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The greatest threat to privacy comes from government in secret. During the legislative phase of the Open Public Records Act, which took effect on July 8, opponents of the measure invoked “privacy” in a cynical attempt to defeat the new statute. “Privacy” can be used to cover up governmental bungling, and worse. The best way to protect individual privacy is to make the governmental accountable to its citizens, and OPRA promises to do just that. But the government collects a lot of information about its citizens that, if redisclosed and assembled in a new mosaic, could be exploited to the detriment of individual privacy. Many repositories of traditionally “public” information can be used to unveil information such as one’s physical description, Social Security number, medical information, height, weight, gender, eye color, date of birth, place of birth, veteran status, professional licensing and mother’s maiden name. The state Legislature wants to consider a privacy statute, and provided in OPRA for a privacy study commission to review the impact of the new statute on individual privacy. The budget crisis promptly axed the appropriation for the privacy study commission, but the need remains. There are three kinds of bills the Legislature should consider. First, we could give our citizens a remedy for invasions of privacy. There is no statutory right of action at this time. Citizens may ask the attorney general to vindicate their rights if a governmental entity or commercial enterprise improperly discloses personal information. Such concerns, however, are unlikely to find their way to the top of the attorney general’s in-basket. And tort law has not yet expanded beyond Prosser’s old categories, which cram privacy invasions into Procrustean beds of “false light” and the like, no longer fitting the digital age. Second, the Legislature could get really ambitious and entertain a comprehensive privacy statute. Every state in the European Union has adopted a set of Organization for Economic Cooperation and Development Privacy Guidelines, which can be found at www.privacy.org/pi/intl_orgs/ec/eudp.html, and which incorporate the following principles of fair information practices: � There should be limits to the collection of personal data. � Personal data should be relevant to its intended purposes. � Agencies should specify their reasons for collecting personal information. � Personal data should not be disclosed or used for purposes without the consent of the individual or by authority of law. � Data custodians should use reasonable security safeguards to protect personal information against loss, unauthorized access, destruction, use, modification or disclosure. � There should be a general policy of openness about developments, practices and policies with respect to personal data. � Individuals should be able to ascertain the existence and nature of personal data, the identity of the data custodian, and the main purpose for which the data are used. � An individual should be able: — to find out whether a data custodian has personal data relating to him or her; — to have communicated to him or her data that relates to him or her, is readily intelligible, can be transmitted within a reasonable period of time for a charge that is not excessive; — to be given reasons if a request is denied and to be able to challenge such a denial; and — to modify or correct inaccurate data or at least to register disputes. � Individuals should have a right to a legal remedy for unjustified privacy violations. Finally, New Jersey could protect our health and financial records above the “floor” provided by federal law. This summer, a fresh new avalanche of “privacy statements” will fall upon us as we approach the anniversary of the “Financial Services Modernization Act,” a federal statute (known in its legislative phase as Gramm-Leach-Bliley) that permits our insurance companies to disclose information about us to our banks, and vice versa. They will assure us that our privacy is of the utmost importance to them. And this will be true — our confidential information is a valuable commodity. The assurances are meant to increase our comfort level, but it is not hard to see that each “privacy statement” is really a reservation of rights, protecting the commercial sector’s claim to profit from selling our confidences. If you don’t want your private data to be sold, you must affirmatively “opt-out” by contacting, on your own initiative, every institution that sends you a privacy statement. New Jersey is free to enact stronger privacy legislation; there is no federal pre-emption. North Dakota just bucked the tide, and adopted a state statute that requires an “opt-in.” This means financial institutions must get approval before selling personal data, instead of putting the burden on each individual to write countless letters. New Jersey could do the same. A privacy study commission need not be costly. Sound privacy principles have already been developed, so there is little danger of reinventing the wheel. Privacy violations may occur when the government collects or discloses information without due care. A commission to promote the interests of privacy would serve New Jersey well. The author is a First Amendment litigator with a solo practice in Princeton, N.J.

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