Although some privacy advocates tend to equate damaging information with confidentialinformation, the issues are distinct. Even Goldman acknowledges that one of the most damagingkinds of information around)criminal records) ought to be publicly available. On the other hand,anyone who believes in keeping promises would agree that an utterly innocuous piece ofinformation)say, your favorite color) should be treated confidentially if everyone you reveal it toagrees to do so.
The hazards of abandoning the contract approach to informational privacy are illustrated in PaulSieghart's 1976 book, Privacy and Computers. Sieghart suggests that enforcing the right toprivacy could mean preventing people from gathering published information. He offers theexample of a John Smith who committed some petty crimes as a teenager that were reported inthe local newspaper. As an adult, Smith moved to a new town where no one knew about hisyouthful indiscretions. In this context, Sieghart writes, to publicize Smith's crimes might very wellviolate his right to privacy.
The impulse behind Sieghart's desire to shield Smith is readily understandable. All of us value thefreedom to move where we choose and make a fresh start, creating a new identity in a new locale.It seems unfair for someone to interfere with that freedom by bringing up unsavory facts. Yet wealso value freedom of speech, which includes the freedom to research information in publiclyavailable records and communicate it to whomever we like. Computers)more specifically, theability to collect and process information readily and quickly) have brought these two values intoconflict.
Nevertheless, the underlying rights remain intact. The right to construct your own identity isbased on more fundamental rights, such as freedom of conscience, freedom of travel, freedom ofassociation, and freedom of contract. It has never included the right to control the speech orthoughts of others)to dictate to them how they should perceive you. Yet that is the implication ofextending privacy rights in the way that Sieghart suggests.
There remains a special class of cases where the contract approach will not work)cases in whichone party can use force to get its way. If you want to drive a car legally, for example, you have toregister it with the Department of Motor Vehicles. In many states, the DMV then sellsinformation gleaned from registration forms to direct marketers; names and addresses for ownersof new luxury cars are especially valuable. At least 26 states sell information from driver'slicenses, including height, weight, and use of corrective lenses, to list merchants such as TRW,Donnelly Marketing, and I Rent America. (The main buyers of such lists are clothing merchants,particularly those who specialize in unusual sizes.)
Similarly, you are legally obligated to respond to the U.S. Census, which collects information thatgoes far beyond its original mandate of counting citizens for purposes of electoral apportionment.The U.S. Census Bureau then turns that information, much of which would be very costly for aprivate party to obtain, into statistical reports that are a gold mine for direct marketers.
Such government collection of information, backed by the threat of fines and imprisonment forfailure to comply, is qualitatively different from private efforts. Direct marketers do not hold agun to your head when they ask about your tastes in clothing or entertainment. But they dobenefit from data that is collected coercively. Conversely, information collected by businesses maybe used by the government: The Wall Street Journal reports that Farrell's, an ice-cream parlorchain, once sold a list of 18-year-olds, gleaned from its birthday club records, to the SelectiveService System.
"It may well be the sharing of information between government and business...that is themegathreat," Westin says. "If ...there are no boundaries between private and public, then it seemsto me you're getting into deep yogurt."
A related issue arises from government-supported monopolies. If the federal government alloweda competitive market in mail delivery, for example, some companies might offer no junk-mailservice. For an extra fee, all solicitations and advertisements would be filtered out of your mail. Ifantipathy toward junk mail were great enough, some delivery companies might not accept it at all.By contrast, the U.S. Postal Service has no incentive to tailor deliveries.
The local telephone monopoly also complicates privacy issues. Consider caller ID, a new servicethat allows subscribers to see the telephone numbers of callers. Caller ID is a powerful tool forbusinesses that want the home addresses of people who call to ask questions, place orders, ormake reservations Privacy advocates acknowledge that caller ID, especially linked to areverse-directory data base, can also help people protect their privacy by screening out unwantedcalls. But they object that it invades the privacy of callers who want to keep their numbersconcealed. In response to this concern the FCC last September proposed rules that would require'local telephone companies to allow subscribers to bloc] caller ID on a call-by-call basis.
In a competitive market, such decisions would not be mad by bureaucratic fiat. Some companiesmight provide caller-II blocking, perhaps for a fee. Others might find they could make moremoney by offering unimpeded caller ID. Still other might not offer caller ID at all, or might offername ID)wit the communications company matching numbers to names instead. Consumerswould have a choice, which is what privacy advocates say they want.
Businesses, acting in response to consumer demands, are much more likely than the governmentto come up with creative, effective ways of addressing privacy concerns. For example, Buyer'sMarket, a new Equifax program, surveys consumers about their tastes and preferences, askingthem what kind of direct-mail information, if any, they are interested in receiving. Equifax thensells lists of people interested in particular kinds of goods or services to direct marketers.Approved material bears a special seal so consumers know it has been sent as part of the program.
Equifax also distributes, free of charge, lists of people who aren't interested in certain types ofmaterial, or who don't want any solicitations at all. "It's a waste of time and money for a directmarketer to send somebody a copy of something they've said they don't want," notes DavidMooney, public relations manager for Equifax. On the other hand, "junk mail is junk only if youdon't want it."
In an attempt to cut down on junk mail, properly understood, the Direct Marketing Associationand most major marketers keep records of people who want to opt out of mailing lists. TheDMV's ethical guidelines urge businesses to give prior notice that information will be used formarketing purposes, and they forbid the use of information "that may be considered personal orintimate in nature...when there is a reasonable expectation by the consumer that the informationwill be kept confidential."
None of this has the force of law, of course, but the DMA argues that it's simply good business."Privacy is a customer service issue," says Christie, the DMV vice president. "If marketers don'tallow consumers a sense of control over the dissemination of data, they've not fulfilled theircustomer contract, and the customer's going to go somewhere else."
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