From: Declan McCullagh <declan@well.com>
Date: Fri, 25 Apr 1997 20:24:24 -0700 (PDT)
To: cypherpunks@toad.com
Subject: Re: CEI tells the Federal Trade Commission to be wary of regulation
Message-ID: <Pine.GSO.3.95.970425202349.13101H-100000@well.com>
MIME-Version: 1.0
Content-Type: text/plain




---------- Forwarded message ----------
Date: Fri, 25 Apr 1997 19:19:49 -0500
From: Mikus Grinbergs <mikus@bga.com>
To: Declan McCullagh <declan@well.com>

> Julie DeFalco from the Competitive Enterprise Institute, a libertarian
> think tank here in DC, today sent me what her organization filed with the
> FTC earlier this month.

DID YOU HAVE TO POST THIS to your list?  Sure, it publicises what
the "other side" has to say, but I find so much to object to in
practically every sentence that it almost makes me ill.  I can
only hope that other filings to the FTC display more respect for
the individual than this does.

----
>>
>> The confusion surrounding the term privacy leads one
>> to conclude that "privacy" is like a Rorschach ink
>> blot - different people read different things into it.
>>  "Whenever an invasion of privacy is claimed, there
>> are usually competing values at stake."   In this
>> sense, privacy is not a right, it is a preference.

Eek!  Here the CEI is re-defining "privacy as a right" into "privacy
as a preference"!  In my opinion, the word "right" conveys a sense of
moral conviction, whereas the substituted word "preference" conveys
(as it is intended to) a connotation of malleable irresolution.

I am not a lawyer, nor am I familiar with the various court precedents,
but if "pursuit of happiness" can be considered a "right", I would
argue that so can "privacy" be considered a "right".  Is there even
a dividing line between the two?

>>
>> Supreme Court Justice Lewis Brandeis said that privacy
>> is the "The right to be left alone - the most
>> comprehensive of rights, and the right most valued by
>> a free people."

This quote is a brilliant stroke on the part of CEI - its presence
here reassures those who agree with Justice Brandeis (of whom I am
one), but the idea of value to "being left alone" is disregarded
throughout the rest of CEI's submission.

Let me illustrate what I think is meant by "privacy":  Suppose I
do not have a secretary to take care of my personal correspondence.
As long as I receive only a few letters each day urging me to do
something, I consider that to be a tolerable "cost" associated with
living in this modern-day society.  But suppose the mailman starts
bringing me hundreds of such letters each day -- it will take me
time and effort just to dispose of them (even if I did not look at
their content) -- time and effort diverted from my goal of "pursuit
of happiness".  Because I was not left alone, my ability to _choose
by myself_ what to do and what not to do (that is, my *privacy*)
was violated.

----
>>
>> The allocation of costs and benefits deriving from
>> data collection depends upon whom you ask.  Again,
>> privacy is a preference, not a universal right.

This seems to be the central message of what CEI is proposing --
run a poll, and if the plurality of respondents say that they see
a benefit to society of identifying who you are each time you buy
something (or even enter any store or Web page) -- why then, let's
all be good citizens and not be irritated and just present our
tamper-proof IDs when asked.

>>   <snip>             The FTC should be extremely
>> cautious in regulating the free flow of consumer information.

[Surely CEI can convince them that for "free flow of consumer
 information" what is important is the flow of information about
 consumers to marketers -- after all, it is the market that rules,
 not vague intangibles like "individual privacy".]


mikus