From: Robert Hettinga <rah@shipwright.com>
Date: Wed, 27 Aug 1997 05:17:43 +0800
To: cypherpunks@toad.com
Subject: Consumer privacy debate heats up
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Subject: Consumer privacy debate heats up
Date: Tue, 26 Aug 1997 15:39:19 -0400
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Consumer privacy debate heats up
	-- Chicago Tribune

WASHINGTON -- An Internet entrepreneur, Ram Avrahami, says he believes he
has the legal rights to his name and other personal information, such as
his shopping habits, credit records and medical history.

But the companies that profit from collecting personal information on
Avrahami and millions of other Americans see matters differently. Since
the information is collected legally and resides in their databases, they
say they have reasonable claim to it.

Those divergent views are colliding. While the companies stand their
ground, Avrahami hopes to help start a grass-roots effort this fall to
demand that the data-gatherers obtain permission before buying and selling
information about an individual.

More than just seeking a say in whether and how personal data is marketed,
the suburban Virginia resident and his allies want to receive royalties.
They wonder why only the companies should make money off the brisk
commerce in their personal data.

"They have to face reality," says Avrahami, 34. "They cannot sell people's
names without explicit permission. It's a very simple concept."

The debate is taking on new urgency as the information economy grows, and
creating its own backlash, as giant America Online learned earlier this
summer.  AOL was compelled to beat a hasty, embarrassing retreat after
users rebelled at the company's plan to sell their telephone numbers to
marketers.

The omnipresence of computers and the Internet have made it ever easier
for businesses and government agencies to obtain, link and sell data that
often reveal intimate information about millions of Americans.

This has increased public anxiety about the uses such databases, which
teem with information many people would be reluctant to tell even their
closest friends: medical conditions revealed by tracking the
pharmaceuticals purchased, mortgage borrowing obtained from real-estate
records, household incomes lifted from product-warranty cards
conscientiously filled out by unwitting consumers.

The data-ownership question is complicated by the law's seeming
ambivalence.  While most states have laws forbidding the appropriation of
one's name for someone else's commercial benefit, those laws have mainly
been applied to celebrities, not the selling for profit of the ordinary
person's name and personal information by database companies.

But is that right? Not according to Anne Wells Branscomb. In her 1994 book
"Who Owns Information? From Privacy to Public Access," the communications
and computer lawyer, wrote: "Our names and addresses and personal
transactions are valuable information assets worthy of recognition that
we have property rights in them.

"Unless we assert these rights, we will lose them. If such information
has economic value, we should receive something of value in return for
its use by others."

There is clearly a developing view that agrees with her. Besides Avrahami
and his allies, who say they are forming a new organization to receive,
on behalf of their members, payment for the use of names or take legal
action, others are challenging the data gatherers.

Earlier this summer, for instance, the American Civil Liberties Union,
launched its "Take Back Your Data" campaign. Besides attempting to educate
Americans on the issue, the ACLU intends to push for sweeping federal
legislation to re-establish individuals' control over use of their
personal information.

The ACLU sees this as an important personal privacy issue, especially
regarding medical data. "You provide information to your health care
provider solely for the purpose of treating you and making you better,"
said Donald Haines, a legislative counsel on privacy issues at the ACLU.

"Suddenly all of these people end up acting like they have a right to your
data," including law enforcement, research, insurance and public health
officials. "In our view, that's nothing less than embezzlement of your
data," Haines said.

In Congress, Sens. Dianne Feinstein, D-Calif., and Charles Grassley,
R-Iowa, are co-sponsoring a bill that would hinder the marketing of
personal information by making it illegal for companies to sell Social
Security numbers without first getting permission.

Meanwhile, Congress also triggered a Federal Trade Commission study of
database practices, such as the gathering of personal information without
an individual's permission. The FTC is expected to issue its conclusions
by year's end.

At FTC hearings in June, John Ford, vice president for privacy and
external affairs for Equifax Inc., the large consumer and business credit
reporting service, summed up both sides of the argument. "Ownership of
data. There's some question about people saying this is information that
belongs to me, and therefore you shouldn't be using it."

"Others would argue that it's ... not your information, it is information
about you.  So ownership becomes a kind of red herring issue for control
of the data, maybe even remuneration for deciding to let your data be
used," he said.

In an interview, he later said his company has no official position on
who owns personal information. And he repeated a warning he made at the
hearings against overreaction by government regulators, saying "we ought
to be working with tweezers rather than a vise grip," in dealing with
whatever problems arise when database companies err.

Martin Abrams, vice president for Experian Inc., formerly TRW, another
large credit-reporting company, said there is ample legal basis for the
companies to be able to control the information they gather.

"You don't have a choice about being in a consumer data base.
... The integrity of the data base would impacted if consumers
could selectively opt to be part of it or not to be part of it," he said.

"At the same time, we have a long-established norm that when it comes to
the marketing use of information, consumers should have the full ability
to opt out of that marketing use. And responsible organizations should
respect that consumer choice." Abrams added.

Ford and Abrams views infuriate Bob Bulmash, president and founder of
Private Citizen Inc. of Naperville, Ill., an anti-telemarketing group.
Bulmash intends to join Avrahami in creating a new group called The Named
that would assert its members ownership rights to their names and personal
information.

"Why don't we just have Mr. Ford give us his income, how many children he
has ... how much he paid for his car, what's his mortgage, his Social
Security number?  May I sell that information? It's just information about
him. That's an absurd position he's putting forward."

According to Leonard Rubin, a Chicago lawyer and expert on privacy issues,
the debate gets convoluted because the laws governing it are "snarled."

"As far as personal data is concerned -- what toothpaste did I use this
morning to brush my teeth? You don't know that. Nobody knows that," Rubin
said.

"But once I make that public, I have forfeited my rights to it, unless I
make it public under certain conditions." And courts have tended to agree
that consumers who engage in commercial transactions with companies have
essentially gone public.

In any event, Avrahami says he has property rights to his name under laws
in many states that prevent someone from commercially benefiting by using
a person's name or likeness without his permission or payment.

Avrahami was the losing party in a Virginia lawsuit last year.  He had
sued U.S.  News & World Report, accusing the publication of violating
state law by selling his name to Smithsonian magazine. But the judge ruled
that Avrahami hadn't proved his name had value and had hurt his case by
using a variant of his name to detect who sold his personal information.

Still, Avrahami is undeterred. "If someone in Illinois tries to use
Michael Jordan's name for commercial benefit, Michael Jordan would be able
to assert his right (to his name.) It already has been applied to
celebrities. Now it just needs to be applied to common folks like you and
me," he said.

"There's a difference in the value but not in the right. It doesn't matter
if it's $10,000 or ten cents."

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-----------------
Robert Hettinga (rah@shipwright.com), Philodox
e$, 44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
The e$ Home Page: http://www.shipwright.com/