Reading Privacy

Read the article in the Cayman Financial Review Magazine 

The top two authors on privacy issues, one focused on financial issues and one not, are Prof Rose-Marie Antoine of the University of the West Indies and Prof Daniel Solove of George Washington University.

Prof Antoine’s Confidentiality in Offshore Financial Law (Oxford 2002) is a bit dated (and CFR hopes she is working on a revised edition and that Oxford sells at a more reasonable price than the $356 for which this book lists). The book provides a thorough discussion of the development of financial privacy around the world.

For a more, but not exclusively, US-centric approach (and what country could claim to be a bigger threat to privacy?) Prof. Solove’s many works explore the issues comprehensively. As the author of leading privacy casebooks and textbooks, Prof. Solove is conversant with the US legal developments. Don’t let that put you off – he writes well too!

Most recent is Nothing to Hide: The False Tradeoff between Privacy and Security (Yale 2011). This is an excellent guide to the privacy issues raised by national security concerns. Solove’s Understanding Privacy (Harvard 2010) begins by labelling privacy a “concept in disarray” and then shows why that’s dangerous. By the end, Solove has offered a way to rescue privacy – “a way out of the thicket” as he terms it – which, unfortunately, ends up as a “framework for identifying and understanding privacy problems” so that “courts and policymakers can better balance privacy considerations against countervailing interests”.

Better than the current mishmash, but CFR wishes he’d come down a bit more heavily on the side of privacy and less on balancing.

For some reason, European governments in particular seem to “balance” things more in one direction than the other. The French government guarded Mitterand’s mistress’s identity as if it were nuclear secrets but seems ready to sacrifice financial privacy in hopes of a few more euros in tax revenues.

In The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale 2008) and The Digital Person: Technology and Privacy in the Information Age (NYU 2006), Solove tackles the impact of technology. The prognosis is not good – as he says in Reputation, it may be that “the free flow of information in the Internet can make us less free”. Although some of the discussion is inevitably dated by subsequent developments, these works still are worth examining because Solove is both clear sighted about the issues and a clear writer.

Law professor Lori Andrews, a bioethics expert, examines social media’s impact on privacy in I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy (Free Press 2012). She opens with an account of David Cameron’s meeting with Facebook’s Mark Zuckerberg that led to Zuckerberg being invited to the May 2011 G8 Summit to mingle with the G8 leaders.

She’s not an optimist about how things are working out, and suggests a “Social Network Constitution” to protect privacy. CFR wishes governments would pay a bit more attention to the constitutions they’ve already got – indeed, if the UK would just closer attention to the Tournier v. National Provincial and Union Bank of England [1924] 1 KB 461 case that is the cornerstone of common law financial privacy, we’d all be better off.

Raymond Wacks, Emeritus Professor of Law and Legal Theory at the University of Hong Kong, sums up privacy in his short (144 pages) contribution to Oxford University Press’s excellent series on key legal concepts Privacy: A Very Short Introduction (Oxford 2010). He’s not an optimist either, concluding that “The erosion of privacy … tends to occur by quiescent accretion: through apathy, indifference, or tacit support for measures that are packaged as essential or appear innocuous.” Maybe he noticed the bipartisan embrace of the USA PATRIOT Act!

One of the trends likely to affect privacy in the future is the movement toward exploiting “big data”. As Germany’s purchase account information from stolen from financial institutions in Switzerland, Liechtenstein and Luxembourg showed, agglomerations of data can be dangerous for those in the database.

For an introduction to big data issues, CFR found Bill Franks, Taming the Big Data Tidal Wave (Wiley 2012), a good overview comprehensible to non-data analysts. Unfortunately it didn’t offer a foolproof way to keep data off thieves’ CD-ROMs and flash drives.

Finally, for those seeking some straightforward privacy at home, Taylor’s Guide to Shrubs: How to Select and Grow More than 500 Ornamental and Useful Shrubs for Privacy, Ground Covers, and Specimen Plantings (Houghton Mifflin 2001) will get you started.

Just remember the lesson Mr Nesbitt demonstrated in HM Government Public Service Film No. 42, How Not to Be Seen – as presented in Monty Python’s And Now For Something Completely Different – just being behind a shrub is not enough!


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Andrew P. Morriss

Andrew P. Morriss, Chairman, is the D. Paul Jones, Jr. & Charlene Angelich Jones – Compass Bank Endowed Chair of Law at the University of Alabama School of Law. He was formerly the H. Ross & Helen Workman Professor of Law and Business at the University of Illinois,Urbana-Champaign. He received his A.B. from Princeton University, his J.D. and M.Pub.Aff. from the University of Texas at Austin, and his Ph.D. (Economics) from the Massachusetts Institute of Technology. He is a Research Fellow of the N.Y.U. Center for Labor and Employment Law,and a Senior Fellow of the Institute for Energy Research, Washington,D.C., as well as a regular visiting faculty memberat the Universidad Francisco Marroquín,Guatemala. He is the author or coauthor of more than 50 scholarly articles, books, and bookchapters, including Regulation by Litigation (Yale Univ. Press 2008) (with Bruce Yandle and Andrew Dorchak), and is the editor of Offshore Financial Centers and Regulatory Competition (American Enterprise Institute Press 2010).

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