The article concludes with guidance regarding data breach prevention, which can help businesses meet their ethical and legal obligations.
Ironically, the first worm was created in by Xerox as a network analysis tool. Security breaches often are attributable to social engineering. Smishing and vishing are similar to spear phishing; however, they use text messages smishing and voice communication vishing as mediums. As detailed in the Dell SecureWorks report on the Target infiltration, a combination of social engineering and malware was used to cause the collapse.
Businesses require consumers to provide their private information when completing even the most routine transactions; this places the business in a unique position of trust. Moral Responsibility and Data Breach. Accordingly, reference to other areas, such as moral responsibility for marketing, is instructive. The values associated with information technology suggest moral analysis based on the ethics of marketing and on notions of corporate responsibility, inasmuch as knowledge plays a role in making autonomous choices and trust is associated with responsibility.
The due care position recognizes the imbalance and the vulnerable position of the consumer by placing additional duties on the business. First, what legal obligations does a business owe its customers regarding data security and notifications of a breach?
Second, what legal remedies do consumers have if their private information is compromised as the result of a data breach? As discussed below, there is currently no comprehensive federal regulatory scheme addressing data breach. B A state identification card number. C A credit card number. Accordingly, the threat of consumer litigation has not played an extensive role in influencing businesses to adopt more stringent security measures.
Plaintiff consumers often argue that the data breach itself and the risk of future identity theft are sufficient harms; defendant businesses contend that no injury has occurred unless the plaintiff can show a link between the data breach and an actual instance of identity theft.
In supporting the drug testing of high school athletes in Vernonia , Justice Scalia recited with some detail just how the urine samples are collected: "The student enters an empty locker room accompanied by an adult of the same sex.
Each boy produces a sample of urine [while] remaining fully clothed with his back to the monitor who stands approximately feet behind the student For a more intrusive search, the court has not overturned Circuit Court opinions upholding strip searches in public schools Cornfield, ; Williams, In these cases, the findings of the courts that the nature of the intrusion did not upset the balance in school searches is in the government's favor, but this interpretation is not universal State v.
Mark Anthony D. Similarly, the extra intrusiveness of body cavity searches of prisoners did not upset the balance struck on the side of the government for prisoner searches Covino, Will the extra intrusiveness of some technologies for airport security searches tip the balance in favor of privacy interests?
Careful measures were taken in the situation cited in Vernonia to protect the privacy and dignity of the students and still meet the special needs of the government; that is, to detect and prevent drug usage among student athletes. And, in the school strip search cases, the searches were conducted only on particular suspicion of particular individuals. Unlike the drug testing upheld in Vernonia the school strip searches were not part of a regulatory scheme applied to an entire class of persons.
Prisoners can be strip searched because the special need to do so is strong and the expectation of privacy is very low Covino, at 77 ; airline passengers have a much higher expectation of privacy than prisoners.
Given the conclusions of Vernonia , it would seem that few general regulatory schemes could justify such invasive searches. To justify a passenger screening technology that produces an image of passengers' bodies beneath their clothes, the screening procedures must be such that the privacy of the individual is protected to the extent possible.
However, the special need of the government to ensure air travel security is certainly as strong as the need for prison security, especially at times of high threat levels. In addition, the nature of the intrusion on the privacy of airline passengers is not as invasive as the body cavity searches of prisoners. More privacy is assured in being clothed and being scanned by a machine and a possibly unseen operator than in being prodded by live guards.
It seems as though the balance might strike on the side of air travel security. Nevertheless, these imaging technologies might not be acceptable if the government need for ensuring air travel security can be met through less intrusive means. Thus, measures should be taken to minimize the appearance of nakedness, the number of people having access to and identifying the image with the traveler, the time the image endures or is preserved, the uses to be made of the data, etc.
The next section deals with the concept of less versus more intrusive means. Although the interest in safety may outweigh the invasion against privacy, that invasion must still be minimized to the extent feasible because the invasion is justified only to the extent necessary to achieve the government goal of air travel safety. Therefore, it is important to ensure that the searches are made pursuant, and substantially related, to that purpose Vernonia, at The courts generally have upheld that a security search must be as "limited Currency, , but practicality does not need to be sacrificed Vernonia, at This concept is important for airport searches because the only alternatives to many technologies for detecting weapons and explosives are visual and tactile body searches United States v.
Doe, ; State v. Perez, , which are obviously more invasive. Still, even intrusive searches can be conducted in a minimally intrusive manner. For example, if images of the bodies of passengers must be produced, images should be displayed no longer than necessary to ascertain the security risk. There should also be a guarantee that the image data will neither be preserved nor archived.
An example of a minimally intrusive passenger screening technique that would not be considered an invasion of privacy is scanning passengers boarding cards for traces of explosive material. Passengers receive boarding cards prior to boarding the flight, when they hand a part of the card back to an air carrier. This technique is unlikely to reveal anything about the passenger other than information about their previous handling of explosive materials.
Thus, this search technique would not just reveal illegal activity. Even if more intrusive airport security-screening procedures can be justified under the administrative search exception, it still must be determined whether a particular search was so conducted pursuant to this objective. As discussed above, air travel safety is, without question, a weighty administrative objective. Yet, questions may arise about whether a particular search was appropriately conducted toward this objective.
No matter how narrowly a device or procedure is tailored to detecting safety-related concerns, other information will still be obtained in the process. The procedure may yet be acceptable if the additional information is learned inadvertently. When that information is sought specifically, however, and no concurrent safety rationale is given, then the search no longer falls under the exception. The search thus constitutes an actionable violation of constitutional rights see discussion of United States v.
Currency [ ] in appendix C. For example, security screeners may ask passengers to open carry-on bags, if the x-ray image shows a suspicious shape that may be an item dangerous to the airplane.
However, it is not acceptable for screeners to inspect bags solely on the suspicion that they contain drugs or large amounts of cash. United States v. Currency establishes a presumption that information unrelated to safety is sought when rewards are to be gained.
On the other hand, the discovery of drugs by a security officer need not be totally inadvertent Horton, The fine point of this argument is whether information on a nonthreat object is obtained in the course of the strict search for threat objects or whether action has been taken, in the course of the search, to broaden the scope to include a search for nonthreat but illegal or suspicious objects. Current airport passenger screening techniques are open to challenges that a particular screener acted outside of the limited right to search for threat objects.
Technologies that permit the identification only of items that are a threat to the safety of the airport and the aircraft would remove this subtle element of doubt in the airport screening process. These technologies would also likely be welcomed by air carriers because it means less time spent on handling claims against faulty screening procedures.
Technologies that give the operator more specific information about an alarm, such as the location of a metallic object on a person's body, also would work to minimize the amount of extraneous information obtained during a search. One way to tailor the search procedure used to a specific need is to screen specially indicated passengers.
For example, invasive searches could be made only of persons who repeatedly set off metal-detector alarms. Security personnel may conduct even an intimate search of such persons until the suspicion is dispelled United States v. Roman-Marcon, ; State v. Baez, As mentioned before, this invasiveness must be reduced to the extent possible. A stop-and-frisk exception to the Fourth Amendment requirement for a search warrant occurs when an officer or another authority has a reasonable suspicion that another person is a threat.
In the context of airport passenger screening, the reasonable suspicion might be that the subject fits the profile of a typical hijacker, or that the screener observed a bulge under the subject's jacket, which raised the suspicion that the person could be carrying a concealed weapon. Because suspicion focuses rather particularly on that individual, this may fall under the general principle of stop-and-frisk law and be called an individual stop and frisk search. In addition, it would seem that the law would allow a stop-and-frisk search if an individual fits a narrow class of suspicious persons.
This we may call a selectee class search. Thus, anyone triggering the alarm on the metal detector would be under a reasonable suspicion and may be searched further under this exception to the Fourth Amendment. In actual application, the two kinds of stop-and-frisk searches tend to blend, and it is questionable whether even in theory they are separate.
Both are based on the Terry case, discussed below. In , almost one Eastern Airlines flight per week was diverted by hijackers Fenello, In response, Eastern instituted a deterrent system consisting of a metal detector and a behavioral profile. The use of this system was upheld under the standard in Terry v. Ohio and in United States v. Lopez-Pages In Terry the Supreme Court ruled that a policeman, based on his own instincts and suspicions and on the need to protect himself and others, may conduct a limited search for weapons without a warrant or probable cause to believe there was a crime Terry, at 6.
Although not the level of individualized suspicion required under the rubric probable cause, there still had to be some reasonable grounds, and the search was limited to a frisk-type weapons pat-down.
Lopez upheld Eastern's use of its system because of its selectivity in searching only those who fit the profile and those who had triggered the metal-detector alarm Lopez, at Just as the officer in Terry had a particularized and objective basis for suspecting that a crime was being committed, so did the security officials of Eastern Airlines.
Thus, Eastern could perform a search of a limited scope and duration for safety reasons. However, a potential for abuse exists in accepting a warrantless search in the application of the profile to an individual. To prevent abuse, the attributes in the profile must be relevant to the threat being averted. Soon after pioneering efforts of Eastern, the mass-search technique became the order of the day. No longer was there a need to demonstrate a prior basis for suspicion and, thus, there was no need to use the stop-and frisk search, Emergency Order of FAA, U.
Press Release No. The general climate of danger following the repeated hijackings of U. Epperson, Because of its universal application to all passengers, the airport security check was naturally justified as an administrative search, and the general stop-and-frisk search exception to the Fourth Amendment for airport passenger screening was no longer needed.
In contrast to the individualized stop-and-frisk search, the selectee class category of the stop-and-frisk search approach requires the identification of a small group of people singled out for additional scrutiny. In current airport security-screening procedures, passengers who set off the metal-detector alarm are automatically identified for scrutiny. As in the individualized stop-and-frisk search, the criteria used to identify these passengers must be relevant to the threat being averted.
Sokolow, at 7 [quoting Terry, ]. The suspicion only needs to establish probability, not certainty, and it can be established from the totality of circumstances United States v. Sokolow, [citing United States v. Cortez, ]. Lopez-Pages, If air carriers were able to identify potential hijackers or terrorists with some degree of accuracy, then the administrative search justification for universal screening would come into question, and airport security-screening procedures could be altered substantially.
If selectivity is lacking, the stop-and-frisk justification would come into question. This selectivity would not sufficiently distinguish between innocent passengers and individuals likely to cause security problems. For both legal and practical reasons, under the stop-and frisk justification the selection criteria used to identify those who could be subjected to additional screening must be such that very large percentages of the population are not identified for further investigation. Under the Lopez approach, only 0.
Only 6 percent of the 0. These numbers are equivalent to stopping approximately people at the Dallas-Fort Worth International Airport each year to identify 40 to 50 people carrying weapons. Sokolow, Some cases are more clear-cut than others. In United States v. Dalpiaz , a passenger going through a security checkpoint was found to be carrying a pistol, a hunting knife, six bullets taped together, a walkie-talkie, a gun holster, an alarm clock, and a woman's cigarette case with a number of wires.
Upon further inspection, a nonmetallic projectile-simulator explosive device was also found in his coat. Dalpiaz argued that the final search was unjustified because he had already passed the metal detector after setting the other items aside. The court rejected this argument, finding that the police had a sufficient objective basis for believing that Dalpiaz posed a safety risk to themselves and to the public.
Underlying both the administrative and the stop-and-frisk exceptions is a balancing approach. The government interest must be greater than the individual privacy lost. Because administrative searches are general regulatory schemes, the balancing is done on an aggregate level. Searching all passengers is worth it. On the other hand, the balancing for stop-and frisk searches is done on an individual level where a particular objective basis is required for searching individuals. The balance in a stop-and-frisk case will favor privacy, unless the probability is high that the person was stopped because her or she posed a safety problem.
Nevertheless, the added flexibility of the stop-and-frisk approach allows the air carrier to increase the invasiveness of the search as suspicion of an individual increases. The Fourth Amendment protects the privacy interests of people.
When passengers freely and voluntarily give their consent to a security search, they surrender those interests, and there would be no question of a violation of their Fourth Amendment rights Schneckloth v.
Bustamonte, By consenting to the search, individuals surrender their legitimate expectation of privacy and make the search reasonable. Explicit voluntary consent will forestall any Fourth Amendment issue.
Ruiz- Estrella, It can hardly be considered voluntary consent, some authorities argue, when a passenger's alternative to submission is forgoing his or her flight United States v. Albarado, Signs announcing air carrier search policies are posted at all security checkpoints 14 C. When passengers proceed to the gate, have they implicitly consented to a search? But a passenger wishing to board an airplane has no choice but to agree to the search.
In the Supreme Court ruled that having a confined range of choices does not necessarily render consent involuntary when the individual is responsible for confining those choices Florida v. Bostick, In other words, when individuals place themselves in a situation where they are likely to be searched, they could be deemed to have consented to the search. Airline passengers would not feel free to decline a request to submit to a search because declining the search means declining the right to fly.
Yet passengers approach the security officers and place themselves in a situation in which they know they will be searched Cf. Vernonia, at Although passengers may not feel free to decline the search request when they show up at the gate, they are not coerced by the government to fly in the first place. Mortgages, fixtures, fittings and security over personal property.
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