Today’s question: If the government collects information about you, and makes it public to some people, does that mean it has to make the same data available to everyone?
If the question looks familiar it’s because it was the subject of a post I made last week about mugshots and arrest data that a mugshot website wanted to place on the web (so it could then charge people to take the information down). That answer, according to New York trial judge interpreting a local statute, was no due to the privacy interests of the arrestees.
The post gave rise to a spirited debate in the comments on the issue of whether a government could selectively decide who to disclose this semi-pubic data to. In other words, is there such a thing as semi-public data?
And now, just days later, the United States Supreme Court has weighed in with a similar issue. This time it deals with data about the citizenry from departments of motor vehicles. That data is available to attorneys, but not the general public, under a litigation exception in the law..
In Maracich v. Spears, enterprising lawyers figured they could mine the DMV data of South Carolina to find potential clients for a class action against certain car dealers claiming the dealers violated state consumer potection laws.
But not so fast, sayeth our highest court. Just because some people can get the data (lawyers involved in litigation) doesn’t mean anyone can get it simply because they want to solicit others for a lawsuit. Those folks were not involved in litigation, they were trying instead to drum up business to start litigation. In other words, the Supreme Court says that the idea of semi-public information is not a problem.
These were, of course, different statutes being interpreted; the first being New York’s Freedom of Information Law and the second a federal motor vehicle law designed to protect drivers from exposure of private information. But both dealt with issues of privacy for individuals regarding data that the government had, and in both cases that data was being protected from public dissemination the statutes that the courts enforced.
The various governments we elect and live under have tons of data on us, of course, and the issue of what to disclose and who can access it is an ongoing issue. Who really wants to government, after all, to release all of our social security numbers, tax returns and Medicare records? And yet, sometimes that data can come out, either in individual or aggregated forms to those doing studies.
But just because the government has data that might be public doesn’t mean the public gets it. The privacy rights of the public sit there on the other side of the scale.
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In a sense all this talk of public versus private versus private/public versus public/private data becomes mooter by the day. (Mooter?)
The only data that is and typically remains totally private any more is that which has not ever been rendered into electronic form. Any type of data store that is connected to the internet is subject either to innocent revelation (as in “I forgot to PW that folder”) or to deliberate hacking by folks much smarter than the defenders of the data store.
So the particular data store is not internet connected? Well, for those we have individuals called “leakers” these days who take “thumb drives” and trade them, brimming with data, for money, or for publicity.
And to think, Daniel Ellsberg had to stand over a hot copier for hours in order to leak!
It isn’t just ambulance chasers who go after such data, it’s also the pizza parlor down the street that has discovered the putative value of spam email or junk phone calling.
Two years ago we went from land line telephone to VoIP telephone at home. Within months we became the target of multiple daily telemarket and scam calls — so much so that I had to buy a call blocking device to filter them out. Even now, my call blocker, which holds 80 blocked numbers, must be recycled about every six weeks to deal with the new numbers that attack on an almost daily basis.
Don’t even get me started on spam email.
And this all stems from data which, at least in some sense, should be considered private. How do insurance companies know when I reach certain age milestones? They process the DMV data from the state. How do health insurers know my Medicare status? The government supplies everything they need — with a smile.
So, your “private” data is not only subject to public view, but also to public sale as well.
Note that our home number is on the so-called “Do Not Call” list and has been since the beginning. So every one of those annoying phone calls is in some sense illegal. That does not stop the calls. Legality is irrelevant.
And so, great and gallant judiciary, amuse yourselves by fighting that evil data protection windmill. Unless something takes down that mug shot business as a form of extortion, or the ambulance chasing as an ethical violation, the relevant data, IMHO, won’t stop flowing, SCOTUS or not.
There has been a like exception in California for many years. But it is linked to a showing of need (i.e., a need to identify a vehicle owner’s name for naming as a defendant). Enforcement of the privacy of DMV records got serious 20 years ago when some famous actress was stalked and killed after someone obtained her DMV info and tracked her down. For some reason I’ve never figured out, we have to pay for a bond every year (for the right to obtain this info as attorneys) that must, in some manner, indemnify the DMV for a breach of privacy suit in case we misuse the data. It’s just one of those annoying $200 per year that you pay out that you have no idea why you have to. Anyway, my point would be that it’s a LITIGATION exception, not a marketing exception. It is not only a group of people that is legislatively carved out to use the data; it is also a set of acceptable uses by those people.
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