The main problem with the European approach)which CPSR and the Privacy Council endorse)isits rigidity. As proposed, the rules do not recognize that different standards may be appropriatefor different situations. For example, when you subscribe to a magazine, you probably expect thatyour name and address will end up on a mailing list that marketers will use to try to sell you othermagazines, books, music, sweaters, and electronic gadgets. If this bothers you, you can readilyhave your name removed from the list. But most people, although they occasionally complainabout junk mail, also occasionally respond to solicitations.
"Prior-consent legislation is not in the best interest of consumers," argues Lorna Christie, vicepresident for ethics and consumer affairs with the Direct Marketing Association. "If I had toauthorize every transaction before it could happen, I probably would not get a great number ofthe catalogs and marketing promotions that I receive and that I use because I don't have time togo to the mall." In this context, it seems perfectly reasonable for magazines to assume consentunless they are notified otherwise.
When you rent movies, on the other hand, your expectations are quite different. You would besurprised, perhaps mortified, if the video store put you on a list of people who like pornographicfilms or Jean Claude Van Damme movies and rented the list to companies selling related productsby mail. In 1987, when a City Paper reporter obtained information about Supreme Court nomineeRobert Bork's movie rentals, members of Congress were so shocked that they passed a law, theVideo Privacy Protection Act of 1988, specifically banning such disclosures. Yet the incident wasstriking precisely because it was so unusual. Even though there is definitely a market for thenames and addresses of people who like certain types of movies, selling such lists would be verybad for the video-rental business. It would violate an implicit contract of confidentiality.
Problems arise, however, when the expectations of the person disclosing information differ fromthose of the person receiving it. This is the case with regard to the sale of marketing data by creditbureaus. Until recently, most people didn't even know that this was going on, primarily becauseconsumers usually do not deal directly with credit bureaus. Hence it was the responsibility of thebusinesses that provide information to credit bureaus to notify their customers that some of thedata might be sold to direct marketers. The credit bureaus, for their part, should have insisted oninformed consent. They blew it.
"Too many businesses really don't give a damn about this issue," says Rotenberg. "They'd reallyrather not be bothered." But if people do care how information about them is handled, a businesswith that attitude will not survive long. To the extent that informational privacy matters,customers will insist upon assurances)assurances that the courts should enforce, if necessary."What the consumer wants today is to redefine the information contract between the businesswanting to use personal information and the individual," Westin says.
At the same time, consumers will have to pay attention to what they consent to. Rotenbergrecently complained to Time about "warranty registration" cards that include marketingquestionnaires. "People fill out product cards because they want the warranty," he said. "But theyend up on the mailing lists of stereo and record companies. Was that part of the stated bargainwhen they filled out the card?" In a word, yes. The card that came with my new coffee maker, forexample, says that the warranty applies whether or not you fill out the questionnaire, and it has abox you can check to keep your name and address off mailing lists.
Similarly, some privacy advocates have objected to frequent-shopper programs, which allow retailcustomers to get special discounts in exchange for using magnetized cards when they make theirpurchases. The cards enable the store to record what the customer buys; this information can laterbe used for marketing purposes. For example, someone who buys Minute Maid orange juicemight get a coupon for Citrus Hill. But if this is an intrusion on privacy, it's one that the shopperhas voluntarily agreed to. People who value informational privacy should learn to read the fineprint.
Contracts only work if they bind both parties. Unfortunately, the ACLU, which is very concernedabout informational privacy in the abstract, is chipping away at the most practical means forprotecting it. The ACLU recognizes the right to withhold information or attach conditions to itsdisclosure, but it denies the reciprocal right to require information as a condition of participatingin a transaction. For example, Goldman argues that employers should not be permitted to askprospective employees for information that is irrelevant to job performance)except, perhaps, ifthey are prevented from making hiring decisions on that basis. Not only should things like religionor sexual preference be off limits, she says, so should personal habits such as smoking or hobbiessuch as skinny dipping. Otherwise employers might abuse their economic power.
"Applicants are routinely requested to sign waivers of confidentiality that permit the employer...toobtain information and records from virtually any source," says the ACLU handbook Your Rightto Privacy. "Unless the applicant is in a strong bargaining position) which of course mostapplicants are not)he has no realistic choice but to sign the waiver." Hence the ACLU argues thatthe question of how much information to disclose should be resolved by legislation rather thannegotiation.
Similarly, Goldman doesn't think banks should be allowed to require credit-card applicants tosign a waiver permitting the sale of their data to direct marketers. It's not enough that those whodon't want to sign the waiver can take their business elsewhere. "Then what you're saying is thatthey have a right, but you're not going to enforce it," she says. "You're going to leave it to themarketplace."
Such reasoning undermines everyone's liberty to enter into voluntary business arrangements.Instead of getting the amount of privacy they want, people get the amount the government thinksthey should have.
So long as the right to informational privacy remains vague, the mandate for this sort of stateintervention is unbounded. Goldman resists attempts to define informational privacy. Sheacknowledges that information contracts can be helpful, but she says the right goes beyond suchagreements. Asked repeatedly whether the mere collection of information by a private party couldviolate someone's right to privacy even without breaking an agreement, she equivocates. "Wedon't like hard-and-fast rules," she says.
A paper that Goldman co-authored in 1989 describes the task of protecting informational privacythis way: "Statutory standards should incorporate a balance between the sensitivity of theinformation at stake and the institutional justification or need for the information)the moresensitive the information, the more compelling the need must be for its collection, and the higherthe standard must be for its disclosure to others."
Since different people will assign different weights to these conflicting interests, such balancingcan easily become a shield for arbitrary restrictions. For example, some people object to"electronic blacklists." A 1990 article in The Christian Science Monitor, part of a series on"Privacy in the Computer Age," sounds the alarm over data bases that are used to screen tenants,employees, and policyholders. Landlords can consult a data base that lists tenants who haveskipped out on their rent, been evicted, or damaged their apartments. The information is based oncourt records and landlords' reports. Other data bases list employees who have filed workers'compensation claims and people charged with violent crimes or drug offenses.
There are legitimate questions about the usefulness and reliability of these data bases, but thearticle focuses instead on the unfairness of maintaining them at all. Yet none of this informationwas collected in a way that violated an agreement of confidentiality. In the case of landlord-tenantdisputes, for example, both parties are free to reveal the information to anyone they choose. Justas the tenant may complain to a friend, the landlord may complain to the company that compilesthe data base. In the absence of an agreement to the contrary, neither party can reasonably assumethat the other will keep the matter a secret)especially if the dispute ends up in court.
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