Secrets For Sale

Do strangers with computers know too much about you?

Jacob Sullum from the April 1992 issue

(Page 5 of 5)

Westin goes a step further. Once privacy standards are well established in an industry, he says,they should be legally enforceable. For example, marketers should be held liable if they ignore theDMV's opt-out list. "Historically, the common law has been at its best when it deals with what themerchants are doing and why they're doing it," he says.

One conclusion that Westin draws from what the merchants are doing is that information is avaluable commodity, one that is owned by the person who dispenses it. "If my information is sovaluable that it can be sold," Westin argues, "then it's akin to appropriation to take that valuableprofile from me without my having any control over how it's used and without my getting anycompensation. In a market economy, compensation has to flow to the ownership interests of theconsumer."

In a recent issue of Release 1.0, a newsletter that covers computer-related issues, Editor EstherDyson elaborates on the idea of data property rights. She imagines a world in which individualssell limited use of their information through data brokers, who negotiate with direct marketers andother interested parties. "We believe the market could easily take care of the intricacies," shewrites, "if the government would simply establish the principle: People own information aboutthemselves."

But do they? Is it possible to own information? Since information is stored in brains as well as incomputers, the implications are ominous. Strictly speaking, the right to own information implies aright to control the minds of others. Unlike physical or intellectual property, information per se isnot a product of labor or creative effort. Moreover, information about you may equally beinformation about someone else with whom you interact: a retailer, an employer, a neighbor, alandlord, an insurer, a banker, a relative, a friend. When joint activities)a transaction, a dismissalor promotion, an eviction)give rise to "personal information," it's difficult to say a priori who"owns" that information and who, therefore, should control it.

The right to control the information can be established, however, by attaching conditions to theinteraction. Sometimes the conditions are implicit. You shouldn't have to tell your bank, yourdoctor, the phone company, or the local library that records of your credit-card purchases, yourmedical treatment, your telephone calls, or the books you read are to be treated confidentially. Inother cases, though, you may need to make your wishes clear. You can say, "I am buying this carfrom you on the condition that you not tell anyone about the purchase," or "I am telling you myage on the condition that you keep it secret," or even, "You may give my name and address toone other person, but only if you pay me." But the right to attach such conditions is not the rightto own information; it's the right to make contracts.

Although Westin may be hasty in suggesting that the law should recognize property rights ininformation, his general approach makes sense. As long as individuals are free to make andenforce information contracts, they can act to protect their privacy. Indeed, Westin predicts that"by the end of the '90s, every data base will be a consensual data base")containing onlyinformation about people who want to be included.

"It should come about through market forces; I don't see how we can legislate it," he says. "I'mlooking for ways to accommodate diversity, not for an all-or-nothing solution....The beautifulaspect of the technology we have is that, if we're thoughtful, it should allow us to accommodateall interests, rather than forcing a majoritarian solution on everybody."