the rigor of those fields. Previously stated privacy presents both a problem and an opportunity for business. Since Design Science is concerned with the creation of solutions to problems and the exploitation of opportuni ties this makes it an idea l vehicle to conduct this research. The creation of a role based info rmation technology tool and applying it to improvement of privacy in the business make s Design Science a suitable tool for this research. Design Science support the creation of both tools and instantiati ons to provide a proof of concept. 1.6 Anticipated Contributions This proposal anticipates four contribu tions: Provide a better understanding of privacy; Integrate le gal and business knowledge; Incr ease privacy management capability; Increase the ability to de sign privacy into business tools. 1.6.1 Address the Calls for a Be tter Understanding of Privacy Present research in MIS has failed to recognize or define an epistemological, ontological, axiological basis for privacy. The contribution of my st udy will increase the MIS knowledge base in privacy. My proposal will contain an epistemology of privacy adopted from philosophy. I will also extend from philosophy and law an ontological and axiological base for privacy.
40 While both law and philosophy have exam ined privacy, each has approached privacy much like MIS, seeing it as a single construct3 and attempting to apply it to a variety of situations. This application has created a morass of conflicts making privacy appear to be situational specific. Certain pa tterns emerge in my examination that show privacy is not a single unified construct but a multidimensional construct which is differentiated by the role information play s for the entities providing or using that information. I will provide a new multi dimensiona l construct of privacy that captures the control, access and combination elements and explains the purpose behind the role. This will enable future researchers to gain a better grasp on this concept and apply it as a tool both in their research and to define and solve business problems. I will propose a multi dimensional construct of privacy which encompasses relationships, privilege relationships, personal development and expres sion, business secrets and public life. The proposed construct will be grounded in philosophy and supported by law which establishes roles of behavior. 1.6.2 Integrate Legal and Business K nowledge and Research in Privacy How can we integrate legal and busines s? A specified privacy basis in philosophical and legal terms as well as a better specified construct of privacy will enable both law and business a better understandi ng of privacy and make clearer the requirements that must be met to enable legal and business privacy solutions to be 3 In philosophy privacy is viewed e ither as control based, or as access based or relationship based which is a combination of control but not as a combination. When a philosopher takes that stand all things private are examined in that base. Law has ap plied these concepts in its construction of societal roles that cover a wide variety of circumstances. Law has not however articulated whether the basis is that of control, access or a combination of control and access.
41 proposed, selected, implemented more eff ectively and efficiently and understood more completely. Less time and effort will be spent on reworking systems to add unanticipated functionality or in designing into sy stems the requirements to meet mandated functionality for both the present and the futu re. Finally this will provide a better way to exploit technological change and preserve stat us quo or at least reco ncile status quo with technological changes 1.6.3 Increase privacy management capability How do we manage privacy? Privacy manage ment is a skill re quired to meet the problems and opportunities faced by the firm. In many cases privacy management is the insurmountable problem that sits between high rewards, competitive advantages and mediocrity. This study will give busine ss a new tool to address problems and opportunities presented by privacy. When initia tives in privacy management are taken often they fail due to unanticipated functiona lity and requirements and the inability to develop solutions with existing understandings and tools. Be ing able better model privacy and from those models create information tools that support the business strategy of capitalizing on consumer and employee concerns over their privacy invasions will result in substantial benefits accrui ng to business. The specifications of privacy provided by this paper will enable businesses to better construct a privacy strategy, develop a sound tactical plan and execute the plan. 1.6.4 Increase the ability to design privacy into business tools. How do we design privacy into the tool s of business to en sure privacy? The problems and unrealized opportunities f aced by both the business and technical
42 community in the arena of privacy are in part due to the failure to understand the concept privacy and apply its unde rstandings to its tools. Many business problems and opportunities cannot be resolved because the in frastructures, information systems and the applications are constructed on the pres ent understanding of privacy and fail to effectively and efficiently support levels of privacy service require d by business today. This study will assist in th e creation of tools, the planning and construction of infrastructure and systems, and the app lications of these to the problems and opportunities of the business. I propose to create a role based information technology design tool based on philosophical and lega l concepts and applied to information technology design. This tool will assist in the design of priv acy into the information as well as into the technical mechanisms that s it on top of the information in the form of software and hardware. Each data attribute will have a sensitivity level as well as certain possible data values with in the range of possi ble data attributes. I propose that the userÂ’s role and view instead of being a first leve l protection is but a third level of privacy protection. This tool will enable the an evaluation of the inst antiation to be made regarding its compliance with legal and social norms, its ability to cope with changing environments. The tool will enable more effec tive designs, at less cost in term of money, time and resources. The tool will enable be tter designs in terms of quality. Designs constructed will better meet the strictures of so ciety and law, be better able to withstand changes made in the environment by technology changes and the accompanying legal changes made to insure traditional values.
43 1.6.5 Proof of construct Finally as a proof of concep t, I will utilize the proposed new construct of privacy to demonstrate how it will assist in the cons truction of privacy into a role based data access tool. As proof of the concept, this new method will be compared to existing methods and the systems constructed by thos e methods in terms of functionality and correctness. This will also demonstrate the capabi lity of the definitional artifact as well as enable an evaluation potential benefit. 1.7 Outline of the Rest of the Proposal Numerous contributions will be made by th is dissertation which will be presented in chapters 2, 3 and 4. In Chapter 2, I will present additions to the MIS knowledge base from the fields of philosophy and law. In Ch apter 3, I will present my new construct of privacy. In Chapter 4, I will detail how I w ill apply this model to a Role Based Access Control System to improve security in the database/data warehouse environment.
44 Chapter 2: Philosophy and Law of Privacy In this chapter a review of the priv acy literature from philosophy and law is presented. Law and Philosophy are distinct yet related disciplines. Where philosophy debates the course of societ y, law implements the course society wishes to pursue. For each discipline a historical review of pr ivacy and the methods of philosophy and law are presented in order to facilitate un derstanding. The first section will review privacyÂ’s epistemological, ontological axiological basis and relate it to rights and values. The section on privacy will conclude by showing the values privacy seeks to protect are r ooted in specific ontology which in turn determines a distinct pattern of rights that ensures the various values of privacy. The second section of this chapter will review privacy law. The purpose of law is to coordinate, motivate and direct huma n and non human action through use of value based laws. These laws create rights which define roles that direct human action toward desired activities. A case study of American privacy law is presented to demonstrate that over time the law of privacy has unde rgone changes to meet the ever changing needs of society. In Chapter Three, this ph ilosophical and legal analysis is used to demonstrate that the existing conceptualization of pr ivacy is inadequate. Chapter Three will conclude with a new concep tualization of privacy.
45 2.1 Philosophy and Privacy This section of the review includes a di scussion of philosophical analysis as a method that debates the course of society. Next the epistemological, ontological and axiological bases of privacy in philosophy ar e presented. From this will emerge three conceptual dimensions of privacy one ba sed on control, another based on access and the final based on both control and access. 2.1.1 Philosophy Is The word "philosophy" literally translates to Â“love of wisdom.Â” It represents a vocation for questioning, learning, and teach ing. Philosophy is the pursuit of wisdom pondering questions which are beyond the scope of science. The essence of philosophy is the study of fundamental ideas and methods that are not adequately addressed in specialized empirical discip lines, such as physics or history. Philosophy studies the foundations upon which all belief structures and fields of knowledge are built. Philosophy is sometimes seen as a particular method The method almost always involves rational inquiry but not all philosophers woul d agree that rationality is fundamental. Among the rationalists, the form of that rationality varies considerably. As way of example, the Socratic Method fo cuses on asking questions while the focus of analytic philosophy is on logic and language. Philosophy can also be seen as the study of a particular subject matter. The subjects of philosophical i nquiry are diverse, including metaphysics (the nature of being), epistemology (methods of knowing), and ethics.
46 Other philosophers see philosophy as a pro cess. Goals of this process include the perfection of the human soul, an answer to the command "Know thyself", seeking the Tao, or, as Ludwig Wittgenstein proposed, an antidote to certain confusions of language Method Study of a subject matter Process Philosophy is Figure 3 Philosophy Is The four major orderings of philosophy are Logic, Ontology, Epistemology, and Axiology. From these orderings philosophers conduct their analysis and investigation. Typical concepts analyzed or investigated include existence or being, morality or goodness, knowledge, truth, and beauty. Privac y is one matter studied in philosophy. 18.104.22.168 Rigor in Philosophical Research Philosophical research is undertaken to di scover new facts, to gather new data, to put hypotheses and theories to the test by way of new experimental evidence or calculations all in pursuit of knowledge. Another forum of research in philosophy seeks to refine analyses, develop and advance or criticize interpretations, explore alternative perspectives and new ways of thinking, sugge st and apply modified or novel modes of assessment, and promote new understanding. A speci al case of this type of research is conceptual and methodological critique, involving the scru tiny of the basic concepts
47 and methodologies of other disciplines, scien tific as well as humanistic. Other types of research involve interpretive and evaluative inquiry contribut ing to the enhancement of our comprehension of ourselves and our wo rld (American Philosophical Association, no year). Philosophical studies also often focus on the meaning of an idea and on its basis, coherence, and relations to other id eas viewing them both microscopically and from the larger perspective of concer ns of human existence (Audi, no year). The purpose of philosophical inquiry is the attempt to think clearly and rigorously about difficult and complex issues and questions. Despite this laudable goal, the American Philosophic Associat ion notes that, Â“(T)he criter ia of assessment of work in philosophy is complexÂ” (American Ph ilosophical Association, no year). This assessment is not always easily made in ph ilosophical circles because of the wide varieties of research conduc ted on a wide variety of topi cs. As a rule, research in philosophy must be viewed and assessed in rela tion to the kinds of issues with which it deals and conform to the norms, standards and practices of the community. Rigor in philosophical research consists of a logical assessment a nd elucidation assessment. In any assessment of logic of a philosophical work the quality of the reasoning set forth is paramount. Good logical rigor must not only be logically sound but should not ignore counter examples to the proposed schema even should they be irrelevant or rare. The elucidation requirement is the overall impre ssion of the work asking the question: Does the work create a greater understandi ng of the matter under consideration? Agreement with other philosophic work is not a criterion of rigor.
48 Â“Disagreement and criticism are among th e hallmarks of philosophical life; and it is rare to find two philosophers worki ng in the same area who are in complete agreement with each other. The very best re search in philosophy serves more often to generate disputes and differences than to resolve them. It is precisely through such ongoing argument and debate th at sophistication with resp ect to the issues at hand increases, comprehension of them deepens, and understanding concerning them is enhancedÂ” (American Philosophical Association, no year). 2.1.2 Philosophical Underpinnings in Privacy: Epistemology Epistemology is the branch of philosophy th at deals with the nature, origin and scope of knowledge. A basic concept is justifie d true belief. For something to count as knowledge, it must be true, and be believed to be true. Socrates argues that true alone is insufficient. Additionally one must have a reason or justification for that belief. Knowledge, therefore, is disti nguished from true belief by its justification, and much of epistemology is concerned with how true be liefs might be properly justified. This is sometimes referred to as the theory of justification (Trochim, no year). There are two different schools of thought in the epistemology of privacy which are diametrically opposed. One school is the Re ductionist who believes that privacy is a non meaningful, invaluable concept. Th e other school is known as the Non Reductionist who take the opposing stance (DeCew, 2002). In the Non Reductionist camp there are two epistemologi cal schools one known as the Schoeman Distinctiveness Thesis and the other known as Coherentists The Schoeman School is
49 Foundationalistic in its epistemology. The Coherentists is based in its epistemology in another theory of knowledge known as Coherentism Reductionists Non Reductionist Coherentist (Coherentism) Schoeman Distinctive Thesis((Foundationalism) Privacy Epistemological Schools of Thought in Privacy Schoeman Coherent Thesis Figure 4 Epistemological Schools of Thought in Privacy 22.214.171.124 Reductionism and Non Reductionism Reductionists deny that there is anything useful in considering privacy as a separate concept (DeCew, 2002) a nd that there is no need to settle disputes within its boundaries (Thomson, 1975). In reductionism, pr ivacy issues are seen as diverse and disparate and only nominally or superfic ially connected (Shoeman, 1984). This is supported with the Judith Thompsons observati on that with respect to privacy that no body seems to have a very clear idea wh at it is (Thomson, 1975). Besides seeing nothing about privacy is coherent, the reductioni st sees nothing that is distinctive or morally and legally illuminating. Privacy is of ten stated to be re presented by a set of
50 diverse values common to many other social issues that exhaust privacy claims (Shoeman, 1984). Often privacy concerns are viewed as analyzable or reducible to rights and claim of other sorts such as rights over their own person or property (Thomson, 1975) or as a derivative of another construct (Thomson, 1975). When derived, the real basis of priv acy is seen by the reductionist not as a concern for privacy but as a concern for oneÂ’s property interest s or for oneÂ’s right to be his own person (Thomson, 1975) (such as having liberty) or in the stake in maintaining or enhancing his economic or social leverage or defend our concerns in standard moral and legal categories such as emotional distress a nd property invasions (s uch as trespass and misappropriation of assets) (Shoeman, 1984). Thompson elucidates the reductionist position in the following statement: Â“Someone looks at your pornograp hic picture in your wall-safe? He violates your right that your belongings not be looked at, and you have that right because you have ownership rights Â– and it is because you have them that what he does is wrong. Someone uses an X-ray device to look at you through the walls of your house? He violates your right no t to be looked at, and you have that right because you have rights over your persons analogous to the rights you have over your prope rty and it is because you have these rights that what he does is wrong.Â” (Thomson, 1975) 126.96.36.199 Non Reductionist Conceptualizations Another school of thought in opposition to reductionism has argued that privacy has conceptual distinctness from other constr ucts and stands independently on its own. What is interesting is there is a wide di versity of opinion of what makes the concept distinct. All do agree that when privacy is a ttempted to be reduced something is lost. By
51 way of example, Inness notes that privacy has been claimed to be composed of the construct liberty and property, yet when ex amined, a conceptual distinctiveness from liberty and property is found. Privacy clai ms, according to Inne ss are conceptually distinct from liberty and pr operty claims as they cohere about intimacy. Claims concerning liberty associated with intimacy mi ght be privacy claims but not all of these privacy claims can be collapsed into libert y. Intimate property claims might be privacy claims but not all property claims are privacy claims (Innes, 1992). 188.8.131.52 Schoeman School Schoeman created a refinement on the construct of privacy and further elucidated the differences between the reductionists and non reductionists. What Schoeman was attempting to develop was a sharper contrast between Reduction and Non Reduction thought. In this refinement he created a continuu m of construct of privacy, by redefining privacy into two dis tinct camps at opposite polls Â— One having no common connection which was called his Co herent Thesis (reductionism), and the other having a common connection which late r was called his Distinctive Thesis (Non Reductionism). A reductionist, according to the Schoeman Coherence Thesis would espouse that while all privacy claims are believed to hold similar justifications and thus hold something in common in fact have no cohe rence as the very privacy claims they espouse are defended with moral principles independent of the c oncern with privacy. Therefore there are no moral principles distin ctive to privacy and th e construct holds no coherence. A member of this group would es pouse that a distinctive privacy construct
52 cannot be constructed because it is a diverse and disparate collection of objects that are only superficially or nominally connected. At the other end of the spectrum is Sc hoemanÂ’s Distinctiveness Thesis. This thesis recognized that there is something sp ecial, fundamental, distinctive and coherent about the human moral or social character that is lost in reductionism. It espouses that privacy captures this in a definable constr uct that is distingu ishable from other constructs and defendable on prin ciples distinctive to the cons truct of privacy Â– such as an inviolate personality or human dignity, as a key component in structuring the very possibility of diverse social relationships and making possi ble the deepest kind of love an individual can share or share a role in pr otecting private life or individualÂ’s intimate self. 184.108.40.206 The Coherentist School Â– Foundationalism v. Coherentism A second Non Reductionist School ha s emerged called Coherentism. Coherentists have rejected SchoemanÂ’s Distinctive Thesis while agreeing with Schoeman in the rejection of Reductionist thought. They agree with Schoeman that there is something fundamental and distinct ive and coherent about the various values that have been called privacy interests. Also agreed upon is the fact that most individuals recognize privacy as a useful concept and that privacy has value as a coherent and fundamental concept. How th e Coherentist school differs from the Distinctiveness Thesis is in the epistemology. Foundationalism is the epistemological basis of the Schoeman Coherence and Distinctive thesis as well as the Reductionist School. Foundationalism is a theory of
53 knowledge that requires that a ll logical arguments stem from an objective true which is a basic self justifying belief. The Coherentis t school however bases its epistemology in another theory of knowledge known as cohe rentism. Coherence theories stress the importance of mutual support among a networ k of emerging beliefs as a criterion of justification. Â“Coherentism may be thought of as analogous to a ship, the hull of which is constructed of ma ny metal panels, none of which float on their own, but which form a floating whole when appropriately connected. No pa rticular panel on a ship can properly be considered foundational: the ship's ability to float arises spontaneously when a sufficient number of panels are appropriately connected.Â” (DeCew, 2002) Most commonly, this set of beliefs is held by a particular individual; however it is also possible for Coherentist models to range over the beliefs of a group. If we accept that the nodes in a coherent ne twork are "beliefs", then it is entirely feasible to construct a beautifully consistent network of beliefs wh ich nevertheless bears li ttle or no relation to the world it purports to describe. This can result in strong logical arguments with a consistent network of beliefs that suppor t false conclusions (k nown as the Isolation Objection).The coherence relationship itself is rather harder to pin down, precisely. It may involve logical or probabi listic consistency, inferent ial connectedness, lack of anomalies, explanatory value, relevance, a nd so on. These issues have impaired the cohesiveness of this school of privacy because its members hold quite diverse, and sometimes overlapping, views on what it is th at is distinctive a bout privacy and what links diverse privacy claims (DeCew, 2002).
54 Unlike the field of philosophy, there is no raging debate in the MIS discipline over the epistemological basis of privacy. Th is ignoring of epistemology and failing to taking an epistemological stand are two reasons why privacy research has been impaired. Epistemology is important to the conceptualization of a construct. Epistemology accounts for differences on the co nceptualization of a construct as the epistemology provides the justification for the knowledge and belief that the construct is true. Privacy researchers fail to note th e distinctions presen t in the different epistemologies of privacy which is one of the reasons there is no consensus on the construct of privacy and is a reason why privacy research appears to be a series of unconnected, context specific st udies with little generaliza tion outside the context of the study. It is important that an epistemo logical basis of the study of privacy be specified so that theories can be constr ucted, understood and resu lts compared between research conducted with differing epistemologies. This paper adopts the Schoeman Distinct ive Thesis and Foundationalism as its epistemological basis. 2.1.3 Philosophical Basis of Priva cy: Ontology and Axiology Ontology has two questions: How do I de fine and distinguish the object or entity under inquiry? What are the fundamental categor ies of being? Any ontology must give an account of which words refe r to entities, which do not, why, and what categories result. It must provide what are the essential, as opposed to merely
55 accidental, attributes of a given object. It must provide what constitutes the Identity4 of an object? What are an object's properties what is its rela tionship to other entities and how are they related to the object itself? Axiology is the study of value or qualit y. Axiology includes the study of ethics and aestheticsÂ—philosophical fields that de pend crucially on notions of value. Axiology lays the groundwork for these fields, having strong similar ity to value theory and meta-ethics. The term was used in the 19 th and early 20th centuries, but in recent decades, value theory has tended to replace it in discussions of the nature of value or goodness in general. Value theory concerns itself w ith the value of people and things5 or the combination of all these. Research suggests both human beings and at least some other sentient organisms can hold values, whic h express themselves in behavioral dispositions the predispos ition to act by choice in a cer tain way, when faced with a certain condition or stimulus which permits di fferent responses. The expression of this predisposition ranges from very primitive behavioral routines, to very complex ones which may be difficult to detect or elucidate. Values are implicitly related to a degr ee of behavioral freedom or autonomy which goes beyond a conditioned response; as values steer or guide the organism, on the basis of internally chosen options. Thus, values imply the (consci ous) prioritizing of 4 Identity here is used in the sense of what makes the object definable and recognizable in terms of qualities and characteristics that distinguish it from other entities. 5 Value is said to include worth, utility, trading or economic value, moral value, legal value, quantitative or aesthetic value
56 different behavioral alternatives which are perceived to be possible for the living organism. Conversely, value-conflicts can di sorient the behaviors of the organism, throwing it out of balance. Va lues are at the basis of all moral, political and economic behavior. The ontology of privacy differs depe nding upon the axiological view of the person offering the ontology. Three values dominate privacy research in philosophy and law. Â“Privacy promotes individu al autonomy, personal growth, and human relationsÂ” (Graham, 1987). Lockian priv acy emphasizes the value of being an autonomous free agent responsible to others only in cases of necessity or agreement. Under this view, privacy is necessary to insure that individual actions be free from the influence of others. Privacy allows the indi vidual great autonomy and latitude in the choices available to the individual. Kantian privacy looks to the i ndividual constructing his own self. Kantian privacy emphasizes th e importance of a space apart from the gaze of others to develop and live life. The final view of privacy, which is a combination of the Kantian and Lockian schools looks to the necessity of privacy to promote relationships. 220.127.116.11 Lockian Privacy Frequently privacy is discussed in refe rence to a distinction between public and private. Â“This public private distinction has sometimes been taken to reflect differences between the appropriate scope of government as opposed to self regulation by individuals. It has also been interpreted to differentiate political and domestic spheres of life. These diverse linguistic descrip tions capture overlapping yet non
57 equivalent concepts. Nevertheless they share the assumption that there is a boundary marking off that which is private from that which is private.Â” (DeCew, 1997) The Lockian ideal of the politically fr ee man in a minimally regulated society extends the right to privacy as a necessity to protect the individual against intrusions by others. Locke maintained that governmental societal or indivi dual power should not infringe upon another personÂ’s power, liberty or autonomy except upon exceptional circumstances and then the intrusion shoul d be reasonable and limited. The value of this privacy is it provides the means by whic h individuals may sustain power, liberty and autonomy against potentially overwh elming forces (Nissenbaum, 1998). LockesÂ’ viewpoint is based upon the belief that everyone has an area of their life where they are not responsible to the state for what they do so long as the rule of law is maintained: rights of others are respected. Accountability of the individual toward society should be minimal unless the individual is either a me mber of societyÂ’s administration or some special ground exists why the individual cannot please themselves. Keeping the rights a society holds over a person reasonable and limited, permits societal roles be constructed to allow considerable autonom y to the individual to choose how they live (Benn, 1975). This justification of privacy ha s been represented as the power in the individual to determine what to reveal and determine how accessible they want to be (Bellotti, 1998). It has also been stated as justification for privacy in public (Nissenbaum, 1998). These views are in opposit ion to the totalitarian school which holds that in everything that man does, manÂ’ s individual action in toto has significance
58 for society at large. As such, man has both a responsibility toward society and accountability to society members that requires all be revealed (Benn, 1975). 18.104.22.168 Lockean Control Based Privacy To some, privacy Â“is not simply the ab sence of informati on about us in the minds of others; rather it is the control we have over information about ourselvesÂ” (Fried, 1968). Alan WestinÂ’s influential account of privacy defines it as Â“the claim of individuals, groups, or institutions to determ ine for themselves when, how, and to what extent information about them is communi cated to othersÂ” (Westin, 1967). This has been called the control over information of oneself (Parent, 1983). Privacy is defended as a value that accords us the ability to c ontrol the access others have to us (Gavison, 1980, and Allen, 1988). It has also been expr essed as a right and duty to make some information generally available concerning their relationship and a right and duty to leave unsigned other information because Â“i n society there is the right and duty of partial displayÂ” (Goffman, 1971). It been observed that the control of outflow of information may be of strategic or aesthetic value6 to the person and the control of inflow of information including the initi ation of contact (S amarajiva, 1998). An appeal of this position is it is seen as more morally neutral than the rights, claims and entitlements approach. Control ba sed privacy theories are not without their criticism. One criticism has been that it is vulnerable to counter examples which make 6 Aesthetic Privacy violations expose things that victims may feel inappropriate to reveal to others. Strategic Privacy violations compromise the victim in the pursuit of his or her interests see Rule, J.B. et al, eds. The Politics of Privacy: Planning for Personal Data Systems as Powerful Technologies, Elsevier, (1980).
59 the position appear ill considered. Example: a person lost in a forest has lost control over who has control over his information yet in reality he suffers fr om the fact that he has too much privacy (Shoeman, 1984). The fo remost criticism however is that control based privacy claims are vulnerable to exampl es of threatened losses where privacy has not been lost but there is an issue of control over disclosu re (Parent, 1983). Imagine an X-ray device that can look through the walls of a home. You lose control over the disclosure of the activities in the home even if nobody uses the device. You lose control over privacy in your home only if someone uses this device. What this example exposes is control is not a necessar y condition for privacy. Control has also been shown not to be a sufficient condition for privacy. Y ou may have complete control over your personal information but chose to give up your privacy by freely divulging the information. Because you freely disclose this information it makes it difficult to describe it as a loss of privacy on a contro l based definition of privacy. In this way control is not sufficient c ondition for privacy (Austin, 2003). In the circumstances where individuals control the outflow of info rmation and initiation of contact subject to some objective rule additional issues of knowing how they and their information is accessible, by whom and when becomes apparent. Control based privacy offers little explanation on why some information should be private while other information is not private except through an explanation base d upon social conventions (Parent, 1983). With control based privacy, requirements to control the access easily and intuitively, feedback of who has access to what and pers onal control, trust development all become issues (Bellotti, 1998). Control based priv acy cannot answer the question over what
60 information we should have control. Further, a definition of privacy as control over personal information depends upon our acceptance of an entitlement to this information, fail to justify an entitlement to privacy and in many cases presuppose an entitlement (Austin, 2003). 22.214.171.124 Kantian Privacy Privacy can be constructed through th e Kantian theory of the morally autonomous man who acts on principles he accepts as rational (Benn, 1975). Our society and culture value pe ople who are independent minded. Characteristics of this type include that they step out and set them selves apart from the masses. Often found to be leaders including leaders of nations, th ey are champions to causes and blaze new horizons. This type of person is an innova tor, inventor and possess the independent mind and inner strength and courage to act upon their principles and to resist the pressure to conform to the rest. These types of person doesnot just appear; they need to be nurtured. With out development people in general will tend to adopt the views held by others without question. To avoid this, people ne ed to be able to act freely and develop their own character. Former Senator Hubert Humphrey wrote, Â“We act differently if we believe we are being observed. If we can ne ver be sure whether or not we are being watched and listened to all our actions will be altered and our very character will changeÂ” (Long, 1967). People need to be spont aneous and not hold back input. Senator Edward V. Long observed, Â“because of the d iligent accumulation of facts about each of us, it is difficult to speak or act today wit hout wondering if the if the words or actions
61 will appear Â‘on the recordÂ’. Â”(Long, 1967). Pe ople need freedom to develop their own principles. They need a sanctuary and a retrea t to be their selves and be placed outside the gaze of society while they nurture themselves and develop. People cannot develop into autonomous beings unl ess they are allowed to pr actice independent judgment. Privacy must be afforded to the individual so that the individu al develops personal autonomy necessary to develop th ese traits. This is described in the literature as private psychological space (Zweig, 2002), or as a c ondition necessary for the construction of self (Reiman, 1976), construct their identity (Goffman, 1956 ), Clark, 1994) intellectual privacy (Cohen, 2003) emotional space. 126.96.36.199 Kantian State of limited access The ability to control access differs from the ability to control information. This appears to have its basis in Kantian philo sophy. The ability to c ontrol access creates a zone of non interference or a zone of limited access to privat e information. This is often used when information has been provided in the context of one relationship and another seeks access to that information.7 It can also mean a zone of limited access to the person for the purpose of limiting the gather ing of personal information (Innes, 1992). During the infancy of the privacy concep tualization, Brandeis and Warren proposed privacy as a right to be left alone. They championed that an individualÂ’s private life should be free from the gaze of the public a nd others and that same individual had the right to determine the conditions under wh ich access to his person could be obtained 7 An example of this is an insurance company seek ing access to the medical information provided by the patient to the doctor for purpose of diagnosis.
62 (Warren and Brandeis, no year). One problem with this conception of privacy is there are innumerable ways to leave someone alone that have nothing to do with privacy (Parent, 1983). A second problem related to the concept of liberty. Brandeis and WarrenÂ’s assertion was based upon their belief th at an individual possessed the liberty to enjoy life and property. Libe rty is the absence of extern al constraints or coercion on the individual. The right of liberty embraces the right of persons to make important choices about their lives but this was distinguishable from a right of privacy which condemned the unwarranted acquisition of personal knowledge. Liberty constructs placed constraints and restrictions on the individual control over information and did not create a zone of non interf erence. A need for more conceptual clarity was apparent. Later definitions attempt to avoid this by st ating that privacy is a condition in which others are deprived of access to you (Rei man, 1976) or to self (Garrett, 1974, and Gavison, 1980). When privacy is defined in ope rational terms, this capability is often coupled with an ability to control access (Bellotti, 1996) with this control over access enhancing personal expression and choice (Shoeman, 1984) or some combination of these (DeCew, 1997).
63 State of Limited Access Anticipatory Concerns Non Anticipatory Concerns Inhibition Self Consciousness Self Actualization Figure 5 Taxonomy of Limited Access 188.8.131.52.1 Anticipatory Concerns Limited Access There are many values that are supporte d by the creation of a zone of limited access. Anticipatory concerns have been e xpressed over the possible abuse of power by a corrupt government which gathers informati on to weed out undesira bles (political or religious) and dissidents. In private relations, anticipatory concerns include certain information about ourselves if known to others it would leave us vulnerable to harassment, discrimination, identity theft and other types of abuse (Information and Privacy Commissioner of Ontario, no year). Non anticipatory con cerns Inhibition Zones of no access support other values, these of a non anticipatory nature. Where there is a zone of no access, individuals have fewer inhibitions and do what they would not do without it because of a lack of fear of an unpleasant or hostile reaction from others (Gavison, 1980). The types of expression affected include both the
64 expression of emotion and expression of action. The reason we value freedom from physical access is that it insula tes us from Â“the inhibitive effects that arise from close physical proximity with another individualÂ” (Gavison, 1980). It is not simply that we are identified by others that creates the loss of privacy, but the fact that the identification subjects us to the kind of inhibiting st andards of public norms and justification that unde rlie our concerns regarding bei ng subject to observation and the public gaze (Austin, 2003). Inhibitions will oc cur even should the anticipated reaction would stop short of harassment and discrimina tion. In this sense the zone protects our ability to act and think in unpopular ways; as well as it protects individuality understood in terms of our ability to be eccentric.8 184.108.40.206.2 Non-anticipatory Concerns Self Consciousness While there are many acceptable ways to present our thoughts in public, there are some expressions that are not accep table (such as the expression of strong emotions). All humans suffer from self consci ousness. Self consciousness is affected by the zone of limited access and can be promoted or inhibited. Some aspects of our inner lives, our thoughts, emotions and actions, simp ly cannot exist if exposed to the public gaze even if these are in some sense w holly conventional. This arises under the circumstance where individuality arises not fr om the need to be di fferent but the need to express ourselves. 8 See also Bloustein, Â“The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. Such an individual merges with the mass.Â”
65 (This) awareness of how one appears from outside is a constant of human life, sometimes burdensome, sometimes an indispen sable resource. But there are aspects of life which require that we be free of it, in or der that we may live and react entirely from the inside. They include sexual life in its most unconstrained form and the more extreme aspects of emotional life Â– fundamental anxieties about onese lf, fear of death, personal rage, remorse, and grief. . The public gaze is inhibiting because, except for infants and psychopaths, it brings into effect expressive constraints and requirements of self-presentation that are str ongly incompatible with the natu ral expression of strong or intimate feeling. And it presents us with a dema nd to justify ourselves before others that we cannot meet for those things that we cannot put a good face on (Nagel, 1998). Non anticipatory concerns Self actualization Some authors recognize a ri ght to become, to be and to remain a person (Reiman, 1976). A pressure to conform leads to conformity and decreases in diversity but it also leads to a condition where self cannot be actualized. People require some respite from the public gaze to collect our self and form our self through the development and affirmation of our own ideas even should they become the same as our peers. This zone of no access enables us to become distinct individuals to live and remain individual.
66 The Condition Value of the Zone of Limited Access Privacy Lower Inhibition Freedom to do and experiment Privacy Decreases Self Consciousness Freedom to express thought, emotion and act Privacy Increases self actualization Freedom to be different, be non conforming, to develop self, to remain self Table 1 Zones of Limited Access Problems with a zone of limited access position surface when access is examined as physical proximity as non privacy concepts such as personal property, solitude and peace surface to describe what is at stake by limiting access. If access is described as acquisition of personal knowledge it becomes evident that the limitations of cognitive knowledge are not privacy but are safeguards of privacy. By way of example: A taps BÂ’s phone and overhears conv ersations of an intimate nature. Official constraints are placed on AÂ’s activities wh ere A must obtain permission from a judge before listening in on B (Parent, 1983). A ccess definitions leave open the question of whether privacy is a desirable state and how va luable it is in relation to other things. Additionally access definitions have the advantage of allowing you to separate the question of what if privacy was lost from the question whether a right of privacy has been infringed or violated (Shoeman, 1984).
67 220.127.116.11 Lockian and Kantian Privacy Co mbined: Promoting Relationships Privacy insures autonomy of the individua l to be independent it also ensures that individuals form and develop desi red relationships of his/her choice. In forming of a relationship we ask a seri es of questions: Do I want to consider a relationship which means what is my att itude toward this re later and relationship, what are its benefits and detriments? Is this a desired relationship, is this relationship appropriate for me. If the decision is made to pursue the relationship questions of what should be the character (type) of the relationship and how to develop the relationship follow. These considerations determine how to construct the relationship including the choice and control over the timing of release of information, the nature of information released and to whom is information releas ed and how the relationship is continued in the future. All these decisions require autonomy. Relationship Decision Tree Consider entry into a relationship Pursue relationshipNo Yes Do not create a relationship Autonomy requires that no outside influence be exerted or unintended relationship(s) be created on either step Figure 6 Relationship Decision Tree
68 18.104.22.168.1 What is autonomy? Autonomy is the freedom from being manipulated or dominated wholly by others (Westin, 1967). Privacy provides the structure to avoid this manipulation and domination and ensures the autonomous choice of the individual to pursue relationships including the choice of how to c onstruct the chosen relationship9. Relationships created with the individual maintaining control over the what, when and who receive the information about them protects the indivi dual from being demeaned, embarrassed, and even disempowerment or fear (Nissenbaum, 1998). Thus it is necessary that when we initially consider a relationship that our at titude toward another relater/relationship and what that relater/relationsh ip may do from us be free from the manipulation and domination of others. It is a form of re spect for our potential capacity to develop relationships (Innes, 1992). 22.214.171.124.2 Autonomy while considering entering the relationship Having the ability to consider both your attitude toward another and what a relationship/relater will do for you implies that a voluntary choice exists in the individual to pursue and shape relationships. Autonomy requi res the ability to choose to pursue or not a relationshi p (Nissenbaum, 1998). A real opportunity to pursue the chosen opportunity must be free from anothe rÂ’s interference for autonomy to exist. The capture of private information in public or the use of non private information found in the public domain that enables intrusion into ones privacy causes the loss of this 9 Autonomy differs depending on the axiology. Locke would see the individual having the requisite privacy to ensure the being live as a free being in a social setting, while Kant would see autonomy ensuring the requisite freedom to become the person desired.
69 autonomy because of the influences capable of being placed upon individual that interfere with this choice. This exists as a result of the inability to insulate self from monitoring by third parties and the aggregation and use of stored information. This part of autonomy flows from th e philosophy of Locke. Third party relaters effect the formati on of these relationships through both the influence over the individualÂ’s attitu de and on the assessment made on the relationship/relater. The third party colors the attitude and the assessment made by the individual effectively interfer ing with their autonomous choi ce. This is in derogation of the potential capacity all individual s hold to form relationships. The third party also affects the choice to pursue. When information is captured and aggregated, relations are shaped based on captured information. With no capture of public information the individual would not cons ider highly his or he r actions in public. The entire focus would be on the relations hip pursed by the individual. With public attention the individual mu st consider the detection and capture of their public information both private and non private. They must consider what relationship could form in addition to the relationship pursue d. Individuals will be influenced to adopt behaviors appropriate for that unintended relationship as well as the one initially pursued. In some cases this mediation may not permit a relationship to form or may even impede relationship formation as the in formation needed to form the relationship will not be disclosed. It may move rela tionship in a direction not desired by the individual as the individual will make comp ensating changes in his intended disclosure
70 to accommodate the potential capture. Unless its scope and reach is limited this rather than the individual, can become the mediator of relationships formed and not formed. After the decision to enter a relationship, the autonomous control over information enables the constructio n of relationships Relationships are constructed on inform ation, in particular on information shared between the relater and the relatee. The relaterÂ’s right to control information and their capacity to share info rmation are key aspects of personal autonomy (Rachels, 2006) of which privacy supports (Nissenbaum 1998). Information appropriate in the context of one relationship may not be appropr iate in the context of another relationship (Shoeman, 1984). This same ability to control information enables the individual to present only relevant and appropriate inform ation needed for the relationship and keeps other information private. Ha ving the power to share information discriminately also enables people to define the nature and degree of the relationship (Rachels, 2006). Privacy empowers the individual to have a choi ce over what information to share, when and to whom (Rachels, 2006). Autonomous individuals can provi de nothing or the entire portfolio of informati on. They can provide the inform ation now, never or at some time in the future. They can provide the info rmation to no one, to a designated person or to everyone. This part of au tonomy flows from Kantian philosophy. Despite the background in Lockean and Kantian philosophy, the importance of privacy with respect to human relations has an additional variety of emphasis and focus despite the fact that each recognizes to varying degrees the importance of autonomy and a sanctuary for action. The following is not an exhaustive rendering of these
71 writings but provides the general scope and breadth of the value of privacy as it concerns relationships. 126.96.36.199.3 Rachels Rachels sees privacy as important because it is necessary to maintain the variety of social relationships that we want to have (Rachels, 2006) Differing behavior patterns define different rela tionships. There are differing pa tterns of behavior when relationship type differs. Peopl e vary behavior with people due to the different social relationships we have with them. Why we value privacy is the fact that different relationships are marked and constituted by differing degrees of sharing information. Our ability to control who has access to us who knows what about us, allows us to maintain a variety of relationships with othe r people that we want to have (Rachels, 2006). This ability is obtained by our ability to separate our associations with others. Separation allows us to behave in a way appr opriate to the sort of relationship we have with them without violating our sense of how it is appropriate to behave with and in the presence of others we have a different relationship. 188.8.131.52.4 Fried Fried wrote on the "Commodity Theory" of intimacy. FriedÂ’s intimacy is the sharing of information about one's actions, beliefs, or emotions which one does not share with all, and which one has the right not to share with anyoneÂ” (Fried, 1968). He postulated that close relationships "i nvolve the voluntary and spontaneous relinquishment of something between friend and friend, lover and lover. The title to
72 information about oneself and protected by pr ivacy provides the necessary something to the relationship. Â“Privacy is the necessary context for re lationships which we would hardly be human if we had to do without the relationships of love fr iendship or trustÂ” (Fried, 1970). The sharing of oneÂ’s actions, beliefs and emotions is intimacy when that information is not shared with everyone a nd it is accompanied by a right to not share the information in the first place (Frie d, 1970). This operates both as a signal of intimacy as well as constitutes intimacy. 184.108.40.206.5 Reiman Reiman finds that privacy protects the individualÂ’s interest in becoming, being and remaining a person (Reiman, 1976). Right of privacy is a two fold process. The initial process confers the concept of self and conveys to the person exclusive moral rights in their body that permits a person to view his body, thoughts and existence as his own. .The second part of the process confirms and demonstr ates respect for developed persons by conferring the right to the individual to control when and by whom the body is experienced and reaffirming that right through the demonstration for the respect of people. Reiman makes the point that privacy pl ays a vital role in the creation and maintenance of self. The elimination of privacy essentially results in the destruction of self. Reinman noted that Goffman maintained that the goal of the Â“total institutionÂ” (an asylum) is Â“the mortification of the se lfÂ” (Goffman, 1957) and to accomplish this mortification of the individualÂ’s self the to tal depravation of priv acy is an essential
73 ingredient. In the Â“total institution,Â” mortif ication is accomplished through a variety of means. One is by way of information collected about the inmate and made available to the staff and others. From this collecte d information, discredible facts that are ordinarily concealed can be lear ned. Also others can also observe these facts directly as being placed in the inst itution alone are a discredible fact Inside the institution the lack of privacy is even more ev ident as the resident is e xposed physically, never alone always in the sight of someone. Rei,man conc ludes that social practices that penetrate the private reserve of indi viduals (Goffman, 1957) and kill the self of the person suggest that privacy is essent ial to the creation and maintena nce of self (Reiman, 1976). To have moral ownership of the body requi res the right to do with the body as you wish. It also requires the right to control when and by whom the body is experienced. This requires that you have bot h the power to act a nd awareness of that power to act. You also need the ability to withhold the awaren ess you and your actions from others. This ownership is appropriated actively and cognitively. Something is mine because I have the power to use it or dis pose of it. Active appropriation is having the power to use and dispose of as you see fit. Cognitive appropriation is the right to control when and by whom the body is experienced. Cognitive appropria tion enables the individual to know what I know is my knowledge as well as know what I experience is my experience and not the experience of another. To have control over the cogni tive apparition requires that individual have control over whether or not his physical ex istence becomes part of someone elseÂ’s
74 experience. This requires the individual be treated as entitled to determine by whom and when his concrete reality is experien ced. (This applies to both thoughts and actions of the individual) Self is that part of the human that regards his existence, body and his thoughts as his own. Self is not created from some Â“inborn seedÂ”. Rather, Reinman sees self created through a social ritu al and the social interac tion between society and the individual (Reiman, 1976). Through this ritual an indi vidualÂ’s moral title to existence is conferred through the social r ecognition and communication to the individual that his life is his to do with as he or she choose s and through the confe rring to the individual the right of active appropriation over hi s body. An individual must recognize his capacity to shape his destiny by his choices. He must recognize that he has an exclusive moral right to shape his destiny. After conve ying to the individual that his body is a body in which he has some exclusive moral right society subsequently confirms and demonstrates respect for the personhood of al ready developed persons by conferring the right to the individual to control when and by whom the body is experienced and reaffirming that right through the dem onstration for the re spect of people. 220.127.116.11.6 Benn For Benn, the right to privacy stems from this respect for persons as choosers. Â“Every man who desires that he himself not to be an object of scru tiny has a reasonable, prima facie case of immunityÂ” (Benn, 1975). In order for this to be upheld it must have as its basis either an intimate connecti on between oneÂ’s self and oneÂ’s body, through
75 cultural norms or be required to ensure the character of life and ideals of persons (Benn, 1975). A person through their attempts to stee r themselves through the world through their adapting for changes to their life brought about by the world or through their correcting for mistakes he or she makes is a chooser in actuality or potentially. The right to privacy stems from th is respect for persons as choosers. Â“To respect someone as a person is to concede that one ought to take account of the way his enterprise might be affected by oneÂ’s own decisionsÂ” (Benn, 1975). All personal relationships need some fr eedom from interfer ence. Specifically alluding to Locke, Benn states that the aver age individuals are subj ect to reasonable and legally safeguarded limits to the power of ot hers and the requirements of social roles which leave considerable breadth and choice of how he lives (Benn, 1975). Specifically citing Kant, Benn states that individuals should remain independently minded and their actions governed by their own principles. We ar e only free to be ourselves with in an area that observers can be excluded. In orde r to ensure this there is a need for a sanctuary in order to drop the mask and pr oject the personÂ’s real nature and not the nature that projects the values of peers we adopt to become acceptable to others (Benn, 1975). This sanctuary enables us to become independent in mind. Covert observation and unwanted overt observation deny this re spect because they transform the actual conditions in which the person chooses and ac ts and make it impossible to act in the way the planned or choose in a way he thinks he is choosing (Benn, 1975). Inness
76 18.104.22.168.7 Inness Inness speaks of the need for relations hips. Her work is a focus on intimate relationships which she defines as relations hips that emanate from Â“love, caring and likeÂ” (Inness, 1992). Her work implicitly a dopts the philosophy of Locke that men should be autonomous and free from the influe nces of others when persons are seeking to form the relationship. Her work implicitly adopts Kant as well noting the need for a sanctuary within which to conduct this activity. According to Inness, intimate relationships do not result solely from the transfer of information (Inness, 1992). What marks th em as intimate is not the behavioral content but the role the activity plays in th e life of the individual -they emanate from love, caring and like. Intimate information is restricted information and constitutive of a close relationship. Certain activities are inherently intimate and are protected by constitutional privacy law.10 Inness cites the case of Roberts v. United States Jaycees for the proposition stated by the court that intimate activities embody the fact that we all depend on the "emotional enrichment of close ties with others."11 She also cites with approval the dissenting opinion to Bowers v. Hardwick in which Justice Blackmun suggests that intimate activitie s regulate the nature of an agent's personal associations with others (Bowers v. Hardwick). She conc ludes that these activities regulate our 10 See Carey v. Population Services International, 43 1 U.S. 678,685 (1977) for a list of the cases which outline the reach of constitutional privacy claims. 11 Note that Roberts v. United States Jaycees contai ns an explicit warning against limiting the scope of privacy to the family.
77 relationships with others by regulating our emotional ties, especially the ties of love, liking and care Given the character of this information, privacy should ensure that the agent has control over decisions concerning matters that draw their meaning and value from the agent's love, caring, or liking. These decisions cover choices on the agent's part about access to herself, the dissemination of inform ation about herself, and her actions. Since matters draw their meaning and value from the agent's love, liking, or care according to the role they play for the agent, the construction of intimacy lies on the agent's shoulders. Therefore, privacy claims are clai ms to possess autonomy with respect to our expression of love, liking, and care. Inness sees privacy as valuable for three reasons: First, it promotes the creation of close, intimate relationships. Secondly privacy's value stems from our respect for persons as rational choosers. Finally, privacy is valuable because it acknowledges our respect for persons as autonomous beings with the capacity to love, care and like To ensure the control over decisions regarding intimate matters remains in the individual society must protect that the choi ce is that of the indi vidual and not another. To accomplish this a zone of privacy must be constructed and respected in which society neither uses them nor fa ils to treat them as ends in themselves with respect to their intimate lives. Adopting Onora O'Neill's "t here are two separate aspects to treating others as persons: the maxim must not use th em (negatively) as mere means, but must also (positively) treat them as ends in them selves" (OÂ’Neill, no year). This requires that the freedom of action of the individual must be protected. These are the reasons behind
78 the cases of Roe v. Wade the agent's privacy claim protected her freedom to have an abortion. In Griswold v. Connecticut the agent's privacy claim protected her freedom to use contraceptives. Secondly a duty of noninterference or nonparticipation in the intimate life of the agent on the part of others must exist. This is most evident in the privacy restrictions concerni ng access, restrictions commonl y embodied in tort privacy law. This zone must have these character istics a zone in which she possesses autonomy of action and a zone that gives rise to duties of noninterference from external parties. To satisfy the first requirement, th e agent requires autonomy with respect to the actions she takes to embody her love, liking, a nd care; society must not use the agent in such a way that she lacks the autonomy of action to express these emotions. To satisfy the second requirement, the agent requires a zo ne to which she can regulate the access of others (including informational access); so ciety must not use the agent in such a way that she is rendere d incapable of understanding he rself as a source of intimacy. Following is a table which compares these theories. Author Privacies Importance Autonomy Rachels Necessary to Maintain Desired Social Relationships The individual must have an ability to separate associations with others Sanctuary Fried Provides the necessary something to the relationship The individual must be able to choose when to share private information We need an ability to control who has access to us, who knows what about us and allows us to maintain a variety of relationships with other people that we want to have
79 Reiman Protects individualÂ’s interest in becoming, being and remaining a person and plays a vital role in the creation and maintenance of self.. Privacy is a demonstration of respect toward people. The individual has a right to control when and by whom the body is experienced The individual has the ability to conceal information that is private Benn Protects the persons right to choose Average individuals are subject to reasonable and legally safeguarded limits on the power of others and the requirements of social roles which leave considerable breadth and choice of how he lives Until the right is relinquished no one has a right to access or information about the person Inness Privacy first promotes the creation of close, intimate relationships. Secondly privacy's value stems from our respect for persons as rational choosers. Finally, privacy is valuable because it acknowledges our respect for persons as autonomous beings with the capacity to love, care and likeÂ—in other words, persons with the potential to freely develop close relationships. Society must protect that the choice is that of the individual and not another A zone must be provided in which a person possesses autonomy of any decision or action taken that embodies love, like and caring. Society must not use the agent in such a way that she lacks the autonomy of action to express these emotions. Society must respect the individual and neither use nor fail to treat them as ends in themselves with respect to their intimate lives. We are only free to be ourselves with in an area that observers can be excluded. In order to ensure this there is a need for a sanctuary Table 2 Summary of Philosophical Theories of Privacy that Combines the Lockian (control) an d Kantian (access) Perspectives 2.2 Philosophy and Rights, Claims and Entitlements This section shall demonstrate that rights, claims and entitlements embody values and determine behavior. It will be further demonstrated that privacy rights, claims and entitlements vary in terms of control and access depending upon the axiological basis of the privacy protection sought.
80 2.2.1 Rights, claims and entitle ments determine behavior Rights, claims and entitlements determine behavior by enabling and constraining conduct. The trad itional conception of rights oc curs when some legal or other institutional mechanism is there to enfo rce them (James, 2003) such as a court or regulatory body. Rights however can exis t independent of these institutions. Hohfeld defined seven normative positions for the purpose of analyzing rights (James, 2003). Hohfeld positions include the following (Hohfeld, 1964): X holds a claim that Y performs an act if and only if Y holds a duty toward X to perform act A. X holds no claim that Y perform act A if and only if Y holds a privilege against X not to perform act A Y holds a privilege against X not to perf orm act A if and only if Y holds no duty toward X to perform act A X holds a power if X holds the ability to create or remove some claim, duty, or privilege (a claim, duty or privilege which might be held by X himself or by someone else X holds a power to create some specific duty, claim or privilege for Y if and only if Y holds a liability to have that specific duty claim or privilege created for Y by X X holds a right whenever X holds a clai m, privilege, power, immunity, liability, or a cluster of the above and if infringed, un enforced or not properly respected X would hold a claim to some fo rm of apology or recompense.
81 X holds a disability to create some speci fic duty, claim or privilege for Y if and only if Y holds an immunity from having that specific duty, claim or privilege created for Y by X While Hohfeld confined his position to le gal rights, this analysis has been found to apply equally well to moral relations hip structures (Kramer, 1998). HohfeldÂ’s Normative Position is composed of seven pos itions: claims, duties, privileges, powers and liabilities, disabilities and immunities (Hohfeld, 1964). A claim exists when a duty is owed to perform an act for the holder of the claim. When no duty is owed to perform an act, a privilege exists. A power enables th e holder to create, remove some claim, duty or privilege. The person subject to a power has a liability. Immunity disables a power held by another (Hohfeld, 1964). The holde r of immunity has th e right to be free of claims, duties and privileges being crea ted or removed. A right exists when a personÂ’s behavior is constrai ned in distinctive ways (Rainbolt, no year). Therefore a person holds a right whenever they hold a clai m, privilege, power, immunity a liability or some cluster involving several of one of more of these and if the position were infringed, not enforced or not respected th at person would be entitled to some apology or recompense (Cruft, 2004). Rights of ot hers determine constraints on our actions (Nozick, 1974). Conversely our rights determ ine constraints on anotherÂ’s actions as well. A system of rights enables the specificati on of expected behavior of individuals, organizations and government to direct action toward a desired state. In essence rights specify a coordinated model of behavior through th e specification of relationships, rules
82 and actions. When we look at rights in congregate, these rights determine the roles expected to be assumed. What protections of privacy an entity possesses depends upon the rights, claims and entitlements assigned to that type of privacy. These specify what data and information is private and wh at is not private as well as how one in possession of the private data can utilize the data. They iden tify who is entitled to the right and the conditions under which the right can or cannot be exercised by its holder. 2.2.2 Rights, Claims and Entitlements Em body Values That Define Conduct Right emanate from many value-based s ources. The Natural Law tradition holds that some rights are pre legal moral require ments whose existence gives people a reason to introduce laws and enforcement mechanisms that were previously absent (Cruft, 2004). Societal norms are also a source of ri ghts. Norms embody valu es that a society holds important. Norms can emanate from society, a stratum in society or be conventions of a locale or a group of indi viduals and agreements are sources of specification of conduct. Norms are often obe yed despite a lack of legal sanction for their violation (Posner, 1998). Private ordering12 is the name given to the private groups often trade groups like diamond merchants and cattlemen who exist to promote values and rights important to that group. Their efforts are direct ed toward members only. The enforcement is limited and directed only toward its members and include emotional 12 Private ordering is the process of setting up of social norms by parties involved in the regulated activity (in some manner), and not by the State. Private Ordering aims to achieve public goals, such as efficiency, enhancing the ma rket, and protecting rights. Private Ordering must adhere to the principle of voluntary acceptance. It can be imposed only on those who have agreed to subordinate his or her activity thereto. See www.isoc.org.il/hasdara/privateordering.doc accessed March 29, 2005.
83 appeals, and threats of ridicule, coercion, ostracism or disapproval for those members who value to abide by the rules and values of the group (Posner, 1998). A system of laws and regulations embody values and specify rights.13 Legislatures enact laws that contain rights that reflect societal values. Agreements whether made voluntary or involuntary are a final source of ri ghts that are value based. Rights enable values to be specified into codes of conduct. Rights embody the conventions, values and principles of a societ y and specify behavior consistent with its conventions, values and principles thr ough its laws, norms, private ordering or agreements. 2.2.3 Privacy rights, claims and entitlement s are defined by their ontological and axiological basis Privacy rights are ordained through law, societal norm and/or protected it in agreements to provide for a variety of desire d values. Some of values of privacy include to provide for the respect of persons (Be nn, 1975), to establish re lationships (Rachels, 1975) for the development of varied and mean ingful interpersonal relationships (Fried, 1970) Because privacy rights have been touted as necessary for th e creation of self, protecting a personÂ’s interest in becomi ng, being and remaining a person (Reiman, 1976) these philosophical principl es have compelled law to cr eate zones of privacy that shield from the gaze of others the use of birt h control or decisions to abort a pregnancy, membership in certain groups (NAACP v. Al abama), restrict third party access to library records and video rentals (Video Priv acy Act) or protect pe oples homes, papers
84 and conversations from outside access (Katz v. U.S.). Others types of rights in privacy have been created in law to protect Â“special interestsÂ” (S canlon, 1975) such as in the enforcement of trade secrets while others defend it as a broader concept required for human dignity (Bloustein, 1962). Privacy regiments diverse aspects of ev ery day life through th e construction of a complex web of norms and laws that reflect and ensure the values of privacy. Through this regimentation privacy dictates which data is produced (Agre, 1998). Through laws and norms that reflect privacyÂ’s value, the appropriate data and information and use of that data and information a given rela tionship is specified (Schoeman, 1984). Additionally norms and law arbi trate how, when and what data and information can be possessed and used and by whom. In effect va lues specify the type of norms and laws necessary to ensure the value is realized. Norms and Laws specify the behavioral roles necessary for privacy to be obtained. B ecause there are many purposes for privacy, there are many specifications in laws and nor ms necessary to ensure the purposes are met. The norms, laws and agreements that specify rights become control mechanisms that structure our behavior through the sa nctioning of appropriate behavior and the prohibition of inappropriate behavior for the varied transactions, situations and relationships in which people engage. Through their structures they create roles that embody appropriate behavior, obligations owed and rights. These structures are the building blocks that orders soci ety at all levels of societal interaction and dictates the behavior expected of the indi viduals within. One aspect of a role created by a law, norm
85 or agreement is the specification of the appropriate behavior, rights and obligations owed toward information. This includes what is appropriate info rmation to access or possess, who controls access to information and once accessed who controls its use, once information is obtained how can it be us ed, how much of it can be used, when can it be used and who can use it (Schoeman, 1984). One such or dering is the determination of what information, how much information is fitting and proper and what information is appropriate or inappropriate. Laws, Norms, Agreements Reorder Behavior Create Roles Figure 7 What Laws, Norms and Agreements Do In each of the above, the privacy rights, claims and entitlements of the entities vary greatly by the axiological basis of the privacy sought. Each type of privacy has a distinct ontology of control and access. Thus ontology specifies privac y rights through the specification of the control and access over data and information that an entity possesses. Therefore two conclusions can be made First as each distin ct type of privacy will bear a unique signature in terms of rights, claims and entitlements that any entity enjoys. Second: As privacy changes, signa ture of control and access should also change.
86 Privacy that is Control Based Privacy that is based upon Limited Access Privacy Rights Claims and Entitlements Values chosen to pursue, paths of pursuit Figure 8 Relationships between Ri ghts, Control and Limited Access 2.3 Law and Privacy This section will focus on the legal basis of privacy. It includes a discussion of how rigor is accomplished in legal research, the purpose and nature of law and a case study of privacy in American law. Like philosophy, law is a social science constantly seeking. What it seeks is different from philosophy. Where philosophy seeks the truth, law seeks to implement the truth. In many ways law is pragmatic while philosophy is theoretical. Law is concerned with the coordination, motivati on and direction of human and non human action through use of value based rights Law implements privacy through the establishment of specifications of behavior to ensure information that is private remains private. Law uses control and access to information to implement rights and define roles so privacy can be ensured. A history of the law of privacy is provided that will demonstrate that the topics of privacy at law are broad, coveri ng a wide variety of information under an equally broad situational area.
87 2.3.1 Purpose and Nature of Law The nature of law is to find an optimal solution to a wicked problem. The purpose of law is to coordinate, motiv ate and direct human and nonhuman action through use of value based laws. These laws cr eate rights which define roles. A set of roles creates a relationship. All human relati ons involve role exp ectations. Both people and entities structure and eval uate relations according to an understanding of what is expected from the respective roles (Benn, 1984). Law must be a reflection of society, including its po litics, technological state and its social fabric and account for the fact that all are interac tive with each other (Lessig and Lemley, no year). Law is not neut ral and frequently advances the goals of societyÂ’s ruling members. The question of law being good or bad is often debated. Whether law is good or bad is often a s ubjective experience depending on the lawÂ’s impact. Good law supports goals and aspira tions of those advancing it as good while bad law has negative impacts on the debaterÂ’s goals and aspirations. Law is not limited to statutes and case la w the formal law, but includes social norms and agreements made between individuals. Laws, norms and agreements are interactive with each other and in a healthy society each supports one another. Frequently they are the formal embodiment of normative rules that are the socially constructed laws of society. Formal laws can act as a supplement to norms enforcing fundamental social norms (Posner, 1998). Normally, laws are but a reflection of the norms of the society it serves (Posner, 1998) but in some instances law shapes new norms. Agreements enable
88 the harnessing of law and norms to accomplish societal desired tasks. To a limited extent agreements can modify laws and norms but basic rights insured by law and norms are not capable of change by agreement. Law is a system based on moral principl es, scripted roles and sacred symbols (Edelman and Suchman, 1997). Law, whether it be formal law, norms or agreement, expresses societyÂ’s values, its moral princi ples and sacred sym bols through the rights defined. These defined rights in turn define roles. Through the de finition of rights and obligations, roles are established and pr otected for every individual, group and organization with in society as well as for government and its relationship with individuals and entities within its control. Law constructs and legitimates organizat ions and organizational forms that are socially acceptable or needed.14 Law determines what types of organizations come into existence. It provides the qualifications and ground rules for organizational forms (Meyer, Boli and Thomas, 1987, and Krasner, 1988) and defines what type of activity and how that activity can be conducted. Law provides a model of and for orga nizational life, defining roles for organizational actors and meaning for orga nizational events and imbuing those roles and meanings with positive or negative mo ral valence (Geertz, 1983). Law provides the identities and capaci ties of organizational actors, both empowering and emasculating classes of organizational actor s. Organizations adopt these structures and practices for 14 Typical organizations in the western world would include the corporation, partnership and limited partnership to name a few.
89 the following reasons. One reason is the socio-legal environment nominates those structures and practices as proper, respons ible, legitimate and natural. Organizations look to the law for assurance as to which ac tions to take and a void as well as for normative and cognitive guidance. The second reason is their adopti on enables them to pursue goals more efficiently and effectivel y provides them either an advantage or shielding them from punishment. In one way laws are premised upon the view they seek to minimize harm that society seeks to avoid (Schauer, 2000). Laws announce and provide a record of what is acceptable or not acceptable behavior. Thr ough laws, societal norms find increased respect and compliance through engineeri ng behavior through punishment by legal sanctions when behavior exceeds what is expected. Rewards are ensconced in law to direct individual and cor porate behaviors in ways that improve society. Sanctions are enac ted to direct behavior away from other non effective behaviors especially when those behaviors reflect subs tantial social costs (Posner, 1998). Economics has advocated the constructi on of efficient rules to minimize transaction costs in the market thus maximizing the scope of markets over organizational and regulatory hierarchies (Coa rse, no year). Transaction cost analysis states that organizations are devices for efficiently governing economic relations when markets fail due to uncertainty, bounded rationality, monopoly, and opportunism. Legal rules may provide for the more effectiv e functioning of society through rights and immunities that enhance or impede the e fficiency of individual or organizational
90 governance mechanisms and affect their desira bility relative to markets. The result is that legal rules may provide a substantial influence on individuals and organizations by creating an encompassing framework of basic property rights that includes both structure and substance (Mas ten, 1990, and Williamson, 1991). Constitutive law not only defines the basic blocks of organizational forms it also establishes the rules of indi vidual-organizational relations, inter-organizational relations and organizational-governmental relations. Through this structur e of categories and definitions relationships can be understood, entered into and manipulated acceptably from this accepted set of routines. It establishes the background understanding that frames social discourse. This provides th e fundamental definitional building block for the use of law to meet goals of indivi duals and organizations and empowers by providing a tool kit that can be drawn upon in their interac tion such as contract, tort, and bankruptcy law. The formal law of privacy, that is the la w codified in forms of laws and case decisions establishes and informs the citizenry of the parameters of what is private while coordinating, motivating and direc ting the roles of th e individual, the organizations it enables and creates and soci ety as a whole (Schauer, 2000). Law is a tool that serves society but it is an inexact science; it is c onstantly evolving in its search to find an optimal solution in an ever changing environment where not only the environment changes but the perceived needs and desires of those within also change (Lessig and Dershowitz, no year).
91 2.3.2 Rigor in Legal Research Legal research is marked by some very different approaches, many of which are in their infancy. The following will provi de background on legal research. Legal research is accomplished in three school s, doctrinarism, empiricism and grounded theory. Doctrinarism has its purposes in oppos ition to that of the typical academic faculty member. Despite recent interest in em pirical legal research is in its infancy. Finally, legal research in grounded theory will be disc ussed. While this methodology has been practiced for many years, it is not practiced widely. Legal research using grounded theory similar to research done in academia, adopts the same principles and methodologies utilized in the Information Science field 22.214.171.124 Doctrinarism Most research in law is conducted in the doctrinarism method. This method is very much different from the methods used in traditional academic settings creating a chasm between legal scholarly research a nd research conducted in the traditional academic setting. Professors Lee Epstein and Gary King put it very succinctly: While a Ph.D. is taught to subj ect his or her favored hypothesis to every conceivable test and data source, seeking out all possible evidence against his or her theory, an attorney is taught to amass all the evidence for his or her hypothesis and dist ract attention from anything that might be seen as contradictory information. An attorney who treats a clie nt like a hypothesis would be disbarred; a Ph.D. who advocat es a hypothesis like a client would be ignored (Epstein and King, 2002). This difference is the result that the task s and objectives of teaching of law and that of research university faculties have traditionally differed. Law faculty have
92 traditionally trained students to be professional lawyers, who are learned in the law but the Â“learning consists of a Â“skill setÂ” for pr acticing law, not a lear ning that equips them to participate in the schola rly life of a law professorÂ” (Ulen, 2004) while traditional academic faculty has trained students to be scholars and teachers. To be a successful legal scholar meant addressing in a mean ingful way practitioners outside of the academy, principally lawyers and judges rather than scholars from within the academy (Ulen, 2004). In contrast, academic faculty write s for their peers, other scholars, they share their work in progress in seminars and workshops and reduce their teaching load to have more time to write scholarly articl es and books (Ulen, 2004). In law, the goal of scholarship is to bring coheren ce to the practice of law, to impart in the scholar how to have an impact upon judges and lawyers, how to influence the doctrine, how to persuade those in a position to make la w to adopt the persuaderÂ’s view, how to recognize past errors and how to gain st anding as a source of guidance and how to reform the law with indoctrinating its st udents into the ways of the profession and imparting into them how to be successful (Ulen, 2004). Additiona lly with doctrinarism rules are confined to a particular area of th e law as well as confined to a time or place. As a result commentators would note that vast differences in institutional, cultural, historical and social aspects of legal sy stems made theorizing about law inapposite (Ulen, 2004). In academia, the goal is to advance the body of knowledge and to accomplish those ends students are taught how to critically evaluate old propositions, construct new propositions and evaluate the tested propositions in light of objective truth. Finally in law, it is the student not the law professors who act as editors and
93 reviewers of law journals. The studentÂ’s ro le is to make certain the articles are complete, containing all relevant cases and argum ents advanced in past work. This is in stark contrast to academia journals whic h advance theory and knowledge in the field through the review of prospective articles by other scholars. As a result of the above: Â“Â… law faculty have been wed to a non scientific conception of their scholarship that they do not readily and naturally think of the connection between theory and empirical work that the scientific method necessar ily impliesÂ” (Ulen, 2004). In Doctrinal Analysis either a case or a string of cases are examined historically. This case (or cases) is then stripped to the bare factual essentials. From these facts universal rules are constructed and espoused making the output rule centric. This rule centricity tends to relegate its findings to a high level of gene rality so that its rules can be universally applied. Under this approach rigor is ach ieved through the framing of issues, analysis of the facts and framing of universal laws. Examine a case or string of cases Strip out the unnecessary facts Construct universal rules Apply the rules Table 3 Rigor 126.96.36.199 Empirical Legal Research To some degree the legal f aculty is adopting empirical scholarship like activities similar to those of research universities. At present these activities are in their infancy and are principally confined at the present to law and economics research.
94 The topic of empirical scholarship has been done in a very limited basis with most of this confined to law and economics studies15. For a variety of reasons some law professors today are seeking to establish cr edentials that compare with the credentials held by faculty in re search universities.16 This interest in empirical work was ramped up in 2001 in a symposium organized at the University of Illinois Law Review (McAdams and Ulen, 2002). This was followe d in 2002 through a series of exchanges in University of Chicago law review (Rev esz, 2002). In 2004 American Association of Law Schools (AALS) devoted its annual meeti ng to the topic of empirical research on law. Its President Bill Hines in 2005 announced th at designs of this kind of research as a top priority for the legal academy today (Hines, 2005). The theme for the 2006 AALS annual meeting was "Empirical scholarship: what should we study and how should we study it?" Furthermore, there are signs of convergent lines of thinking from different corners of law and social science, pointi ng toward the possibility of a new synthesis (Erlanger et al, 2005). This is not to say there was no empirica l type of research conducted in law. Nearly all law review scholarsh ip offers some statement about the real world, and thus has an empirical component because nearly all legal scholarship makes empirical claims, it must also satisfy basic infere ntial rules (Tracey, 200 6). Epstein and King 15 Richard Posner has conservatively published over 200 books and articles over the years applying the field of economics to law. See, e.g. GUIDO CALABRESI, TH E COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS (1970); RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (1st ed. 1972). 16 Richard Posner posits that this change in legal scholarship is motivated because of valuable independent developments in non law disciplines and the dramatic increase in law professors over the years is driving them to seek new ways to distinguish their work from other peers. See in general Posner, Richard, Legal Scholarship Today 115 Harvard Law Review,1314 (2002)
95 provided some rules in which empirical lega l research should be conducted (Epstein and King, 2002). These rules include resear ch should have a clear goal, and its methodology should be subjected to the rules of replicability, it must be a social enterprise Â– its underpinnings are accessible for review and extension of others in the field. Researchers must acknowledge the uncer tainty associated with empirical work, research should engage existing empirical l iterature, only importan t research should be conducted with theories with observable implic ations and make an effort to account for rival hypothesis. In essence ther e is little disagreement w ith non legal academics as to the methodology required to be performed. Earl y papers such as Epstein and Ulen did not distinguish between a descriptive and pos itive approach, instead they concentrated on conducting legal research in the tradition of the academic although recent studies now are beginning to distinguish between descriptive and positive empirical research (Tracey, 2006). Epstein and King Clear goals The work is capable of being replicated Underpinnings are available for review and extension by others in the field Researcher acknowledge the uncertainty associated with empirical work Engage existing empi rical literature Theories advanced with observable implications Table 4 Standards for Le gal Empirical Research 188.8.131.52 Legal Research in the Case study tradition Case study research has been preformed as a research method in the law field for a number of years. The earliest exam ple of a contextual case study found is by Walter Nelles (First American Labor Case 1931). It appears that this type of work was
96 resurrected in the 1975 article by Richard Danzig (Hadley v. Baxendale, 1975), who is an acknowledged leader in the use of the methodology both as a method of research as well as pedagogy (Danzig, 1978). This method again surfaced in 2003 by Debora L. Threedy, Unearthing Subversion with Lega l Archaeology, 13 Tex. J. Women & L. 133, 136-38 (2003). Many legal archeologists free ly adopt the principles and guidance provided by Glasser and Straus (Glasser and Straus, 1967) and Yin (Yin, 2003). The term "legal archaeology" refers to a type of legal history that makes use of case studies. "Legal archaeology17 involves both a microscopic examination of the shards uncovered by painstaking digging, and a macroscopic assessment of how the component parts fit together to describe a nd explain the culture left behind" (Maute, 2000). Legal archaeology is defined by an appro ach to legal materials that employs a methodology that academics call grounded theory. To "do" legal archaeology is to develop an in-depth study of an individua l case by reconstructing its historical, economic, and social context. Legal archaeology posits that there is much to be learned from a case that does not show up in the "offi cial" narrative in the reported opinion and it seeks to recover alternative, "unofficial" accounts of the dispute. These alternative accounts provide a different and complement ary way of knowing the law than that derived from more traditional studies What is so revolutionary about it in the legal field is that it is contrary to doctrinal analysis which is a historical, strips facts to essentials, is rule centric, and 17 This is a term coined by Debora Threedy to describe grounded theory in legal research.
97 tends to aspire its findings to a high level of generality so that its rules can be universally applied. It is the methodology in wh ich the bulk of the scholarly research is done in law. Legal archaeology is a philos ophical descendant of American pragmatism and its offshoot, legal realism. The legal realis ts conceived law as be ing situated in the social fabric of its time and place. The lega l archaeologist sees value in the study of a single time and place. Pragmatism and legal archaeology both have a "commitment to finding knowledge in the particulars of expe rience" (Radin, 1990). Bo th turn away from abstraction and "atemporal universality" and embrace "historicity, concreteness, situatedness, contextuality, embeddedness, narrativity of meaning" (Radin, 1990). Doctrinal Analysis Grounded Theory High level of generality Â– Very specific and detailed A-historical Historical Rule centered. Rules are framed at a high level of generality so to cover a magnitude of factual scenarios Specific knowledge Facts are stripped to essentials and abstracted Factual details in all the multifaceted splendor Table 5 Comparison between Grounded Theory and Doctrinal Analysis Threedy provides a primer on how to conduct a rigorous legal archaeology (Threedy, no year). Legal archaeology does not resemble more traditional legal scholarship because it begins where most le gal scholarship ends, with a reported case opinion. Once you have the opinion, it is then an alyzed. Next you recreate as complete a record of the litigation as possible, including the trial a nd appellate records. The next step involves placing the lit igation in historical contex t by searching nonlegal sources
98 for information regarding the events and participants in the litigation, as well as the economic and social background against whic h the litigation unfol ded. These nonlegal sources include archival material, newspaper accounts, biographies and autobiographies, and fieldwork such as in terviews and nonlegal secondary literature Once this is all assembled describe At a minimum, processing requires description, that is, the stru cturing of the information uncovered by the project into a coherent narrative. The purpose of this descriptive narrative is to "get the story straight." Such projects can be analogized to what in sociology is sometimes called "Chicago school" monographs, meaning qualitative data consisting of rich descriptions of social phenomena (Threedy c iting Glasser and Strauss, 1967). Once the description is created you then proceed and begin to investigate explanations and causal conn ections between the reconstr ucted facts and the outcome and rule in the excavated case. The best use of legal archaeology projects is to consider them as historical case studies that provide the raw data fr om which to develop theories about how law operates in society (Threedy citing Yin, 2003). Threedy goes on to cite Glaser and Stra ussÂ’s bottom-up theorizing or what has been called "grounded theory." In grounde d theory, "one generates conceptual categories or their properties from evidence ; then the evidence fr om which the category emerged is used to illustrate the concep t (Threedy citing Glasser and Strauss, 1967). Another way of describing this type of theorizing is to sa y that the case method allows "the data to set the theoretical agenda, ra ther than vice-versa" (Threedy citing Glasser and Strauss, 1967). Each i ndividual legal archaeology project can and should
99 incorporate grounded theory; by analyzing the raw data of the case study, the legal archaeologist develops insights into the judicial process or the role of law in society. This dissertation shall adopt the case study methodology of Glaser and Strauss. 2.3.3 Changes in what is Private in American Law: a Case Study The notion of privacy is ancient. The Bible and Aristotle alluded to privacy (DeCew, 1997). John Locke applied this c oncept to distinguish between private property and property owned publicly or in common with all (Locke, 1988). Anthropologic studies by Margar et Mead and others suggest that the concept of privacy is cross-cultural and present in all but th e simplest, most primitive societies (DeCew, 1997). In the realm of health law, one can ar gue that privacy has always been valued, because the Hippocratic Oath required physicia ns to keep private what they learned through their physician-pa tient relationship. 184.108.40.206 Confidences Historically, privileges we re created to protect confidential information. In Elizabethan times the gentleman owed a dut y of confidentiality toward those who reposed in them their confidences. This dut y required the gentleman to act with honor and integrity and hold this confidential in formation against all inquiries and forbade them to disclose under any circumstance othe r than with the consent of the person who reposed in them the information (Annesley v. Anglesea, 1743). This privilege was assaulted in 1562 when an act of Parliame nt made it a universal duty to testify.18 While 18 Act of Punishment of Such as Shall Procure or Commit any Willful Perjury See also Cobbetts State Trials 769. 788 (1612) (Â“(A)ll subjects, without distin ction of degree owe to the king tribute and service
100 this act interfered with the gentlemanÂ’s honor to keep confidences shared, this act seriously also threatened confidentiality betw een the client and the lawyer as with the enactment of this law, judicial search for truth could no longer be obstructed by voluntary pledges of secrecy. Judges of that time soon created an exception and decreed that legal communications formed a special ca tegory of exception to testify because of the importance of the client obtaining advi ce would be hindered by the clients fear of disclosure of his confidences. Later privileges were also extended formally (at law) or informally (by convention) when information subject to privilege is sensitive to the owner of the information19. 220.127.116.11 Castle Doctrine ''Every man's house is his castle'' was a maxim much celebrated in England, as was demonstrated in Semayne's Case (5 Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604))20, decided in 1603. A civil case of ex ecution of process, Semayne's Case nonetheless recognized the ri ght of the homeowner to defend his house against unlawful entry even by the King's agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute not only of their deed and hand but of their knowledg e and discoveryÂ”Sir Francis Bacon) Prior to this act the opponent in a jury trial was not compellable to be a witness. Wigmore, J.H., A Treatise on the Anglo-American Law of Evidence, Mc Naughton Re v. Edn, Little Brown, Boston, Section 2217 at 169 (1961) 19 This information is sensitive becau se when disclosed, this informa tion often brings both real or potential shame and harm to the in dividual, family or associates. 20 One of the most forceful expressions of the maxim was that of William Pitt in Parliament in 1763: ''The poorest man may in his cottage bid defiance to a ll the force of the crown. It may be frail--its roof may shake--the wind may blow through it--the storm may enter, the rain may enter--but the King of England cannot enter--all his force dares not cross the threshold of the ruined tenement.''
101 the King's process. Most famous of the English cases was Entick v. Carrington21, one of a series of civil actions ag ainst state officers who, pursuan t to general warrants, had raided many homes and other places in search of materials connected with John Wilkes' polemical pamphlets attacking not only gove rnmental policies but the King himself. Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and sei zed many printed charts, pamphlets and the like. In an opinion sweeping in terms, the c ourt declared the warrant and the behavior it authorized subversive ''of all the comforts of society,'' and the issuance of a warrant for the seizure of all of a person's papers rather than only those alleged to be criminal in nature ''contrary to the genius of the law of England.''22 This case became the basis of the 4th Amendment to the Constitution of the United States which among other things provided, Â“The right of the people to be s ecure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violatedÂ…Â”23 18.104.22.168 Sentiments and Thoughts Every person at common law was allowed to determine the extent of sharing their thoughts, sentiments and emotions with others24 and could not be compelled to share them except in limited circumstances. As justification, Lord Cottenham declared Â“a man is that which is exclusively his.Â”25 21 19 Howell's State Trials 1029, 95 Eng. 807 (1705). 22 5 Eng. Rep. 817, 818 23 4th Amendment to the Constitution of the United States 24 Yates, J., in Millar v. Taylor, 4 Burr. 2303, 2379 (1769). [p. 198 Note 2 in original.] 25 Lord Cottenham in Wyatt v Wilson 1820
102 It was acknowledged in the English courts that Â“every man has a right to keep his own sentiments, if he pleases. He has certainly a right to judge whether he will make them public, or commit them on ly to the sight of his friendsÂ”.26 The right is lost only when the author comm unicates (publishes) his production to the public.27 The produce of mental labor, thoughts, and sentim ents preserved by writing was at common law required to be protected as property and provided security, at least before general publication by the writer's consent.28 Knight Bruce, Vice Chancellor stated: "Upon the principle, therefore, of protecting property, it is that the common law, in cases not ai ded or prejudi ced by statute, shelters the privacy and seclus ion of thought and sentiments committed to writing, and desired by the author to remain not generally known" (Prince Albert v. Strange, 1849). A more liberal doctrine was recognized in Prince Albert v. Strange (Prince Albert v. Strange, 1849) where a less clearly defined principle yet one more broad then mere property right was advanced. The cour t stated that the mere publishing of a statement that a man had Â‘written to particul ar persons or on partic ular subjectsÂ” as an instance of possibly injurious disclosures as to private matters that the courts would prevent. 22.214.171.124 U.S Constitution 26 Yates, J., in Millar v. Taylor, 4 Burr. 2303, 2379 (1769). [p. 198 Note 2 in original.] 27 Duke of Queensbury v. Shebbeare, 2 Eden 329 (1758), Bartlett v. Crittenden, 5 Mc Lean 32, 41 (1849) 28 Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 695 (1849). [p. 199 Note 5 in original.]
103 The U.S. Constitution adopted the law of England as its basis for the obvious reason of the respect the colony had for this body of law. American s can never be sure what her founding fathers intended regarding federal protection of a right to privacy. A "right to privacy" is not explicitly menti oned in the United States Constitution or the Bill of Rights. In fact, the word privacy never appears in these documents at all, arguably suggesting that the founding father s thought the states were capable of protecting citizens' privacy rights as a part of their general we lfare. Despite this lack of clarity, both state and federa l courts, as well as legislat ures, have demonstrated a willingness to protect some forms of pe rsonal privacy (Eddy, 2000). The concept of a fundamental right to privacy is bifurcated into two distinct rights: one right is based in natural law, 29 the Judeo-Christian law, Aristotl e and Locke's philosophy of law and British common law; a second right is implie d from the language of the United States Constitution (DeCew, 1997).30 The 4th Amendment to the Constitution of the United States provides, Â“The right of the people to be secure in their pe rsons, houses, papers, and effects, against unreasonable searches and seizur es, shall not be violatedÂ…Â” Arguably the right to be secure in person is directed to the confidences, right to be se cure in houses is an attempt 29 The right of privacy has its foundation in t he instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to est ablish its existence. Any person whose intellect is in a normal condition recognizes at once that as to each indivi dual member of society there are matters private, and there are matters public so far as the individual is concerned. See Pavesich v. New England Life Ins. Co., 50 S.E. 68, 69 (Ga. 1905). 30 Ms. DeCew quotes Milton Konvitz pointing out that the Adam and Eve story introduces the feeling of shame at the violation of privacy and emphasizes how Aristotle divided an individual's life into two realms: the polis (the realm common to all citizens) and the oikos (the realm of the private household).
104 to codify the Castle Doctrine, and the right to be secure in papers is the sentiments and thoughts. 126.96.36.199.1 The Right to be let (left) alone The famous phrase, the right "to be let al one" has a long history. As far back as 1834, the U.S. Supreme Court mentioned th at a "defendant as ks nothing Â— wants nothing, but to be let alone unt il it can be shown that he has violated the rights of another."31 This ruling only set the bounda ry between the government and the governed and did not provide strictures agains t other violations of individual privacy. This right to be left alone was extended to individuals in a limited way about 50 years later but indirectly. In 1880, Thomas C ooley, a judge and legal scholar of the day applied the "right to be let alone" doctrin e to intrusions by individuals on another individual. He explained priv acy as a "right" to one's person or personal immunity.32 Cooley never created a separate right of privacy but rather us ed it as a pretext to control access to the individual. Later, in a medical se tting, this right to be alone was linked to the term privacy to support a personal injury claim of battery when a woman was observed during childbirth without her consen t. In this case, the Michigan Supreme Court held: "the plaintiff had a legal right to the privacy of her apartment at such a time, and the law secures to her this right by requi ring others to observ e it, and to abstain from its violation." 33 31 Wheaton v. Peters 33 U.S. 591, 634 (1834). 32 Thomas C. Cooley, Law of Torts (1880). 33 De May v. Roberts, 46 Mich. 160 @165-166 (1881)
105 188.8.131.52.2 The Developing of State Mandate d Privacy Warren and Brandeis After Cooley, American law began to addr ess privacy in the nineteenth century. At the height of the Muckraking Era, wh ere the forces of industrialization and urbanization began to challenge and change society, Samuel D. Warren and Louis D. Brandeis published an article entitled The Right to Privacy in the Harvard Law Review (Warren and Brandeis, 1890). This work furt her developed Cooley's right of privacy. They proffered a historical evolution of the law to buttress their claim for the recognition in the legal field of a right to privacy that encompassed thoughts, emotions and sensation. Looking at life, liberty and pr operty they noted the law initially only protected physical interferen ces with life and property and saw the right to life as freedom from battery, liberty as freedom fr om actual restraint and right to property limited to tangible things such as land and cattle. Later as the law recognizes a manÂ’s spiritual nature, his feelings and intellect, the right to life expands to include not only battery but the right to enjoy life. Libe rty now encompasses freedom from actual constraint but the exercise of civil privileg e, and property not only the right to land and cattle but ownership of anything you can possess is it tangible or intangible. When the law recognized sensation furthe r changes were made to these concepts of life, liberty and property.
106 Legal Remedies Translation Physical Interference with life and property Right to life = Freedom from Battery Liberty = Freedom from actual restraint Right to Property = Right to land and cattle Recognition of manÂ’s spiritual nature, feelings and intellect Right to life = Right to enjoy life Liberty =Exercise of civil privileges Property = Every form of possession both tangible and intangible Recognition of Sensation Protection against bodily injury is expanded to attempts Laws of nuisance develop Slander laws develop Inventions and Business methods Require that a step needs to be taken for the protection of the individual and to secure her right to be left alone.34 Table 6 Legal Remedies and Translation Brandeis' and Warren's article stated that "political, social and economic changes entail the reco gnition of new rights." 35 They saw that advances of civilization (technological change and orga nizational practices) have intensified intellectual life, emotional life, and heighten the senses of human kind. Â“As the result of the intensification of intellectual and emotional life and the heightening of the senses that came with the advance of civilization made it clear to men that only part of the pain, pleasure and profit of life la y in physical things. Thoughts emotions and sensations demanded legal recognitionÂ” (Warren and Brandeis, 1890). Warren and Brandeis championed a call to protect the privacy of the individual and proposed an extension to privacy, in re action to a perception that the press was overstepping the bounds of decency: the right to be let alone and the right to be 34 Cooley on Torts, 2d ed., p. 29. [p. 195 Note 4 in original.] 35 Ibid
107 protected from the unauthorized publicity of essentially private affairs. The individual should have full protection in person a nd property. They urged the common law to vindicate and protect those ri ghts. They further observed that the common law already offered some protection agains t the mental distress associat ed with public publishing of private information (e.g., the protection agains t making private letters available to the public) (Warren and Brandeis, 1890). They argued this protection should be extended to protec t the individual's privacy more generally saying: "The principle which protects pe rsonal writings and any other productions of the intellect or of the emotions is the right to privacy, and the law has no new pr inciple to formulate when it extends this protection to the pe rsonal appearance, sayings, acts, and to personal relations, domestic or otherwise" (Warren and Brandeis, 1890). Brandeis and Warren adopted the definiti on of privacy as "the right of the individual to be let alone (Warren and Brandeis, 1890).36 Warren and Brandeis argued that the individual should enjoy, cognizab le in the law, freedom from unwanted publicity (Warren and Brandeis, supra not e 22, at 206, 1890). They reinforced their argument by the review of various court decisi ons that protected privacy (but had never used the term privacy) and made the conc lusion that an individual had a type of ownership interest in the facts of his pr ivate life. From this Warren and Brandeis concluded, that the common law secures to e ach individual the ri ght of determining, 36 Justice Brandeis dissenting in Olmstead v. United St ates, a wiretapping case, stated that "[the makers of our Constitution] conferred, as against the go vernment, the right to be let alone the most comprehensive of rights and the right most valued by civilized men." 277 U.S. 438, 478 (1928).
108 ordinarily to what extent his thoughts, sentiments and em otions shall be communicated to others in other words the Â“right of th e individual to be let aloneÂ” (Warren and Brandeis, 1890). Brandeis and Warren conceded their pr oposed common law right to privacy was not absolute. For example, matters of gene ral public interest or pertaining to public figures could be investigated and publishe d without legal recourse. Further, they stipulated that consent s hould be a defense to invasion of privacy (Warren and Brandeis, 1890). Years later Dean Prosser s uggested that when Brandeis and Warren spoke of a right to privacy, they were really describing four rights -a right to be protected from intrusion, a right to control the disclosure of private f acts, a right to protect the commercial value of one's name or likeness, and a right to protect against "false light" disclosures. The Restatement (Second) of Torts (B, C, D, E ) recognizes four common law torts for invasion of privacy. Three of these torts are appropriate for our consideration. Intrusion upon seclusion deals with prot ecting people against both physical intrusions into the space they claim their own and various forms of eavesdropping in the same protected space. The dissemination of private facts occurs when publicity is given to facts about a pers on that the person would prefer not to be known, without that persons consent. False li ght is the publication of facts the person would prefer not publicized, but the person is portrayed in a way that is not true.
109 184.108.40.206.4 Personal Rights of Privacy Â– Constitutional Protections Personal rights of privacy were very lim ited despite some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and ch ild rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) and Meyer v. Nebraska. 262 U.S. 390 (1922). Each of these cases stopped short of decl aring a constitutional right of personal privacy Beginning in 1965 and continuing through the 1980Â’s a series of cases began to tout that the right of personal pr ivacy was a right guaranteed by the U.S. Constitution. For a determination to be made that the U.S. Constitution guaranteed a right of personal privacy, it must be found that privacy was a fundamental ri ght or that privacy was a right implicit in the concept of or dered liberty (Roe v. Wade 410 U.S. 113 (1973)). This did not come all at once. In the case of In Griswold v. Connecticut (381 U.S. 479 (1965)) the first step was taken. Connecticut law had made it criminal to c ounsel married couples regarding the use of birth control. In striking down the law as unconstitutional the court found that though the Constitution does not expl icitly protect a general ri ght to privacy, the various guarantees within the Bill of Rights create penu mbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new
110 constitutional right, the right to privacy in marital relations : Privacy is a personal right of non interference What is important to note is that the ru ling in Griswold did not tie the right of privacy to any one amendment of the U.S. Constitution. The First Amendment protected privacy from forms of governmental invasion by limitation upon governmental abridgment of freedom to associ ate and privacy in one's associations. The Third Amendment prohibited the non consen ted peacetime quarteri ng of soldiers. The Fifth Amendment reflects the Constitution's c oncern for the right of each individual to a private enclave where he may lead a private life. The 4th Amendment provides that "the righ t of the people to be secure in their persons, houses, papers, and effects, agains t unreasonable searches and seizures, shall not be violated while prohibiting unreasonable searches and seizures.Â” This was never interpreted as general constitutional "right to privacy" This began to change with the decision of Katz v. U.S. (369 U.S. 347 (1967)) In that case, the Fourth Amendment was recognized as a right to privacy that prot ected not only tangible property but also protected intangible conversations. Further its protections were extended from the protection of places to the protection of people Â– giving people the right to be left alone. In Katz, the court stated: Â“The Fourth Amendment protect s people not places. What a person knowingly exposes to the pu blic, even in his own home or office, is not a subject of F ourth Amendment protection, but what he seeks to preserve as private, even in an area accessible to the public, may be constitutiona lly protected. The Fourth Amendment governs not only the seizure of tangible items, but
111 extends as well to the recording of oral statements that are overheardÂ” (Katz v. U.S. 369 U.S. 347, 1967) Katz extended privacy places to people a nd places and its protections to tangible items to both tangible and intangible items (c onversations) but it ha d not created a right of personal privacy tied to th e United States Constitution. Another case interpreting the Fourth Amendment was Terry v. Ohio which was decided a year after Katz.. In Terry the court pronounced that in addition to the protections in Katz. the 4th Amendment is a right for a person Â“to be secure in their persons, houses, papers, and effects agai nst unreasonable searches and seizures, (which) shall not be violated . ." and is : Â“Â… a right of personal security (that) belongs as much to the citizen on the streets of our citie s as to the homeowner closeted in his study to dispose of his secret affairs. No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference, unless by clear and unquestionable authority of lawÂ” (Terry v. Ohio 392 U.S. 1, 1968) In the monumental case of Roe v Wade (Roe v Wade 410 U.S. 113, 1973), the court noted that Â“only personal rights that can be deemed "f undamental" or "implicit in the concept of ordered liberty are included in the (Constitu tional) guarantee of a right of personal privacy.Â” The court in its search to find a constituti onal basis for privacy noted that the Constitution does not explicitly mention any right of privacy. The court found the Constitution implicitly guarantees a right of personal privacy, or at least
112 made a guarantee of certain areas or zones of privacy. On basis of its analysis the court announced: Â“the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zone s of privacy, does exist under the ConstitutionÂ”. In Whalen v. Roe this right of person al privacy was said to include Â“the individual interest in avoidi ng disclosure of personal ma ttersÂ” and "the interest in independence in making certain kinds of important decisions" (Whalen v. Roe, 429 U.S. 589, 599-600. 1977). Froomkin, an eminent legal scholar notes that since Roe v. Wade, the law has recognized a right to be left alone, a right to autonomous choice regarding intimate matters, th e right to autonomous choice regarding personal matters (Froomkin, 2000). In the subsequent case of Paul v. Da vis (Paul v. Davis 424 U.S. 693, 1976), the Court pronounced when petiti oned to extend a right to pr ivacy to the publication of records of official acts such as arrests, th at such extension of pr ivacy was not justified as it did not fall under the rubric of privacy rights. The constituti onal right to privacy was limited to matters relating to inherently intimate activities such as "marriage, procreation, contraception, fam ily relationships, and child rearing and education." The importance of intimate activities was later di scussed in the case of Roberts v. United States Jaycees (468 U.S. 609, 1984). Intimate activities are impor tant as they embody the fact that we all depend on the "emotiona l enrichment of close ties with others" (Roberts v. United States Jaycees, 468 U. S. 609, 1984). The dissenting opinion of
113 Justice Blackmun in Bowers v. Hardwick, further emphasizes their importance as intimate activities regulate the nature of an agent's personal associations with others (Bowers v. Hardwick, dissent ing opinion, section III). 220.127.116.11.4 The First Amendment Protections: Privacy and Association In addition to the pronouncement that the Fourth Amendment protected people not places, Katz also rec ognized that the First Amendm ent imposed a limitation upon governmental abridgment of the freedom to associate and ensured privacy in one's associations (Katz v. U.S. 369 U.S. 347, 1967). The freedom of association is protected in two distinct senses. In one line of decisions intrusion of the State in certa in intimate human relationships must be thwarted because of the role such rela tionships play safeguarding the individual freedom that is central to our constituti onal scheme. In this respect, freedom of association receives protec tion as a fundamental elem ent of personal liberty. Because the Bill of Rights is designed to secure individual liberty the Supreme Court has recognized that it must afford the formation and preservation of certain kinds of highly personal relationships a substant ial measure of sanctuary from unjustified interference by the State (R oberts v. United States Jaycees, 468 U.S. 609, 1984).37 The Roberts case goes on to state: Â“Without precisely identifying every consideration that may underlie this type of constitutiona l protection, we have noted that 37 Roberts v. United States Jaycees 468 U.S. 609 (1984) citing Pierce v. Society of Sisters 268 U.S. 510, 534-535 (1925); Meyer v. Nebraska 262 U.S. 390, 399 (1923).
114 certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical bu ffers between the individual and the power of the State. See, e. g., Zablocki v. Redhail 434 U.S. 374, 383-386 (1978); Moore v. East Cleveland 431 U.S. 494, 503-504 (1977) (plurality opinion); Wisconsin v. Yoder 406 U.S. 205, 232 (1972); Griswold v. Connecticut 381 U.S. 479, 482485 (1965); Pierce v. Society of Sisters, supra at 535. See also Gilmore v. City of Montgomery 417 U.S. 556, 575 (1974); NAACP v. Alabama ex rel. Patterson 357 U.S. 449, 460-462 (1958); Poe v. Ullman 367 U.S. 497, 542-545 (1961) (Harlan, J., dissenting). Moreover, the const itutional shelter afforded such relationships reflects the realiza tion that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationship s from unwarranted state interference therefore safeguards the ability independently to define one's identity that is centr al to any concept of liberty. See, e. g., Quilloin v. Walcott 434 U.S. 246, 255 (1978); Smith v. Organization of Foster Families 431 U.S. 816, 844 (1977); Carey v. Population Services International 431 U.S. 678, 684686 (1977); Cleveland Board of Education v. LaFleur 414 U.S. 632, 639-640 (1974); Stanley v. Illinois 405 U.S. 645, 651-652 (1972); Stanley v. Georgia 394 U.S. 557, 564 (1969); Olmstead v. United States 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend th e creation and sustenance of a family -marriage, e. g., Zablocki v. Redhail, supra ; childbirth, e. g., Carey v. Population Services International, supra ; the raising and educa tion of children, e. g., Smith v. Organization of Foster Families, supra ; and cohabitation with one's relatives, e. g., Moore v. East Cleveland, supra Â“Family relationships, by their nature, involve deep attachments and commitments to the necessari ly few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life. Among other things, ther efore, they are distinguished by such attributes as relativ e smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and
115 seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerat ionsÂ” that have led to an understanding of freedom of associ ation as an intrinsic element of personal libertyÂ” (Roberts v. United States Jaycees, 468 U.S. 609, 1984). In another other line of decisions, the Court has recognized a right to associate for the purpose of engaging in those activ ities protected by the First Amendment -speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of associ ation of this kind as an indispensable means of preserving other individual liberties. Keeping oneÂ’s membership in a group private may in many circumstances be indispensable to preservati on of freedom of associati on, particularly where a group espouses dissident beliefs (United States v. Rumely 345 U.S. 41 at 56-58). It has been noted that Â“the State-compelled disclosure of affiliation with groups who are engaged in advocacy may constitute an effective re straint on the freedom of associationÂ” (National Association for the Advancemen t of Colored People v. Alabama ex rel Patterson, Attorney General 357 U.S. 449, 1958). As an illustration of a form of governmental action which might interfere w ith freedom of assembly, was pointed out in American Communications Assn., "A re quirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature" (American Comm unications Assn. v. Douds 339 U.S. 382 at 402).
116 Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs has been found to be an ar ea where privacy is required Â“particularly in cases where it is shown that on past occasions revelation of the identity of its members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostilityÂ” (N ational Association for the Advancement of Colored People v. Alabama ex rel Patterson, Attorney General 357 U.S. 449, 1958). This is so because it ma y induce the members to withdraw from the association and dissuade others from joini ng it because of the fear of exposure of their beliefs shown throu gh their associations (Na tional Association for the Advancement of Colored People v. Alabama ex rel Patterson, A ttorney General 357 U.S. 449, 1958). Should this occur disclosure of the association's membership is likely to affect adversely the ability of the a ssociation and its memb ers to pursue their collective effort to foster beliefs wh ich they have the right to advocate? 2.4 Summary A rigorous review of the epistemological basis of privacy followed by a review of the axiology and ontology of privacy has been provided. In philosophy three ontology existone control based, another access based and the final a combination of control and access. It was demonstrated that Ontology and Axiology is related to rights theory. Rights, claims and entitlements of privacy determine behavior by enabling and constraining conduct. Through HohfeldÂ’s Normative Position rights have been shown to be a cluster of enablement or constraint s in conduct. Next it was shown that privacy
117 rights embody the conventions, values and prin ciples of a society and specify behavior consistent with its conventions, values and principles through its laws, norms, private ordering or agreements. It was demonstrat ed that privacy supports many different values each having distinct rights, claims a nd entitlement that vary in terms of control and access to ensure the value that is sought to be protected. The conception of privacy in the field of law was examined. Where philosophy is often seeking and defining ideals; law is pragmatic seeking real life implementations of ideals. In particular, law is concerned w ith the coordination, mo tivation and direction of human and non human action through use of value based ri ghts of control and access to information that define roles so that th e values of privacy pursued can be ensured. Law implements privacy thr ough the establishment of speci fications of behavior to ensure desired societal values are obtai ned. A history of the law of privacy was provided that demonstrated that the values privacy seeks to protect at law are broad, covering a wide variety of information under an equally broad situational area that is ever changing. In the following chapter, a multidimensional construct of privacy will be proposed. Any taxonomy should provide the ability to classify into ty pes with each type classification unique and dis tinguishable from all other types.Through the use of the control/access framework esta blished in philosophy and th e examination of privacy laws five distinct patterns of control and access emerge that reflect a different value of privacy desired and required by society. Each of these patterns has a unique
118 specification in the control and access of in formation. These five distinct patterns are then described and distinguished.
119 Chapter 3: The New Construct of Privacy 3.0 Proposal of a new conceptualization of privacy When is information private? Under one theory, what is private information is determined by the situation. What this means is that information that is private in the context of one situation may not be private in the context of anot her situation. By way of example we permit a criminal to tell his lawyer all the details of his actions and expect this disclosure to be protected as private but we do not allow this same protection to be enjoyed by th e criminal when they confe ss their crime to a passer by. The idea that a social activity demand ed privacy was first suggested by Inness in her study of intimacy and privacy. In her work of defining the privacy that attended interpersonal relationships, I nness recognized that the role an activity play s in the life of the person determines whether the activity is intimate and thus entitled to protection through privacy (Inness, 1992). Private information is more than intimate information it is special information that is not subj ect to general disclosure and access. It is important to note that the informa tion which is deemed private both enables a created role to be performed and the enable s the benefits of the role to be realized. Private information enables the role as on th e basis of information control and access it creates the role and at the same time it segregates those inside the role from those outside the role on the same basis of cont rol and access to information. Additionally the quality of the privacy in the information dete rmines the potential benefit of the role. A high degree of privacy in information ensure s that a maximum benefit is to be achieved in the roles that require private information. In effect private information has a role Â– a
120 role of completing a defined role. In the above example the conveying of information between the attorney and his cl ient enabled the rec ognized role of attorney-client to be preformed. The role was created because it is valuable. The information being held private enables the role as it segregates those inside the role from those outside the role on the basis of access to information. The fact the information is highly private enables the role to provide its fullest benefit. In contrast, the role between the criminal and passerby is not protected as it is not valuable. Information exchanged between the two parties is not deemed private because of the lack of importance and the fact that a lack of information will not impede the benefit of the role. Laws, norms, and agreements structure our society and define rights. These defined rights create roles that ascribe the expected conduct for societal entities38 including the privacy in information. When societal entities inte ract, they form a relation of which the sum of the mutual ascrib ed roles and interacti ons of those roles is a relationship. While a person may engage in many role based activities, not all role based activities or relationships are entit led to privacy protection. For roles where privacy is at issue there is a defined cont rol over and access to information that every relater possesses. Contro l over information is defined by th e degree of control an entity possesses over what information is released, when that information is released and to 38 According to Edelman, organiza tions in normative models confor m because law enunciates social values, ethics and role expectations which organiza tions and its members elaborate and internalize see Edelman, LB, Petterson, SE, Chambliss E, Erlanger HS, Legal Ambiguity and the Politics of Compliance: Affirmative Action Officers Dilemna, Law and Policy Vol 13 pg, 73-97 (1991) and Edelman LB, Abraham SE, Erlanger HS, Professional Construction of the Legal Environment: The Inflated Threat of the Wrongful Discharge Doctrine, Law Society Review, Vol. 26 pg 47-83 (1992)
121 whom the information is released. Access over information is defined by what, when and who has access to the entity and to the information about the entity. The sum of the roles of control and access between relaters define relationships that are privacy-based. Actor (Role) Actor (Role) Relationship Rights ofAccess ( ) Rights to Control ( ) Figure 9 Basic Privacy Model Five distinct role-based privacy re lationships are proposed, each requiring relevant, appropriate and proper information. Each privacy relationship is grounded in a social role. All are composed of one or mo re entities. These entities can be a person, an organization or society itself. The roles of the relationship are supported by legal theories and imposed by laws, norms and or ag reements that define rights of access and control over information that are unique in each relationship and in defining such, dictates to the relaters a un ique role each must undertake. These different privacy types are based upon unique roles that entities require and demand in order to maximize their lives and existence and reali ze optimal benefits of societal life. These same privacy types set forward societal requir ements to ensure that life. These private relationships are as follows: Personal Privacy is a role based activity that ensures persona l areas of a persons life remain their own, Privileged
122 Privacy enables the consultation of and assi stance of third parties to be procured ensuring the ability to seek help, comfort and counsel, Inte llectual Privacy permits the individual to develop a personÂ’ s self and intellect, a Intellectual Privacy is a role based activity that protects certain types of secrets so as to en sure the enlistment of help, expertise and assistance of ot hers needed for the attainment of socially desired goals and Secret Privacy safeguards the public dom ain so that life in private can remain private. Privacy Type Purpose Personal Privacy Ensures and enables a person so that personal areas of a personÂ’s life remain their own Privilege Privacy Ensures and enables a person so that they may seek the consultation of and assistan ce from third parties be procured ensuring the ability to seek help, comfort and counsel. Additionally it may protect certain classes of persons from being interf ered with by outsiders. Intellectual Privacy Ensures and enables a person in their deve lopment of that personÂ’s self and their intellect Secret Privacy Protects certain type s of secrets so as to ensure the enlistment of help, expertise and assistance of others needed for the attainment of socially desired goals Transitory Privacy Safeguards public and private spaces to ensure a privacy that meets the needs and expectations of societal members Table 7 Privacy Types and Purposes
123 3.1 The Model 3.1.1 Relational Privacy 18.104.22.168 The purpose This type of privacy is characterized by the belief that humans have the capacity to develop personal relationships and should develop these relationships along the line of their desires without the in terference of others. These t ypes of personal relationships run the gamut from structured (employer-emp loyee), casual (friend/friend) to highly intimate (husband-wife). These relationships are important to the individuals involved and are often emotionally based. Often this t ype of relationship pr ovides great personal value and satisfaction to the individuals i nvolved in the relatio nship. In some cases these relationships also provide value to society as well. For this type of relationship to flourish, privacy enables the individual both the choice on which relationships to develop and the direction of development. 22.214.171.124 The relationship entities and char acteristics of the relationship In relational privacy one entity in the re lationship must always be a person. The other entity generally can be one or more person, but it can be a representative of an organization, an organiza tion itself or society. Relationships of this type are of two configurations. One type of relational privacy is the formation of relationships between one or more other persons. This relationship requires the abil ity of the person to autonomously choose, construct and maintain relationships of his or her choosing free from intrusion of any entity even if the choice is irrationally based and made on less than full information
124 The person disclosing information has fu ll power both to disclose information (or not) and to determine how much inform ation is disclosed. This ensures that recipient of that information should only obtain information reas onable and necessary for the relationship to form and be maintain ed. The more intimate the relationship, the more sensitive and personal information that is usually be obtained. The disclosure of sensitive and personal information is not c onfined to intimate relationships. The more professional relationships exchange personal information as well, generally including living addresses, home phone and familial info rmation. Regardless of the character of this relationship, once information is receive d, only a compelling necessity justifies its release to a third party or enables the disclosee to use this information against the discloser As such this disclosee has a duty to protect this information and permit only necessary access to the information. Another type of relationship is the situ ation where there is no formation of any relationship with another indivi dual, organization or society. This is distinguished from the first type of privacy in that while the person has the control over the when what and to whom information is disclosed it is c oupled with a condition of no access to either the person or the personÂ’s information. In th is second type of re lational privacy those outside (persons, organizations and societ y) have no access to either the person, to decisions made by the person or to informa tion about the person. These walled off areas are more limited than in the first instance of relational privacy and confined to certain defined activities, decisions and information about those activities of a personÂ’s life in sensitive and intimate areas of a personÂ’s life such as in the case where a woman enjoys
125 complete privacy with respect to her deci sions regarding contraception and abortion, to matters involving the rearing of child ren and childbirth to name a few. 126.96.36.199 Philosophy Type This relation is based in Lockean philosophy related to control. Locke distinguished between the re alm of intimate personal and familial relations and the civic realm maintaining that intimate, persona l and familial relations not be invaded or intruded upon by government, organizations, so ciety or others outside those in the relation (Inness, 1992, Rachels, 1975). Locke sa w that by restricting access individual control increased, thus enabling individuals to sustain Â“power, liberty and autonomy against potentially overwhelming forces of governmentÂ” (Nissenbaum, 1998), and enabling the individual to have the power to live his life separate and apart from the direct and indirect influence of others. Th e value of privacy is the construction of a zone that enhances the both autonomy to engage or not engage in a personal relationship as well as the liberty to constr uct personal relationshi ps as desired by the individual. The ability to cont rol access to the i ndividual, the ability to exert control over access to information about the individual, the ability to access the decisions made by the individual and the non inte rference with our choice to engage or not engage in the expression of our love like and caring (Inness, 1992), are ways to manage role expectation (relations are structured accord ing to our understanding of what they are and what is due to them and from them) (Benn, 1975), as well as a way to avoid individuals being judged out of context (Rosen, J. 2000), and are a way to ensure equality (Rao, 2003).
126 Role characteristics of Relational Pr ivacy in terms of control and access A hallmark of relational privacy is the very high levels of control given to individuals coupled with others having low le vels of accessibility to both the person and their information. In the area of access tw o conditions can exist. In some cases the individual has high control over access to their person and to th eir information. The importance of access limited is to provide a place to freely act and express the self outside the view of others or for the provi sion of a needed secure physical or private psychological space. In those cases where individual control is not possible norms and laws have traditionally provided limits of access to the person and information about the person. These high levels are necessary to form the relationships desired by people, to have true autonomous choice on what relationships are chosen, how they are constructed and maintained. They also are necessary to protect sensitive information and intimate areas of a personÂ’s life 188.8.131.52 Character of Information The character of the information can be determined by an objective and a subjective test. The objective test is any info rmation reasonable and necessary to form a desired relationship by a person is relational information. This can be information about the person themselves or their family, and generally forms an important part in the familial and/or intimate relationships of the person. It also can be sensitive and intimate information or information embarrassing to the individual or decisions made by the individual that are intimate and sensitive. The subjective test includes information the individual subjectively views as important a nd personal, intimate or sensitive that they
127 share purposely for relationship formation or relationship maintena nce and growth even should the information shared have no value to a third party. Certain information is deemed so sens itive and intimate that it is always found to be protected regardless of the personÂ’ s subjective views toward that information. This type of information includes the decisi ons about birth contro l, abortion, family matters and relationships including ma rriage, child rearing and education 184.108.40.206 Representative Laws and Court Rulings The following cases have recognized the importance of intimacy and declared a right of privacy exists: Loving v. Virginia 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and ch ild rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) and Meyer v. Nebraska. 262 U.S. 390 (1922 ) marriage, e. g., Zablocki v. Redhail, supra; childbirth, e. g., Carey v. Population Services International, cohabitation with one's relatives, e. g., Moore v. East Cleveland, contraceptive use Griswold v. Massachusetts and abortion in Roe v. Wade (which specifically recognized a right to be left alone, a right to autonomous choice regarding intimate matters, the right to autonomous choice regarding personal matters (Froomkin, 1996). These rights were reiterat ed in Paul v. Davis when the court stated the Â“right to privacy was limited to matters relating to inherently intimate activities such as "marriage, procreation, contraception, fa mily relationships, and child rearing and education.". The importance of intimate activ ities in the case of Roberts v. United States Jaycees (468 U.S. 609, 1984) were found to be important as intimate activities
128 embody the fact that we all depend on the "emotional enrichment of close ties with others" (Roberts v. United States Jaycees, 468 U.S. 609 1984)39 that a constitutional shelter of privacy afforded such relationshi ps reflects the realiza tion that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state inte rference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty. The dissenting opinion of Justice Blackmun in Bowers v. Hardwick, further emphasizes their importance as intimate activities re gulate the nature of an agent's personal associations with others (Bowers v. Ha rdwick, dissenting op inion, section III). 3.1.2 Privilege Privacy 220.127.116.11 The purpose When social approval is given to a privil ege, security and privacy are enriched substantially (Krattenmaker, 1973). However sometimes disclosure of private matters need to be encouraged in order to achiev e the optimum value from the relationship. In the case of privilege privacy individuals wh en confronted with certain challenges are encouraged to seek professional expertise. The professional often requires information that is highly sensitive, potentially harmful and highly embarrassing to the disclosing party. Under normal circumstances help is not sought or a less than full disclosure is made when it is sought. The encouragement to participate in this relationship comes 39. Note that Roberts v. United States Jaycees c ontains an explicit warning against limiting the scope of privacy to the family.
129 through a protection that any information provided to the professional will be safeguarded from disclosure. An additional protection of use is also present: unless a competing societal need is present any info rmation disclosed in this relationship can never be attributed to or used agains t the disclosing party. The success of this relationship depends on the resolve of th e agent to keep a purely second order relationship (Benn, 1975), demanding of hi m or her, a sensitive and reticent understanding of the sensitivity of the information entrusted. Dissemination ofInformation Protection Certain Designated Individuals Certain types of Information Privilege Privacy Figure 10 Purposes of Privilege Privacy This type of information is often couched in terms of privileges. Privileges serve the public interest (Grant v. Downs (1976) 135 CLR 675 @ 685 (Stephen, Mason, Murphy JJ)) promoting values important to the society40. When information is covered 40 A possible effect of ending lawyer/client privileges is should the client fail to disclose confidences due to the lack of privilege, the effectiveness of the lawyers representative maybe impaired while the search for truth not be advanced in the slightest degree.
130 by a privilege the owner of that informati on is assured that their information and identity would be protected. Privileges en courage the dissemination of information and the Â“making a full and frank disclosure of relevant circumstancesÂ” (Grant v. Downs (1976) 135 CLR 675 @ 685 (Stephen, Mason, Murphy JJ)). Privilege permits full development of the public self by enabling the individual to exer t a control over the audience who receives the information, the ti ming and release of the information and the conditions under which information is re leased (Krattenmaker, 1973). Privilege protects the right of in dividual to form private loyalties (Italia, 2003). Another rationale for granting privileges and immunities is such privileges and immunities allow the individuals to whom th is information is disclosed to carry out their duties independently, without interf erence by others and without fear of retribution (OPCW, no year). Privileges also promote potential bett er individual care by professionals who serve the person when a co mplete disclosure is made (1 My and K 98, 39 Eng. Rep 618, 1833). Â“(P)rivilege(s) prom ote the creation of information that might not otherwise existÂ” (Saltzburg, no year). In th e field of law it has been recognized: Â“It is a necessary corollary to the right of any person to obtain skilled advice about the law. Su ch advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may be afterwards disclosed and used to his prejudice.Â”41 41 Lord Hoffmann in R v Special Commissioner and another ex parte Morgan Grenfell and Co Ltd  UKHL 21
131 Privileges also operate to protect info rmation that was disclosed. By providing incentives in the way of dutie s and penalties greater assurance is available that the information entrusted to another for their ca re will not be disc losed. This protection furthers the incentive to disclose sensitive information. In effect, this places a control over the repository of information after the information is shared (right to control disclosed information) Ex Post effect Â– when provided information is released what are the harms of a particular case of disclosure or non disclosure (S altzburg, no year). The relationship entities and characteristics of the relationship The protections of privilege privacy extend primarily to individuals but organizations and groups of people can fall unde r its protection as in the case where an organization seeks the services of an account ant or legal counsel. In each case the manner of information disclosure demonstrat es the desire to keep the information private. The entity to which the information is disclosed must possess specialized training and expertise or at le ast the discloser must believe that entity possesses this expertise. It is not important that the information provided is necessary for the expert to act. It is only important that the informati on is provided to the expert in the hope it will assist the discloser. Often these relationships are limited in time and purpose specific. Privilege is principally underpinned by Lockean philosophy. The decision to share information, to a person at a time a nd place is the prerogative of the individual solely. The holder of information determines whether to provide the information or not. Locke also maintained that the individual was not completely acc ountable to society his accountability was limited only to essent ials necessary for the administration of
132 society except in the case of where the i ndividual is either a member of societyÂ’s administration or some special ground exists why the individual should be accountable. The reason given for this is the keeping reas onable and limited the rights society holds over another person permits societal roles be constructed to allow considerable breadth to the individual to choose how they live (Benn, 1975). This has been represented as the capability to determine what one wants to reveal and how accessible one wants to be (Bellotti, 1998). This capacity enables th e individual to sustain power, liberty and autonomy against potentially overwhelming forces (Nissenb aum, 1998). For privileged relations the public man of Locke sets the boundary where the person can shape the relationship. Up to that boundary person has complete access. Control over what is privileged and how privileged informati on can be disclosed and be used by third parties. This accountability to society is what places the duty the person to whom information is disclosed to protect the in formation from access by others and ultimate protect the individual bei ng identified by his information. Once information is disclosed, the entity to which privileged information owes a duty to protect this information from others. But the argument can be made that this is very Kantian in that a sanctuary must be created so that neither the person or his information is accessed or accessible. To encourage the decision to share a Kantian strict zones of no access to the person or to information about the person is imposed that provides the necessary sanctuary for the information to be shared.
133 18.104.22.168. Role characteristics in terms of control and access 22.214.171.124.1 For dissemination of information There are three issues with respect to privilege privacy. First the individual has a right to share or no t share information. This normally produces a duty in others to respect the information providerÂ’s choice a nd not access the information shared or to encourage the individual share information. Ho wever in privilege privacy certain type of information is of more value when it is shared, so society crea tes incentives for the individual that while inva ding that right produce value for both the individual and society when the information is shared. A second issue is once information is shar ed, a duty of loyalty is owed to the sharing party to use the information for his benefit and not take advantage of the donor. Advantage is taken when the individualÂ’s information is used in ways not intended, used in a way outside the agreement of use or used in way to harm the individual. Often time this is expressed in the terms of a fi duciary duty, which is a duty of great care owed by the agent for the information entr usted by the principle. These duties are evaluated in terms of value for the donor of information and the anticipate harm that would befall should the information be misused. A final duty of helping is owed by the agent toward the principal. Here the agent must act in a way that assists the prin cipal. Here we evalua te the process not the outcome, asking was what was done at that point and time reasonable? Whether the trustee is prudent in the doing of an act depends upon the circumstances as they
134 reasonably appear to him at the time when he does the act and not at some subsequent time when his conduct is called in question For privilege privacy at the time of initial disclosure the owner of the information has high control over his or her information. Once information is disclosed, the individual loses his control over the in formation but in its place a duty is placed upon the holder of information to protect the information. Additionally there is a broad and strong zone of low access to both the person and their information that must be enforced by the person to whom th e information is disclosed. 126.96.36.199.2 For non dissemination of information These are characterized by the individual being infirm requiring protection due to minority or the character and nature of the information is such that the information is out of the control of the indi vidual and but for some type of control, the individual will suffer damage. Under these circumstances, strong protections of non access to the individualÂ’s information and to the individual are provided. 188.8.131.52 Character of information This is personal information about th e individual that is sensitive to the individual disclosing which in the hands of the wrong person can subject the individual to harm, embarrassment or ridicule. In the case where the information is encouraged most often the informationÂ’s disclosure will embarrass or ridicule the person, but in may cases it can subject the person to harm su ch as when a person must disclose details of a crime to a lawyer to prepare for his cr iminal defense, or when an employer learns of a medical condition of his employee, th e employee may be fired, demoted or passed
135 over for advancement. In the case where we re strict dissemination of information, it is almost always for the purpose of prot ecting the individual from harm although incidental to this it may also shield them from embarrassment or ridicule. 184.108.40.206 Representative Laws and Court Rulings To encourage these types of disclosure, hi storically certain roles are designated as sanctuaries. Inside these sanctuaries it is possible for the individual to share their information and enjoy the protection that thei r participation in the role as they are aware their information will not be revealed. For this reason it has been stated: Â“When a claim of privilege is upheld so is th e right of privacyÂ” (Krattenmaker, 1973). Historically, Elizabethian confidenti ality existed to protect the honor and integrity of the gentlemen who held confid ential information (Anne sley v. Anglesea 17 St Tr. 1139 (1743). In 1562 an act in Engl and make a universal duty to testify. 42 This act threatened confidentiality obligations of both the gentleman and the lawyer. With the enactment of this law, judicial sear ch for truth could no longer be obstructed by voluntary pledges of secrecy. Judges of that time decided that legal communications formed a special category of exception to tes tify because of the importance of the client obtaining advice would be hindere d by the clients fear of disc losure of his confidences. 42 Act of Punishment of Such as Shall Procure or Commit any Willful Perjury See also Cobbetts State Trials 769. 788 (1612) (Â“(A)ll subjects, without distin ction of degree owe to the king tribute and service not only of their deed and hand but of their knowledg e and discoveryÂ”Sir Francis Bacon) Prior to this act the opponent in a jury trial was not compellable to be a witness. Wigmore, J.H., A Treatise on the Anglo-American Law of Evidence, Mc Naughton Re v. Edn, Little Brown, Boston, Section 2217 at 169 (1961)
136 Since that date other privileges have been in formally extended but th e trend today is to codify these provisions through a formal law. Examples of the type of privileges in existence today that enable persons to disclose information include: attorney a nd client (FS 90.502(2)), medical care giver (Florida Statute 456.057(2)), clergy and pa rishioner (Florida Statute 90.505(2)), psychologist or psychotherapist and their patient (Florida Statute 90.503(2)), accountant and client (Florida Statute 90.5055(2)), dom estic violence advocate and the victim spouse (Florida Statute 90.5036(3)), sexual assault counselor a nd rape victim and family (Florida Statute 90.5035(2)). The best known privilege is in the medical profession. Historically information provided by the patient to the doctor has been held in the strictest confidence. This tradition has eroded when medicine became a business, and the patientÂ’s information became a commodity that had to be excha nged with many persons, unrelated to the diagnosis and treatment of the patient. At tim es this information has been disclosed to others, or used in a manner detrimental to the patient. These reasons were a major justification for the enactment in 1996, of The Health Insurance Portability and Accountability Act (HIPAA). Ju stification for the HIPAA act centers on the premise that the provision of high quality health care requires the exchange of personal and sensitive information between the pati ent and provider (65 FR 82467 Published December 28, 2000). When the patient has high trust in the provider that the provider will protect this information, more informa tion is provided to the medical provider by the patient. When the trust is low, the pa tient withholds information or fails to get
137 treatment. Health care professi onals who lose the trust of their patients cannot deliver high quality care (65 FR 82468 Published D ecember 28, 2000). Privilege in this way acts as a zone of no access. The zone of no access enables information to be brought into the open. This is the Ex Ante effect Â– To what extent does the privilege promote the creation of information th at does not already exist (S altzburg, no year)? A zone where information can be created when one in exclusive possession of certain information discloses and subsequen tly that information is explored. Laws have been enacted to protect to protect children by limiting access to information about children (COPA)43 access to certain types of information Â– GrammLeach-Bliley (protect consumer personal financial information held by a financial institution. The Family Education Rights and Privacy Act (20 USC 1232g ) Â– which gave the rights to inspect, and get corrections to school records and a right to have information in school records not to be rel eased unless certain circumstances are met. The Fair Credit Reporting Act and FACTA (Fair and Accurate Credit Transactions Act of 2003 and PL 105-159) additionally protect the credit information of individuals. Sarbanes Oxley was designed in part to protect the financial information of the individual from be ing disclosed. 43 Childrens Online Privacy Act (COPA) Â– giving parents control over what information is collected about their children online and how much of that information can be used,
138 3.1.3 Intellectual Privacy 220.127.116.11 The purpose The purpose of intellectual privacy is to promote the development of individual autonomy through self development and self expression. When people are watched often time they attempt to conform to the watcher (COPA).44 In these cases often they are inhibited and self cons cious. Reiman states that "when you know you are being observed, you naturally identify with the outside observer's viewpoint, and add that alongsid e your own viewpoint on your action. This double vision makes your act di fferent Â…" (Reiman, 1995). Reiman goes on to say: "To the extent that a person experiences hims elf as subject to public observation, he naturally experiences himself as subject to public review. As a consequence, he will tend to act in ways that are publicly acceptable" (Reiman, 1995). Jed Rubenfeld noted one version of privacy focuses on protection-ofpersonhood and the second version on free dom from-normalization (Slobogin, 2002). The personhood version views the right to pr ivacy as a means of ensuring individuals are free to define themselves. It protects ag ainst state interference in decisions that are "central to the personal identities of t hose singled out" (Rube nfeld, 1989). The anti44 Shoshana Zuboff writes about the phenomenon of Â“anticipatory conformity" among persons who believe they are being watched.
139 normalization version, in contrast, focuse s on the extent to which the government action standardizes life styles (Rubenfeld, 1989).45 Intellectual Privacy enables this self actualization to occur. This is achieved by the providing of a sanctuary th at shelters the person from ot hers. It is also achieved by as insulating from others the information about the information the person consumes. The purpose of the sanctuary permits the necessary growth an d exploration by the individual to experience life as they de sire and become an autonomous being. There has not always been a respect over ones thoughts and feelings. Early Anglo-Saxon tradition readily recognized tangibl e right to land and property but largely failed to extend these rights to thoughts feelings and intellectual activity. This was changed in the post enlightenment peri od when thought gained respect and the individualÂ’s right over his or her thoughts and personality be gan to be given the respect formerly reserved only to bodily integrity and co rporeal rights.46 Still this recognition was of a limited basis until the writing of Brandeis and Warren in 1890 when they proffered that ones thoughts, emotions and sensations should be protected by privacy and made the argument that the law should expand its recognition of an individualÂ’s 45 Rubenfeld ("The point is not to save for the individual an abstract and chimerical right of defining himself; the point is to prevent the state from taking over, or taking undue advantage of, those processes by which individuals are defined in order to produce overly standardized, functional citizens."). Its purpose is guard against a particul ar kind of creeping totalitarianism, an unarmed occupation of individuals' lives. That is the danger of which Foucault as well as the right to privacy is warning us: a society standardized and normalized, in which lives are too substantially or too rigidly directed. That is the threat posed by state power in our century. @ 784 46 See Georg W.F. Hegel, Philosophy of Right (T.M. Knoz trans. 1942) (1821), Immanuel Kant, The Metaphysics of Morals (Mary Gregor ed. And translator 1996)(1797), John Locke, Two Treatise of Government,(Peter Laslet ed., 1988)(1690)
140 interest in his Â“inviolate pe rsonalityÂ” (Brandeis and Warren, no year) and forbid others to intrude upon a personÂ’s thoughts, emotions and sensations. Individuals need this inviolate personal ity to develop their autonomy in thought and action and become autonomous individuals This is goal of in tellectual privacy. The autonomous person does not appear but is a developed be ing that possesses: Â“(the) strength of mind to resist the pressure to believe with the rest, and has the courage to act on his convictions. He is the man who despises bad faith and refuses to be anything or to pretend to be anything merely because the wo rld casts him for the part. He is the man who does not hesitate to stand and be countedÂ” (Benn, 1975). Autonomy is a developed trait. In order to be autonomous individuals require a place where they can go and explore outside th e gaze of others. This is because when under the watchful eye of another person or en tities, a person is often stifled in their development. Philosopher Stanley Benn stated: Â“Â… we need is the freedom to be something else Â– to be ourselves to do what we think best, in a small protected sea, where the winds of opinion cannot blow us off course. We can not learn to be autonomous unle ss we can practice independent judgmentÂ” (Benn, 1975). To become autonomous, we need a private inner life (Reiman, 1995). To develop this character requi res a sanctuary and a retr eat (Benn, 1975). The private retreat is Â“a private sphere of some sort to enable the recollecti on of self that makes self-presentation possible even if, in the e nd, the ideas that we develop and affirm are the same as those of our peersÂ” (Austin, 2003) This retreat must insulate the individual
141 from the outside and withstand pressure s imposed from without. There must be preserved in each individual a sphere of priv acy that will allow his personality to bloom and thrive (Long, 1967) and respect a pe rsonÂ’s right to his own thoughts. When we are on display we are unable to form our opinions and say that they are ours. The ability to develop ourselves and determine our being, to be distinct individuals and have an auth entic inner life (Austin, 2003) is a value of intellectual privacy. In this sense intelle ctual privacy protects our ab ility to act and think in unpopular ways; explore self and ideas. It prot ects individuality understood in terms of our ability to be different, even eccentric (Blouston, 1962).47 It enables us to form our own person and to become what we want to b ecome. Privacy is also seen as an essential practice for the formation of a conception of se lf. .It enables us to find within ourselves the resources for better views which in turn improve life itself (Reiman, 1995). Intellectual privacy promotes for the indi vidual these abilities and attributes by providing a zone of no access to three areas: the individual, the place he or she occupies and the information that is consumed Individual autonomy is valued by ou r society. A society of autonomous individual help ensure a functioning, viable democratic society as opposed to an autocratic society where the individual simply accepted the edicts from above. The liberal vision is guided by the ideal of the autonomous individual, the one who acts on principles which she has accepted after critical re view rather than simply absorbing them 47 Â“The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. Such an individual merges with the mass.Â”
142 unquestioned from outside. Moreove r, the liberal stresses the importance of people making sens e of their own lives, and of having authority over the sense of those lives. All this requires a kind of space in which to reflect on and entertain beliefs, and to experiment with them Â– a private space Deeper still, however, the liberal vision has an implicit tr ust in the transformational and ameliorative possibilities of priv ate inner life. Without this, neither democracy nor individual freedoms have worth. Unless people can form their own views, democratic voting becomes mere ratification of conventiona lity, and individual freedom mere voluntary conformity. And, unless, in forming their own views, people can find within them selves the resources for better views; neither democracy nor i ndividualism can be expected to improve human lifeÂ” (Reiman, 1995). The development of this autonomy in the individual is a key by product of privacy. The value of such off limits activity has de monstrated itself in studies involving individual creativity where findi ngs were made that creativity is most evident where the person has more leeway to develop. 18.104.22.168 The relationship entities and type of relationship The typical entity entitled to the prot ections of intellectual privacy is the individual. The entities the in dividual is protected from are organizations and society itself. Organizations and Society are permitted no relationship with the individual when intellectual privacy is claimed. This is accomplished by providing no access to the individual and no access to info rmation regarding the individual. Philosophy Type Intellectual privacy embraces the concep t proposed by Kant the ideal of an independent minded individual whose actions are governed by principles of his own
143 that he accepts as rational (Benn, 1975). Thes e individuals form their principles Â“after a critical personal review rath er than simply absorbing them unquestionably from the outsideÂ” (Reiman, 1995). 22.214.171.124 Role characteristics of Intellectual Privacy in terms of control and access For optimal results the individual should have high control over the information that is viewed, high control over the place the information is viewed and high control over when it is viewed. In a line of cases characterized by freedom of speech cases, the Communications Decent Act of 1996 (ACL U v. Reno 521 U.S. 844 ) and ChildrenÂ’s On Line Protection Act (ACLU v. Ashcroft (2004)) were declared unconstitutional. A major reason for these decisions was the rest riction in the free flow of ideas and the specter of censorship which threatened the individualÂ’s to access to information ultimately hindering the ability of the individu al to develop his or her intellectual self. Due to changes in information capture, aggr egation and transfer, and advancements in digital rights management where the holder of the digital right can direct the amount, person and time and place of access individua ls and even identify the persons, place and type and amount of access individuals have no or little control over the information they seek in some areas. Awareness that being placed under the gaze of others would produce a chilling effect upon the consumption of some material has produced a number of laws that declare as safe havens that enable patrons to access material freely. Such places as the library, video rental and cable use and pay per view are now subject to laws that restrict access to others of who frequents a nd what sources are viewed by their patrons This creates a zone of no access to information about the person.
144 In terms of access to the person a very limited access to the person in his home and access to his papers and effects has been strongly supported48 creating a strong and strong zone with low interference from others This would also include access to the thoughts and emotions a person has as a result of such access. Protec tions exist that are well established that prov ided others should have no access to the place were information is viewed, consumed or digested including any notes, papers and effects or acts that occur as a result of such access. 126.96.36.199 Character of Information Intellectual privacy information involves information about the information that the individual is viewing which includes the circumstances of access and how often the information is accessed. This would include among other things what was accessed, the nature and character of the informa tion, where the information was obtained, the time, place and manner of viewing and digest ing of this information, what is being done with the information, how the informa tion is being interpreted, used and acted upon and how often the information is accessed. In some limited cases it can be extended to restrict information regarding who the individual associates with (Roberts v. United States 468 U.S. 609). 48 See Fourth Amendment to the U.S. Constitution which holds a person should be secured in their houses, papers and effects and the Fifth Amendment which reflects the ConstitutionÂ’s concern for the right of each individual to a privat e enclave where he may lead a priv ate life Â– see Tehan v. Shott, 382 U.S. 406 @ 416
145 188.8.131.52 Representative Laws and Court Rulings Both the Fourth and Fifth Amendment to the United States Constitution recognize the importance of a private place. The Fourth Amendment provides that persons should be secure in their hous es papers and effects. The U.S. v. Katz case extended the protection beyond the home a nd beyond tangible items to include any place where a person held a reasonable e xpectation of privacy and extended the protection beyond tangible items such as papers and effects to include intangible items such as conversations. A year later in the Terry v. Ohio (392 U.S. 1 (1968)) the court built upon the Katz ruling. In addition to the protections in Katz that the Fourth Amendment is a right for a person Â“to be secure in their persons, houses, papers, and effects against unreasonable searches and seizur es, (which) shall not be violated . ." and is also Â“Â… a right of personal security (that) belongs as much to the citizen on the streets of our citie s as to the homeowner closeted in his study to dispose of his secret affairs. No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference, unless by clear and unquestionable authority of lawÂ” Later in the case of Tehan v. Shott (382 U.S. 406, 416) the 5th Amendment was interpreted as reflecting the Constitution's concern to provide the right of each individual to Â“a private enclave where he may lead a private life.Â” Each of the following acts are designed to protect the individual by providing barrier from which others cannot identify what material the in dividual is sampling.
146 Video Privacy Act (18 USC 2710) forbids a ny video rental comp any from providing records of people and the videos rented outsi de those needed for internal control of stock. This was enacted in response to an uproar on capital hill wh en the video records for Clarence Thomas were subpoenaed and obtained showing the rental of a number of pornographic videos. The Cable Communica tions Policy Act (47 USC 521 et seq.)49 forbids cable providers from providing to outsiders the type of cable service a subscriber has as well as what type of s hows are rented on pay per view. The American Library Association adopted a Library B ill of Rights (ALA, 2002) that affirms the ethical imperative to provide unrestricted access to information and to guard against impediments to open inquiry recognizing Â“W hen users recognize or fear that their privacy or confidentiality is compromised, tr ue freedom of inquiry no longer exists.Â” Florida has adopted the Library Confiden tiality Act (Florida Statute 257.261) which makes library registration and circulation reco rds private and imposes penalties for their violation. The United Supreme Court on tw o separate occasions struck down. 3.1.4 Secret Privacy Secret privacy promotes the engagement of others in cooperative activities that protect or advances the well being of others. 184.108.40.206 The Purpose Information privacy has long been rec ognized as important in the business world. For the business, customer lists, work allocation techniques, business process, 49 Restricts the collection, maintenance and dissemina tion of subscriber data. Forbids cable providers from releasing information about the subscriber. or from collecting personal identifiable information.
147 product formulation, names of key employees or anything that provides a business a sustainable competitive advantage are busine ss secrets. These secrets require privacy protection as they enable the distinguishi ng of businesses one from another, often provide for competitive advantages, provi de motivation for innovation, produce better products and are ultimately what pro duces profit for the business. Trade secrets are also important fo r society as well. Certain business information becomes beneficial to society, pr oducing a greater societal benefit when it can remain secret. In general competitive markets tend to produce homogeneous products with business sustaining profits near their margin. A diffe rentiation of product will not only potentially produce greater pr ofit margins for the firm, it also produces greater utility benefits for the consumer as the consumer receives a product it wants, not one it must make use of. A second benefit is bo th the increased availability of a desired product and increased employment opportunitie s as employers hire more people to produce it products. There is a also a benefit of information not being lost by the death of the holder of the secret, frailty of mi nd, or misplacement of secrets. By permitting secrets to be disseminated coordinated strategies can be engaged. Better ideas, products, processes and strategi es that are based upon secrets can be realized when you can disseminate the secret to those on the project and engage their minds more fully into the project. The secret can also become more valuab le through its dissemination when others with knowledge of the secr et can develop the secret itself. The Brookings Institution estimates that Â“at least 50 percent, and possibly as much as 85 percentÂ” of the value of American companies is attributable to intangible
148 assets such as trade secrets (Blair, 20 00). Trade secrets are rapidly becoming the intellectual property of choice due to their advantages in the information economy. In the Information Age, trade secret protecti on is better suited to the fast-moving and non patentable confidential informati on needed to run our companies. Trade secrets protect Â“secrets of the businessÂ” from being discovered by outside parties despite the fact they are communicated to members or customers of the business. The purpose of the trade secret is to promote licensing and exchange of non patented know-how between businesses and employees (Dratler, 1991). It has a secondary purpose to prevent improper means to obtain secrets (E.I. DuPont de Nemours and Company v. Christopher, 431 F 2d. 1012 (5th Cir. 1970)) such as breaches of contract and confidential understandings (Samuelson, Pame la Privacy as Intellectual Property? 52 STAN. L. REV. 1125 (2000)). 220.127.116.11 The relationship entities and character of the relationship In secret privacy, the entities which can possess a secret can be an individual or an organization or a society. Any secret disclo sed can be to either an individual or an organization or both. The person against whom the secret is held can be another person, organization or society. The relationship is often a voluntary relati onship created between the parties. In the case where the secret bene fits a society often times governments impose the duty to maintain the secrets.
149 18.104.22.168 Philosophy type Lockean type philosophy with the prin ciple difference being not only is the individual is free from societal control but also that society gives the individual additional power than others with in societ y to control who, what and when information is available and accessible. 22.214.171.124 Role characteristics in terms of control and access Initially the holder of information ha s high control over all phases of the information (what information, when and to wh om). By virtue of th is control the holder creates a situation where the information is not accessible to other. In many cases access to the person is not important (unless the person is the information or holds the information) as what is important is access to the information. When the relationship is formed and information is disclosed to third persons, the initial high control yields to a situation where the discloser now has low control over the information disclosed. Once disclosed, the entity to which information is disclosed is granted a conditional license that permits them access to the information a nd liberty to use the information subject to them the duty of using the information for the ownerÂ’s self advancement. A duty is also imposed upon them to protect this information from others in most cases even after the relation between the parties has ended. This ro le creates a high access to information to those within the relationship enabling the relationships purpose to be fulfilled and perpetuates the low access to information for those outside the relationship.
150 126.96.36.199 Character of information Secret information can be any inform ation that permits a person or an organization or a society an advantage over another person, an organization or a society because of the possession of the information. This is generally confined to information that is not readily available to others and was originally conceived as the result of effort, study, expertise, experimentation. This information is contex tually valuable but outside this context it has no value. Thus secret information has an audience targeted where the information is not to be disclosed. Secret information is information that is neither readily available nor common knowledge to that audience. The character of this information provides the holder of the in formation an advantage over a defined audience. The value of the information remain ing secret is importa nt to the holder of the secret as it is necessary to the holder to serve his selfish purposes. Representative Secret Information includes the secret formula for Coca Cola, How to the U.S. has organized its nati onal defense, Computer algorithms, how a business has a competitive advantage. 188.8.131.52 Representative Laws and Court Rulings Trade secrets and information privacy r eceive slightly different treatment under the law. What distinguishes modern trade secret law from the current state of information privacy law are the procedural a nd substantive ways in which these issues were addressed in their development. Information privacy is concerned about concealment and control over information. It ha s as its basis the secrecy paradigm that
151 views privacy as concealment and control. Trade secrets are based upon the Relative Secrecy Doctrine. This recognizes at times a secret must be disclosed yet provided protection as a secret. A comparison of the Secrecy Paradigm and the Relative Secrecy Doctrine shows the similarities and differences. The relative secrecy doctrine while it applie s to trade secrets, reflects a fact of life that is equally applicable to personal info rmation: we live in a social and interactive community. Since we must engage with others there are situations in which personal information must be shared. As explained by Daniel Solove: "Life in the modern Informati on Age often involves exchanging information with third parties, such as phone companies, Internet service providers, cable companies, merchants, and so on. Thus, clinging to the notion of privacy as total secrecy would mean the practical extinction of privacy in today's world" (Solove, 2002). Comparison of Secrecy Paradigm with Relative Secrecy Doctrines Secrecy Paradigm Relative Secrecy Doctrine Privacy is about concealment and control A secret remains a secret even when it is unconcealed and out of the control of the owner, so long as it hasn't escaped into the mainst ream of public knowledge (Pooley, 1975). It is inform ation not generally known or relatively ascertainab le even if it is known by multiple individuals or companies (Pooley, 1975). Trade secret owners are not required to exercise all possible efforts to protec t the secrecy of their information, but instead onl y those efforts that is "reasonable under the circumstances" (Uniform Trade Secrets Act Â§ 1 (amended 1985)) "Limited disclosure" in the context of certain re lationships does not destroy the trade secret status of information (Stedman, 1962). The extent to which the la w will recognize legal rights in the originator will depend upon the circumstances of disclosure (Stedman, 1962).
152 Privacy is invaded by accessing the person or confidential information and/or exercising a public disclosure of confidential information against the originatorÂ’s will A violation occurs when trade secrets are improperly accessed, disclosed or used. Legal protection for trade secrets does not cease when information is disclosed to another. When trade secrets are disclosed by the trade secret owner to serve his purposes, it is generally recognized that an implied duty of confidence arises that (1) prevents the inform ation from losing its trade secret status and (2) render s the subsequent disclosure or use of the information improper (Metallurgical Indus. Inc. v. Fourtek, Inc., 790 F.2d. 1195 (5th Cir. 1986)). TEST Is there a reasonable expectation of privacy TEST It is contextually based upon the relationship between the parties. A confidential relationship generally arises by operation of law from the affiliations of the parties and the context in which the disclosures are offered (Burten v. Milton Bradley Co., 763 F.2d 461, 463 (1st Cir. 1985)). In general, the closer the relationship, the easier it is for the trade secret owner to prove that he undertook reasonable efforts to protect his trade secrets. Such relationships are not limited to express or implied contractual relationships but can include any relationship in which a duty of confidence can be implied (Pooley, 1975). Table 8 Comparison of Secrecy Paradi gm with Relative Secrecy Doctrines Dratler points out that the purpose of trade secrecy la w is to promote licensing and the exchange of non patented know-how between businesses and employees and as such the privacy requirement in trade secrecy law is not the absolute privacy required in information privacy but relative privacy (Dratler, 2001). Sandeen defines relative privacy as a state of secrecy that is not "absolute" (Sandeen, 2006). Still, the trade secret must be a secret to some degree. Th e UTSA defines a trade secret as a condition where information is not generally known or readily ascertainable (Uniform Trade Secrets Act Â§ 1 (amended 1985)). As expl ained by Roger Milgrim, the phrase
153 "generally known" means "w ell known" or "commonly known to the trade in which the putative trade secret owner is engaged" (Mil grim, no year). In trad e secrets "Absolute" secrecy would be illustrated, at the extreme, by being known to only a single individual, but a trade secret can be known by the employees of the owner. In this case we employ "absolute secrecy" to denote matter known to onl y one enterprise and "relative secrecy" to denote that matter may be known to more than one competitor in a trade or industry, but not to all (Sandeen, 2006). Regardless of which definition is used, once it is determined that information is not absolute ly secret, the degree of secrecy that is required to maintain information as a trade secret must still be determined (Milgrim, no year). While the term "relative secrecy" is not used in the UTSA, the concept that information can be shared among a small group of individuals or companies without losing its trade secret status is re flected in a number of its provisions. Trade secret owners are not required to exercise all possible efforts to protect the secrecy of their information, but inst ead provide only those efforts "reasonable under the circumstances" (Milgrim, no year). The disclosure of information can give rise to the claim that the information was not intended to be a secret and could be used by the person or entity which received the se cret. Thus the person to whom information is disclosed is a factor to consider in dete rmining both whether a trade secret exists and whether there was a misappropr iation (Milgrim, no year). One of the ways that the relative secrecy doctrine is applied in practice is by paying attention to the relati onships that exist between the trade secret owner and the persons to whom information is disclosed as in some relationships the disclosure of
154 information imposes a duty to keep the info rmation disclosed, confidential (Protection and Use of Trade Secrets, 64 HARV. L. RE V. 976 (1951)). Generally, the closer the relationship, the easie r it is for the trade secret ow ner to prove that he undertook reasonable efforts to protect his trade secrets and in those cases where it is evident there is a confidential relationship and secrecy is strong cour ts have even relaxed the requirement for reasonable precautions (P ooley, 2004). Such relationships are not limited to express or implied contractual re lationships but can in clude any relationship in which a duty of confidence can be imp lied (Sandeen, 2006). The relationships that have given rise to a duty of confidence include the employer/employee relationship,50 the relationship between purchasers and suppliers,51 the relationship between a licensor and licensee,52 and the relationship between partners and joint venturers.53 They also include more attenuated relationships, such as those between a trade secret owner and a prospective licensee, (Nil ssen v. Motorola, Inc., 963 F. Supp. 664, 683 (N.D. Ill 1997)) the seller and purchaser of the business54, and between an inventor and a prospective manufacturer of an invention (Sylmark Hold ings Ltd. v. Silicone Zone Intern. Ltd., 783 N.Y.S.2d 758 (2004)). 50 See, e.g., In re Matter of Innovative Constr. Sys., Inc., 793 F.2d 875, 883 (7th Cir. 1986); Elm City Cheese Co. v. Federico, 752 A.2d 1037 (Conn. 1999 ); Junker v. Plummer, 67 N.E.2d 667 (Mass. 1946); Extrin Foods, Inc. v. Leighton, 115 N.Y.S.2d. 429 (1952); Macbeth-Evans Glass Co. v. Schnelbach, 239 Pa. 76 (1913); and Christopher M's Hand Poured Fudge, Inc. v. Hennon, 699 A. 2d 1272, 1276 ( Pa. Super. Ct. 1997). 51 See, e.g., Curtiss-Wright Corp. v. Edel Brown Tool & Die Co., 407 N.E.2d 319 (Mass. 1980). 52 See, e.g., Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex. 1958). 53 See, e.g., A.L. Labs, Inc. v. Philips Roxane Inc., 803 F.2d 378, 381 (8th Cir. 1986). 54 See, e.g., Phillips v. Frey, 20 F.3d 623, 631 (5th Ci r. 1994); Tri-Tron Int'l v. Velto, 525 F.2d 432, 435 (9th Cir. 1975); Heyman v. AR. Winarick, Inc., 325 F.2d 584, 587 (2d Cir. 1963); Den-Tal-Ez, Inc. v. Siemens Capital Corp., 566 A.2d 1214 ( Pa. Super. Ct. 1989).
155 The locus of trade secret law is in th e behavior of the non-owner and not the trade secret (Samuelson, 2000). When trade s ecrets are disclosed by the trade secret owner to serve his purposes, it is genera lly recognized that an implied duty of confidence arises that (1) prevents the info rmation from losing its trade secret status and (2) renders the subsequent disclosure or use of the information improper (Metallurgical Indus. Inc. v. Fourte k, Inc., 790 F.2d. 1195 (5th Cir. 1986)). The modern definition of trade secret en compasses any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic adva ntage over others.55 Trade secrets can be information, including a form ula, pattern, compilation, program, device, method, technique, or process.56 It is an idea, a physical device, a confidential practice, process, design, or compilation of informati on such as a customer list or marketing information used by a company to compete with other businesses (Elias, 1998). It is also referred to in some jurisdictions as confidential information. Approximately 40 states have adopted a model law ca lled the Uniform Trades Secrets Act.57 These types of acts discourage the dissemination of Trade Secrets through the entitlement of damages and injunctions. They also provide protections over the trade secret during the litigation process. Trade Secret protections are offered both in the United States and 55 Restatement of the Law (Third) Unfair Competition Â§ 39 (1995) The two primary requirements are (1) that the information not be generally known in the trade and (2) that the trade secret holder take reasonable measures under the circumstances to prot ect the information as a trade secret. See generally, Uniform Trade Secrets Act, Â§ 1(4) (Definition of a "trade secret"). 56 California Civil Code 3426.1d, see also Florida Statute 90.506 57 National Conference of Commissioners on Unif orm State Laws, Uniform Trades Secrets Act
156 many foreign countries (Taiwan Trade Secret Act, 2005). Fede ral laws also protect the disclosure of trade secrets in open m eetings of agencies (5 USCS 552b). Frequently companies will require employ ees to sign non disclosure agreements as a condition of employment in order to prot ect these trade secret s. These agreements are also known as a confidential disclosure agreement (CDA), confidentiality agreement or secrecy agreement. The purpos e of these is to create a confidential relationship between the partie s. These have been found to be a legal contract between parties and proven effective as a means to protecting trade secrets or protect any information under a trade secret. In Florida and other states contracts which restrict th e exercise of a profession trade or business are valid (Florida Stat ute 542.33(1)) and even extend to employment contracts (Sentry Insuran ce v. Dunn 411 So. 2d. 336 (5DCA 1982)). This restriction also encompasses the situation where a pers on sells the goodwill of a business, or any shareholder of a corporation sel ling or otherwise disposing of all of her or his shares in said corporation (Florida Statute 542.33 (2) (a)). Fe deral courts also uphold employment contracts and covenants not to compete when a state law provides such sanctions (KV Pharm. Co. v Harland (In re Harland) (1999, BC ED Pa) 235 BR 769). Because of the potential effect of forbiddi ng a person to ever gain employment in an area of expertise, the employ ee is reasonably restricted in terms of place, geography and time of future employment should the parties dissolve the relationship. Other uses of these agreements are made when discussing the possibility of a joint partnership or the licensing of a pa tent by either party. These non disclosure
157 agreements are used between companies as well particularly when discussing or pursuing a joint venture. These agreements are extensively used in the United States, Europe and Asia. One well known agreemen t was between SCO and IBM where both companies agreed to jointly work on a proj ect keeping trade secrets disclosed during the course of the relationship secret. Another significant development in th e protection of trad e secrets is the Economic Espionage Act of 1996 (18 U.S.C. Â§Â§ 1831-1839), which makes the theft or misappropriation of a trade secret a federal cr ime. This has reach not only in the U.S. but also has international repercussions as well. This law contains two provisions criminalizing two sorts of activity. The first, 18 U.S.C. Â§ 1831(a), criminalizes the theft of trade secrets to benefit foreign powers ; the second, 18 U.S.C. Â§ 1832, criminalizes their theft for commercial or economic purposes. As defined in the Economic Espionage Act of 1996, the term trade secret re fers to all forms and types of financial, business, scientific, technical, economic or engineering information, including patterns, plans, compilations, program devices, fo rmulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physica lly, electronically, graphically, photographica lly, or in writing if: The owner thereof has taken reasonable measures to keep such information secret, and;
158 The information derives independent econom ic value, actual or potential, from not being generally known to, and not being readily ascer tainable through proper means by the public. Some secrets are protected due to the need to protect one society from another. MIT professor Phillip Zimmerman was placed under investigation for violation of the Arms Export Control Act (22 USCA 2778) after his PGP algorithm was placed on the MIT server and made accessible to the genera l public. This act which places authority in the President of the Unite d States to control the expor t of defense articles and services is used as a way to keep technology, information and knowledge out of the hands of undesirable nations and people as a way to ensure the national defense. 3.1.5 Transitory Privacy 184.108.40.206 The purpose Transitory privacy is information av ailable in public or public places that can compromise a reasonable person' s privacy expectations. The purpose of transitory privacy preserve public space as a place of expression as well as preserve traditional notions of privacy, private information and private space Private Area Intimate Intellectual Privilege Secret Public Area Figure 11 Purpose of Transitory Privacy
159 People are required conduct at least a porti on of their lives and their business in public space in the public eye. We work w ith others, we walk and talk to others, purchase items at the store; we travel to places from our home on public highways and sidewalks Â– all without the thought of so meone watching and r ecording our actions. Public space appears as a zone of complete access. Entities in public donÂ’t have a place to hide: everything done or said is readily av ailable for others there to observe, hear or record. Other than the limited duties of donÂ’ t stare, donÂ’t stalk, and donÂ’t take notes there were few formal duties to respect privacy in public. Before the adoption of information technology by the public, public spaces despite being open and observable, were very private. Public privacy was Â“well enough protected by a combination of conscious and intentional efforts (including the promulgation of law and moral norms) abetted by inefficiency in the ability to collect, store and use information (Nissenbaum, 1998). Public spaces provide both low access to the entities in public space and to the info rmation about those entities. This was due to the inability to efficiently monitor, colle ct information and aggregate the information in public space. Thus entities managed to be in public and keep his or her public life, private because of the inability and high co st to access, capture and aggregate public information. When conscious efforts are nece ssary private affairs in public spaces were managed easily on a moment by moment basis by behaving in a manner that is appropriate to the setting (Bellotti, 1998). This supplemented information stealth. Technology has and is fundamentally ch anging the nature of surveillance (Schneier 2004 ) as it enables the detection and chr onicling of all activities in public
160 space. Since key developments in information technology have allowed the penetration of public space and collection and analysis of information about people, a problem of privacy in public now exists (Nissenbaum, 1998). Privacy, private information, private space is defined by what places are private, what the appropriate access to those places is and what information is private. These ar eas were delineated and constructed taking into account the availability a nd non availability of informati on in the public realm. By its very definition private places, access to those private places, pr ivate information and access to private information means this is not available or acce ssible to any entity except by those in a private relationship. When public space changed due to the use of information technology, access to private places and information increased to the extent that they were no longer private but part now of an accessible public space. Thus because of the change in the character of public space Â– the character of private space changed. A change in the public space brought about by the ability to detect and mine the information that previously was private has changed our ability to protect traditional private places and private information in tu rn causing discord because assaults mounted on our changing definition of privacy. From in formation gathered from public sources law enforcement have been able to discern il legal activities that take place in private. By way of example, through surveillance la w enforcement can discern the growing of marijuana inside the home thr ough the purchase of specialty li ghts and fertilizers. It can conclude that the manufacture of moonshin e is occurring through th e purchase of corn and other ingredients indicativ e to its manufacture. In th e law enforcement community
161 the fact is well known: The aggregation, colle ction and use of information gleaned from public sources can and will expose activities conducted in private places. To protect private spaces is one reason search warra nts are mandated. When we are unable to protect transitory privacy, we ar e unable to protect any privacy. In addition to the ability to detect ac tion occurring in private spaces, private activities conducted in private areas can be influenced from the monitoring of public spaces. Using the examples above, once the activity that violates the law is detected, law enforcement can effect a change in th e activities conducted in private areas though interventions such as arrests and the publicati ons of such arrests to alert others of the non tolerance. This abuse is so wide spr ead that Schneier among others has called for mechanisms to prevent abuse and hold pe ople accountable that the new techniques donÂ’t place an unreasonable burden on the innocent (Schneier, 2004). However this type of intrusion is not limited to illegal activities and could be extended to socially acceptab le activities, such as what books are read or DVDs are watched, what are the natures of the secr ets of the firm wh ich are protected by intellectual and secret privacy. This has a direct effect on th e different forms of privacy. Intellectual and Secret privacy depend upon ba rriers being respected. The capture of information in public allows these barriers to be penetrated. Relational and privilege privacy are relationship based. When private spaces can be invade d from without these types of relationships are affected. Rela tionships are not formed due to fear. Relationships are altered due to intrusion. Relationships are created with unintended third parties either through direct or indirect influen ce on the relationship by use of
162 information captured in the public domain. What a person does in private could be seriously influenced by those in possession of this information. 220.127.116.11 Character of information Transitory privacy involves information in the public domain. This information can be either private information (relational, privileged, intellectual or secret privacy type) or non private information. For this la ter information to be transitory privacy information it must have the character that if captured, possessed and utilized in a certain manner, it can lead to a breach of traditionally held priv acy or can affect a socially unintended cha nge in those values. 18.104.22.168 The relationship entitie s and type of entities One group of entities is responsible for change. In this group is Society through it processes of social inte raction. Another in this gr oup is technology which through technological determinism effects a change. Th e final is either an individual or single entity (such as an organization) or group of i ndividuals or entities who attempt to effect change. At times individuals or entities w ill use technology to effect change. The other group is the same entities of th e various forms of privacy.
163 Expression in Public Intimate Privilege Intellectual Technology Sanctuary or retreat Existence of a relationship Relationship formation Relationship formation Existence of a relationship Individuals or Entities Secret Figure 12 Transitory Privacy's Ef fect on Intimate, Privilege, Secret and Intellectual Property The second group is the entitie s of the various privacy types that are affected by the efforts of change of the first group. 22.214.171.124 Philosophy type Transitory privacy is underpinned on th e Lockean principles of a separation of private and public life. The difference between transitory privacy and the other types of privacy is the impact. When public space pe rmits an invasion of private life it will impact uniquely on each type of privacy as each privacy type protects a particular sphere of individual life. 126.96.36.199 Role characteristics in terms of control and access In a well structured society, the values and practices of the society are a reflection of its members. A societys chief role is to define, c onstruct, protect and change its values.
164 188.8.131.52.1 Define Society must define its requirements. Th ese requirements are its values and the practice to achieve its values In a well structured societ y, the values and practices society must be socially defined from the individual members and entities with in that society. They are an aggregation of individua l and entity desires, opinions and beliefs of what is right, important and just. Society must halt an individual, an entity or an outside influence from defining, constr ucting, changing and imposing upon society values and practices that are not the will of societyÂ’s membership and must ensure that these processes are engaged by the entire c oncourse of society. W ith privacy values must reflect the aggregation of individual a nd entity desires, opinions and beliefs and not be the product of an influential group or i ndividual or an outside influence such as a technology that transforms society in ways not desired by its members. 184.108.40.206.2 Construct Once defined, the values and practices of society are constructed by being ascribed into congruent laws and norms that supplement and support these values. These laws and norms encapsulate relati onships and impose these relationships on societal entities defining accep table roles for societyÂ’s members. These laws and norms place entities on notice of the e xpectations of the society. In the case of privacy values and norms these dictate the following: What access to the person is permitted and what access is not permitted? What informati on about the person is knowable and once known what information is capable of being shared? What degree of control does the individual have over their own information and the information of others? A secondary
165 role is to ensure that the values and pract ices that are ascribed into law and norms actually supplement and support the values of society and are flexible to be applied to the various events occurring and allow change. 220.127.116.11.3 Protect All relationships are ultimately created by the entities within society. These entities determine their choice and form of relationship. Society sanctions and even encourages certain relationshi ps through its laws and social norms. Society desires relationships that are suppor tive of societal values. Soci ety discourages relationships that are antinomical to societal values. This influence is important to be present for the following reasons: Society exerts influen ce over the formation and evolution of relationships for the purpose of protecti ng and ensuring its values. Society supports relationships that support and advance the values of societyÂ’s entities. Other relationships are enacted and sanctioned to re-direct behavior along socially acceptable pathways. Conversely disincentives are al so provided by society on those undesired relationships and behavior to discourage be haviors. These influences are accomplished through laws and social norms. Nevertheless de spite this influence, relationships at least in the United States are the result of intentional deli berate autonomous acts of its members and at times, society oversteps its bounds. Transitory privacy provides the structur e that ensures the values a society reflects are its memberÂ’s values. Transito ry privacy does so by ensuring that the relationship process proceeds according to the autonomous, desired values of the relaters and enables them to consider and choose to form and develop desired
166 relationships. It accomplishes this through the maintenance of traditional rights of control and access in public space which thwarts the outside influence on the relationship process. Society is constructed th rough relationships which re quire specific information. Privacy is a relationship that is construc ted through specificati ons of controls over what, when to whom this information is av ailable as well as sp ecifications over whom, what and when access to the entity or info rmation about the entity is permitted. When privacy and private places are c onstructed it is done in th e context of pu blic spaces. Traditionally some of this information was av ailable in public, but it was not easily or readily accessible nor was it ec onomically feasible to utilize. When changes occur in the ability to control and access public space changes occur to private places and to privacy itself change. Transitory privacy protects traditional control and access in public and private places. This operates as an important protection safeguarding relationship formation which ensures member entities can obtain the values they desire. This also ensures social values reflect the values of societ yÂ’s member entities. A society must make obtainable to its members both those values sought by and promised to its membership (Lessig, 1999) One such value is the ability to autonomously form relationships (Gavis on, 1980). Every societal entity forms relationships. An entity permitted autonomous c hoice and the ability to assert his or her will can obtain the relationships it desires on the terms desired. Society must provide a structure where entities can make autonomous choices in their relationships free from influences of others (Gavison, 1980). Part of this autonomy is the entityÂ’s ability to
167 assert its will and choose when they seek and how they develop relationships (Westin, 1967). That ability to assert the will must be provided even if the desires of their will are personally destructive, an irrational choice or results in less than optimal end result (Inness, 1992). A societyÂ’s values also need to be a reflection of the values of its member entities. Entities can not obtai n a society that reflects their values unless they can actually realize and obtain their values. Tran sitory privacy ensure s both the values of willfully forming valued relationships autonom ously and the value that societal values reflect values of its membership. When an en tity from outside a re lation can influence a relationship, the relationship no longer reflects the re laterÂ’s values. Instead the relationship reflects, at least in part, the values of the entity that influenced the relationship. When society seeks to reflect the values of its member in its values it will account for this influence through the sum of the relationships created and capture it as a member value when in fact it is not as th is societal reflection will reflect not only the member entityÂ’s values but also the influencerÂ’s values. Additionally the outside influencer by the very nature of being able to capture and use info rmation to influence a relationship has formed a relationship w ith the entities negating their ability to willfully form a relationship. Therefore it is important that society assure that relationships are constructed willfully and autonomously re flecting the desired values of the relaters. To do this society must th wart unintended and unwanted relaters from forming relationships with its members a nd influencing the relationship formation process.
168 18.104.22.168.4 Change Nothing remains the same. As a result change must occur yet be managed. There are at least two changes society must manage. The firs t is an orderly change in privacy values. The second is that the change in privacy values is initiated by society and its corporate membership body and not imposed upon them through a powerful entity, individual or group of individual s thrust upon the soci ety through a powerful outside force. 22.214.171.124.5 Orderly change Society has the role to that changes adopted are incorpor ated into society in an orderly fashion, minimizing the disruption of its citizenÂ’s lives. In a sense societies harness change as change is interpreted in the cont ext of existing laws, norms, relationships and roles. It is debated is the change a benef it or a detriment? Efforts are extended to accept beneficial change and disc ourage detrimental change. Not all change is debatable. Some change is thrust upon so ciety and the debate must occur even while the incorporation is occurring. Humans change slowly. Rapid change brings confusion and unrest. This is true when values change Â– particularly when privacy values change. The change in societal values often occu r over the period of many years with most value changes taking place in a time no less than one generation.58 Change is initiated by societ y and its members, not a minor ity or an outside influence 58 Quote Norris where they look to generational changes in values
169 A role of transitory privacy is to ensure that changes in values must be initiated by the members of society along the lines de sired by the members of society and not dictated by a technological impera tive or an influential minority. Ensuring that technological advancement is examined, embraced and assimilated into the societal network with a minimum of disruption is an important role of society. Challenges exist to create a balance between the avoidance of technological determinism where society is changed as a result of the technological advance and alternative of resisting all ch ange by not adopting the technology. Technological advancement and change of ten advances a societyÂ’s well being. Technological advancement enables more work to be done or to enables the same amount of work to be done more ef fectively and efficiently. Technological advancement offers changes to everyday life that increases the enjoyment of what life has to offer. Technological changes in th e information technologies have enabled the cost of information gathering, storage and tr ansport to drop. They also offer the ability to quickly and cheaply communicate this information across vast distances and geographical barriers. Despite advantages pr ovided by technologica l advancement these very advancements, unchecked, have pr oduced immediate, profound changes in the social system which have in turn produced shifts in values a nd practices including privacy values and practices (Inglehart, 1977). This change occurs through a technological imperative, separa te and apart from the social process that creates values. It often occurs without th ought or awareness when the adoption and use of the new technology is incorporated into the lives of individuals. Changes in information
170 technology has permitted others the ability to access information in new and more penetrating ways, often in ways never before imagined. This is especially true with the information available in the public sphere that was incapable of being effectively gathered and used due to difficulties and cost of detection, gather ing and aggregation. Unless bounded or directed, the new tec hnology will affect immediate changes in values, creating two or more sets of in congruent norms, leaving people angry and frustrated and society norms and laws ill equipped to deal with the changes (Spencer, 2002 and Zweig and Webster, 2002). Technology alone is not responsible for th ese changes. Additional influences are brought to value formation and change when powerful individuals or groups seek to impose their values on society. Their motiva tion is to enable the achievement and realization of their private interests. They create a change in values through using technology in a way that advan ces or enables the achievement of other socially desired values. Sometimes there is no consideration that traditional priv acy values are being assaulted. More often the assault on privacy values is deliberate and calculated to change values that that stand in the way of the goals of the assaulter (Spencer, 2002). They are in a sense thrust upon society in a calculated manner to effect changes in society values through the use of these tec hnological advances. Th e individual is often powerless to resist this attack due to a number of factors such as asymmetry in information, the inability to organize or power disparities (Spencer, 2002). Outside the workplace the individual us e of this technology have advanced personal agendas and enabled certain values to trump traditionally recognized places of
171 privacy. In Olmstead, telephone wiretaps permitted the listening in on conversations taking place in a home, outside the earshot of police. In Kyllo v. U.S., police stood on the public road and used a thermal imaging detection device to detect the type of radiated heat that would be indicative of growing mariju ana inside a structure. The information gathered was not evasive, it was gathered in public. While the Supreme Court of the United States, after a careful re view, concluded the use of thermal imaging scanner on a road outside a residence wh ere marijuana was being grown was an improper invasion of private space using publ ic information we see information in public is capable of revealing what is being done in private places. While in each case the use eventually was forbidden, there are other cases where the value of privacy is being changed by technology or where i ndividuals are accomplishing their own designed change. As an example in recent times we have seen an assault mounted on traditionally held notions of privacy in the workplace th rough the employ and use of various types of information technology. These advances have in creased the ability to manage nearly all phases of the firm while simultaneously less ened the cost of management through the enabling the employer to monitor calls, em ails, break rooms and key strokes. These types of intrusions have been justified by these in dividuals through a tr aditional right of the firm to control the workplac e. In each of these cases the value of privacy is affected. These changes are altering traditional pro cesses of value formation and change by taking the individual out of both the process.
172 126.96.36.199 Representative Laws and Court Rulings The initial ruling in this area was the Olmstead (Olmstead v. U.S.) case which has been detailed earlier in th is paper. In Olmstead, the telephoneÂ’s invention had permitted individualÂ’s to conduct life in ways never before possible. At issue was the right of the individual to priv acy in his own telephone conve rsation initiate d in a place of expected privacy and the ability to liste n into a private telephone call through a wire tap placed outside that place. At the ti me of the ruling, new technology, the telephone, enabled persons to converse outside thei r home. Law enforcement placed a wiretap outside the residence intercepting all the telephone conversations to and from the residence. In the Olmstead ruling, the majority of the court found that privacy was protection of a place. The majority also f ound that since the wiretap took place outside a traditionally protected area and in an area of public domain there was no privacy violation. Additionally privacy only protec ted tangible items like papers and writing and not conversations and what was seized was a conversation which was not entitled to protection. A strong dissent was written at the time of this opinion that urged that privacy was not limited to specific places but was an entitlement where there was a reasonable expectation of privacy. Additionally it was urged that conversations could be protected even though they were intangib le. Forty years later the majority decision was reversed and the dissent adopted by the Katz (Katz v. U.S.) decision. Katz specifically found that privacy protected people not places and was not to be limited to tangible items such as papers and writings but to include all things tangible and
173 intangible in which individuals held a subj ective expectation of privacy in including conversations. 188.8.131.52.1 Right to associate Privacy should protect the right to asso ciate where the association is for the advancement of beliefs and ideas be they political, economic, religious or cultural. The Supreme Court in the case of NAACP v. Alabama ex rel Patterson, Attorney General (357 U.S. 449 (1958)) kept private the membersh ip list of Alabama residents who were member s in the NAACP. A court fr om the State of Alabama requested names and addresses of its memb ers and agents of the NAACP. These lists were not produced. As a result the NAACP was adjudged in contempt of court and a fine was imposed. The matter was eventually appealed to the U.S. Supreme Court. Concerns were raised that should such list be made public a chilling effect on membership in the organization would ta ke place as members would be targeted outside the organization. In its ruling, the Supreme Cour t the members list not being disclosed. The court stated the NAACP ha d immunity from state scrutiny of membership lists that was related to the ri ght of the members to pursue their lawful private interests privately, and to associat e freely with others. The court found: the NAACP was an organization which engaged members for the advancement of beliefs and ideas. It is immaterial whether the beli efs sought to be advanced by an association pertain to political, economic, religiou s, or cultural matters. Under curtain circumstances membership in an organizati on should not be disclo sed in particular. This is particularly true when the privacy in group association ma y be indispensable to
174 the preservation of freedom of association particularly where the group espouses dissident beliefs (US v. Rumely 345 US 41). The Court in particular found that the NAACP lists of members should not be disclo sed because of the chilling effect it would have on the advancement of beliefs and ideas particularly because the groups beliefs and ideals may seem dissident to the people of Alabama. 184.108.40.206.2 Communications Decency Act This was Congresses first attempt to regul ate the content of th e Internet in an effort to safeguard the raising of childre n by their parents in the family home. The purpose of this act was to protect children from pornography over the Internet. At the time the Internet provided ready acce ss to pornography which evidence showed children were accessing in their home. Title 47 U. S. C. A. Â§223(a)(1)(B)(ii) (Supp. 1997) criminalizes the "knowi ng" transmission of "obscene or indecent" messages to any recipient under 18 years of age. Section 223(d) prohib its the "knowin[g]" sending or displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excret ory activities or organs." The CDA prohibited posting "indecent" or "patently offensive" materi als in a public forum on the Internet -including web pages, newsgroups, chat rooms, or online discussion lists. In the case of Reno v. ACLU (1997) this act was struck down for violating free speech rights guaranteed by the First Amendment. ChildrenÂ’s On Line Protection Act (COPA) was a second attempt by Congress to restrict a childÂ’s access to harmful materi al commercially distributed on the Internet.
175 The Communications Act of 1934 was am ended in 1998 through legislation. The purpose of the act was to protect the custody, care and nurture of the child, safeguarding the family unit as the place in wh ich children are raised and insulating that area and minor children from unwanted intrus ions in the form of access to material inappropriate to minor children that comes from outside commercial sources59. Among the prohibitation wa s the provision that: Whoever knowingly and with knowle dge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any co mmunication for commercial purposes that is available to any minor and that includes any material that is harmful to mi nors shall be fined not more than $50,000, imprisoned not more than 6 months, or both (47 USC 231). The act further provided a requirement th at restricted the disclosure of any information obtained from a minor younger than 17 years and to take further precautions to ensure that no access to such communications was provided to others outside the maker and the recipient. This act was found unconstitutional due to infringement on the right to speech. Despite the ruling, it illustrates the recognition of a need to protect the home fr om being intruded upon. The ChildrenÂ’s Internet Protection Act (CIPA) is a federal law enacted by Congress in December 2000 to address concerns about access to offensive content over the Internet on school and library computers. CIPA imposes certain types of 59 See in general ACLU v. Reno (ED Penn., 1998) c iting Ginsberg v. New York, 369 U.S. 329 @ 339-40 (1968)
176 requirements on any school or library that receives funding support for Internet access or internal connections from the Â“E-rat eÂ” program Â– a program that makes certain technology more affordable for eligible schoo ls and libraries. In early 2001, the Federal Communications Commission (F CC) issued rules implementing CIPA (FCC, 2006). Schools and libraries subject to CIPA may not receive the discounts offered by the E-Rate program unless they certify that they have an Internet safety policy and technology protection measures in place. An Internet safety policy must include technology protection measures to block or filter Internet acce ss to pictures that: (a) are obscene, (b) are child pornogra phy, or (c) are harmful to minor s, for computers that are accessed by minors. In the case U.S. v. American Library Association (2003) the court ruled that although the U.S. has a compelling interest in preventing the dissemination of obscenity, child pornography or material harmful to minors, the use of software filters is not narrowly tailored to further that interest and as such violates the First Amendment.
177 220.127.116.11.3 Gramm Leach Bliley The Financial Modernization Act of 1999, also known as the "Gramm-LeachBliley Act" or GLB Act, includes provisions to protect consumersÂ’ personal financial information held by financial institutions. These regulations apply to "financial institutions," which include not only banks, s ecurities firms, and insurance companies, but also companies providing many other type s of financial products and services to consumers. Among these services are lendi ng, brokering or servicing any type of consumer loan, transferring or safeguarding money, preparing indivi dual tax returns, providing financial advice or credit counseling, providing residential real estate settlement services, collecting consumer de bts and an array of other activities. There are three principal parts to th e privacy requirements: the Financial Privacy Rule, Safeguards Rule and pretexti ng provisions. The Financial Privacy Rule governs the collection and disc losure of customers' personal financial information by financial institutions. It also applies to co mpanies, whether or not they are financial institutions, who receive such information. The Safeguards Rule requires all financial institutions to design, implement and ma intain safeguards to protect customer information. The Safeguards Rule applies not only to financial inst itutions that collect information from their own customers, but also to financial institutions "such as credit reporting agencies" that receive customer in formation from other financial institutions. Another provision prohibits "pretexting" the practice of obtaining customer information from financial institutions unde r false pretenses. The Pretexting provisions of the GLB Act protect consumers from indi viduals and companies that obtain their
178 personal financial information under false pretenses. The FTC has brought several cases against information brokers who engage in pretexting. The GLB Act requires companies to gi ve consumers privacy notices that explain the institutions' information-sharing practices. In turn, consumers have the right to limit some but not all sharing of thei r information. The privacy notice must be a clear, conspicuous, and accurate statement of the company's privacy practices; it should include what information the company colle cts about its consumers and customers, with whom it shares the information, and how it protects or safeguards the information. The notice applies to the "nonpublic persona l information" the company gathers and discloses about its consumers and customers; in practice, that may be most or all of the information a company has about them. When information is disclosed what can be done with the information depends on whether the customer can opt out of the disclosure. If the customer cannot opt out th e service provider may use the information for limited purposes that is, for mailing account statements. It may not sell the information to other organizations or use it for marketing. If the employee can opt out, and did not In this case, the recipient steps into the shoe s of the disclosing financial institution, and may use the information for its own purposes or re-disclose it to a third party, consistent with the financial institution's privacy notice. GLB Act also impacts how a company conducts business. For example, financial institutions are prohibited from disc losing their customers' account numbers to non-affiliated companies when it comes to telemarketing, direct mail marketing or
179 other marketing through e-mail, even if the individuals have not opted out of sharing the information for marketing purposes. 18.104.22.168.4 HIPAA When HIPAA was enacted in 1996, it occurred at a time when the public voiced great concern about their priv acy in general. Initial conc erns with personal privacy surfaced in the 1960Â’s when the fear was s uper computers would become Big Brother. These concerns further increased over the y ears with the development of data storage and communications technologi es that provided new me thods of invading oneÂ’s privacy. By 1994 eighty-four percent (84%) of Americans were either very or somewhat concerned about threats to their personal privacy (Consumer Privacy Survey, Harris-Equifax, 1994, p vi.). An area of great concern was held by the medical patient. Traditional doctor patient relationships involved a deep seated trust by the pa tient that the doctor would keep confidential all treatment information disclosed to the doctor. This relationship began to be eroded in the years follow ing 1965, when the enactment of the tax deduction enabled employers to purchase he alth insurance on be half of employees.60 This benefit enabled a greater access to medi cal care. Eventually insurance premiums rose as demand for care increased. In an e ffort to contain these costs a number of people became party to the patientÂ’s health information, including but not limited to insurance companies, employers, expert thir d parties hired to monitor benefits or 60 In 1965 Congress enabled employers to purchase health insurance on behalf of its employees and not be required to pay social security on the premium, as well as allowing the employer to deduct the cost of health insurance as a business cost and employees not to be taxed on the health insurance benefit.
180 contain costs. Information began to flow in many new directions: from reports from the insurance company to the employer detailing the patientÂ’s medical treatment, from the expert third parties hired to monitor these be nefits to insurers and employers alike to name a few. Self insuring became an option to some. Increasingly businesses and insurers began to realize the value of this information and began to request and rely upon it more and more to make decisions. Th is assault on this relationship increased when information technology increased the port ability of this information and enabled it to be easily accessible, transported and aggregated. The patient not longer had a privilege to keep their medical informati on private. Either allow the flow of the information to third parties or receive no employment, no treatment, no payment or insurance. In the rules that enacted HIPAA, it was noted that the effective management of a countryÂ’s medical information holds ma ny potential benefits. Potential economic advantages exist such as health care organi zations being better able to follow and to review practice guidelines and utiliza tion standards compliance by physicians, employers using the studies compiled from computerized medical records to compare the performance of different managed care plans or screen workers for preexisting susceptibility to workplace health hazar ds (Field, 2004). Additionally, electronic medical records would have enormous value for public health protection and research (Tsai, no year). [G]lobal access to health reco rds would facilitate not only conventional disease reporting but also the development of behavioral risk factor surveill ance and other more sophisticated
181 analyses of health indicia. And pr esent and future health uses are trivial in scale compared with the actual dissemination of medical information attendant upon reimbursement (Buris, 1995). It was recognized that these benefits we re not being realize d. At the crux of the problem was the fact that information was neither accurate nor timely. Reasons provided were patients were being damaged by their own medical histories. In a survey conducted by the California Health Care Foundation and Consumers Union, it was found many people fear their pers onal health information will be used against them to deny insurance, employment and housing, or expose them to unwanted judgments and scrutiny (California Health Care Fou ndation and Consumers Union, 1999). Seven percent of respondents in the Ha rris survey said "they or an immediate member of their family had chosen not to seek medical services due to fear of harm to job prospects or other life opportunities" (H ealth Information Survey, Harris-Equifax, 1993, pp. 49-50). In the same survey, two percen t reported to have not filed a health insurance claim due to concerns of privacy or the lack of conf identiality (Health Information Survey, HarrisEquifax, 1993, pp. 49-50). The Federal Government found that medical conditions were the basis for demotions, firings, being passed over for promotions or even being hired in the first place. The government also found many people were finding themselves unable to get insurance, unable to get affo rdable insurance or being dropped from insurance altogether. The government found evidence that in response to these conditions people were providing inaccurate information when seeking medical diagnosis and treatment
182 or failing to seek medical care until conditi ons became acute (65 Federal Register page 82777). This provided one explan ation why the United States, despite paying four times more per person for medical services wa s woefully behind the world in medical treatment results. Significant benefits are available when early treatment is sought. One benefit of early treatment is it results in the reduced spread of disease. But early treatment has other benefits. It was projected if only 7 percent of those who have cancer could be encouraged to seek early treatm ent, a reduction of cancer mortality of 33 percent would result. This ear ly treatment was projected to save 1.6 billion annually in lost wages (65 Federal Regist er page 82777). This savings wa s projected in other areas as well. An annual net economic benef it between 497 million and 795 million was estimated to be achievable in mental hea lth treatment through the encouragement of early treatment (65 Fed R. 250 page 82779). Th e early treatment of sexually transmitted diseases was found to result in lower mortalit y rates as well as reduc ed cost associated with complications. Individual states had recognized th e privacy invasion and enacted some legislation designed to deal with the issue. They were not effective. Prior to the enactment of HIPAA, the American regulat ory regime of medical record access has politely been characterized as "fragmented" (Lowrance, 1997). Turlington described this less politely as a "black hole" (Turkington, 1997). Senator Edward Kennedy asserted, "Today, video rental records have greater protection than sensitive medical information" (Kennedy, 1999).
183 HIPAA was enacted on the premise that it is necessary to rest ore the confidence in the patient that their medical informati on will remain confidential. This will be achieved once the traditional patient physician relationship is restored. HIPAA achieves this objective by a number of means. It provides privacy standards for data storage and transmission. Additionally HIPAA provides in centives to protect patient information, penalties for the use of information and rest ores the bargaining power of the patient to determine when and what information is di sclosed and enforce actions when patient privacy is violated. 3.2 How the Model Works: A Basic Analysis of Privacy Using Access and Control The two positions of access and control are necessary to define and to distinguish between the different types of pr ivacy. The first step in defining the privacy is looking at the laws, norms and agreem ents which create the relationship and determine the degree of control the entity which possesses this information has over these issues: what information becomes acce ssible, who gets the information, and at what time the information becomes accessibl e if at all. The second step involves looking at those same laws, norms and agreem ents and determining the accessibility of the disclosing entity in terms of access to the entity and access to information about the entity again asking the same questions of what information becomes accessible, who gets the information, and at what time the information becomes accessible if at all. Once the initial disclosure is analyzed a further analysis must take place on the likely possible disclosures of this information resulting after the initial disclosure.
184 While in some cases it may be true that the control over information alone may dictate that others have low access to the ent ity and information about the entity it is not necessarily true in all cases. Under cond itions of low access, the degree of control necessary to establish and maintain the condition is low. Therefore the effect is not a one way effect based upon control but rather it is an interactive effect based upon the interplay of access and control What also must be examined is after disclosure by an entity, that disclosing entity has lost control over their information as well as lost control over both access to themselves and to the information about themselves as the possibility exists that after the disclosure of information others may obtain the disclosed information and would be free to use this information as they desire. By way of example, a person seeks the car e of a doctor. Initially the patient has high control over who he gives his medical in formation as well as what information and when it is disclosed. Access to this information is low, as only the patent has this information. In this situation the person al so enjoys low access to both his or herself and his or her information in large part becau se they can control th e situation and make themselves and their information low access. However once the information is disclosed a new scenario emerges. The info rmation disclosed to the doctor is now out of the control of the person. That person has now lost both th e control over his information as the disclosee can make deci sions on how the patientÂ’s may be used but they may also determine who has access. A dditionally an entirely new access has been introduced. Not only is the information exposed to the caregiver but it is exposed to those in the caregiverÂ’s employ. Depending on the situation access may be high to this
185 information giving the caregiver little contro l over the information. Additionally patient information can (and usually must) be disclo sed to third parties such as insurance companies. In general the highest state of privacy occurs when an entity has high control over what, when and to whom information is disclosed together with the condition of low access by others to both the person and th eir information. The le ast optional state is one where low control over what, when a nd to whom information is disclosed is coupled with high access by others to th e person as well as their information Control /// Access High over Person and Information Low Access to the Person and their information High control over: To Whom Information goes What Information goes When the Information goes Moderate Condition for Privacy Optimal Conditions for any Privacy Low control over: To Whom Information goes What Information goes When the Information goes Least Optimal Conditions for any Privacy Moderate Condition for Privacy Table 9 Control Over Access 3.2.1 Access to the Entity and their Information Access to the Entity entails the ability to identify an Entity from their information or the ability to gain access to that Entity either physically or virtually. Access to information is the ability to gain the information of the Entity. Having access to an Entity does not necessarily mean you ha ve access to their information. By way of example you can meet an Entity and from that meeting learn a lot about that Entity, but you may not necessarily know what they rea lly believe or are thinking. Under both conditions there are two levels: high and low This leads us to 4 potential states: High
186 Access to Information-High Access to Entit y, High Access to Information-Low Access to Entity, Low Access to Information-High Access to Entity, Low Access to Information-Low Access to Entity. : High Access to Information Low Access to Information High Access to Entity Low Access to Entity Table 10 Access to Entity I Depending upon the role based activity, these different access patterns can result in a different level of privacy. Low Access to Information and Low Access to the Entity should result in the highest level of privacy while High Access to the Entity and High Access to Information should resu lt in the lowest level of privacy. High Access to Information Low Access to Information High Access to Entity Lowest Level of Privacy Low Access to Entity Highest Level of Privacy Table 11 Access to Entity II 3.2.2 Control over Information Control over information can be examined in a way similar to access over information. Control over information is examined in three dimensions, control over what information is disclosed if any, control ove r to whom that information is given and finally control over the timing of the informa tion disclosure. An entity possibility could have control over all three spheres, over none of the spheres or over only one or two of the spheres. The degree of control can be hi gh, medium or low control. Situations of
187 control would be highest when the entity possesses high information control over the what, who and when dimension and lowest when low information control is present along all three dimensions. Inte rmediate positions occur when high positions in one or more areas are coupled with low control in one or more area. 3.2.3 How the various privacies relate in terms of control and access Each type of privacy is grounded in a soci al role. Each type of privacy enables values of that role to be realized. This is accomplished through the variance of control and access. The Strongest comb ination of access and control with the highest level of privacy is the High Control/High Access to Person Â– High Access to Information. The weakest level of privacy is Low Contro l/Low Access to Person and Low Access to Information. High Access to Entity and High Access to Information High Access to Entity and Low Access to Information Low Access to Entity and High Access to Information Low Access to Entity and Low Access to Information High Control Relational Privacy Medium Control Secret Privacy Privilege Privacy Low Control Transitory Privacy Intellectual Privacy Table 12 Access to Entity III Relational Privacy demands the highest level of privacy both in terms of access to the entity and information and as to control. In relational privacy, the entity has high control over their information. Entities seeki ng access to that entity or information about that entity have low access to both the entity and information about the entity. Transitory Privacy by its very definition pe rmits low controls over information coupled
188 with High Access to both the Person and th e PersonÂ’s information by others. Privilege Privacy has the characteristic of having initia lly high control in the entity over her/his information. However this control diminish es. This diminishing of control exists because there is a compelling need to obtai n assistance, but a precondition to obtaining assistance requires that informa tion must be shared. The same occurs with access to the personÂ’s information. Initially others have low access to the entity and information about the entity. Once disclosed, any number of entities can have access to the information despite the fact they may never have contact with the person. In any event, low access to the entity and their informati on must be maintained. In Secret Privacy, initially the holder of the information ha s very high control, but has also strong motivations to disclose this informati on. Once disclosed, not onl y does the owner of information lose a great deal of control, but they also lose the high degree of protection afforded them in terms of access to themselv es and their information as once disclosed the information becomes very accessible. Ofte n time, this accessibili ty is taken care of by agreements that bring contro l over the entity to which the information is disclosed. Intellectual Privacy has the characteristic of the entity having low control over the information sought after requiring the entity to have the information made available to them or to seek out the information. In tellectual privacy however demands that the request for information as well as the cont ent of the information consumed should be very highly protected. Additionally, any tests made with that information should also be kept confidential. Therefore access must be low to both the entity consuming the information as well as what information is consumed by the entity.
189 3.3 Conclusion Combining the control and access paradigms, five distinct types of privacy have been specified and distingui shed in terms of purpose, philosophy type, relationship entities and characteristics of the relationship, role charact eristics, and character of information. Each has been illustrated thr ough representative laws and court rulings. A model of privacy roles grounded in social re lationships and supported by legal theories using levels of control and access was demonstrated. This model distinguishes the five different types of privacy based upon the optim al level of control a nd access required in each type of privacy. In Chapter Four this model will be app lied to the design of a security system. Security defines the methods of protecting information and information systems from unauthorized access, use, disclosure, disruption, modification, or destruction in order to provide confidentiality, integrity, and availa bility. Security design and implementation is a costly but incomplete, inexact, and im perfect process. For these reasons, demands for better design and implementatio n of security systems exist. The both the qualities secure data mu st possess well as the functional specifications of access systems will next be presented. Two categories of access mechanisms will next be presented with th eir strengths and weaknesses. Research will next be presented that outlines work done to increase the effectiveness of these mechanisms. Chapter Four will conclude with a proposal for improving data access mechanisms using the model proposed in this chapter
190 Chapter 4: A Proposed Evaluation 4.0 Proposal The requirements of a security sy stem are defined by its functional specifications. Using these functional specifi cations, the security system defines the methods of protecting information and in formation systems from unauthorized access, use, disclosure, disruption, m odification, or destruction in order to provide requisite levels of confidentiality, po ssession, integrity, authenticati on, utility and availability required to achieve the functional sp ecification. Good security design and implementation offers the promise of great re wards but the process is costly and often plagued by imprecision. For these reas ons, demands for better design and implementation of security systems exist. A portion of the functional specifications of a security system are the attributes that secured data must possess. This will fi rst be presented using the CIA Triad and the additions offered by the Parkerian Hexad. Ne xt data access mechanisms of mandatory access control (MAC) and discretionary acc ess control (DAC) will be introduced together with their respective strengths and weaknesses. Following this role based access mechanisms (RBAC) will be reviewed. These use levels of indirection which enable and/or disable access and/or func tions on objects employing features of the DAC and/or MAC systems. Some extensi ons based on the proposed legal framework developed in prior chapters will be presen ted that improve the effectiveness of role based access (RBAC) mechanisms. It will be s hown that the research is directed not to add new capabilities to security systems but aimed at easing the administrative burden
191 of establishing consistent permissions of access and actions on objects to users in similar circumstance and need. Chapter Four wi ll conclude with a proposal to apply the privacy model revealed in the previous chap ter to create a new conceptualization of a tiered RBAC access system that is theory base d and adds new capabilities to security systems. 4.1 Introduction As firms compete more often on data an alytics, issues of data quality and security become increasingly important. While th e ability to protect critical data assets has always been a cost of doing business, data and knowledge management capabilities are now embedded in core bus iness processes. In addition, external forces and requirements, such as Sarbanes-Oxley, make th e control and security of data an explicit obligation with significant costs. Increas ingly businesses are pursuing security as a strategic goal or even as a way to obtain competitive advantage in the marketplace. Regardless of whether security is viewed as a cost of doing business, a strategic goal or a competitive advantage, security design and implementation is often not only costly but also incomplete, inexact, and imperfect. After the security system is designed and implemented, there are often unforeseen security gaps, which if not heeded could lead to vulnerabilities, security risks and breaches of security. Because of the high cost associated w ith rectifying these issues, security systems may be intentionally over engineered, resulting not only in additiona l costs, but with a loss of functionality and unnecessary rest rictions placed on data acce ssibility. With each loss of functionality, not only does the user suffer a loss of satisfaction with the system but
192 the system breeds attempts to find ways around the system leading to new security gaps, vulnerabilities, risks and security breaches. 4.2 Functional Specifications Functional specifications of the security architecture ultimately emanate from social norms, laws, and consumer concerns. Social norms, laws and customer concerns form the restrictions placed on data. Some of the restrictions come in the form of laws such as privacy and intellectual property laws which establish duties and the corresponding claims when those duties are not fulfilled. From these restrictions confidentiality and po ssession standards are created which dictate the security model, security technology, cryptograph technology, DBMS Technology for the security system as well as the database and data design and application technology chosen. Th ese standards define the in tegrity constraints placed upon the data which will determine the authen ticity of the data which will affect both the availability of this data but its us efulness as well. Through these integrity constraints availability is de fined with authorized individu al given access to data and unauthorized individuals prevented from knowing and accessing information. From the access obtained, the utility of the data and ulti mately the utility the user are determined. Social norms, laws and consumer concer ns define the functional specifications that the security architecture must ensure. Th ese functional specifications in turn ensure the attributes that data and information must possess.
193 Confidentiality and PossessionPrivacy andIP Laws Social and Cultural Issues -Customer Concerns -Confidential Classification -Policies andProcedures Access Rights Integrity and Authenticity-Security Technology Security Model Cryptography Technology -DBMS Technology Database and Data Design ApplicationTechnology Availability and Utility-Threats and Attacks -SystemVulnerabilities Authorization methodology -Authentication Technology Network Interfaces Disaster and recovery strategy Information Security Architecture Logical and Physical Assets Figure 13 Functional Specifications and th e Information Security Architecture The figure is from Afyouni, Hassan, Database Security and Auditing: Protecting Data Integrity and Accessibility, Thompson Course Technology, Boston, Massachusetts, 2006 4.3 The CIA Triad The CIA Triad and the subsequent additions to the Triad, provide functional specifications that a security system protecting information must possess to ensure social norms, laws and consumer concerns When provided by the security system, these in turn provide the protected data and information with these attributes. Security defines the methods of pr otecting information and information systems from unauthorized access, use, disclosure, disruption, modification, or
194 destruction in order to provide confidentiality, integrity, and availability [the so-called Â“CIA triadÂ”], whether in storage or in transitÂ” (Plone CMS, 2000). Privacy and security regulations take many forms but ultimately they address portions of the classic CIA Triad Â– Confiden tiality, Integrity and Availablity. The idea of the triad originated with computer secu rity integrity model introduced by David D. Clark and David R. Wilson (Clark and Wils on, 1987). Comparing access to data in the commercial arena with the access mechanisms utilized by the U.S. Department of Defense, they noted that in the commercial realm, emphasis in security was on information integrity. In the Department of Defense, security was deemed more as the enforcement of confidentiality and expresse d through a system of classification labels and classifications. They ultimately concluded that confidentiality and integrity were important goals of any security system. This laid the groundwork necessary for the concept of the CIA Triad which later originated with the National Security Telecommunications and Information Syst ems Security Committee (NSTISSC), now known as the Committee of National Security Systems (CNSS). The CIA Triad is a data security model used in the design of security systems that protect logical and physical assets. The CIA Triad specifies the minimal functional specifications that a security system must provide for data and information. This model has been largely accepted both by government and business. CIA is a mnemonic which stands for Confidentiality, Integrity and Availa bility Â– characteristics that secured data should possess after the security system is designed. These attributes in turn support each other and together define the information security architecture.
195 4.3.1 Confidentiality Confidentially addresses various aspects of security and emanates from three sources, social and cultural systems, cust omer concerns and privacy laws (Afyouni, 2006). Confidentiality defines what informa tion must be protected and kept private (Stone and Merrion, 2004). C onfidentiality is an assuranc e that information is not disclosed to unauthorized persons, proce sses, or devices (CNSS, 2003) or even knowing the information exists (Afyouni 2006). Internationa l Organization for Standardization (ISO) defines the term in a slightly different manner. In the ISO definition confidentiality is seen as "ensuring that information is accessible only to those authorized to have access.Â” Confidentia lity has also been defined as the process of safeguarding confidential information a nd disclosing secret information only to authorized individuals by classifying inform ation and placing restri ctions on its access and dissemination (Afyouni, 2006). 4.3.2 Integrity According to the National Information Assurance Glossary: Â“ Integrity is the quality of an Information System, reflecting the logical correctness and reliability of the operating system; the logical completeness of the hardware and software implementing the protection mechanisms; and the consistency of the data structures and occurrence of the stored dataÂ” (CNSS, 2003) The integrity of the information system s depends upon the integrity of the data. In database design there are many aspects of integrity with which the designer must be concerned, such as elimination of anomalies, concurrent reads and committed reads. In
196 security the concerns differ as the chief aspects of integrity that concern the designer are the prevention of unauthorized modificatio n, insertion or destruction of data in a database regardless of whether it occurs intentionally or as a mistake. Integrity enforcement ensures that data possesses a quality of being complete, whole, sound and in compliance with the intention of the creato r of the data, and rema in so even after the implementation of the system. 4.3.3 Availability Availability is the timely, reliable acce ss to data and information services for authorized users (CNSS, 2003). Availability requires the bala nce of two opposed interests. It must enable access yet enforce confidentiality and integrity which restrict access. In determining availability you must ta ke into account potential threats, risks, and vulnerabilities to the system. Often c onfidentiality specifications indicate these potential threats, risks and vul nerabilities that potentially th reaten data integrity. When providing for availability you must provide an authorization methodology, authentication technology, netw ork interfaces as well as provide for disaster and recovery strategies. 4.3.4 Additions to the CIA Triad Parker, the renowned security consultant and writer propose d three additional attributes to the CIA Triad, known as the Th e Parkerian Hexad (Parker, 2002). Parker proposes that information protected by info rmation security shoul d possess in addition to the attributes of confidentially, integrity and availability the following attributes: the
197 attribute of utility, the attribute of authen ticity and finally the attribute of possession (thus adding three additiona l functional specifications to the security system). Parkerian Hexad refines the security guide lines to make them more applicable to commercial enterprise. Utility, the quality that the information possesses a usefulness and fitness for a specific purpose adds dime nsion to the concept of availability. The reason information is needed is the inform ation is useful to the userÂ’s purpose. Authenticity, the quality that the information possesses the correct at tribution of origin or is the correct description of informati on supplements integrity. Today in marketing often times the value of the information is not only the data item but the linking of the data item with the source of the data. Possessi on is similar to confidentiality yet it too is distinctive. Possession is the quality that information is capable of being owned, possessed and controlled in a way that it beco mes property. Part of control is preventing physical contact with data. Another aspect is the preventing of copying or unauthorized use of data. Possession in the sense of ow nership is of particular value where information has consumption value such as the holder of a copyright to a book or music. There can be other functional specifications to any security system which would vary depending upon the security needs of the application. Other such proposed
198 specifications include such specifications su ch as privacy, repudiation of messages, proof of originality and proof of identification61. 4.4 How the design and implementati on of security is accomplished From the CIA Triad and Parkerian Hexad the minimal functional specifications that a security system must provide for data and information are determined. In most all systems, high levels of confidentiality/posse ssion and integrity/authenticity are highly desired. However when increasing the levels of either confiden tiality/possession or integrity/authenticity, decreases in accessibi lity and utility occur as a result. Access control models dictate how data is accessi ble to users and processes. While systems exist that can contain high leve ls of confidentiality/possessi on or integrity/authenticity, no system has been able to provide both simultaneously. 4.4.1 Access Control Models and Their Methods Until Role Based Access Controls (RBA Cs) were conceived and implemented two types of access control models have b een used to provide accessibility to data. Mandatory Access Control (MAC) syst ems accomplish the security design by designing the access so the system dictates access. This system best ensures confidentiality/possession. Discretionary A ccess Control (DAC) Systems grant control over data to the owner of the data. DAC sy stems best ensure integrity/authenticity. Each system has been instantiated in a tool or tools that permit access to data but has 61 See Dridi, Fredj, Muschall, Bjorn, Pernul, Gunther, Administration of an RBAC System, Proceeding of the 37th Hawaii International Conference on Systems Sciences IEEE 2004 where additional functional specifications were set forward to deliver the required security for the Webocracy Project.
199 been unable to provide simultaneous high confidence/possession and high integrity/authenticity. Access Control Systems Mandatory Access Control Discretionary Access Control Content Based (Row Based) Security Structure Based (Column Based) Security Figure 14 Access Control Systems 4.4.2 Mandatory Access Control Mandatory Access Control (MAC) systems utilize a confidentially based system where the access policy is determined by the system. These types of systems are called structure or column based security system s because they are implemented using the structure and columns of the data model. Database features can operate at many le vels. MAC uses the most simple and common approach to database security by consid ering the schema or database structure. In a relational database, the structure is expressed in terms of rela tions (i.e., tables) and attributes (i.e. columns). A security policy would then explicitly name the tables or columns that particular database users are allowed to read or write. To add a bit more flexibility, many database management syst ems add mechanisms for grouping users so
200 that access rights can be more easily granted or revoked. E ssentially, these structural approaches to security borrow from the file systems associated with operating system environments. File systems typically provide access controls that grant computer users the right to read, write, or pe rhaps execute the contents of specific files. This is similar considering only database structur e in that file names, but not file contents, are used to assign access rights. In MAC type systems all subjects and objects have a sensi tivity level assigned to them for the subject it is called a secu rity clearance, for the object it is called a security classification (Sandhu, 1996). In th e MAC system, the principle sensitivity level is checked at the resource (Miller, Yee and Shapiro, no year). To access the object, the subject must have a security clearan ce equal to or greater than the sensitivity level of the object they seek to access. Se tting fine levels of access granularity at the relation or column level is considered cumbersome and very difficult to maintain over the long term. When required this is often done through setting up separate tables based on the level of granular ity of data (Sandhu, 1996). MAC security mechanisms can be quite inflexible, using only database structure. Access can be granted or deni ed in an outright manner, but not made conditional on the content or values of attrib utes. In terms of a medical example, there might be a code attribute th at represents the diagnosis associated with a hospital admission. Access to this diagnostic attribut e or column can be granted to hospital clinical staff. However, access cannot be granted based on particularly sensitive diseases. A diagnostic code for an arm fractur e is accorded the same security as cancer.
201 The inability to consider the contents of a database does not support the nuanced approaches that more complex security policies require. Data access processes such as the BellLaPudula model utilize a MAC system. This system was designed to prevent theft and tainting of high level information using processes heavily leveraged toward the protection of confid entiality. Originally designed as a Department of Defense proj ect in 1973, access is predicated upon a series of classifications of each user and each data object. In the Bell-LaPudula system, a user cannot write to an audience lower than the userÂ’s classification. Neither can a user access documentation that is classified at a hi gher level. As a result this is known as a read down/write up process. 4.4.3 Discretionary Access Control At the other spectrum are Discretiona ry Access Control systems (DAC) DAC systems and their processes that tend to be leveraged toward maintaining integrity, authenticity and utility. In the DAC system every object has an owner and the owner determines the access policy. The theory is any object without an owner is an unprotected object. This owner determines who has access to th e file and what privileges they possess to that object. The ow ner can also delegate ownership to others. To maintain integrity and authenticity, me thods of separation of duty, separation of function and an auditing tool are employed. Often the auditin g tool is a log of some type which keeps track of the transactions so that unauthorized access can be detected and any actions taken rolled back to remove any destructive effect on the data. Thus in
202 this type of system, integrity is highly maintainable but because of the ability of the owner to delegate ownership, confidentiality is not as st rong as in a MAC systems. DAC type systems utilize content based (row level) access control (Sandhu, 1996). Here the access and action ca pabilities rather than being stored with the object as they are in column-based security, are stored with the subject, with the access capabilities being in the form of a pointer to the object (Miller, Yee and Shapiro, no year). DAC systems are more flexible in te rms of the granularity of access to objects than MAC-type systems (Sandhu, 1996). One ty pe of DAC system is the commercial database system from Oracle known as the Vi rtual Private Database. Essentially, this feature creates a unique view of the databa se for any specific user. As the Oracle documentation describes, a Virtual Private Da tabase provides the ability to dynamically filter out rows (based on content) rather than columns: Â“Oracle's row-level security (R LS) feature, introduced in Oracle8 i provides fine-grained access controlÂ—fine-grained means at the individual row level. Rather than opening up an entire table to any individual us er who has any privileges on the table, row-level security restrict s access to specific rows in a table. The result is that any i ndividual user sees a completely different set of dataÂ—only the data that person is authorized to seeÂ—so the overall capabilities are sometimes referred to as Oracle's virtual private data base, or VPD, feature.Â” Despite this, pure DAC systems do not possess mechanisms that facilitate the management of access rights of many users. In the MAC system, users similarly situated are granted similar access patterns to objects. In MAC, each user must be explicitly granted every privilege they need to every object they re quire largely due to
203 the authorization mechanism being located wi th the owner and not resident with the object (Sandhu, 1996). Clark-Wilson type processes utilize DAC type systems. Clark-Wilson type processes use a system of enforcement and ce rtification rules to define data items and processes that provide the ba sis for an integrity policy that employs well formed transactions that use rules to enable the syst em to transition from one consistent state to another consistent state. These often include monitoring and archiving of transactions and functions that can rollback the databa se to a previous stable state should unauthorized actions occur. In practice MAC and the Bell-LaPudula model is used more often in military applications where confidentiality is a paramount concern. For commercial applications, procedures based upon the DAC and Clark-Wilson Integrity Model is preferred (Clark and Wilson, 1997). High Confidentiality Low or Lower Integrity Low or Lower Confidentiality High Integrity Bell-LaPadula Clark-Wilson MAC DAC Access Control Methods Representative Data Access Model Figure 15 Comparison of MAC and DAC
204 4.4.4 Role Based Access Control It has been said that with respect to the design and implementation of security It is difficult to implement but not impossible if you properly classify your information and design a process to implement and enforce confidentiality (Afyouni, 2006). Access Control Systems Mandatory Access Control Structure Based Discretionary Access Control Content Based Role Based Structure and Content Based Figure 16 Access Mechanism Family A role is a semantic construct for formul ating security policy (Ferraiolo et al, 2001). Roles are constructed to perform a specific task for the organization and assigned to individuals or processes, objects (Nyanchama and Osborn, 1994) or methods (Izaki et al, 2001) to perform. To perform the task a role must be assigned permissions to access objects and perform f unctions on those objects. Once permissions are assigned to roles, the various roles are assigned to users to perform their tasks.
205 Users Roles Sessions Operation s Objects user_seesions session_roles UA User Assignment PA Permission Assignment Permissions (PRMS) Figure 17 How RBAC Works Drawing is from Ferraiolo, R., Sandhu, Gavrila, S., Kuhn, D, and Chandramouli, R., Proposed NIST Standard for Role Based Access Control, ACM Transactions on Information and Systems Security, Vol 4. No. 3, pp. 224-274 August 2001. Role based security grants access depending on the current role assigned to the user. Initially, research conducted by Nyancharma, Osborn and Sandhu convincingly demonstrated that role based access sy stem could model a MAC type system (Nyanchama et al, 1994, Osborn, 1997, Os born et al, 2000, and Sandhu, 1996). Later research conducted by Osborn et al showed that role based access systems could also model DAC type systems (Os born et al, 2000). This has lead to the conclusion by Chou that role based access control is a superset of (both) MAC and DAC (Osborn et al, 2000). Prior to the role being assigned to the us er a role is created. Each distinctive role is assigned permissions to columns, rows or both which permits the ability to implement finely grained security. A second adva ntage of roles is there is no need to set
206 for each user a unique set of permissions -users similarly situated are assigned the same role. This makes the assignment of security more efficient but also creates greater consistency. The final advantage of role based security is th at this three pronged approach of structure, cont ent and role can be used to express very sophisticated security policies. 4.5 Research on Role Based Data Access Researchers have investigated a number of issues related to Role Based Access Controls. Early timesharing operating syst ems introduced the notion of a group of users which can occur as a single entity in ac cess control lists. This had the effect of conferring the associated permissions to all members of the group. Some discussion existed at the time whether RBAC was in f act a new term for an old idea (Sandhu, 1996). Regardless of this disc ussion, it is a vibrantly rese arched area full of promise and opportunity. Initial research was directed toward questions on how this would be used. A SETA Questionnaire was administered to a private sector supplier, a federal bureau, and a federal medical system program of fice to assess user needs regarding RBAC features. The questionnaire had a list of defined RBAC features that might be of interest to potential RBAC users. Results were th en reported. Each su bject found value in RBAC but varied on how the application woul d be applied and of use to them (Sandhu, 1996). While significant research was present befo re, the seminal model of a role based access system was proposed by Ferraiola, Sandhu, Gavrila, Kuhn and Chandraomouli.
207 In this paper a National Institute of Standa rds and Technology (NIST) standard for role based access control was proposed. The au thors developed both a RBAC Reference Model and the RBAC Functional Specification. In the Refere nce Model they described a common vocabulary of RBAC element sets and relations for specifying requirements and the scope of RBAC features included in the standard. The Functional Specification described the requirements for administrati ve operations for creating and managing RBAC element sets and relations and syst ems functions for creating and managing RBAC attributes on user sessions and making access control d ecisions (Ferraiole et al, 2001). This model has organized subseque nt RBAC research into the categories enumerated. Roles are the basis of a RBAC system. Role engineering is focused on the modeling of a concrete inst ance of a RBAC model. The pr ocess of role engineering a/k/a access control realization has two leve ls: One level includes the development of roles of an information system. The second le vel is that of the s ecurity administrator who defines the association between roles a nd system users. Significant research has been focused in each area. 4.5.1 Development of Roles in a RBAC Initial work in this area was done by Coyne. To identify roles, he collected different user activities and described them as verb/object pairs. The activities then were clustered to define candidate roles. In subsequent steps, c onstraints were defined and role-hierarchies built (Coyne, 1996).
208 Fernandez and Hawkins constructed securi ty requirements using role rights from use cases. Authorizations and permi ssions were derived from the preconditions modeled for each use case. The permissions that a particular actor needs would be determined by the use case the actor partic ipates. Shortcoming of this method include that it does not describe when and how constraints are elicite d nor does it deal with the defining of role hierarchies. Epstein a nd Sandhu also used UML diagrams. Using a health care domain they demonstrated how UML can document a RBAC model. However no role engineering process or fr amework was presented nor did they deal with the defining of constraint s, role hierarchies or derivi ng of permissions (Epstein and Sandhu, 1999). Roeckle et al concluded that RBAC role s are closely related to core business functions. They suggested a process oriented approach could be used for role finding. Using a case study approach, they distinguish ed three layers, a process layer where business processes were modeled, a role laye r which role candidate s were defined from the business processes and a access rights layer which defined the rights of access from the role layer. Roeckle only described the process of role finding on a meta level and did not detail how to derive permissions, or to assign permissions to roles or define role hierarchies or constraint s (Roeckle et al, 2000). Epstein and Sandhu introduced three layers tasks, work patterns and jobs, between roles and permissions to divide role permission assignment into smaller steps in the effort to make the process more mana geable. A task is a specific step of work.
209 This task is associated with permission nece ssary to perform the step. Work patterns are the sequences of tasks (Epstein and Sandhu, 2001). A framework for modeling privacy requi rements in role engineering was undertaken by He and Anton in 2003 (H e and Anton, 2003). Later Neuman and Strembeck looked at a scenario driven pr ocess for functional RBAC roles (Neuman and Strembeck, 2002). Differentiating roles between functional (roles that reflect essential business functions that need to be perfor med) and organizationa l (roles corresponding to hierarchical organization of a company) the paper presents a role engineering process for functional roles using scenario s. The authors demonstrate that through scenarios, every possible or actual event sequence can be discovered. From these, possible solutions and reactions can be constr ucted with permissions, constraints, tasks, work profiles, role hierarch ies being modeled through an ite rative development process. Recently Poniszewska-Maranda extended the standard RBAC model by applying Unified Modeling Language (UML ) for the purpose of role creation by defining appropriate role permissions using a two stage process: Firs t definitions of the permissions assigned to functions are create d. In the second stage the definitions of functions assigned to a particular role are provided (Ponsizewsha-Maranda, 2005). 4.5.2 Administration of RBAC systems Much work has been focused on the administration of RBAC systems. In two papers working with central administrative non role-based systems role issues were studied. Gavrila studied the administrati on of user role assignments and the relationships among roles (Gavrila, 1998). A set of administrative rules were proposed
210 to maintain the consistency of the RBAC system. Using the role graph created by Gavrila and Nyanchama proposed a forma lized description for administrative algorithms of the role hierarchy and ro le permission assignments (PonsizewshaMaranda, 2005). Sandhu developed a role based RBAC admini strative model composed of three sub models Â– user/role assignment, pe rmission/role assignment and role/role assignment which are used to control user and assignments, role permission assignments and role hierocracy(Sandhu, R.S., Bhamidipati, 1996). This model has been accepted as the most mature model for role based administration but still suffers shortcomi ngs. These shortcomings include no support for the administration of newly introduced re lationships, as well as complications from a plethora of constraints for the administra tion of role hierarchies to maintain the validity of the role range of each administra tive role that reduces the flexibility and practicality of the model. This model did not present conflict checking rules to maintain the consistency of the RBAC that administrative activity may introduce conflicts into the system. A final issue is it failed to support the administration of authority constraints (Qui, Jiong, 2005). Recent work in RBAC has centered on how to construct, implement and administer roles. Roles are viewed as levels of indirection which enable and/or disable access and/or functions on objects. One use of roles is aimed at easing the administrative burden of establishing consistent permissions of access and actions on objects to users in similar circumstance a nd need. When specifying, constructing and
211 administering roles a ground up approach is us ed. The focus of this approach is on the activities of the user, as directed by the needs and purposes of the customer and the rights obligations and duties imposed by law and the social norms. This approach requires brute force: employing great number s of man-hours to examine each specific instance and scenario, real and imagined, usi ng an implicit, subject ive understanding of privacy. Roles created under these systems ha ve the characteristics of being weak and disjunctive. Often they are p eculiar to a particular place and time. Despite the great effort taken, frequently roles need to be reworked becaus e of over and under specification and reexamined and redacted as changes occur with in and without the business entity. It is for th ese reasons that NIST has pl aced reducing the cost of authorization management a focus of it research effort (NIST, 2003). Using functional specifications provided by a proposed NIST standard for the Core RBAC model administration, Tittinene st udied requirements for managing roles, users and permissions using a methodology based upon roles to analyze requirements of individual and organizational users of docum ents as well as those of organizational needs related to security a nd access control (Tittinene, 2003). A RBACAM (Role Based Access Control Administrative Model) was proposed for the purpose of simplifying the description of role hierarchies. The benefit is it would decentralize the administration of RBAC. Each role would have responsibility for role administration in its own domain and enhan ced domain. This model provides conflict checking rules to maintain consistency and the administration of authorization constraints as well as administrative algor ithms of role hierarchies, user role
212 assignments, permission role assignments, and authorization constraints (Qui, Jiong, 2005). In the context of a Financial Enterp rise Content Management System, key privacy and access control policies for internal content flow management and external access control for Web portal and institutional programmatic users were developed and demonstrated. Additionally a language wa s created to specify privacy and access control policies in each part of the system. Th is system uses EPAL Â– Enterprise Privacy Authorization Language a tech nical specification that exch anges privacy policies and makes privacy authorization decisions. It al so uses eXtensible rights Markup Language to describe the rights and conditions for ow ning or distributing digital resources. Using a specification of licenses the XrML agent can determine to grant certain rights on certain resource to a certain prin ciple or not (Chiu and Hung, 2005). One study involved the design and implem entation of an RBAC system based upon the Core RBAC model as defined by the NIST standard. The study concerned the administration of the RBAC based control a nd authorization facility for the Webocrat system, a European project designed to provi de citizens, businesses and governmental agencies with more convenient access to government information and services, to improve the quality of services and provi de greater opportunities to participate in democratic institutions and processes. The effort focused on a unit of that project the CSAP whose purpose was to pr ovide practical and consiste nt security by providing security services for the pr oject such as access control and authorization among other things. This group specified administrative requirements for managing roles, users and
213 permissions the group specified and presente d an administrative console designed to implement these requirements (Dridi, 2004). 4.6 Proposed Demonstration While the CIA Triad and the additions offered by the Parkerian Hexad have been largely accepted both by government a nd business alike for providing functional specifications for protecting information, th e achievement of the promised secure system has proven elusive as evidenced by news reports of security breaches or organizations and individuals alike, expressing concern that information about them has been accessed or is accessible. Security policies have been based upon structure (MAC) and upon content (DAC). A security capability based on struct ure, content, and ro le (SCR) provides the toolkit for implementing meaningful policies using organization-leve l terms. Using a MAC system, structure-based access rights (col umn-level) are enabled that allow clear and concise restrictions to be imposed irre spective of other concer ns. Bringing content into the mix such as DAC systems accomplish supports conditional rules based on the range of values, resulting in row-level security. Roles introduce a third conditional dimension based on the context in which a us er is manipulating da ta. The intersection of structure, content, and role supports the dynamic expression of security policies based on both data and users w ithin specific task contexts. The overarching goal of this project is to create a new me thod to construct information security. Security and privacy are linked concepts. We employ security measures to enforce privacy and protect pr ivate data. Security restrictions depend upon
214 how privacy and private information are define d. In practice privacy as a concept is not often understood, holds significant subjective meaning and as a re sult it is often subject to debate. There are implications of not unde rstanding or being able to specify privacy or what data is private in an objective manner. One is the potential for loss when security is breached and private data is exposed and improperl y accessed. Additionally there is an increase in cost of construction of the security system. To ensure security by necessity this system must be over develope d which results in greater then necessary costs in time and money. This over devel opment also often results in an under functional system that provides less than ach ievable utility for the systemÂ’s users. A new conceptualization of privacy was undertaken to better specify privacy more objectively. This has been completed with the multidimensional, type based system grounded in philosophy, law and social norms. This system enables privacy to be more objectively specified as the basis of this system being grounded in philosophy is embraced to the legal-social framework that the organization operates through norms and laws. From this understanding functional requirements and ramifications of choices are better enabled which assists in creation of more consistent, effective and robust privacy driven information system. How an individual data item is classified is the first objective in the evaluation. To accomplish this goal a tool has been crea ted. This tool incorporates the strongly typed systems of roles. Through its use the t ool enables data to be classified into a privacy type through a review of the data item the data source and job classification of the accessing party. This tool classifies the data item into a privacy type which in turn
215 specifies the level of control and access that are permissible to the data item by the job classification. The privacy classification and the data cl assification tool enab le a new direction to role based security to occur enabling a conceptual designed RBAC system that will provide a theory-based type system of access. Determining privacy through the classification of an item of data together with the role betwee n the data donor and potential user will occur using the conceptua lization of privacy proposed in Chapter 3. It will be shown that a theory based system of typed roles that mirrors the real world can be created with the clas sification system. Through their rich set of theory, rules, laws and directions this theory will be shown to provide a road map of acceptable access and privileges to objects that are mean ingful at an organizational level and can be used within the database design proce ss to more efficiently express the complex security policies necessary to meet corpor ate requirements. The result is a strongly typed system of roles offering robustness capable of handling a wide variety of situations. Finally it will be shown that th is new conceptualization of roles enables a global top down approach in establishing access to objects and process upon those objects in the end improving both the design an d implementation of database security. As a proof, interviews have been con ducted with stakeholders in a hospital setting to determine the existing security requirements and challenges faced to provision security. Initial interviews will ta ke place of care givers across different hospital settings to determine the privacy needs of the medical profession. Next interviews were conducted with medical careg ivers in a midsized hospital using a role
216 based access system developed by a third part y vendor. As part of the interview process it was determined: what roles exist in this se tting and how the role is provisioned with data in particular what data is required by those roles incl uding what operations can be performed on the available data. Next usi ng the identified roles the accessibility and operations to data of various roles in a hospi tal setting were compared to the predicted accessibility and operations using the new constr uct and data classification tool of this proposal. These examples conclusively demonstr ate that the conception of privacy proposed in Chapter 3 can be expressed in terms of an artifact in the form of a classification tool. This tool enables data to be classified into relational, privileged, intellectual or secret data usi ng the data value, data source and role. Once classified the functional specifications of the security system are established through applying the protections mandated by that cl assification of privacy. Finall y it is demonstrated that the use of this tool can re plicate the classifications us ed in the building of actual security systems.
217 Chapter 5: Design, Testing, Results 5.0 Introduction Â– Evaluation Design Science Framework In design science it is not enough to propose a new model of privacy. Because the design science paradigm seeks to extend the boundaries of human and organizational capabilities this model needs to be developed into an artifact that can assist information systems to address problems and opportunities faced by the business organization (Hevner et al, 2004) A classification tool will be introduced that takes the conceptualized privacy types and enables the cl assification of data items into relational, privilege, intellectual and secret privacy 62through an examination of three elements: the data item itself, the source of the data item and the role of the entity to which data is provided or is accessing data previously provided. The soundness of the tool is evaluated by conducting a field study which compares projected classifications using this tool, with actual classifications em ployed in a working EMR system built by a commercial manufacturer and modified by the users. Success will be determined by comparing the access and operations on data from existing systems designed without the classification tool and classification syst em with the access and operations that are predicted by this tool and classification system. These former systems are designed through and instance by instance developmen tal process that employs many man hours in the design and testing of each. Success will occur s hould the classification tool provide a similar classification because this classification tool would have 62 Public privacy was not evaluated in this tool as public privacy is not a privacy type utilized by the organizational entity. Rather, public privacy provides the context in which all data is ultimately classified as private or non private.
218 accomplished the specification of privacy us ing far less time and effort that the traditional brute force instance by instance development which is currently deployed in the commercial development of privacy systems. 5.1 Operationalizing the Model The tool determines a roleÂ’s access to a data item using a three step process. First it classifies the transaction as a posse ssion or a relational event by looking at the purpose for the exchange or access. Next, usi ng this classification plus the data item, data source and job classification how the data will be used is next reviewed. This will result in an information priv acy type classification of rela tional, privilege, secret or intellectual. The final step determines entitled to access of this role to the data item in question. 5.1.1 How to Classify Data Prime Entities are entities that are a source of data. A Prime Entity can be a person, a data store or a record within a data store. A Prime Entity in the hospital setting is the patient as they provide info rmation to the hospital. A second Prime Entity in the hospital setting is the patient medical record data store that is sought by various roles in the hospital that seek access to patient informati on. Patient information can be any information about the patient such as name, address or it can be patient medical information whether given by the patient to the hospital or obta ined by the hospital through testing and conclusions. Collection Entities can be of two types di rect and indirect. A direct Collection Entity has a direct connection to the Prime Entity which provides the data. It can be a
219 role or an entity within a process or a pro cess or it can be the data store of that information. The second types of Collection En tity have indirect connection. These are the processes or entities authorized to execu te those processes that seek access to or control over data which has already been collected by the Collection Entity. These entities are frequently roles that hold permissions to access and control data necessary for them to execute a process or fulfill their role function. Wh at distinguishes this type of Collection Entity is the fact they rely upon an intermediary to have collected the information of the Prime Entity as they do not have direct contact with the Prime Entity supplying the data. An example of such a Co llection Entity in the hospital setting are the various caregivers (doctors and nurses ) and support personnel (billing, accounting, records clerks) that must access the patient Â’s information but access this information through the hospital record system rath er than from the patient direct. To determine what information is availa ble to a Collection Entity a three step process is used. First the desired informa tion is typed as Confidence or Possession. Next a privacy type is determined. In this step Confidence types can be Relational or Privilege privacy type while Possession type can be Secret or Intelle ctual privacy types. In the final step it is determined whether access is permitted or denied to the desired data. The first step types the desired inform ation as Confidence or Possession type. This is determined by the data item to which access is desired and th e source (origin) of that item and looking to the motivation of the da ta recipient when data is exchange or to the motivation of the data accessor when data access is sought. In this step it is not
220 important that the data is being exchange d between the parties or that it is being accessed after an exchange has taken place. By way of example, a patient can provide information directly to the data store or a patient can have tests done which are reported to the data store through a reporting agency su ch as a lab which is later accessed by the doctor. In both the data source is the patient. Figure 18 Desired Information After identifying the data source and data item the first step is completed when the data is classified as being either a C onfidence or Possession. Here we assess is the data sought, exchanged or accessed for the purpose to form, maintain or fulfill a personal relationship. If the information is sought for that purpose it holds the Intermediate classification as Confidence type If the information is not exchanged or accessed for the purpose to form, maintain or fulfill a personal relationship it is classified as Possession type. In discriminating between a possession or confidence information relationship the types of questions we could ask could include the following questions:
221 Table 13 Confidence and Posession Figure 19 Collection Entity Confidence Â– If Yes Possession Â– Yes Is the character of the data provided personal on its face? Is it personal as to its provider? Is the character of the data provided impersonal as to its provider? Is it the intention of the Prime Entity that the exchange of information starts or maintains a personal relationship between the Prime and Collection Entity? Is the intention of the Prime Entity that the relationship is to exchange information starts and maintains no personal relationship Is the purpose of the Collection Entity in assembling this data one to establish or maintain a relationship Is the purpose of the Collection Entity in assembling this data one to advance the acquirerÂ’s self interest solely? Is the exchange of data conditioned on the premise that it will only be used to benefit and will be used to harm the Prime Entity? Does the exchange of data come with no restrictions with the Collection Entity being allowed to do as they wish with the data?
222 In the second step a privacy type is de termined. In this step Confidence types classify into Relational or Privilege privacy type while Possession type classify into Secret or Intellectua l privacy types. For the Possession type to we ask: Does the information advance or promote the proprietary interest of the organizational/individual en tity, serve a purpose in the business pursuit or record the ac tions of the entity? If the an swer is yes the privacy type is Secret privacy. If the answ er is no the following ques tion is proffered: Does the Information assist in the development of individual/organizati on or assist in the development of the organization/individual know ledge, skills or abilit ies? If the answer is yes the privacy type is Intellectual privacy type. If the answer is no to each type the data has no privacy type. Figure 20 Possessary Type Data
223 Confidential information relationships can be classified as Privileged or Relational privacy type. The test for each privacy type here uses the same two questions: 1. Does the entity receiving or accessing th is information possesses or is in the employment of or employ of person or persons that have professional expertise? 2. In the scope of this profe ssional relationship is this data required as a direct input to perform some task that provide s a direct or indirect benefit to the data provider? If yes to each question, the classification is privilege but shou ld the answer be no to one or both the classi fication is relational. Figure 21 Confidence Type Data
224 The final step is determining whether acce ss is permitted or denied to the role. In all privacy types where data is exchanged between the source and accessor access is granted. In the situa tion where access of the data is sought post-exchange by an entity other than the one who originally received the data the original exchange relationship must be classified into a priv acy type and access permitted no greater then that that type would allow or the privacy t ype of the classification made in step two. Attached as Exhibit are Data Access Pa ttern of Control Hospital (Notes on CMH) and the predicted Data Access Patte rn (Determining Level of Access) Questions for the Classification of Data Type of an individual data item For Question 1: If data is being exchanged: Review the data item, data source and entity to which data is provided If data is post exchange and access is sought: Review data item, data source and entity which seeks access to data. Question 1a Question 1a Is the data/information sought, excha nged or accessed is for the purpose to form, maintain or fulfill a personal relationship (Are we attempting the mutual exchange of personal information to form/maintain or fulfill a personal relationship?) If Yes Result = Confidence Question 1b Question 1b Is the data/information sought or exchanged NOT for the purpose to form, maintain or fulfill a personal relationship If Yes Result = Possession For question 2: Look at the classification determined in Question One plus the data item, data source and job classification and ask: For all Confidence type ask: Question 2a Does the entity receiving or accessing this information possesses or is in the employment of or employ of pers on or persons that have professional expertise? Question 2b Is this data required as a direct input to perform some task that requires professional expertise and provides a direct or indirect benefit to the data provider? If yes to Questions 2a and 2b the classification is privilege If no to one or both Questions 2a a nd 2b the classification is relational
225 For all Possession type ask: Question 2e Does the information advance or promote the proprietary interest of the organizational/individual entity, serve a purpose in the business pursuit or record the actions of the entity? If Yes the classification is Secret Else: Question 2f Does the Information assist in the deve lopment of individua l/organization or assist in the development of the orga nization/individual knowledge, skills or abilities? If Yes, Intellectual Question 3 If Privilege If privilege Question 2 c (1)Did this information originate in a relational privacy relationship? If Yes Is the disclosure of such information a compelling necessity that access should be granted? If yes ask Is access to this information minimally necessary to perform this job functi on for this entity/process If Yes to question 2 and 3 grant access but deny access if either or both question two or three are no. (2)Did this information originate in pr ivilege privacy relationship? Is it with in the scope of the privilege to access an d use this information? If yes ask Is information minimally necessary to perform this job function? If yes to both grant access if No to either or both deny access (3) Did this information originate in a secret privacy relationship? If yes is this an appropriate entity or process to provide access? If yes grant access. If no access denied. (4) Did this information originate in a intellectual privacy relationship? If yes is this an appropriate entity or process to provide access? If yes grant access. If no access denied. If no does the failure to disclose threaten or harm others or society in an unacceptable way. If yes access granted. If No Access denied. Question 3 If Relational If relational Question 2d (1)Did this information originate in a relational privacy relationship? If Yes Is the disclosure of such information a compelling necessity that access should be granted? If yes ask Is access to this information minimally necessary to perform this job functi on for this entity/process If Yes to question 2 and 3 grant access but deny access if either or both question two or three are no. (2)Did this information originate in pr ivilege privacy relationship? Is it with in the scope of the privilege to access an d use this information? If yes ask Is information minimally necessary to perform this job function? If yes to both grant access if No to either or both deny access (3) Did this information originate in a secret privacy relationship? If yes is this an appropriate entity or process to provide access? If yes grant access. If no access denied. (4) Did this information originate in a intellectual privacy relationship? If yes is this an appropriate entity or process to provide access? If yes grant access. If no access denied. If no does the failure to disclose threaten or harm
226 others or society in an unacceptable way. If yes access granted. If No Access denied. Question 3 If Secret If Secret 2g (1)Did this information originate in a relational privacy relationship? If Yes Is the disclosure of such information a compelling necessity that access should be granted? If yes ask Is access to this information minimally necessary to perform this job functi on for this entity/process If Yes to question 2 and 3 grant access but deny access if either or both question two or three are no. (2)Did this information originate in pr ivilege privacy relationship? Is it with in the scope of the privilege to access an d use this information? If yes ask Is information minimally necessary to perform this job function? If yes to both grant access if No to either or both deny access (3) Did this information originate in a secret privacy relationship? If yes is this an appropriate entity or process to provide access? If yes grant access. If no access denied. (4) Did this information originate in a intellectual privacy relationship? If yes is this an appropriate entity or process to provide access? If yes grant access. If no access denied. If no does the failure to disclose threaten or harm others or society in an unacceptable way. If yes access granted. If No Access denied. Question 3 If Intellectual If Intellectual 2h (1)Did this information originate in a relational privacy relationship? If Yes Is the disclosure of such information a compelling necessity that access should be granted? If yes ask Is access to this information minimally necessary to perform this job functi on for this entity/process If Yes to question 2 and 3 grant access but deny access if either or both question two or three are no. (2)Did this information originate in pr ivilege privacy relationship? Is it with in the scope of the privilege to access an d use this information? If yes ask Is information minimally necessary to perform this job function? If yes to both grant access if No to either or both deny access (3) Did this information originate in a secret privacy relationship? If yes is this an appropriate entity or process to provide access? If yes grant access. If no access denied. (4) Did this information originate in a intellectual privacy relationship? If yes is this an appropriate entity or process to provide access? If yes grant access. If no access denied. If no does the failure to disclose threaten or harm others or society in an unacceptable way. If yes access granted. If No Access denied. Table 14 Questions for Cl assification of Data
227 5.2 Empirical Study As a proof, interviews have been con ducted with stakeholders in a hospital setting to determine the existing security requirements and challenges faced to provision security. The choice of the hospital was made as it would demonstrate the privacy types and would generalize well to other business entities. The hospital is constructed to bring together patient and car egiver to provide the highest level of care possible while maintaining the privacy of the patient. A hosp ital performs services that require very high levels of accurate, relevant data fr om multiple sources and locations to be provided in a timely manner to enable mission critical decisions. This information is also required in varying leve ls by all areas of the hospita l entity to support the primary function of patient care. Primarily its acti ons are predicated upon information from its clients and the tests preformed on the clie nts. Through its system s and functions the hospital brings together the patient information with the requisite knowledge skills and ability of its physicians and staff to provide for these high levels of care while at the same time safeguarding the information about the patient and the actions of the hospital in serving the patient. Significant informati on flows come in and out of the hospital to provide for these services. In recent years ac tions to protect patient privacy have been enacted by the federal government due to pa tient information leakage to outside third parties.
228 Additionally hospitals are highly regulated by a variet y of federal and local governmental agencies on a wide variety of ar eas including but not limited to having to meet reporting requirements for a wide variety of the activities and services it performs. All businesses have laws and regulations that impose both privacy and reporting requirements to some degree. While not every firm has the same requirements as a hospital to safeguard others information, fi nancial firms (banks, accountants, brokerage houses, lawyers) have much the same require ments to safeguard client information yet report certain types of acc ount activity. Increasingly the Federal Trade Commission is imposing requirements on the safeguard and use of client information by retailers. Homeland Security Act has imposed simila r requirements on telephone, power and transportation companies. Aside from the mission critical decisions made in the hospital and the needs to safeguard patient information, many of these concerns are similar to the concerns faced by all businesses. The goal of the study is to gather informa tion from this type of entity. From this data a determination will be made whether organizational data can be classified into the privacy types of relational, privilege, intelle ctual and secret privacy types and that these types can be specified using a classificati on tool that determines existing access and operations on data. This fi eld study would be accomplis hed through interviews of employees working in two hospitals. These in terviews would determine the data needs of the organization and then examines indivi dual data items with a view of how this data is made accessible to its members. Success will be determined by comparing the access and operations on data from existing systems designed without the classification
229 tool and classification system with the access and operations that are predicted by this tool and classification system If these sets are similar it would show that classifications hold and the tool could construct these types of privacy in a way that was useful to that business entity. 5.2.1 Interview Strategy .A single interviewer conducted all rounds of face to face interviews. A script was used in each interview to ensu re that the questioning was complete63. At every juncture effort was made to make the interviewee comfortable in order to get them to provide anecdotal information that would lead to new information and other sources of information. At each interview written notes were taken. Follow up was done on after all interviews. At times the notes taken were not clear or follow up questions presented themselves during the transc ription process. Follow up was used in these cases to clarify points and to ask new questions A second follow up was done with each interviewee where they were presented with the transcript of the notes taken and then given the opportunity to make changes or add anything they deemed noteworthy. Once the notes were all taken the interviews were compared for similarities and differences. Where differences were appa rent, inquiry again was made in the attempt to gain clarification. Where differences persiste d, the reasons for the differences were examined and noted. To deal with possible bias and guard agains t reporter error where ever possible multiple interviews were c onducted across job functi ons having differing 63 See appendix for the script
230 stakes in the data.64 This data was then transcribed in to tables indicating the job, data item and operations that could be performed on the data. The first round of interviews was conducte d at two hospitals both doctor driven but having differing approaches in how they cl assified, stored and ma de data available. The purpose of the first round was to determine the degree of sameness in approach to data and operations on data in particular common requirements, needs and challenges that hospitals faced with their data and information gathering, storage and dissemination. The second round of intervie w focuses on one hospital using an EMR. Particular attention was paid in these intervie ws as to the specific instances of regularly occurring access to the medical record and operations that can pr eformed on that item by the various roles enabled. This would provide a baseline fo r testing the model developed. The same procedures were followed in each interview. Unless the interviewer was the hospital administrator themselves the interviewee was instructed by his immediate supervisor that he had the perm ission from the hospital administrator to cooperate fully in the interview process. A private location was provided for the interview to take place on hospital premises during the intervieweeÂ’s regular work schedule. With the initial exception of the interview with the IT staff during the second round, and the interview with one hospital admi nistrator and his chie f security officer, every interview was a one on one interview. W ith the IT Staff, it was the suggestion of 64 When Risk Management was consulted only a single interview was permitted with its Director. The interview was very limited with th e Director providing he has access to everything and every body at any time.
231 the IT administrator to meet initially with th e whole staff to discuss the issues and for the interviewer to get a more global perspective of the hospitalÂ’s strategy. A four hour interview of the entire staff took place us ing open ended questions and following up on their discussion of the question presented. At the conclusion of that interview, each staff member was made available for individual follow up questions. During the entire interview process a variety of roles were interviewed including the Hospital Administrator, Assist ant Hospital Administer IT director, Chief Security Officer, HIPAA Compliance Officer DBA, Chief of Software Support, the entire IT department and the various us ers throughout the hosp ital including nurses from all levels, doctors, cleri cal, laboratory staff and superv isors, department heads and their staff. A significant amount of the inte rview time was centered on three positions: the Chief Security Officer, the HIPAA Comp liance Officer, and the Chief of Software Support. In the first round the interviews were c onducted with two different hospitals and two different people from each hospital. Pr ior to the interview a meeting took place between the interviewer and the Hospital Administrator. During this meeting the administrator was informed that the thrust of the interview was concerning the data of the hospital, how it was generated, stored, made accessible and protected. The administrator then provided people with the requisite knowledge and expertise to answer these types of questions. From each hospital the Assistant Hospital Administrator who supervised the data and privacy protection aspect of the hospital was made available to provide answers to these questions. Additionally the each
232 hospital provided one additional person. On e hospital provided their Chief Security Officer. The other hospital provided thei r HIPAA Compliance Director. Interviews with the hospital providing the Chief Secu rity Officer took place with the assigned Hospital Director present and participati ng. This interview was conducted over a four hour time period with breaks taken every 45 to 60 minutes. The majority of the information did come from the Chief Security Officer because he was more familiar with the information sought. It should be not ed that during this interview both provided information to each question when they had differing viewpoints or additional information. In the interviews with the ot her hospital, separate interviews were conducted with the Assistant Administrato r and the HIPAA Comp liance Officer. Like the previous set of interviews, the HIPAA Compliance Officer possessed the majority of the information with the Administrato r referring often to the HIPAA Officer as having the more informed answer. The inte rview with the HIPAA Compliance Officer took place over three separate days approxi mating 2 hours each day. The interview with the Assistant Hospital Administrator took place one day for approximately one hour. In the second round the roles interv iewed were expanded to admission, unit secretary, unit nurses, unit supervisors, nurse managers, director of nursing, chief nurse, doctors, various laboratory units, and re search.In this round while every role contributed strong information, the Chief So ftware Support provided the vast amount of information. In part it was due to the design of the work system at the hospital and in part this was due to security concerns of the interviewee. The Hospital Administrator and HIPAA Compliance Officer we re very concerned that any role be aware only of the
233 access patterns of the areas with in their control. Enabling an open inquiry beyond the Chief Software Support was a concern th at this would be compromised. To accommodate the hospital when interviews were conducted with personnel other then the Chief Software Support, while conducted in private, the inquiries were very limited in the terms of open ended questions of as king what data was accessible to them and what operations could be performed. A dditionally through agreement with the interviewing entity, all access patterns disclosed regardless of source were only reviewed by the Chief of Software support. Additionally it should be noted that the hospital in the second round of interviews had three access systems: patient care, risk management, research. The Chief of Software Support by design was the chief o fficer in the hospital over the data access of the EMR only. The other two information access systems, one for hospital research and the other for risk management were separate access systems with different individuals in control over these schemas. The risk mana gement and research systems are not a part of the study.65 5.2.2 Distinctions between the two hospitals Both hospitals are doctor driven and held a commitment to patient care. The privacy of patient information was a vital concern as well for similar reasons: preservation of the traditi onal doctor patient relationshi p, a condition for high quality care and the threat of a law suit and financia l loss should this duty become breached. 65 It should be noted that a select group has access to all systems. By design the Chief administrator of the hospital, the chief of risk management and the chief resident were the only roles that had global access to all three systems. No interviews of substa nce were conducted with any of these individuals.
235 was treated as either being pa tient health information or not patient health information. While each had similar access policies to th e medical record both differed when access concerned non PHI data. This is particularly true in the cases of employee records and benefits and hospital admini stration. However despite these differences, the hospital users using the paper based system experien ced greater satisfacti on in having access to needed medical information despite the expression of concerns of time delays in getting the information. Users of the EMR based syst em expressed satisfact ion with the speed they received records but were frustrated w ith the system. The basis of concern was due to two factors: Â“black holesÂ” that prevente d access to needed information and Â“white holesÂ” that lead unauthorized people to protected data. The administrators of hospital using a people poweredpaper based system felt to a degree they had some risk exposure as the entire record was potentially exposed. They openly acknowledged there was no real si mple way to restrict access to the file once it was out of the record custodian possession. They believed however the commitment of their people to patient privacy reduced that risk to acceptable levels. Despite the differences between the hosp itals neither was distinctive in its information needs. Each faced the same issu es of making available data to appropriate persons and processes while maintaining the privacy of the data. Each has high concerns that this data be safeguarded as pa tient data carries with it an obligation of protection. This is interpreted by each to require that once pa tient data was within their grasp, they must judiciously control that data. Secondly each viewed access as given
236 only to necessary persons and processes in an amount reasonably necessary for a defined task to be performed. The following observations were made from the interviews of both hospitals: It is well accepted that high quality h ealthcare is delivered when appropriately trained personnel are coupled w ith timely information necessary to meet the health challenge. The challenge to provide this information is the high volume of data, information and knowledge that emanates from a wide variety of sources both within and without the treatment facility and which continues to grow exponentially. This data is required to drive the various functions of the hospital Â– fr om patient care, to billing, to research to compliance with government al regulations Â– each which can change circumstantially. Often to accomplish these purposes a piece of data passes through many individuals, departments, organizati ons and governmental agencies many of which have conflicting agendas and goals. Un less safeguards are imposed the privacy expectations that surround that data can be easily compromi sed. All of this requires the highest efforts be undertaken to enforce the privacy expectations of the patient and his health care providers. Yet even providing th is and imposing the best safeguards privacy expectations of the patient and health care providers are often compromised. In recent years new challenges have emerged. An increased coupling between medical care and insurance together with the emergence of medicine emerging as a business has increased the portability of me dical information outside the hospital most notably to insurers and medical reviewers. To counter act the porta bility, new laws and regulations regarding patient medical inform ation are being proposed and enacted. It is
237 imperative to keep up with these changes part icularly as patients and their significant others are more willing today to seek fi nancial remuneration wh en disclosures of patient information is improperly made or high standards of patient care is not achieved. Oftentimes these actions beco me coupled with additional financial repercussions in the form of increased in surance premiums, loss of key personnel, the inability to attract talent, loss of funding or sources of funding or loss of trust and standing in the community the hospital serves As a result there is a push to provide greater managerial control over the hospital ope rations to minimize risk and the risk of loss. To accomplish this objective will requi re greater access to patient information by non treating personnel which will further drive this cycle. Automation of data access is the most vi able way to address the above stated concerns. While these systems generally work well they are not a panacea. First they are expensive to roll out largely due to the complexity necessary to meet the tasks at hand and not possessing the expertise a nd knowledge needed both technically and legally. Second many times functionality mu st be sacrificed at the expense of development and the risk of failure. Finally, af ter roll out an almost endless stream of maintenance must be done in part to correct i ssues that were inherent with the rolled out system and in part to implement changes n ecessary to keep up with the ever changing social, business and legal environm ent that the hospital functions. 5.2.4 Conclusions from the Second Round of Interviews Before purchasing an EMR system many a lternatives were considered including staying with the old paper based system, the costs of in house development and the
238 attractiveness of obtaining a customized sy stem. Factors includi ng the risks inherent with the paper based people automated system, the need for faster access to information, the size and expertise of the IT staff, and the large volume of information and access patterns to be analyzed and determ ined were prime factors that motivated the decision to obtain an semi cu stomized EMR through a vendor. Since the system has been delivered the results obtained have been disappointing. In the months following the inst allation the system lacks the desired and specified functionality. In particular, access to data is inconsistent among caregivers similarly situated. Often when access is provided it is seldom optimum and is usually either under or over established. Existing work patterns in the hospita l had to be altered to fit the acquired system because it could not be easily altered to support the desired work flow pattern without substantial rewor k. In some cases the staff have initiated work-a-rounds that subterfuge the security of the system. Even when rework is possible before a project is reworked it must higher pr iority over all other pr ojects before it is initiated. Even when change is initiated fre quently the change is an iterative process until the desired level of functi onality is received or the project is abandoned. In any rework of access, before the project is finalized months are taken waiting for supervisors and legal to approve the changes while they examine the exposure of risk and consider other alternatives. Daily changes must be made to the EMR. A personÂ’s absence due to vacation, illness, relocation, or firings often lead to vast areas of needed information either becoming inaccessible for day to day operations (including routine pa tient care) or the
239 checks that ensured control over information and limited information access becoming disabled. In many cases the reassignment of the absent personÂ’s role permits too great of access or eliminates the required people controls that supplement the controls imposed by the EMR. Under these circumstan ces when assigning information access, traditional access patterns are generally applied to determine what data is needed to carryout the job by that level of employee. All too frequently ad hoc emergency measures are implemented that provide or stop the flow of da ta without a proper examination of the risk. Increasingly clas sifications are becoming less clear with new job classifications emerging, new uses of information th at require access to be expanded, changes in laws and regulations that dictate changes in access, and heightened concerns over privacy which forces a rethinking of the traditional access patterns. Change in the external environment will initiate required changes in the EMR. Proposed and actual changes in regulations and laws require access patterns be reviewed almost continuously. Often this resu lts in a substantial reworking of system access across the hospital subject to examin ation by the administration and legalHi. While laws and regulations provide performance directiv es they provide no guidance on how these directives translate into required system changes. These changes are initially implemented using the best practice of limiting access while the redesigning process constructs alternativ e access patterns. This often lim its functionality and utility to levels below that which is both required and desired by users for many months while measures are designed and tested.
240 5.3 Evaluation A review was taken of the data collect ed by the hospital entity and the access patterns permitted through the commercial system. It was decided to take a patient record as it was built through the system and see how the model compares with the specifications of the commercial system. Th e chart of questions in Section 5.1.2 were asked and applied by job description to each pair of information/source of information. The following chart records those results a nd makes posting of results less unwieldy. Data Item Source Question asked/ Result Second Question asked/Result Table 15 Results 5.3.1 Admissions Clerk In the interviewed hospital, one method a patient enters the hospital is through a referral from a physician. On the assigned date and time, the patient presents themselves to the admission clerk. In addi tion to the patientÂ’s name address and telephone, information about the method of pa yment, insurance, various consents and the doctorÂ’s orders are disclosed to this clerk. When the procedure is completed the patient is admitted to the hospital and assigned a bed by the clerk. In the commercial system, after admission this clerk has access to each of these items but is unable to see previous visits or the medical record of those visits. Neither is the clerk able to access the patient record as it accumulates during this visit.
241 The following table contains the results and predicted access for the Admission Clerk: Where tool and hospital access are identic al the final column value will be bold. Data Item Source First Question asked/result Second Question Asked/Result Third Question Asked/Result Patient name Patient address Patient 1a/Confidence 2a yes/2b no Relationship 2d(1)Access Granted Insurance Information Patient 1a/Confidence 2a yes/2b no Relationship 2d/(1)Access Granted Bed Assigned Hospital 1b/Possession 2e/Secret 2g (3) Yes Access Permitted Dr Order Doctor 1a/Confidence 2a yes/2b yes Privilege 2c(2)/Access Granted Table 16 Tool and Hospital Access Discussion of results for admissions clerk The tool classifies access identica lly to that used by the hospital. Patient name and address classified as relational. Relational privacy requires control and access be maintained. The level of control is respect which requires that the obtained information must be controlled for th e benefit of the information provider. The control further protects the control over information by collecting only information reasonably necessary for the relationship. He re the clerk collects only that minimal information necessary to create a relationshi p between the hospital and patient and that this information is controlled for the information providerÂ’s benefit. Access to this type of information is limited to a compelling necessity. The compelling necessity in this case is the need to ascertain the co rrectness of the name and address.
242 Insurance information was also classified as relational. The purpose of learning about a patientÂ’s insurance information on part of the hospital has many functions including do we offer services to them and at what level is service provided. The call between relational and priv ilege was tougher to make. A good argument can be made that whether insurance is available or not is a direct input to perform medical treatment. The decision to classify this as relational was made because it appears this question is more germane to the relationship formation rather than the treatment given after the relationship is formed. This item can be assessed in two ways. One, insurance determines whether the relationship is even entered into. Two, in surance determines the type of care given during the relationship. Some hospitals will not take private pay patients. Others take patients who donÂ’t have insurance but the care given follows a different protocol from that of the insured patient. A third class of hospital would accept the patient regardless of having insurance and would not differentiate in care give n. Does a better operational definition need to be made for the tool or do the facts of th e hospital govern the classification? Bed Assigned classifies as possession/ secret. It is possession at it is non personal information. It is secret as it is a record of the actions of the entity. This is unique as it is a permitted operation on data rather than an access operation to data. Additionally this assign ment is based upon the operations of the entity and as a result is promoting the proprietary interest of the hospital.
243 Dr. Order is confidence/privilege. It is confidence because it is personal information necessary to form a relationship. It is privilege as the clerk is in employ of personÂ’s who have professional expertise and it is a direct input into the task of providing care to the patient. This type of information requires this information be safeguarded and access be that of minimally necessary. Here out of necessity the clerk must have access to this information as th ey are the interface be tween the hospital and patient and this information enables the clerk to perform the functions of that position. Note there is not any example to demonstrate intellectual privacy for this job description. This is likely to the low level of importance that this job has in the hospital. 5.3.2 Unit Secretary Unit secretaries function as the clerical staff for the hospital. A unit secretary is assigned to a specific unit in the hospital fo r her shift. This assignment can change daily. They report to all nur ses assigned to the unit as well as all doctors who have patients in the unit. Generally a unit s ecretary has full access to general patient information and limited access to patient care information. The general rule is the unit secretary can only access and update informa tion for a patient in their assigned unit however; the EMR can see and write to any patient in the hospital. General information is considered to include the ability to r ead and update patient demographics, church affiliation, opt them out of general census, pl ace staff alerts, and id entify next of kin. Additionally they can pull a current visit history (when admitted, how admitted, bed assignments and transfers, account number) but cannot look at past stays in the hospital. Cannot change phone number
244 Patient care information to which this pos ition can read and write includes the current care given to the pa tient both from the nurse and the doctor but they are not supposed to have access to any lab test results.66 66 Because this hospital employs a redundant system of faxing results to the unit as well as placing the results in the EMR, the unit secretar y does in fact have access although it is not desired that they have access to these lab results.
245 The following table contains the resu lts and predicted access for the Unit Secretary: Where tool and hospital access are identic al the final column value will be bold Data Item Source First Question asked/result Second Question Asked/Result Third Question Asked/Result Patient name Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Permitted Patient Address Patient 1a/Confidence 2a Yes/2b No Relationship 2d (1) Access Denied Insurance Information Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Denied Patient bed assignment Hospital 1b/Possession 2e Secret 2g (3) Access Permitted Next of kin Patient 1a/Confidence 2a Yes 2b No Relational 2d (1) Access Permitted Nurses notes Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Denied Doctors orders Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Denied Lab tests Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Denied Doctors order of a patient not in unit Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Denied Table 17 Unit Secretary Results Discussion of results for unit secretary The tool classifies access for patient de mographics, patient bed assignment, next of kin, nursing notes, doctorsÂ’ orders and la b tests identically to that used by the hospital in all cases. However in two cases Â– Lab tests and doctors orders of a patient not with in a unit, while the tool classifies the information as privilege, the business rule
246 of the hospital forbids access by the unit secret ary because the patient is not in the care of that unit. Privilege privacy requires that before access is provided it must be assessed whether this is an appropriate individual/organization to provide access to information taking into account that access must be limite d to that minimally necessary to carryout a job function. While the tool asks this que stion it fails to predict this access and demonstrates one of the limitations of the tool Â– before final classification can be made it is imperative that the business rules of the organization, conventions of the industry and even common sense be looked at wh en making this final determination. 5.3.3 Unit Nurse Unit nurses provide care for patients in a specific care unit of the hospital. Some care units are specialized such as CCU, ICU, EMR and Cardiac Care. The majority of care units handle the general population of the hospital. Distinction is made in the hospita l between general and patient care information. General care information includes staff alerts, gender, date of birth, admit date, medical record number and account num ber all of which is accessible to a unit nurse. Patient care information includes di agnosis, nursing notes and doctor orders for care. The nurse cannot access the results of any lab tests but can see if a lab results have come in. An interesting side bar is the unit nurses only see patients assigned to the unit unless they are assigned to the EMR where can see the whole house.
247 The following table contains the results and predicted access for the Unit Nurse: Where tool and hospital access are identic al the final column value will be bold Data Item Source First Question asked/result Second Question Asked/Result Third Question Asked/Result Patient name Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Permitted Patient Address Patient 1a/Confidence 2a Yes/2b No Relationship 2d (1) Access Denied Insurance Information Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Denied Patient bed assignment Hospital 1b/Possession 2e Secret 2g (3) Access Permitted Next of kin Patient 1a/Confidence 2a Yes 2b No Relational 2d (1) Access Denied Nurses notes Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Doctors orders of patient within the unit Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Lab tests Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Doctors order of a patient not in unit Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Denied Patient care information after patient is discharged or removed from unit Patient 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) No access Denied Other employee work schedule Hospital 1a/Confidence 2a Yes 2b No Relational 2(3) No Access Denied Other employee vacation benefits Hospital 1a/Confidence 2a Yes 2b No Relational 2d (3) Access Denied Information on how scheduling must take place Hospital 1b/Possession 2e Yes Secret 2g (3) Access Denied Table 18 Unit Nurse
248 For the general and personal care information the tool classifies access identical to the hospital examined with the exception of lab tests. The hospital examined did not permit the nurse access to the result of the test but did permit them access to information that the lab test results were in. This aberration appears to be in the business rules of the hospital where they want to keep information the nurse receives to the minimum necessary to do the job and it is believed that this is not necessary to do the job. Another area of interest is the work schedule and vacation benefits. Hospital forms the relationship with the other employ ee. That relationship is confidence. In a confidential relationship the hospital must ex ercise a high level of control over that information type of information. When the employee seeks information concerning another employee work schedule or vacation be nefits, this type of a relationship is a confidence type because this information is not for the purpose of forming, maintaining or fulfilling a personal relationship. This in turn classifies into relational privacy type. Because of the requirements of instituting a high level of control, unless a compelling necessity is shown, no access can be provide d. When looking at how scheduling must take place the information is of possession type as it does is sought not to form, maintain or fulfill a personal relationship. This in turn is the type of information that would promote or advance the proprietary intere st which translates in to a secret privacy relationship.
249 5.3.4 Unit Supervisor Unit Supervisors have access to all the general and patient information that a unit nurse has with this exception: A unit s upervisor in general can see only their own patients information after the patient leaves th e unit for so long as they remain a in the hospital for this visit. The one notable excep tion is the of the EMR supervisor who can see any patient in the hospital. When a pati ent is discharged the ability of all these supervisors to view the patientÂ’s general and patient information ends. The following table contains the resu lts and predicted access for the Unit Supervisor: Where tool and hospital access are identic al the final column value will be bold Data Item Source First Question asked/result Second Question Asked/Result Third Question Asked/Result Patient name Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Permitted Patient Address Patient 1a/Confidence 2a Yes/2b No Relationship 2d (1) Access Permitted Insurance Information Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Denied Patient bed assignment Hospital 1b/Possession 2e Secret 2g (3) Access Permitted Next of kin Patient 1a/Confidence 2a Yes 2b No Relational 2d (1) Access Permitted Nurses notes Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Doctors orders Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Lab tests Hospital 1a/Confidence 2a Yes 2b Yes 2c (2)
250 Privilege Access Denied Doctors order of a patient not in unit Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Denied Patient care information after patient is discharged Patient 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Denied Patient care information after patient removed from unit but remains in the hospital Patient 1a/Confidence 2a Yes 2b Yes Privilege 2c (2)Access Permitted Employee work schedule Hospital 1b/Possession 2e Yes Secret 2g Access Permitted Employee vacation benefits Hospital 1b/Possession 2e Yes Secret 2g Access Permitted Information on how scheduling must take place Hospital 1b/Possession 2e Yes Secret 2g (3) Access Permitted Table 19 Unit Supervisor The Unit Supervisor has greater access to patientÂ’s general and care information over the unit nurse in that they can view the patient throughout the hospital provided they once resided on the floor. Looking at wo rk schedules and vacation benefits of other employees this information is relati onal from the viewpoint of the employee but secret from the viewpoint of the superv isor. The unit supervisor requires this information in order to enable the manageme nt of personnel. Still the disclosure of information must be limited in part because of the Â‘secret natureÂ’ of the information but also because of the interest of the employee in not having this detail of his work known
251 by others. Finally information on how to schedul e is available to the supervisor as they require this guidance on how to set forth cove rage on the unit. This is an element of know how which requires protection. In all ways the access pattern s of the tool are consistent with the developed system. Except for the lab test the tool classi fies access identical to the hospital examined. As stated before the hospital ex amined did not permit the nurse access to the result of the test but did permit them access to information that the lab test results were in. This aberration appears to be in the busin ess rules of the hospital where they want to keep information the nurse receives to th e minimum necessary to do the job and it is believed that this is not necessary to do the job. 5.3.5 Nurse Manager Nurse Managers have specific areas of authority. In the hospital interviewed there were six nurse managers one each over the following areas: ICU, CCU, EMR, Operating Room, Recovery Room and Same Day Surgery. These individuals require a greater global picture of the hospital in order to fulfill their supervisory duties. The Nurse Manager has access to general and patient information of any patient who has ever been in their uni t even after the discharge of the patient from the hospital. The one exception is the EMR supervisor who can see any patient in the hospital as it is deemed imperative they have global access to all patients in order to provide requisite levels of care. Because nurse managers are involved in quality control, nurse managers have access to the entire health record of the patient. Additionally this position has
252 expanded capabilities in the management of personnel. They can see the time records, job history, supervisor comments and actions and work schedules current and past. Additionally they have limited access to bene fits such as seeing taken vacation days, sick days but they cannot view the total sick days and vacation days an employee has in their benefit package. As to the personnel record the only it em that is accessible is the employee phone number. The following table contains the results and predicted access for the Nurse Manager: Where tool and hospital access are identic al the final column value will be bold Data Item Source First Question asked/result Second Question Asked/Result Third Question Asked/Result Patient name Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Permitted Patient Address Patient 1a/Confidence 2a Yes/2b No Relationship 2d (1) Access Permitted Insurance Information Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Denied Patient bed assignment Hospital 1b/Possession 2e Secret 2g (3) Access Permitted Next of kin Patient 1a/Confidence 2a Yes 2b No Relational 2d (1) Access Permitted Nurses notes Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Doctors orders Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2)Access Permitted Lab tests Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Denied
253 Doctors order of a patient not in unit Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) provided patient was in their unit at some point Patient care information after patient is discharged or removed from unit Patient 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Patient care information of a patient not ever in supervisorÂ’s unit (Still in hospital) Patient 1a/Confidence 2a Yes 2b Yes Privilege 2c (1) Depends if patient was ever in the supervisors unit. However EMR supervisor can see this information regardless Employee work schedule (Own) Hospital 1a/Confidence 2a Yes 2b Relational 2d (1) Access Permitted Employee vacation benefits (Own) Hospital/Employee1a/Confidence 2a Yes 2b Relational 2d (1) Access Permitted Employee total vacation benefit (own) Hospital/Employee1a/Confidence 2a Yes 2b Relational 2d (1) Access Denied Employee vacation taken Hospital/Employee1b/Possession 2e Yes Secret 2d (1)Access Permitted Employee total vacation benefit (not own) Hospital/Employee1b/Possession 2e Yes Secret 2d (1) Access Denied
254 Pay level of employee with in unit Hospital/Employee1b/Possession 2e Secret 2g (1)Access Permitted Pay rates associated with pay level Hospital 1b/Possession 2e Secret 2g (3) Access Denied Table 20 Nurse Manager Discussion of the results of Nurse Manager The tool produces access patterns identical to that of the commercial system. Looking at the relationship of the Nurse Mana ger to the vacation, pay level and rate of pay produces a good example of how the tool approaches the sensitive area of employee benefits and pay. While the inform ation exchanged between the hospital and employee in this area would classify as conf idence/relational as to those individuals when looking at the Nurse Manager accessing this information it becomes apparent in this relationship that this data holds a diffe rent privacy relation. To the Hospital/Nurse Manager relation this information is a possessio n type which translates into secret data as it promotes its proprietary interest and serves a purpose in the business pursuit of the hospital. Because the information sought to be accessed is relational information a constraint is placed upon the Hospital provi ding ready access to this data. Instead the hospital must exercise the le vel of control over the data and permit access no greater then the level permitted at the relationship level. Relationship data is accessible to others only upon compelling necessity and then this must be examined from the stand point of is this an entity to which access should be allowed. The compelling necessity is provided by the need to supervise employeeÂ’ s benefits and pay. The difference in
255 access comes from the question is this an ent ity to which access of this information is appropriate. Business rules, industry conventions and commo n sense will dictate the appropriate access. However these same rule s and conventions will be testable through the performance requirements for each type of privacy. For the vacation days taken and the pay level it is appropriate to allow access. For the days left and the rate of pay this level of employee is not appropriate to have access to this information. 5.3.6 Director of Nursing The Director of Nursing has the same access to general and patient care information as does the Nursing Manager Â– th ey can see any patient who has been in any unit they have supervision over even after the patient leaves the unit or is discharged from the hospital and they have ha ve access to the entire health record of the patient because they are involved in quality c ontrol. The director in charge of the EMR still has access to all pa tients regardless where they are resident in the hospital. The second difference here with the Director of Nursing and the Nursing Manager is what employees they can see and do reports on. Th is level has access to the entire nursing staff including all supervisors in their de partment but they cannot see pay rates, benefits, unused sick or vacation time.
256 The following table contains the results and predicted access for the Director of Nursing Where tool and hospital access are identic al the final column value will be bold Data Item Source First Question asked/result Second Question Asked/Result Third Question Asked/Result Patient name Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Permitted Patient Address Patient 1a/Confidence 2a Yes/2b No Relationship 2d (1) Access Permitted Insurance Information Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Denied Patient bed assignment Hospital 1b/Possession 2e Secret 2g (3) Access Permitted Next of kin Patient 1a/Confidence 2a Yes 2b No Relational 2d (1) Access Permitted Nurses notes Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Doctors orders Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Lab tests Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Doctors order of a patient not in unit Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) provided patient was in their unit at some point Patient care information after patient is discharged or removed from unit Patient 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Patient care information Patient 1a/Confidence 2a Yes 2b Yes 2c (2) Depends if
257 of a patient not ever in supervisorÂ’s unit (Still in hospital) Privilege patient was ever in the supervisors unit. However EMR supervisor can see this information regardless Employee work schedule (Own Employee) Hospital 1a/Possession 2e Yes Secret 2g (1) Access Permitted Employee vacation benefits (Own) Hospital/Employee1b/Possession 2e Secret 2g (3) Access Permitted Employee total vacation benefit (own) Hospital/Employee1b/Possession 2e Secret 2g (3) Access Permitted Employee vacation taken Hospital/Employee1b/Possession 2e Yes Secret 2d (3) Access Permitted Employee total vacation benefit (not own) Hospital/Employee1b/Possession 2e Yes Secret 2d (1) Access Denied Pay level of employee with in unit Hospital/Employee1b/Possession 2e Secret 2g (1) Access Permitted Pay rates associated with pay level Hospital 1b/Possession 2e Secret 2g (3) Access Denied Table 21 Director of Nursing
258 The classification tool larg ely follows the classification schemes of the other job functions with the exception of employee vacation taken, remaining vacation time pay level of employee and pay rates associated with pay level. Vacation taken, vacation remaining, pay rate and pay cl assification present a challe nge in classification. From the vantage of the employee, this can appear to be a relational type of privacy. Yet from the vantage of the hospital entity this can be a form of secret privacy as it can demonstrate the strategy of th e hospital entity in the way of staffing and cost that must be expended. How to approach this is not as straight forward as many other determinations. The decision was made to cla ssify this as a secret and allow access to reflect the relational aspect between the hospital and employee to that of not revealing this unless compelling necessity was demonstr ated. Here again the tools classification is 100% agreement with the hospital system. 5.3.7 Chief Nursing Officer The Chief Nursing Officer is the highes t nursing position in the hospital and is considered on level with the executive suit e. As a result a chief nursing officer has access to every piece of information related to the patient both past and present and full access to all employee records with the exception of other executives records. Additionally due to their involvement in the financial aspects of the hospital, the CNO has access.
259 The following table contains the resu lts and predicted access for the Chief Nursing Officer: Where tool and hospital access are identic al the final column value will be bold Data Item Source First Question asked/result Second Question Asked/Result Third Question Asked/Result Patient name Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Permitted Patient AddressPatient 1a/Confidence 2a Yes/2b No Relationship 2d (1) Access Permitted Insurance Information Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Granted Patient bed assignment Hospital 1b/Possession 2e Secret 2g (3) Access Permitted Next of kin Patient 1a/Confidence 2a Yes 2b No Relational 2d (1) Access Permitted Nurses notes Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Doctors orders Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Lab tests Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Doctors order of a patient not in unit of direct supervision Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Patient care information after patient is discharged or removed from unit Patient 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Patient care information of Patient 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access
260 a patient not ever in the hospital during this employees tenure Permitted Employee work schedule Hospital 1b/Possession 2e Yes Secret 2g (1) Access Permitted Employee total vacation benefit Hospital 1b/Possession 2a Yes Secret 2d (1) Access Denied Pay classification of employees non executive Hospital 1b/Possession 2e Yes Secret 2g (1) Access Permitted Pay rates of employees (non executive) Hospital 1b/Possession 2e Yes Secret 2g (3) Access Permitted Table 22 Chief Nursing Officer Chief Nursing officers have broad dutie s that require access to information throughout the hospital. Because of their high st atus as supervisors they are entitled to access to almost every bit of in formation in the hospital. Work schedule pay rate and pay clas sification present a challenge in classification. From the vantage of the employee, this can appear to be a relational type of privacy. Yet from the vantage of the hospital entity this can be a form of secret privacy as it can demonstrate the strategy of the hospital entity in the way of staffing and cost that must be expended. How to appr oach this is not as straight forward as many other determinations. The decision was made to classify this as a secret and allow access to reflect the relational aspect between the hospital and employee to that of not revealing this unless compelling necessity wa s demonstrated. Using this type analysis
261 permitted agreement between the tool and the hospital. Agreement for this role was identical to the commercially developed system. 5.3.8 Doctor accessing Patients Doctors have complete access to all medi cal records of their own patients but when viewing other information, it is restri cted. In the hospital studied a doctor could not view another doctorÂ’s patient unless he was provided permission by the patientÂ’s doctor.
262 The following table contains the results and predicted access for the Doctor: Where tool and hospital access are identic al the final column value will be bold Data Item Source First Question asked/result Second Question Asked/Result Third Question Asked/Result Patient name Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Permitted Patient Address Patient 1a/Confidence 2a Yes/2b No Relationship 2d (1) Access Permitted Insurance Information Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Denied Patient bed assignment Hospital 1b/Possession 2e Secret 2g (3) Access Permitted Next of kin Patient 1a/Confidence 2a Yes 2b No Relational 2d (1) Access Permitted Nurses notes Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Doctors orders Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Lab tests Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Others DoctorsÂ’ patient not this doctorÂ’s patient and no permission Patient 1a/Possession 2e Yes 2f Yes Privilege 2c (2) No access permitted Patient care information after patient is discharged or removed from unit Patient 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted Table 23 Doctor-accessing Patients
263 For the most part the tool predicts access identical to that permitted. From interviews of both hospitals and interviews of various doctors, there appears to be no set way in which doctorÂ’s access to a patient not their own is covered. Each hospital was adamant that post HIPAA unless permission was given no doctor saw another doctorÂ’s patient record without permission. However when carefully looking at the access mechanisms these permissions are often loosely handled. In other cases the business rules of the hospital favored access to all patients by a doctor with precaution taken of accounting for access and actions. Th is laxness is often to account for how doctors will cover for one anot her. Another reason for the laxity are two reasons: the great amount of trust a hospital has that the doctor will not abuse his authority in this area and the power the doctors wield over th e hospital often makes the hospital provide to the doctor mechanisms that pote ntially expose the hospital to loss. 5.3.9 Lab Lab personnel have very limited access to general patient information Â– this is limited to patient name, account number, date of birth and gender. As to patient care information, it receives only what the doctor directly sends the lab in the form of a doctorÂ’s order for a particular test.
264 The following table contains the results and predicted access for the Lab: Where tool and hospital access are identic al the final column value will be bold Data Item Source First Question asked/result Second Question Asked/Result Third Question Asked/Result Patient name Patient 1a/Confidence 2a yes/2b No Relationship 2c (1) Access Permitted Patient Address Patient 1a/Confidence 2a Yes/2b No Relationship 2d (1) Access Denied Insurance Information Patient 1a/Confidence 2a yes/2b no Relationship 2d (1) Access Denied Patient bed assignment Hospital 1b/Possession 2e Secret 2g (3) Access Permitted Next of kin Patient 1a/Confidence 2a Yes 2b No Relational 2d (1) Access Denied Nurses notes Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Denied Doctors orders Hospital 1a/Confidence 2a Yes 2b Yes Privilege 2c (2) Access Permitted only for test order all other is denied Table 24 Lab DoctorÂ’s orders are not always accessible to the lab. In the interviews taken in most cases the only doctor order the lab sees are the orders for the test. However in interviews with the lab supervisors and the doctors both stated that at times the lab personnel want more in the way of a histor y on the patient than is contained in the doctor order. In this situati on (which is rare) the lab and the doctor will consult and the doctor will provide to the lab the precise medi cal history or patient medical information that the lab seeks in orde r to provide the lab suffici ent background to effectively
265 administer the testing. The tool in this scenar io classifies data in ways identical to the commercially developed system but does not account for the work around devised by the hospital staff. 5.3.10 Risk Management Team The risk management team is a separa te function inside the hospital whose purpose is to identify potential risks and th en eliminate or limit the risk exposure. Because risk can appear in any department and in many different forms the members of the risk management department have broa d reaching powers that approximate or even exceed that of the executive management in the hospital.
266 The following table contains the re sults and predicted access for Risk Management: Where tool and hospital access are identic al the final column value will be bold Data Item Source First Question asked/result Second Question Asked/Result Third Question Asked/Result Patient name Patient 1b/Possession 2e/Secret 2g(1) Access Permitted Patient Address Patient 1b/Possession 2e/Secret 2g(1) Access Permitted Insurance Information Patient 1b/Possession 2e/Secret 2g(1) Access Permitted Patient bed assignment Hospital 1b/Possession 2e/Secret 2g(3) Access Permitted Next of kin Patient 1b/Possession 2e/Secret 2g(1) Access Permitted Nurses notes Hospital 1b/Possession 2e/Secret 2g(2) Access Permitted Doctors orders Hospital 1b/Possession 2e/Secret 2g(2) Access Permitted Lab tests Hospital 1b/Possession 2e/Secret 2g(2) Access Permitted Doctors order of a patient not in unit Hospital 1b/Possession 2e/Secret 2g(2) Access Permitted Patient care information after patient is discharged or removed from unit Patient 1b/Possession 2e/Secret 2g(2) Access Permitted Table 25 Risk Management Team Risk management seeks data not to form a personal relationship but to protect the hospital entity from real or potential loss. Using any da ta but particularly personal
267 data that is classified as relational or privileged become s an important basis of their work as they assess the risk th at the hospital faces. Often it is this same data the reveals the risk the hospital seeks to identify. In each case the proprietary need of the hospital is so very high that they trump all interests of relational or privile ge privacy and enable risk management to have access to all data in the hospital regardless of its source and category and value. The tool enables classifi cation of data in this area to in ways identical (100% agreement) to the way the commercial system functions. 5.3.11 Research Team Research wing of the hospital seeks to develop understandin gs and capabilities that will assist the hospital in it meeting the challenges of its unique environment. Research will draw its data from many areas of the hospital but will not have the carte blanche access that the risk management posses.
268 The following table contains the resu lts and predicted access for Research: Where tool and hospital access are identic al the final column value will be bold Data Item Source First Question asked/result Second Question Asked/Result Third Question Asked/Result Patient name Patient 1b/Possession 2f Yes Intellectual 2h(1) No Access Denied Patient Address Patient 1b/Possession 2f Yes Intellectual 2h(1) No Access Denied Insurance Information Patient 1b/Possession 2f Intellectual 2h(1) No Access Denied Patient bed assignment Hospital 1b/Possession 2f Intellectual 2h(3) Access Permitted Next of kin Patient 1b/Po ssession 2f Intellectual 2h(2) Access Denied Nurses notes Hospital 1b/Possession 2f Intellectual 2h(2) Access Permitted Doctors orders Hospital 1b/Possession 2f Intellectual 2h(2) Access Permitted Lab tests Hospital 1b/Possession 2f Intellectual 2h(2) Access Permitted Table 26 Research Team As demonstrated from the table certain items of data are accessible to the researcher while other items are not. Th is access pattern corresponds nicely (100% agreement) to that of the hospital for mo st studies. In general personal identifying information is not available in any study. However the pattern of access can change depending on the nature and purpose of the study conducted where pers onal identifiable information is not a permissible data item.
269 5.4. Conclusion The review of the results of classi fying hospital data using the privacy classification tool demonstrates a number of points. The tool classified 116 data items and compared the tool classification with th at classification used by the hospital. The tool mirrored the hospital classification 95.6% of the time. In the incorrect classification, the classification for the un it secretary (access to doctor orders and access to lab tests), Unit Nurse (access to lab tests) and lab (access to doctor orders) could be explained as the result of a deba table perspectives on who should have access to this information. Each of these items had ways to which these roles easily could gain access outside the information system and had th is been classified as an access (these items were classified as no access and the tool classified them as access) the fit would have been over 99%.
270 Comparison of Tool Classification with Hospital Classification Position Number of Data Items Frequency of match with Hospital Classification Percent of Agreement Unit Secretary 9 7 77.78% Unit Nurse 13 12 92.31% Unit Supervisor 14 14 100.00% Nurse Manager 18 18 100.00% Director of Nursing 18 18 100.00% Chief Nursing Officer 10 10 100.00% Doctor 10 9 90.00% Lab 6 5 83.33% Risk Management 10 10 100.00% Research 8 8 100.00% Total 116 111 95.69% Table 27 Tool and Hospital Classification The tool also handles two situations that are regula rly confronted with data access. The first situation is when the role/pri vacy type accessing the data is identical to the role/privacy type that initially procured the data. Here the determination of access is very simple Â– the predicted access was always identical to the access provided by the hospital. The second access pattern occurs when there is a difference between the role/privacy types accessing with the role/priv acy type that initiall y procured the data. In this situation it is imperative to check to see if access is permitted that is in line with that of the initial relation. In each of the cases using the control and access rules it was possible to construct the appropr iate limitations of access.
271 This study demonstrates that privacy wh ile traditionally tr eated as a single dimensional construct can be classified into four distinct privacy types of privacy: relational, privilege, secret and intellectua l. It has been shown that each of the classifications has a unique signature of control and access that has a basis in philosophy and law. It has been shown that this model can be instantiated in a tool that enables data to be classified. It has also been shown that this tool produced a data model that closely resembled that of an acceptable, commercially developed information system that did not use this tool in its development of its access patterns. The commercial system developed data classifications a nd access using and instance by instance classification. As ther e is no consensus on what is privacy objective functional specifications are not av ailable for system development. Instead subjective notions of privacy are used. With use of this tool that ha s its basis in law and philosophy some objective notion of privacy is available. This obj ectivity enables the tool to act as a top down development tool enabling development to proceed both from a top down and bottom up development approach rather than the bottom up approach that has been the traditio nal development method. Additionally the unique signatu re of the various types of privacy can be used to produce fine grained controls and access to da ta that the business organization requires. The fine grained approach enables access to be best specified to meet the needs for access and control over each privacy type da ta enabling the user to receive relevant, quality data in amounts necessary but not exceed ing that required to perform their task.
272 Chapter 6: Contributions, Limitations and Future Research 6.0 Introduction This chapter will discuss the contribu tions of the study, together with its limitations It will conclude with the anticipated future research. 6.1 Contributions This study proposed and demonstrated a new privacy model. This model is based not upon subjective understandings of privacy but being grounded in law and philosophy produced an objective standard. Th is privacy model proposed not one but five distinct types of privac y, relational, privilege, intellectual, transitory and secret privacy. Each of these privacy types have a distinguishing signat ure of control and access. Each of these privacy types have differing philosophical backgrounds which were supported in through laws and social norm s. This model also differs from the four prong classification proposed by Prosser. As previously stated, ProsserÂ’s taxonomy of privacy posited that a person has a right to be protected from intrusion, a right to control the disclosure of private facts, a ri ght to protect the commercial value of one's name or likeness, and a right to protect agai nst "false light" disclo sures. Prosser did not go beyond this classification other than provi ding support for the classification itself. The taxonomy proposed here, while having a basis in right theory goes beyond Prosser and identifies relationships that embody the rights Prosser speaks of by looking upon the character of the information and the re lationship between the information donor and information recipient and provi ding a classification that defi nes the degree of control and access that should be afforded to the target information.
273 This study addressed the call for better understanding of privacy and for new paradigms of privacy. It provided an explic it, objective standard to specify privacy. This standard captured the social and legal requirements for privacy. It has as it base law and philosophy and is expressed in relati onships that are defined through a mixture of control and access. The end result produced a multidimensional type based construct which is capable of acting as both a goal and method of development that provides guidelines to all types of privacy as well as specific guidelines unique to each particular type of privacy. Through these developments pr ivacy is not able to be constructed in a bottom up manner but it can now proceed to be constructed from a top down method. It was demonstrated this model could be constructed into a data classification tool. This tool would initial ly classify a data item and source into a confidence or possession type. From this classification an intermediary classification ensued which was followed by a final step which determin ed whether a given role was denied or given access to the data. Finally it was time to determine if the model would actually classify data in a real life setting. Applying the model to a da ta classification schema determined by a commercially developed RBAC system the model was able to recreate the access scheme with a 95.69% agreement. When wo rk-a-rounds constructed by the hospital staff was taken into account, the model actu ally replicated the system plus work-around at with an over 99% agreement.
274 A number of objectives were not met. No evidence was produced that this system produces a better specified construct of privacy. Despite the fact the existing system specifications were replicated in hours this is insufficient evidence to demonstrate that systems could be propose d, selected, implemented more effectively and efficiently and understood more completely using this specification. No proof was demonstrated that would show that less time and effort will be spent on reworking systems to add unanticipat ed functionality or in designing into systems the requirements to meet mandated functionality for both the present and the future. Finally nothing was shown that would demonstrate th is system will provide a better way to exploit technological change and preserve st atus quo or at least reconcile status quo with technological changes This study however gives business the promise of a new tool to address problems and opportunities presented by privacy Â– once further work is done on testing the tool. Before this occurs it is incumbent to take this tool and apply it out of this context across the business commun ity, not just a hospital. 6.2 Limitations This study has a number of limitations. The test was done only on two medium sized hospitals. In order to see if the m odel holds future research should include information from additional hospitals of vary ing sizes. Additionally this was tested only in the hospital setting. Taking this into a non medical setting part icularly one which heavily relied upon secret type privacy or wh ich had a significant numbers of test cases in intellectual privacy would produce interesting results.
275 The model was not thoroughly tested. On que stion three of the model there were test cases that originated from relational, privilege and secret privacy. However no test cases originated as an intellectual privacy classification. Information which originates as intellectual privacy that is later accessed wi ll need to be procur ed in order to fully test the model. Additionally no testing wa s done showing that Public Privacy is a distinct privacy type. A final limitation comes from how the te st was conducted. During the study the notes were coded by the taker of the notes. In the future the verified notes need be coded and summarized by two coders w ho are blind to the privacy taxonomy. 6.3 Future Research There are many areas that present ripe vi stas for future research. Because this model was applied in a medium sized hospital, we must ask will it hold in hospitals of all sizes. Having accomplished this then effort should be addressed to apply this in other commercial areas where privacy is im portant. Looking at bus inesses that deal with finances, intellectual property or rely upon creativity would be interesting areas to apply this model. The question should be asked: Is this model better than competing models of privacy for explaining and understanding pr ivacy? Does the mode l promote a better understanding of the functional sp ecifications of a privacy driv en project? Does it assist in the construction of a better security desi gn? As a tool is it easier to use than traditional developmental tools? Is the privacy tool an improvement over the ways in which privacy is presently incorporated into systems?
276 What are modelÂ’s relative strengths a nd weaknesses when compared with the competing models when the model is appl ied to development of systems? Here measuring time and cost of development a nd comparing development with and without the tool would be an interest ing test of the model. Anot her area of research would address the question of whether this tool can lower the cost to build a system in terms of time and money. Does the tool enable m odules to be created that can be used on different systems eliminating cost of devel opment? Does the tool enable benchmarking of like existing systems where systems can be more directly compared, lessons learned and understandings incorporated in new systems?
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295 Appendix A Questions For first round administrative interviews Name Position Responsibility and Tasks performed Tell me about the hospital Size Functions performed and who performs Organizational chart Resources Data Management How does data get into the system and eventually to the hands of the person or function that requires it? What are the standards used for this? Where did they come from? What are the competing standards? Why di d you chose the one you did? What should I know about hospital informa tion systems in general/specifically? What is unique to the hospital setting wh en compared to industry in general and other medical providers? How are your regulated? Who regulates you? What must you do to fulfill your regulation requirements? What are the potential penalties? What data must you provide to whom as part of your regulation requirement? Who are your stakeholders? Strengths and weaknesses of each stakeholder? The needs and requirements of each stakeholder? How do you provide for them? Who must you provide information to? Who must you cordon information from? What are your challenges w ith information management?
296 What departments depend upon what information? How do you enforce sepa ration of authority? How do you manage security? Setting goal Implementing SOA issues Stakeholder issues How do you manage your inform ation and information flow? How does this impact security? Who are the people/department that perform what function for you? What other things should I know about this area? If unaware of any questions answer as k: Who knows, how can I reach them? For Second Round Interviews (For Interviews with each job function) Name Position Responsibility and tasks performed Length of time at job Other jobs held in past For each responsibility and task (past and present) What information do you require to do your job function? How do you access this information? What is the source of that information? How you access that source? Nature and character of that information Responsibility you must exercise once you obtain the information If unaware of any questions answer ask Who knows, how can I reach them?
297 For Interviews with IT Personnel Name Position Responsibility and task performed Length of time at job How does your job impact the data management/data access schema? Do you have access to the data access/data classification portion of system? If yes what access What can you perform What are the policies of access? Who sets the policy? Who has access to what type of data in what amount? If unaware of any questions answer ask Who knows, how can I reach them?
298 Appendix B NameCharacteristicsLimitations on Acquistion, Use and Disclosure ControlAccess to Entity and Information about the Entit y RelationshipPersonal Information that forms impressions and relationships Representative relationships include friend to friend Husband and wife employer employee The disclosee should only obtain information reasonable and necessary for the relationship to form and be maintained Regardless of whether the relationship is professional or intimate information personal to the discloser is provided to the disclosee Respect A high level of control is provided over this type of information by the owner of this type of information In general this information is voluntarily released Once obtained the information must be controlled for the benefit of the information p Necessity Access only on a compelling necessity Low access to individual/individual and individual/organization relationships Low access to information contained in those relationshipsConfidentialitySecretInformation of the organization Representative relationships include Employer-Employee Employer-Independent Contractor ConsultantConsultee Secret information is any information maintained by anindividualoran The organization or individual discloses this information to employees contractors or other organizations in order to do business more efficiently or effectively Once given access the disclosee can only use this information to futher the interests of t Selective Lockdown Control the use and dissemination of the information of the individual/organization in order to protect and advance the Individual/Organization's goal's and Interest Selective Access To the appropriate individual/organization provide high access to the information of the individual/organization To the appropriate individual/organization provide and/or hiPrivilegeHighly Important information of another person or organization that in the hands of an appropriately trained professional can greatly assist that person or organization in its goals or problems Sharing this information with appropriately trained individua To acheive this value an incentive is provided to the disclosed to use this information only for the benefit of the discloser and to safeguard further disclosure all information obtained Safeguard Collect all information reasonable and necessary to accomplish the task at hand Control the use and dissemination of the information collected or generated inorder to protect the interest of the information donor Minimum Necessary Acess only to those appropriate trained and then only in amounts reasonably necessary to do their task Low access to individual/organization Low access to information ConfidentialityIntellectualInformation being digested by individuals or the organization This information is input into the organization or the individual Representative relationships Library Patron Information provider information consumer Representative information includ Only those obtaining and using this information are entitled to know the source content of this information and any tests using this information Unavowed Control everything including what data is collected how it is used and who is using the data In controling what data is collected it is not only what data and/or information has been collected but that data and/or information is being colle Safeguard Unless others are threatened or harmed in socially unacceptable ways there is no access to this data Low access to individual/organization Low access to information ConfidentialityTransitoryInformation available in public or public places that can compromise a reasonable person's privacy expectations Traditional values of data collection and use of data found in public spaces need to be respected On all information collected in a public place be certain it does not violate relationship secret privilge or intellectual privacy or affect these types of privacy adversely in absence of a compelling reason High access to individual/organization High access to informationTypes of Privacy
About the Author Gary Poe graduated from the Stetson College of Law in St. Petersburg, Florida, in 1980. He has been a successful trial lawyer fo r 18 years previous to pursuing his doctoral degree in Management Information Systems at the University of South Florida. The author has resided in Florida since 1975 and currently makes his home in Inverness where he has resided on Lake Henderson for the last 15 years with his wife Laura, and his children Sarah, Gary Jr. and Gillian.