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Business Week Magazine

 

The Right to be Left Alone

By John M. Eger, San Diego Union-Tribune, Insight, August 6, 2000.

As we rush headlong into a new but uncertain age, it is becoming increasingly clear that in our zeal to promote the marvels of the Internet, we may be seriously eroding the fundamental rights of the average citizen and consumer. Freedoms that Americans have so long cherished and expected are being undermined everyday not only by both internet entrepreneurs and global corporations, but sadly by our own government.

At stake is much more than merely occasional abuses of our more traditional concept of privacy, i.e. the right to protect confidential personal information from disclosure. Rather our more fundamental, constitutional "right to be left alone,"-- the right to pursue life, liberty and happiness without unwarranted scrutiny, physical or electronic invasion, is being assaulted by the proliferation of surreptitious data gathering on the Internet.

The concept of the right to be left alone dates back to a 1928 Supreme Court wiretapping decision called Olmstead vs. the United States in which the Supreme Court Justice Brandeis said "the protection guaranteed by the amendments (of the Constitution) is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect . . . They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred as against the government the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men."

While the Brandeis opinion and subsequent decisions established the framework for preventing government abuses of individual privacy, it is not government that poses the most serious threat today. Rather it is business -- large and small -- and the unfettered free enterprise system of global e-commerce.

As Justice Brandeis predicted, ".ways may someday be developed by which the government without removing papers from secret drawers can reproduce them in court and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions."

Today, given the pervasive influence of the Internet, unscrupulous agents either of government or commerce, can tell where your mouse sits on your desktop, what sites you visit and for how long and can track your movement from one web site to another. As more and more of our daily activities for work, for play, and everyday living involve the use of this new network of networks, every aspect of our lives is suddenly open to surveillance and the misappropriation and misuse of personal information, including our habits and by extension our inner most thoughts.

Author Jeffrey Rosen, in his book "The Unwanted Gaze: The Destruction of Privacy in America", parodies Arthur C. Clarke's famous computer character HAL, and offers a seemingly amusing, yet truly disturbing glimpse of how we might be visible to these internet voyeurs:

"Good morning Dave. Up rather late last night with me, weren't you? Nasty girls.com, hum. Relaxing? Perhaps it is none of my business (ha, ha, ha) . . . speaking of business Dave, I noticed you cashed out of Intel yesterday. It wouldn't be because of all of that credit card debt you and the wife have run up lately, would it? . . . Anyway, have a good day at the office, Dave. I look forward to more of those emails about - how did you put it? - that "boss I would like to strangle with a coat hanger. . .

Several years ago, during the United States Senate hearings on the nomination of Robert Bork to be a member of the Supreme Court an investigator opposing the Bork nomination managed to secure Blockbuster's records of the movies Judge Bork watched. Opponents also got access to his reading habits and began to draw certain conclusions about Judge Bork's mental processes. How wrong it would be to make a judgement about an individual's qualifications to be Supreme Court Justice based upon his or her personal reading or viewing tastes. How many of us would wish to be subjected to similar scrutiny? Not surprisingly, Judge Bork was not confirmed.

This abusive scavenging for information , occurred of course, before the widespread use of the Internet and the World Wide Web. This kind of information and much more is becoming increasingly available to commercial enterprises in their relentless search for markets, and to governments to satisfy their thirst for personal information, all at the risk of undermining our fundamental rights.

Recently, the Federal Trade Commission (FTC) expressed its concern by opening an investigation into the marketing practices of a company called DoubleClick. DoubleClick is one of several hot new Internet firms specializing in helping e-commerce companies determine who has been visiting their sites. DoubleClick is a specialist in the "cookie" business. In computer parlance a "cookie" represents a line of computer code that is placed on the files of hard drives of every Internet user visiting a particular site. Once placed, the cookies follow the user every time he or she visits the site, and other sites. Most users accept cookies believing they are annoying but harmless and not in any way linked to their personal identities.

However, when DoubleClick recently bought another firm called "Abacus Direct," a database that compiles the names, addresses, and buying habits of millions of individuals, the fear was that the viewing and buying habits of consumers would be combined, thus linking individual names and addresses with all their on-line and off-line purchasing and viewing behaviors. Suddenly, internet users lost their anonymity.

Just last month, the White House Office of National Drug Control Policy conceded that it may have violated federal privacy guidelines by using the DoubleClick devices to monitor traffic on its Internet sites for children and parents. The White House office which operates two anti-drug web sites, one for children and another for parents, is spending over $130 million to advertise anti-drug use, with $12 million designated to direct users to internet sites. But when users click on to reach the Drug Control office, cookies are installed. The Office also made deals with search engines so that computer users who searched the internet using key words and phrases like "pot" or "weed," would automatically receive anti-drug advertisements on their computer screens and be invited to the Drug Control web sites.

However well intentioned, this example is but one in a long history of abuses by government to track citizens' behaviors. In a very thoughtful 1970s book called "The Rise of the Computer State," author David Burnham, former DC bureau chief for the New York Times, observed that "the computer files of the IRS, the Census Bureau, the Social Security Administration, the various security agencies such as the FBI and our own insurance companies, know everything there is to know about our economic, social and marital status, even down to our past illnesses and the state of our health. If, or is it when," he asks, "these computers are permitted to talk to one another, when they are interlinked they can spew out a roomful of data on each of us that will leave us naked before whoever gains access to the information."

Government's interest in data -- in information of all kinds -- is well known. Now it is business -- large and small - that is foraging for vital demographic data to ensure its survival in a new global and fractured marketplace.

With the advent of cable TV, the VCR, computer games, and hundreds of thousands of internet sites to attract the consumer , it has become a nightmare for advertisers to find and aggregate the people they need to reach efficiently with their advertising message. Obviously the more a company knows about you, the better it can tailor and target its advertising message. For example, if you seem to be getting an unusual number of electronic ads from weight loss firms, maybe you visited food.com once too often or just ordered a subscription to "Cooking Light." If you visit an "adult" talk or chat room, you may find yourself inundated with invitations to visit any number of more salacious porn sites.

But this is only the tip of the iceberg. We have no legislation today to deal with the proliferation of health care or medical information, or credit or financial information available on the web. There are no standards of fair practice for use of the information collected. Consumers have no right to know who is collecting personal information about them, nor what information is collected or how it is being used.

While a handful of legislators have expressed concern, the majority of Congress, administration officials and industry spokesmen have suggested only technical solutions. And it is true there are some ingenious software programs coming downstream. Companies like Zero Knowledge Systems in Montreal have software which allows you to disguise yourself on the web. Some software will block all the cookies from being placed on your hard drive or erase the ones you have -- but you will of course be locked out from going back to the site again. Other companies like Disappearing Ink use encryption technology to make it extremely difficult for anyone to retrieve your email after it has been deleted. Most people, by the way, still think when they hit the delete key, it's gone. Not so in the world of cyberspace as even Bill Gates discovered when confronted with some of his e-mail during the course of the Microsoft antitrust proceeding.

But technology alone is not the solution. Jeffrey Rosen believes "the battle for privacy must be fought on many fronts -- legal, political and technological -- and each new assault must be vigilantly resisted as it occurs." He is optimistic that Americans, who have a history of rising to the occasion when they are outraged, will demand governmental action.

But others are less sanguine. Privacy, they argue, is dead. Too many Americans have already compromised their personal rights for a free six-pack of Coke or a membership in a frequent-buyer program. Most are not even aware they are so vulnerable. Thus it is very unclear what support there is for national privacy legislation. While the Clinton Administration made it clear to the FTC that their call for a privacy bill of rights was premature, and Vice President Gore once called for an electronic bill of rights, neither he nor Bush have taken strong positions during this campaign to make privacy an issue of national public importance.

Most of the developed countries in the world -- after having experienced public controversy over the treatment of personal information and personal information systems -- have now developed legislation and policy and a response mechanism. So-called Data Protection Boards or Privacy Protection Commissions have been established to act as independent privacy ombudsmen defending individuals and investigating the workings of personal data systems maintained by government agencies or commercial firms. "It seems strange," David Flaherty, author of "Protecting Privacy in Surveillance Societies" put it, "that some countries have independent agencies to protect privacy. In America you have to protect your own. "

America need not rush out to create a new bureaucracy to mimic Europe's approach to solving the privacy dilemma, but Americans deserve much more respect from the institutions, both public and private, that serve them. At the least, the President-this one or the next-- must create A National Privacy Protection Study Commission as both Nixon and Ford did to get to the heart of the commercially driven privacy issues and make their recommendations to the President and the Congress. Only at the national level in a publicly appointed body will we get at the truth of our concerns and forge solutions under the watchful eye of the body politic and the press.

Secondly we should insist that at minimum, the Federal Trade Commission's recommendations outlined in their report to Congress be embraced and the commission be directed to set the standards in the four areas they called for: notification about the use of personal data; consumers choices about the use of such information; the right of individuals to review data about themselves; and security measures to prevent unauthorized disclosure.

It would be ironic and sad if the same constitution which created a free press and a free enterprise system enabling the robust knowledge economy we now admire, was somehow responsible for the massive loss of personal privacy we are witnessing and with it a demise of more fundamental freedoms of our democratic society.

Eger, a telecommunications lawyer and Lionel Van Deerlin Professor of Communications and Public Policy at San Diego State University, was telecommunications advisor to Presidents Richard Nixon and Gerald Ford.