Constitutional Rights on the Internet are present the same
issues as constitutional rights in the bricks and mortar world and include the
right to privacy, freedom of speech, etc. Unlike the bricks and mortar
world, however, technology - especially technology on the web with its
inherent anonymity - presents problems not found in the bricks and mortar world
The Constitutional Right to Privacy includes four basic categories that
are particularly relevant on the internet
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Publication of true but embarrassing facts
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Publication of false information (liable and
defamation)
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Search and seizure (applies only to government)
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Intrusion into seclusion or privacy
The area of concern on the internet is related to
item number four above in terms of e-privacy issues. Some of those
issues are discussed below:
Computers have presented problems for court decisions on
privacy because it doesn’t necessarily require physical intrusion.
However, the court has dealt with similar issues well before computers and found
that there is a right to e-privacy. For example, in the
landmark case on electronic wiretapping in Berger v
New York, the Supreme Court held that electronic eavesdropping by government
agencies was permissible but onlywhen properly authorized.
Similarly, in Katz v US, the court ruled that a physical intrusion doesn’t
have to occur to gain constitutional protection. Thus, electronic devices that
don’t physically penetrate in order to eavesdrop do qualify for Constitutional
protection
Another issue related to privacy on the internet is information
that is ‘given away’ by compute. For example, cookies contain
information about the user in order to make internet surfing faster and more
convenient. Yet, at the same time, it does contain user information which
can (and already is) being used by internet marketing firms. Similarly, internet
‘history’ keeps a ‘list’ of which websites that the user has visited.
Email history also contains information on previous emails sent and
received. Files that the user has 'deleted' from their computer aren't
really deleted but, instead, only marked for deletion unless you use software
that ‘washes’ this information or another, newer file replaces it in the
File Allocation Table (FAT)
Spyware is a recent development in internet
marketing. Spyware is software that exploits infected computers for
financial gain. When you visit some internet sites, spyware is
'attached' without the user knowing this. Information that is collected
can include the user's keystrokes, their internet browsing activities and scans
of the computer's hard drive.
Typical spyware approaches include:
-
Delivery of unsolicited pop-up advertisements;
-
Theft of personal information (including financial
information such as credit card numbers)
-
Monitoring of Web-browsing activity for targeted
marketing
Spyware is often used by internet market researchers to
obtain informatiaon about their current and potential customers to facilitate
product development and advertisement campaigns. This type of information
is critical to retail organizations and bricks and mortar retailers also conduct
market research studies about their customers. The difference is that
bricks and mortar customers only participate voluntarily and knowingly whereas
e-customers may not even know that they are sending their customer information
to sellers.
In addition to 'spying' on the unsuspecting internet user,
spyware decrease internet speed and often subjects the user's internet
activities to frequent disruptions via annoying pop-ups.
Another area in which privacy is of concern is employee 'Cyber-Slacking
' and employers' use of employers’ Spyware. Employees of many companies
have internet browser access of their company provided computers in order that
they can conduct legitimate company business. However, the internet is a
compelling seductress and employees, during business hours and with the company
computer, are often found surfing the net, bidding on e-auctions, downloading
music and pictures, playing on-line video games, betting at internet
gambling sites and other internet activities that take time and energy away from
the employees' legitimate duties. Why would employers spy? In
fact, studies show that almost 1/3-1/2 of all office emails may be unrelated to
work. Similarly, approximately 1/3 of all ‘surfing’ time at the
office is ‘recreational’ and unrelated to corporate work. In order to
keep employees more focused on their work and less on their recreational use of
the internet, 2/3 of all American companies are using some type of software to
monitor employees cyber-travel. For example, Xvault is software that
allows managers to sort email by keywords that may indicate corporate espionage
or job search. SurfControl cans company network traffic and produces list
of top ten suspected ‘recreational surfers’. These are but a few
examples of this type of software.
Is this a violation of constitutional right to privacy?
No! In term of unconstitutional violations of search and seizure,
this right applies only to governments not private individuals. Thus, private
individuals and companies may 'spy' all they want without violating this search
and seizure right. Private individuals, however, could be sued under the
intrusion into privacy however, this covers only private behavior and not work
related behavior. Finally, unauthorized use of company resources (phone,
computer, etc) has been equated with stealing and employers have right to
monitor. Thus, it is more likely that the employee would be sued than the
employer.
Another area of convern is with Radio Frequency ID’s (RFID’s).
RFID's are tiny microchips to transmit information at a distance. The data
they contain can be read silently and invisibly by radio waves without an
individual's knowledge or consent hence, the nickname, "spychips".
While not part of internet use, per se, some laws are treating these
'spychips' as computers and thus, a brief discussion of the RFID's
deserves discussion here.
Examples of how the RFID technology is being used:
Have ‘readers’ at various product stands
‘Stops’ at product stands compared to purchases at
‘check out’
Gains hopping preferences and other marketing info…and
a pleathoraof other information
Consumer watchdog demanded recall due to security
problems
Vulnerable to unauthorized charges and puts consumers at
risk for identity theft
Subcutaneous tracking device
VeriChip is one type
Could be used as a way to identify immigrants and guest
workers
Soon to be tested by Homeland Security. For more
information, see http://images.google.com/imgres?imgurl=http://www.gadgetell.com/images/2006/12/e-passport.JPG&imgrefurl=http://www.gadgetell.com/wp-print.php%3Fp%3D5642&h=294&w=250&sz=11&hl=en&start=3&um=1&tbnid=c2tTzrrxAU6YGM:&tbnh=115&tbnw=98&prev=/images%3Fq%3Drfid%2Bpassport%26svnum%3D10%26um%3D1%26hl%3Den%26rls%3DGGIT,GGIT:2007-02,GGIT:en
S
Collects travel information
Technology advances that impact privacy –RFID’s
RFID’s are new technology so laws not well developed yet.
The fist, and so far only, law addressing RFID's is Wisconsin's Assembly Bill
290 prohibits HUMAN RFID implanatation. In terms of law making, one issue
to address is whether to consider the RFID chips as "Computers"
and consider unauthorized ‘reading’ to be "unauthorised access"
But, new technology or not, what do you think that the framers of the
Constitution would think of this technology in passports, implanted
subcutaneously in 'guests' of the U.S., etc?
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