The Freedom Of Information vs. The Right To Privacy

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The free movement of information throughout the economy and in government benefits Arizonans as citizens and consumers. At the same time, the right to privacy is also an important aspect of public and commercial life. Developments in information technology increasingly bring the free movement of information into conflict with the right to privacy.

Consider court records. Proponents of public access argue that the existence of open records is a cornerstone of the Anglo-American legal system. Opponents argue that bulk data processing gives the public too much access to private information. How should Arizona’s policymakers decide between those competing principles?

This paper offers a general framework for balancing the interests between the free movement of information and the right to privacy and shows how that framework should be applied to address several pressing privacy questions in Arizona:

• Should red-light cameras be abolished in the interest of citizen privacy?
• Should court records and other public records be open to public scrutiny?
• Should legislators require websites to give visitors opportunities to opt out of or opt into information-sharing arrangements?
• Should the state of Arizona prevent websites from making good-faith changes in their privacy policies?

In summary, this paper finds that both the United States and Arizona constitutions protect citizens’ rights to privacy vis-à-vis government intrusions, and those safeguards should be maintained. By contrast, the private sector should be free to use and transfer information about consumers for legitimate business purposes such as marketing or product development. Any new laws affecting the private sector should carefully target proven problem areas, such as credit card fraud, and the brunt of the law should fall on the criminals in question, not on legal businesses. With regard to the privacy questions posed above, this paper comes to the following conclusions:

• Red-Light Cameras. Cameras in public places threaten privacy and due process and should be used as only a last resort. But the privacy impact of redlight cameras can be minimized with certain safeguards.
• Court Records Accessibility. Arizona should preserve access to public records for a broad range of legal purposes, from political activity to marketing to assessing credit risks. Blocking access to social security numbers in court records would do more harm than good, except perhaps for records open to casual onlookers over the Internet.
• Consumer Privacy. Broad state regulation of Internet or consumer privacy, whether of an opt-out or opt-in nature, is not needed and would harm Arizona consumers and businesses, both large and small.
• Privacy Policies on the Internet. Businesses that conduct electronic commerce need flexibility to draft, and sometimes redraft, their privacy policies, as they do with any other contract term.