By Jon L. Mills. Oxford University Press: New York, New York, 2008. 408pp. $65.00/£28.99. Cloth. ISBN: 9780195367355.
Reviewed by Gloria C. Cox, Department of Political Science, University of North Texas. Email: Gloria.Cox [at] unt.edu.
In February, 2001, Dale Earnhardt, a well-known and highly successful NASCAR driver, was killed on the final lap of the Daytona 500. Although several years have passed, video clips of the deadly crash are still widely available on the Internet. Because Earnhardt’s death was accidental, Florida law required an autopsy, which resulted in photographs being taken of the body. When news organizations requested copies of the autopsy photos, Earnhardt family members began a legal fight to keep them out of public view. Although an agreement was reached to limit their disclosure, the battle was a tough one for several reasons, including the fact that the death of a famous person is newsworthy. Moreover, the person of whom the photographs were taken was deceased, and a deceased person has no right of privacy under US law. Add to that the fact that Florida’s strong freedom of information law requires disclosure of most public records, and the autopsy photographs qualified as public documents.
Representing the Earnhardt family in efforts to limit disclosure of the photographs was attorney and legal scholar, Jon L. Mills, Dean Emeritus and Director of the Center for Governmental Responsibility at the Levin College of Law at the University of Florida. As author of PRIVACY: THE LOST RIGHT, Mills provides a well-organized, scholarly work that gives a fine overview of information privacy, as well as an examination of legal theories, laws, and court decisions. Mills balances his highly detailed analysis of the shortcomings of the legal system with a chapter on “The Worst-Case Scenarios” in which he summarizes eleven cases about information privacy. These cases are all the more interesting because in some of them, as with the Earnhardt matter, Mills represented family members asserting privacy rights over various kinds of information. The result is a book that draws on the author’s expertise in both theory and practice.
Mills relates the story of a case involving a ship’s captain who was depicted in a negative and false light in a movie that was based on an actual tragic incident at sea (The Perfect Storm). Family members, upset at the distortion of their deceased relative’s reputation, turned to Mills for a legal remedy. It was another difficult case, as movies enjoy First Amendment protection, making it difficult to win in a standoff, even if the movie contains distortions. In this case, the movie’s director defended his actions with, “Is it correct in every single detail? Of course not, because we had to – made [sic] up a lot of things” (p.251, ftn 1329). Other cases detailed by Mills are similarly interesting – and disturbing – as when readers learn that the family of a deceased child could not recover damages even though a copy of the autopsy video of the child was taken [*296] home by police officers and played for entertainment at a private party (pp.252-53).
The history of information privacy is commonly traced to an article entitled “The Right to Privacy” published in 1890 by Samuel Warren and Louis D. Brandeis. Their discussion of the privacy right is said to have resulted from irritation over newspaper coverage of Warren family parties. Years earlier, Thomas Cooley had already written about privacy in a discussion of torts, using the phrase, “the right to be let alone.” It would, however, take a century for information privacy issues to take on the urgency they have now. Well into the 1980s, concerns about information privacy were primarily about how much and what kinds of information the institutions of government were collecting, and, once in government hands, what had to be released upon request and what had to be withheld as private. These discussions were largely couched in terms of The Freedom of Information and Privacy Acts.
Mills describes how the recent rush of technology has brought the profit motive to bear on information privacy in a major way, causing the formation of numerous businesses that deal in the collection and distribution of information, much of it individually identifiable data. One need only think about the number of recent news stories concerning credit scores and reports to realize the power of three credit reporting firms that collect information on how people pay their bills. In thousands of ways, information has become a profit machine as businesses meet the demand for information on individuals. Add to that the fact that everyone seems to have a camera in hand now, and pictures of all types find their way to the Internet and print media. Mills discusses a number of incidents involving celebrities, including a story about how actress Reece Witherspoon was surrounded and trapped in her own vehicle by photographers, and Arnold Schwarzenegger had a wreck as photographers pushed in against his car in what he said he thought was a kidnapping attempt. Occasionally, someone will take a person or business to court for violation of their information privacy, only to hear from the courts that people have no privacy interest whatsoever in their bank records, telephone numbers, Internet Addresses, or other information.
A key idea Mills offers is that much of the information out there about each of us is the result of our own doing. He reminds us that we voluntarily give up information to get things, such as a mortgage, a job, a bank account, medical care, a credit card, and even just to save money at the grocery store. It must be acknowledged that at the same time some people are protesting having to give up so much personal information to engage in the ordinary pursuits of life, there are many others who willingly reveal a great deal about themselves. In this regard, Mills comments on the work of Jeffrey Rosen, who has written about the “growing culture of self-revelation” (p.34).
Of course, people give up information in small increments that may seem to be of little consequence. Believing that these small encroachments amount to nothing is a mistake, according to Mills. He notes that data mining is common, not [*297] just by private companies but by governments. And although we disclose information in small quantities, a piece at a time, what goes on is the aggregation effect, by which amazingly-revealing dossiers can be created on individuals out of tidbits (pp.56-57). Many are shocked to learn that anything disclosed voluntarily is no longer invested with any right of privacy.
While there is evidence that people have valued privacy for hundreds of years, expectations of privacy and threats to it have changed with time. Mills argues throughout the book that privacy serves important needs for both the individual and society. In his words, “Privacy promotes individuality, intimacy, and liberty” (p.26). He argues that we lose something important when privacy goes away and that its loss “also impairs creativity in art, science, and living” (p.27). At the same time, however, Mills says that “Today’s culture has evolved to a point where individuality and privacy are challenged by virtually all aspects of contemporary society” (p.25).
The author provides important information about why existing legal tools are simply inadequate for privacy protection. He points to the gaps in the law resulting from fragmentation, as well as the problem of balancing privacy protection with First Amendment free speech and press guarantees. He makes it clear that privacy protection in the United States lacks the unified nature it has in the European Union. While there is a strong predisposition toward release of information or making everything public in the United States, laws in the European Union protect personal privacy as an aspect of dignity. The result is an overarching framework that protects privacy in a way that our fragmented system never can.
Mills notes that complacency has turned to concern among many, and that there is increasing interest in trying to protect whatever information about us remains private. A major fear is identity theft, which has become increasingly common. As people hear about more and more such incidents, apprehension has increased, to the point that our fear of identity theft is greater than our fear of getting cancer or being involved in a terrorist attack (p.241). There are also concerns about the possible consequences of medical information being disclosed, especially with the increasing use of genetic tests that may reveal a predisposition toward certain diseases. Yet there are numerous obstacles to effecting reform, including our anxiety about terrorism and national security, our commitment to the First Amendment’s guarantees, the fact that buying, selling, and distributing information is big business, and laws demanding that the public’s business be done in the open (p.241).
Even with all these obstacles, there are steps that, when taken, would serve to strengthen our ability to control information about ourselves. Mills discusses several ideas beginning with creating a right of information privacy like that of the European Union (p.273). Other recommendations include more laws to protect specific areas, such as genetic information and consumer information. He also recommends establishing a federal agency “with power to set standards for privacy protection, investigate abuses of individual privacy, and enforce privacy policies” (p.279). Overall, the author [*298] subscribes to a comprehensive approach that would allow the fashioning of a new view of information privacy while also plugging holes in current legal theory and practice.
Information privacy has many dimensions and is certainly not an easy subject to discuss. Mills has done a fine job of organizing its many points of contention while still providing important underlying principles for understanding the issues. This is a book for the serious reader with considerable interest in the topic. Beyond the 307 pages of text, Mills provides a section about his own career, including a brief overview of some of the notable information privacy cases he has litigated. In addition, he includes appendices examining privacy provisions in federal statutes, an overview of privacy provisions in state constitutions, and examples of privacy provisions in consumer protection policies.
The expertise of the author shines through in this book, inspiring the reader’s confidence that Mills knows both the legal and practical aspects of privacy. He deals deftly with the details and nuances of the subject, causing one to suggest that this book is just right for the person looking for a solid introduction to the subject of information privacy.
Warren, Samuel D., and Louis D. Brandeis. 1890. “The Right To Privacy.” 4 HARVARD LAW REVIEW 193-220.
© Copyright 2009 by the author, Gloria C. Cox.