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IP: response to Swire?
From: David Farber <dave () farber net>
Date: Tue, 14 Aug 2001 17:44:21 -0400
From: "Tom W. Bell" <tbell () chapman edu> To: <dave () farber net> X-Apparently-From: TomWBell () aol com Dave, Declan told me that you might be interested in running my reply, attached below, to Peter Swire's recent critique of my Cato paper. Since neither CDT nor Prof. Swire notified me directly of their press release or the extent of its dissemination, I'm trying to catch up as best I can. I think it makes for a pretty illuminating and (so far!) civil discussion. Thanks much. Tom -- Tom W. Bell Associate Professor, Chapman School of Law tomwbell () tomwbell com http://www.tomwbell.com ---------- A Response to Professor Swire's Critique I credit Professor Swire with a thoughtful and temperate comment on my recent paper, Internet Privacy and Self-Regulation: Lessons from the Porn Wars (Cato Institute, Policy Briefing # 65, 2001), available at <http://www.cato.org/pubs/briefs/bp-065es.html>. As I observed in that paper, much of the law relating to Internet privacy remains unsettled, leaving a good deal of room for reasonable people to differ. Nonetheless, I find Professor Swire's attempt to defend unconstitutional and unwise privacy regulations unconvincing. In brief, he relies on facts that are not legally relevant and legal claims that are not supported by fact. (1) Why Professor Swire's Comment Relies on Irrelevant Facts Professor Swire complains that the privacy-protecting technologies I describe in my paper would do little to stop speech about consumers who willingly trade personal facts for Internet services. He might as well complain that Lady Godiva suffered wanton looks. As my paper details, consumers already have easy and free access to technologies capable of completely hiding them from online spying. That gives them the power to remain as private as they like or, more to the present point, to dollop out personal information solely on acceptable terms. Granted, as Professor Swire observes, privacy-protecting tools cannot re-bottle the genie of personal information once a consumer chooses to set it free. But those tools give consumers control over the release of their personal information, and thus power to demand enforceable contractual controls on the subsequent use of that information. Technology cannot do everything, but with regard to Internet privacy it can certainly do enough. It can, moreover, do better than federal lawmakers. Perfection is *never* an option. The relevant factual question is therefore this: Can technology protect our privacy *more effectively* than politicians and regulators? It can, as I detail in my paper. And that it can renders the call for federal regulation of what commercial entities say about Internet consumers not just unwise but unconstitutional. (2) Why Professor Swire's Comment Misinterprets the Law Professor Swire's legal analysis relies on suspect interpretations of the relevant authorities and, at any rate, does nothing to defend the sorts of federal regulations that my paper targeted. Professor Swire claims, for instance, that "[T]he leading academic article on the First Amendment and privacy, on which Professor Bell principally relies, explains in detail why client information can constitutionally be protected by the sort of privacy laws supported by the ACLU, CDT, and EPIC." To the contrary, however, that paper merely argues that enforcing implied contracts to keep information private would not violate the First Amendment. See Eugene Volokh, "Freedom of Speech and Information Privacy: The Troubling Implications of a right to Stop People from Speaking about You," 52 Stanford L. Rev. 1049, 1057-63 (2000). Professor Volokh thus calls (and rightly so) for protecting privacy through states' extant contract laws. The ACLU, CDT, and EPIC have, in contrast, called for new federal regulations that would do far more than merely enforce contractual obligations between consumers and commercial entities. Does CDT really want to base its Internet privacy policy on Professor Volokh's theory? Note that he would first demand a showing that Internet use comes with an implied promise of confidentiality. It seems highly unlikely, to say the least, that we approach Internet browsing with the same assumption of confidentiality that we rightly assume applies to communications with our attorneys and doctors. Note next that Professor Volokh would, consistent with standard principles of contract law, allow an express disclaimer of confidentiality to trump any supposedly implied obligation to keep information about Internet users secret. I would be pleased--but greatly surprised--if CDT adopted that approach to Internet privacy. Note further that Professor Swire surely errs in attributing to Professor Volokh the view that "the telecommunications privacy rules struck down . . . by the 10th Circuit 'are constitutionally permissible.'" To the contrary, Professor Volokh merely says that his theory "might suggest" that the 10th circuit case of U.S. West, Inc. v. FCC, 182 F.3d 1224 (10th Cir. 1999), "could be interpreted" to embrace an opposing view of the constitutional scope of privacy regulations. If all those conditionals hold, granted, Professor Volokh would presumably argue that the court erred because "such rules [i.e., rules that merely enforce implied promises not explicitly disavowed by either party] are constitutionally permissible." But contrary to Swire's reading, Volokh does not flatly say the 10th Circuit was wrong--or, more pointedly, that CDT and company are right to call for broad federal regulation of Internet privacy. Similar interpretive problems apply to Professor Swire's other invocations of legal authority. As my paper observed, Trans Union Corp. v. FTC, 245 F.3d 809 (D.C. Cir. 2001), "stands on shaky ground." The Trans Union court stretched Dun & Bradstreet, Inc., 472 U.S. 749 (1985)--a case concerning injurious falsehoods--to find that target marketing lists merited reduced constitutional protection. Notably, however, only three justices signed on to the portion of Dun & Bradstreet upon which Trans Union relied, and even they emphasized that they did not intend to "leave all credit reporting subject to reduced First Amendment protection." Id. at 762, n. 8. The other authority cited by Professor Swire, Individual Reference Services Group, Inc. v. FTC, 145 F. Supp. 2d 6 (D.D.C. 2001), relies on Trans Union and thus shares its defects. At any rate, though, neither of those cases speak directly to the issue at hand. They did not concern the collection of information from Internet users and, thus, did not consider the legal impact of the privacy-protecting technologies discussed in my paper. (3) Conclusion Though I welcome Professor Swire's addition to our mutual and on-going attempt to discern the constitutional and prudential bounds of Internet privacy protection, his commentary ultimately fails to disprove the thesis of my recent paper: The ready availability of technological self-help protections of Internet privacy makes regulation by state authorities not only constitutionally suspect but, from the more general point of view of policy, functionally inferior.
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