is the relationship between collection and dissemination of data
, the public expectation of privacy
, and the legal
issues surrounding them.
Privacy concerns exist wherever personally identifiable information is collected and stored - in digital form or otherwise. Improper or non-existent disclosure control can be the root cause for privacy issues. Data privacy issues can arise in response to information from a wide range of sources, such as:
The challenge in data privacy is to share data while protecting personally identifiable information. The fields of data security and information security design and utilize software, hardware and human resources to address this issue.
Various types of personal information often come under privacy concerns.
For various reasons, individuals may not wish personal information such as their religion, sexual orientation, political affiliations, or personal activities to be revealed. This may be to avoid discrimination
, personal embarrassment, or damage to one's professional reputation.
Information about a person's financial transactions, including the amount of assets, positions held in stocks or funds, outstanding debts, and purchases can be sensitive. If criminals gain access to information such as a person's accounts or credit card numbers, that person could become the victim of fraud
or identity theft
. Information about a person's purchases can reveal a great deal about that person's history, such as places he/she has visited, whom he/she has contacted with, products he/she has used, his/her activities and habits, or medications he/she has used. In some cases corporations might wish to use this information to target individuals with marketing
customized towards those individual's personal preferences, something which that person may or may not approve of.
The ability to control what information one reveals about oneself over the Internet, and who can access that information, has become growing concerns. These concerns include whether email can be stored or read by third parties without consent, or whether third parties can track the web sites someone has visited. Another concern is whether web sites which are visited collect, store, and possibly share personally identifiable information about users.
The advent of various search engines and the use of data mining created a capability for data about individuals to be collected and combined from a wide variety of sources very easily.
A person may not wish for their medical records to be revealed to others. This may be because they have concern that it might affect their insurance coverages or employment. Or it may be because they would not wish for others to know about medical or psychological conditions or treatments which would be embarrassing. Revealing medical data could also reveal other details about one's personal life (such as about one's sexual activity for example).
Physicians and psychiatrists in many cultures and countries have standards for doctor-patient relationships which include maintaining confidentiality. In some cases the physician-patient privilege is legally protected. These practices are in place to protect the dignity of patients, and to ensure that patients will feel free to reveal complete and accurate information required for them to receive the correct treatment.
has been a concern since voting systems
emerged in ancient times. The secret ballot
is the simplest and most widespread measure to ensure that political views are not known to anyone other than the voter themself--it is nearly universal in modern democracy
, and considered to be a basic right of citizenship
. In fact even where other rights of privacy
do not exist, this type of privacy very often does.
The legal protection of the right to privacy
in general - and of data privacy in particular - varies greatly around the world.
, the Personal Information Protection and Electronic Documents Act
(PIPEDA) went into effect on 1 January
, applicable to federally regulated organizations. All other organizations were included on 1 January
. The PIPEDA brings Canada into compliance with the requirements of the European Commission's directive
on data privacy.
PIPEDA specifies the rules to govern collection, use or disclosure of the personal information in the course of recognizing the right of privacy of individuals with respect to their personal information. It also specifies the rules for the organizations to collect, use, and disclose personal information.
The PIPEDA apply to:
- The organizations collects, uses or disclosure in the matter of commercial use.
- The organizations and the employee of the organization collect, use, or discloses in the course of operation of a federal work, undertaking or business.
The PIPEDA Does NOT apply to
- Government institutions to which the Privacy Act applies.
- Individuals who collect, use, or disclose personal information for personal purpose and use.
- Organizations which collect, use, or disclose personal information only for the purpose of journalist, art or literary.
As specified in PIPEDA:
"Personal Information" means nformation about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.
"Organization"means an association, a partnership, a person and a trade union.
"federal work, undertaking or business" means any work, undertaking or business that is within the legislative authority of Parliament. Including
- a work, undertaking or business that is operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada;
- a railway, canal, telegraph or other work or undertaking that connects a province with another province, or that extends beyond the limits of a province;
- a line of ships that connects a province with another province, or that extends beyond the limits of a province;
- a ferry between a province and another province or between a province and a country other than Canada;
- aerodromes, aircraft or a line of air transportation;
- a radio broadcasting station;
- a bank;
- a work that, although wholly situated within a province, is before or after its execution declared by Parliament to be for the general advantage of Canada or for the advantage of two or more provinces;
- a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces; and
- a work, undertaking or business to which federal laws, within the meaning of section 2 of the Oceans Act, apply under section 20 of that Act and any regulations made under paragraph 26(1)(k) of that Act.
The PIPEDA gives individuals the right to:
- understand the reasons why organizations collect, use, or disclose personal information.
- expect organizations to collect, use or disclose personal information in a reasonable and appropriate way.
- understand who in the organizations pays the responsibility for protecting individuals' personal information.
- expect organizations to protect the personal information in a reasonable and security way.
- expect the personal information held by the organizations to be accurate, complete, and up-to-date.
- have the access to their personal information and ask for any corrections or have the right to make complain towards the organizations.
The PIPEDA requires organizations to:
- obtain consent before they collect, use, and disclose any personal information.
- collect personal information in a reasonable, appropriate, and lawful ways.
- establish personal information policies that are clear, reasonable,and ready to protect individuals' person information.
The right to data privacy is heavily regulated and rigidly enforced in Europe. Article 8 of the European Convention on Human Rights
(ECHR) provides a right to respect for one's "private and family life, his home and his correspondence"
, subject to certain restrictions. The European Court of Human Rights
has given this article a very broad interpretation in its jurisprudence
. According to the Court's case law the collection of information by officials of the state about an individual without his consent always falls within the scope of Article 8. Thus, gathering information for the official census
, recording fingerprints
in a police register, collecting medical data
or details of personal expenditures and implementing a system of personal identification has been judged to raise data privacy issues.
Any state interference with a person's privacy is only acceptable for the Court if three conditions are fulfilled:
- The interference is in accordance with the law
- The interference pursues a legitimate goal
- The interference is necessary in a democratic society
The government is not the only entity which may pose a threat to data privacy. Other citizens, and private companies most importantly, engage in far more threatening activities, especially since the automated processing of data became widespread. The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data was concluded within the Council of Europe in 1981. This convention obliges the signatories to enact legislation concerning the automatic processing of personal data, which many duly did.
As all the member states of the European Union are also signatories of the European Convention on Human Rights and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, the European Commission was concerned that diverging data protection legislation would emerge and impede the free flow of data within the EU zone. Therefore the European Commission decided to harmonize data protection regulation and proposed the Directive on the protection of personal data, which member states had to transpose into law by the end of 1998.
The directive contains a number of key principles which must be complied with. Anyone processing personal data must comply with the eight enforceable principles of good practice. They state that the data must:
- Fairly and lawfully processed.
- Processed for limited purposes.
- Adequate, relevant and not excessive.
- Not kept longer than necessary.
- Processed in accordance with the data subject's rights.
- Not transferred to countries without adequate protection.
Personal data covers both facts and opinions about the individual. It also includes information regarding the intentions of the data controller towards the individual, although in some limited circumstances exemptions will apply. With processing, the definition is far wider than before. For example, it incorporates the concepts of 'obtaining', 'holding' and 'disclosing'.
All EU member states adopted legislation pursuant this directive or adapted their existing laws. Each country also has its own supervisory authority to monitor the level of protection.
adapted its existing law, no. 78-17 of 6 January 1978 concerning information technology, files and civil liberties"
. More information
is available on the website of the CNIL
(in French only).
both the federal government and the states enacted legislation.
In the United Kingdom
the Data Protection Act 1984
was repealed by the Data Protection Act 1998
). Due changes in the law, employers must inform staff in advance if they plan to monitor their emails, phone calls and Internet use. Home Office has published a consultation paper detailing who it thinks should have access to private data and for how long, this proposal goes above and beyound what current MI5 and MI6, the government listening post GCHQ, the Inland Revenue and Customs and Excise - already had access to. The new proposals extend the number of agencies that can access this communications data to include other agencies with crime-fighting roles. Simon Davies, director of Privacy International, called the plans "a systematic attack on the right to privacy.
is not a member of the European Union
(EU) or of the European Economic Area
. Therefore the EU Directive on the protection of personal data
is not applicable in Switzerland.
In Switzerland, the right to privacy is guaranteed in article 13 of the Swiss Federal Constitution. The Swiss Federal Data Protection Act (DPA) and the Swiss Federal Data Protection Ordinance (DPO) entered into force on July 1, 1993. The latest amendments of the DPA and the DPO entered into force on January 1, 2008.
The DPA applies to the processing of personal data by private persons and federal government agencies. Unlike the data protection legislation of many other countries, the DPA protects both personal data pertaining to natural persons and legal entities
The Swiss Federal Data Protection and Information Commissioner in particular supervises compliance of the federal government agencies with the DPA, provides advice to private persons on data protection, conducts investigations and makes recommendations concerning data protection practices.
Some data files must be registered with the Swiss Federal Data Protection and Information Commissioner before they are created. In the case of a transfer of personal data outside of Switzerland, special requirements need to be met and, depending on the circumstances, the Swiss Federal Data Protection and Information Commissioner must be informed before the transfer is made
Most Swiss cantons have enacted their own data protection laws regulating the processing of personal data by cantonal and municipal bodies.
Data privacy is not highly legislated or regulated in the U.S.
. In the United States, access to private data contained in for example third-party credit reports may be sought when seeking employment or medical care, or making automobile, housing, or other purchases on credit terms. Although partial regulations exist, there is no all-encompassing law regulating the acquisition, storage, or use of personal data in the U.S. In general terms, in the U.S., whoever can be troubled to key in the data, is deemed to own the right to store and use it, even if the data were collected without permission. For instance the Children's Online Privacy Protection Act
, the Health Insurance Portability and Accountability Act (HIPAA
), and the Fair and Accurate Credit Transactions Act (FACTA
), are all examples of U.S. legislative acts with provisions which tend to favor information flow efficiencies and operational profits over the rights of individuals to control their own personal data. The desire to facilitate business transactions in the U.S. may be a reason for the reluctance to see the government protect personal information. Another issue may be that in the U.S. the first amendment protects free speech and in some cases privacy is seen to conflict with this constitutional protection. In many countries privacy has been used as a tool to suppress free speech.
The safe harbor arrangement was developed by the US Department of Commerce in order to provide a means for US companies to demonstrate compliance with European Commission directives and thus to simplify relations between them and European businesses.
Safe Harbor Program and Passenger Name Record issues
The US Department of Commerce
created the Safe Harbor
certification program in response to the 1995 Directive on Data Protection
(Directive 95/46/EC) of the European Commission. Directive 95/46/EC declares in Chapter IV Article 25 that personal data may only be transferred from the countries in the European Economic Area
to countries which provide adequate
privacy protection. Historically, establishing adequacy required the creation of national laws broadly equivalent to those implemented by Directive 95/46/EU. Although there are exceptions to this blanket prohibition - for example where the disclosure to a country outside the EEA is made with the consent of the relevant individual (Article 26(1)(a)) - they are limited in practical scope. As a result, Article 25 created a legal risk to organisations which transfer personal data from Europe to the USA.
The program has an important issue on the exchange of Passenger Name Record information between the EU and the US. According to the EU directive, personal data may only be transferred to third countries if that country provides an adequate level of protection. Some exceptions to this rule are provided, for instance when the controller himself can guarantee that the recipient will comply with the data protection rules.
The European Commission has set up the "Working party on the Protection of Individuals with regard to the Processing of Personal Data," commonly known as the "Article 29 Working Party". The Working Party gives advice about the level of protection in the European Union and third countries.
The Working Party negotiated with U.S. representatives about the protection of personal data, the Safe Harbor Principles were the result. Notwithstanding that approval, the self assessment approach of the Safe Harbor remains controversial with a number of European privacy regulators and commentators.
The Safe Harbor program addresses this issue in a unique way: rather than a blanket law imposed on all organisations in the US, a voluntary program is enforced by the FTC. US organisations which register with this program, having self-assessed their compliance with a number of standards, are "deemed adequate" for the purposes of Article 25. Personal information can be sent to such organisations from the EEA without the sender being in breach of Article 25 or its EU national equivalents. The Safe Harbor was approved as providing adequate protection for personal data, for the purposes of Article 25(6), by the European Commission on 26 July 2000.
The Safe Harbor is not a perfect solution to the challenges posed by Article 25. In particular, adoptee organisations need to carefully consider their compliance with the onward transfer obligations, where personal data originating in the EU is transferred to the US Safe Harbor, and then onward to a third country). The alternative compliance approach of "Binding Corporate Rules" , recommended by many EU privacy regulators, resolves this issue. In addition, any dispute arising in relation to the transfer of HR data to the US Safe Harbor must be heard by a panel of EU privacy regulators.
In July 2007, a new, controversial , Passenger Name Record agreement between the US and the EU was undersigned. A short time afterwards, the Bush administration gave exemption for the Department of Homeland Security, for the Arrival and Departure System (ADIS) and for the Automated Target System from the 1974 Privacy Act .
In February 2008, Jonathan Faull, the head of the EU's Commission of Home Affairs, complaigned about the US bilateral policy concerning PNR . The US had signed in February 2008 a memorandum of understanding (MOU) with the Czech Republic in exchange of a VISA waiver scheme, without concerting before with Brussels . The tensions between Washington and Brussels are mainly caused by a lesser level of data protection in the US, especially since foreigners do not benefit from the US Privacy Act of 1974. Other countries approached for bilateral MOU included the United Kingdom, Estonia, Germany and Greece .
Protecting privacy in information systems
As heterogeneous information systems with differing privacy rules are interconnected and information is shared, policy appliances
IT systems: communication and enforcement.Policy Communication
- P3P - The Platform for Privacy Preferences. P3P is a standard for communicating privacy practices and comparing them to the preferences of individuals.Policy Enforcement
- XACML - The Extensible Access Control Markup Language together with its Privacy Profile is a standard for expressing privacy policies in a machine-readable language which a software system can use to enforce the policy in enterprise IT systems.
- EPAL - The Enterprise Privacy Authorization Language is very similar to XACML, but is not yet a standard.
Scholars working in the field
- Council of Europe data protection page
- EU data protection page - The European Commission provides elaborate information on the following subjects:
- Legislative documents
- Transposition and implementation of Directive 95/46/EC
- European Data Protection Supervisor
- National Data Protection Commissioners
- Art. 29 Data protection Working Party
- Adequacy of protection in third countries and model contracts for the transfer of personal data to third countries
- International links