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    George Washington Law Review: Updating the Privacy Act for the Twenty-First Century

    Found via Concurring Opinions.

    In the latest issue of the George Washington Law Review, Jonathan C. Bond has an interesting article (pdf), “Defining Disclosure in a Digital Age: Updating the Privacy Act for the Twenty-First Century.” From the introduction:

    Designed as the counterpart to the Freedom of Information Act (“FOIA”), the Privacy Act prohibits federal government agencies from “disclos[ing]” certain kinds of personally identifiable information. It fails, however, to define “disclose.” The meaning of the term is critical for at least three reasons: (1) whether a suit can be brought at all turns entirely on whether an agency’s actions amount to disclosure; (2) an agency’s liability for damages depends on whether the disclosure was “intentional or willful”; and (3) the time an alleged disclosure occurs determines when the statute of limitations begins to run. Without guidance from the statute or the implementing regulations, courts, administrative agencies, and the public are left in the dark as to whether and when agency action violates the statute.

    In the simplest cases, the absence of a definition poses no problem. Often there is no dispute that an agency’s action would amount to a disclosure, and so the parties’ controversy concerns only whether that disclosure was improper. […]

    Cases like Doe that present difficult questions of what agency actions constitute disclosure have become increasingly prevalent in recent years. This is especially true as agencies have begun to make vast amounts of data available online. […]

    In the end, the absence of a definition of disclosure in the Privacy Act has led to unnecessary confusion and even conflict among federal courts applying the Act, especially where electronic disclosure is involved. This Note proposes an amendment to the Privacy Act to resolve this problem. The proposed amendment defines “disclose” to encompass (1) the direct transmission of a record to a recipient previously unaware of its contents (and not otherwise authorized to know it), and (2) any action by a federal agency that substantially increases the public accessibility of such a record. Beyond resolving the confusion and conflict among the courts, the proposed definition will provide much-needed clarity and guidance to federal agencies and the public while furthering the underlying policy goals at which the Privacy Act was aimed.

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