Privacy Rights/Legal Codification/US exceptions
Are there any exceptions in American law to this right?
Most recent US legislation regarding the right to privacy concerns the collection, retention, and transfer of personal data. Under the Department of Justice, the Office of Privacy and Civil Liberties (OPCL) enforces privacy laws, recommends privacy policies (including exceptions), and responds to data breaches (Office of Privacy and Civil Liberties, n.d.). Freedom of Information Act 1966 (as amended 2016) In 1966, Congress passed the Freedom of Information Act (FOIA). This act granted anyone the ability to request access to federal agency records but not the records of private companies. However, nine exemptions and three exclusions may prevent access to these records (Freedom of Information Act, n.d.). The exclusions are narrow and related to law enforcement and ongoing intelligence investigations and are unaffected by FOIA (Freedom of Information Act, n.d.). The exemptions authorize government agencies to withhold information from those requesting it (Freedom of Information Act, n.d.). The nine exemptions prevent the sharing of information if it is classified for national security, part of internal rules or practices, prohibited through other laws (such as the Privacy Act, see below), a trade secret, legally protected, a medical file, law enforcement records, regarding bank supervision, or locational information (Freedom of Information Act, n.d.). FOIA was most recently updated with the FOIA Improvement Act of 2016, which increased transparency and altered procedures (OIP Summary of the FOIA Improvement Act of 2016, 2016). Privacy Act 1974 The Privacy Act of 1974 was an effort to balance the “governments’ need to maintain information” and the “rights of individuals to be protected against unwarranted invasions of their privacy” (Walls, n.d.; Privacy Act of 1974, 5 U.S.C. § 552a, n.d.). It prevents agencies from disclosing records to any person or agency unless it falls into one of the twelve approved guidelines (Walls, n.d.; Privacy Act of 1974, 5 U.S.C. § 552a, n.d.). The most used reasons which allow for disclosure are subsections 1, 2, and 3 of 5 US Code § 552a(b) (Overview of the Privacy Act: 2020 Edition, 2021). Subsection One allows for the disclosure of information between agencies on a need-to-know basis. Subsection Two allows the FOIA to overrule the Privacy Act with regards to when to disclose information. Subsection Three allows for disclosure to another party if their use is similar to the use for which the data was originally collected. This third exception is quite broad, which causes controversy (Overview of the Privacy Act: 2020 Edition, 2021). Other exceptions include use for public record (used for the Census or National Archive data), or requests by law enforcement or the court system. In addition to putting forth information disclosure guidelines, this act requires agencies to keep accurate records of how, where, and why they sent information if they had sent information (Privacy Act of 1974, 5 U.S.C. § 552a, n.d.). Gramm-Leach-Bliley Act 1999 The Gramm-Leach-Bliley Act (GLBA) was passed to regulate the transfer of consumers’ “nonpublic personal information” by financial institutions (FDIC, 2021). At its core, the law says financial institutions cannot pass along personal data to third parties unless the customer is put on notice, given the opportunity to opt out, and they do not opt out (FDIC, 2021). Exceptions to this rule appear in Sections 13-15 (FDIC, 2021, VIII-1.3). Section 13 permits the transfer of some personal data to a third party if they are performing services on behalf of the financial institution, but they must be contractually bound to not do anything else with the data (FDIC, 2021, VIII-1.3). Section 14 allows the bank to disclose information as needed to perform banking functions initiated by the customer, while Section 15 extends that disclosure to normal financial institution acts, such as fraud detection (FDIC, 2021, VIII-1.3). Of these exceptions, only Section 13 requires the customer to be notified that their information is being shared (FDIC, 2021). USA PATRIOT Act 2001 & USA Freedom Act 2015 Enacted less than two months after the 9/11 attacks, the PATRIOT Act was passed with the intention of increasing homeland security by allowing surveillance techniques used in local crime to be used to fight terrorism (Highlights of the USA PATRIOT Act, n.d.; USA PATRIOT Act, n.d.). Most importantly, this law allowed for the sharing of information between law enforcement agencies at various levels without notice (Highlights of the USA PATRIOT Act, n.d.). This law wasn’t the most protective of civil rights and liberties and to rectify that President Obama signed the USA Freedom Act in 2015, ending government collection of metadata (Patriot Act, n.d.; Fact sheet, 2015).
REFERENCES: Fact sheet: Implementation of the USA Freedom Act of 2015. (2015, Nov. 27). Central Intelligence Agency. https://www.intelligence.gov/index.php/ic-on-the-record-database/results/787-fact-sheet-implementation-of-the-usa-freedom-act-of-2015
Federal Deposit Insurance Corporation (FDIC). (2021, April). FDIC Consumer Compliance Examination Manual: VIII-1.1 Gramm-Leach-Bliley Act. Author. https://www.fdic.gov/resources/supervision-and-examinations/consumer-compliance-examination-manual/index.html
Freedom of Information Act, 5 U.S.C. § 552. (1966). Freedom of Information Act, The. (n.d.). Department of State. Retrieved Sept. 14, 2021, from https://foia.state.gov/learn/foia.aspx
Highlights of the USA PATRIOT Act. (n.d.) Department of Justice. Retrieved Sept. 14, 2021, from https://www.justice.gov/archive/ll/highlights.htm
Office of Privacy and Civil Liberties. (n.d.). Department of Justice. Retrieved Sept. 14, 2021, from https://www.justice.gov/opcl
OIP Summary of the FOIA Improvement Act of 2016. (2016, Aug. 17). Department of Justice. https://www.justice.gov/oip/oip-summary-foia-improvement-act-2016
Overview of the Privacy Act: 2020 Edition. (2021, Feb. 16). Department of Justice. https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/disclosures-third-parties
Patriot Act. (n.d.) History.com. Retrieved Sept. 14, 2021, from https://www.history.com/topics/21st-century/patriot-act
Privacy Act of 1974. 5 U.S.C. § 552a. (n.d.). Department of Justice. Retrieved Sept. 14, 2021, from https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1279#vf4tzl
Privacy Act, 5 U.S.C. § 552a(b). (1974). USA PATRIOT Act. (n.d.). Department of Justice. Retrieved Sept. 14, 2021, from https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1281
Walls, T. (n.d.). FOIA v. Privacy Act: A comparison chart. IAPP. https://iapp.org/resources/article/foia-v-privacy-act-a-comparison-chart/