No Telling

The push for Internet privacy controls combines a bad theory with a dangerous agenda.

Virginia Postrel from the June 1998 issue

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But this premise simply isn't true. The other party in any relationship--whether your former landlord, your boss, your ex-girlfriend, or Amazon.com--owns information about you as surely as you do. Gathering and sharing such information is as old as gossip and is absolutely essential to a free society. Neither speech nor commerce can function if such communication is illegal. Privacy advocates want to outlaw not only journalism but reputation.

If we are in fact worried about what happens to electronic information about our lives, well-established systems of contract and criticism can control who says what to whom, with whose permission. The very systems Rotenberg scorns for emphasizing "choice" over "consent" allow parties to agree in advance which information, if any, will stay private. Breaking such an agreement would violate contract law. And just making the deal leads Web sites to invest the time and effort to create systems that will honor it. That's what "privacy policies" are all about.

Nor is contract the only check on unwanted information sharing. Criticism works too, especially when directed at companies that must compete for customers. Faced with outraged clients, America Online reversed its decision to let telemarketers use members' phone numbers, a practice that wasn't specifically forbidden in its terms of service. Amazon has been careful to protect the information it collects about customers' book-buying habits, using it internally but not offering it to outsiders; that information could be quite valuable to other direct marketers (including REASON), but its sale would create an enormous controversy. (The obvious way around such controversy, of course, is to offer lists only of customers who have agreed to be on them--a contractual solution.)

Neither contract nor criticism is perfect. Leaks happen at private organizations, just as they do with grand juries, the Internal Revenue Service, and prosecutors' offices; they just happen somewhat less frequently, and the legal consequences for the leaker are swifter and more severe. Earlier this year, an AOL employee blatantly violated the company's contract with customers by telling a caller which AOL member had a particular screen name. That information led the Navy to begin discharge proceedings against a decorated, 17-year-veteran sailor for being gay. The sailor successfully sued the Navy on the grounds that its investigation violated the "don't ask, don't tell" policy, but his career was seriously disrupted. Clearly AOL should be liable for breaking its contract in a particularly damaging fashion. And the company has come in for stinging criticism, forcing it to take very public steps to reassure customers that such problems won't happen again.

Lawsuits and ostracism aren't good enough for Rotenberg. The AOL case, he says, "shows the shortcomings of contractual solutions. Even with a very clear contract provision detailing when personal information may be disclosed, the Navy investigator was still able to obtain personal information." It's not clear what new federal law--short of a change in the policy against gays in the military--would have prevented a rogue AOL employee's harmful attempt at "customer service." The AOL case proves only that contract is not foolproof, which makes it no worse than any other legal system.

To Rotenberg, however, that horror story is a convenient prop to justify restricting the sale of marketing information--a completely unrelated matter--and establishing a federal privacy agency. Instead of permitting diversity, choice, and enforceable contracts, he and other "privacy advocates" demand that we trust our privacy to the very federal government whose investigator convinced an AOL employee to violate company rules and whose policy forces gay service members to assume false public identities.

In his House testimony, Rotenberg tried to wrap his notion of "privacy" in American constitutional law, by quoting a famous dissent by Supreme Court Justice Louis Brandeis. Rotenberg wanted to suggest that spammers, marketing databases, and customized Web ads somehow violate fundamental rights. But Brandeis was making quite a different point. The Constitution's Framers, he wrote, "sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone--the most comprehensive of all rights and the right most valued by civilized men."

This right, however, has absolutely nothing to do with infringing other people's freedom to communicate. It is quite explicitly a right against the government, enshrined in the Fourth Amendment's protections against search and seizure. It says not that you own every fact about yourself but that the government cannot invade your home, your papers, or your life without giving an awfully good reason.

There are serious privacy issues in cyberspace, issues that go to the heart of such constitutional guarantees; they involve government actions such as wide-ranging subpoenas of database information, misuse of IRS files, or warrantless seizure of private "papers" located not in someone's house or office but on a third party's server. In contrast to commercial transactions, all this information is obtained through coercion, and the government's intentions are not benign. If privacy advocates really want to assuage public fears of Big Brother, they should concentrate on curbing the government's police power, which is exercised without the check of competition, rather than working to suppress commercial speech.

Instead, to achieve their idea of "privacy," activists want to obliterate the freedom to gather information, to communicate, and to contract. They demand "a coherent privacy policy," a single best way for everyone. To enforce this goal, they would give the government greater power over cyberspace--power that will be backed by subpoenas and interrogations, searches and seizures; power that will demand trials and punishment. That is a very strange way to protect the right to be left alone.