We owe Jeffry Rosen an enormous debt for joining issue on a matter of vital importance to the future of America.
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 ,as Professor Rosen points out 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 let 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. 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 let 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. 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.