CASE SPECIFIC 61

DATA PRIVACY

WE SHOULD DIFFERENTIATE DATA USERS BASED ON THEIR UTILITY TO THE COMMUNITY

Helena Gail Rubinstein, Director of Policy Analysis and Program Development, Group Insurance Commission of the Commonwealth of Massachusetts; "If I Am Only for Myself, What Am I? A Communitarian Look at the Privacy Stalemate," American Journal of Law & Medicine, 1999, 25 Am. J. L. and Med. 203, EE2001-JGM, p.228-9

n200 Phyllis Freeman and Anthony Robbins have suggested that one way to move beyond the privacy stalemate is to differentiate among data users based on their utility to the community. n201 This approach has broad appeal. n202 Many would likely agree that  [*229]  while one analysis should apply to a researcher attempting to demonstrate that a particular health payment system encourages higher utilization of health benefits, a different analysis should apply to marketers trying to influence consumer buying habits. Further, different incentives and prohibitions exist in different industries. One health economist, whose work relies on research, informed a state legislative committee that any researcher who behaved inappropriately with respect to data "would be permanently branded in the research/health policy community, and banished." n203 When the sole incentive is financial gain, as in the case of organizations that warehouse data and indiscriminately sell it to all comers, n204 incentives may drive behavior in a different direction. Therefore, it is important to draw distinctions among users in crafting rules regulating the use of personal health data.

ENCRYPTION

ETZIONI'S ANALYSIS SHOWS THAT PUBLIC KEY ENCRYPTION SHOULD BE PROMOTED

RANDOLPH COURT; technology policy analyst, Progressive Policy Institute, The New Democrat, February, 1999 / March, 1999; Pg. 30 TITLE: PUBLIC INTEREST IN PRIVATE MATTERS; The Search for Balance Between Privacy and the Common Good in the Cyber Age // acs-VT2001

One example is in his analysis of the fight between law enforcement officials and civil libertarians over encryption. Etzioni focuses intently on the debate over the "public key" cryptography systems favored by the Clinton administration and law enforcement officials. Etzioni rightly concludes that law enforcement officials have a legitimate need to be able to decipher coded communications in order to nab criminals and terrorists. And he uses an appropriate analogy to counter civil libertarian claims that giving the feds access to public keys is like inviting Big Brother into our lives: He points out that it's really no different than current wiretapping powers -- the technologies aren't the same, but both require court approval.

SEARCH AND SEIZURE

COMMUNITARIANS BALANCE RIGHTS WITH PROTECTING SOCIETY IN TERMS OF THE FOURTH AMENDMENT

INSTITUTE FOR COMMUNITARIAN POLICY STUDIES, 2000; The Communitarian Platform,

The American moral and legal tradition has always acknowledged the need to balance individual rights with the need to protect the safety and health of the public. The Fourth Amendment, for example, guards against unreasonable searches but allows for reasonable ones. . . .

We differ with the ACLU and other radical libertarians who oppose sobriety checkpoints, screening gates at airports, drug and alcohol testing for people who directly affect public safety (pilots, train engineers, etc.). Given the minimal intrusion involved (an average sobriety checkpoint lasts ninety seconds), the importance of the interests at stake (we have lost more lives, many due to drunken drivers, on the road each year than in the war in Vietnam), and the fact that such measures in the past have not led us down a slippery slope, these and similar reasonable measures should receive full public support.