IP: Swire on Cato's Privacy Briefing

[David Farber <dave () farber net>]

> Date: Tue, 14 Aug 2001 10:10:32 -0400
> From: ari () cdt org
> To: update () cdt org
> Subject: Swire on Cato's Privacy Briefing
> Sender: owner-cdt-adv () cdt org
> Reply-To: ari () cdt org
>
>
> We have received many questions about a Cato Institute Briefing Paper
> released last week entitled "Internet Privacy and Self Regulation: Lessons
> from the Porn Wars," by Tom W. Bell.  Mr. Bell makes several assertions
> about the policy positions of the Center for Democracy and Technology (CDT),
> and other civil liberties organizations.
>
> The following statement was prepared in response to the CATO paper by law
> Professor Peter Swire, a consulting expert on CDT's privacy work.
>
> Contact information for Professor Swire:
>
> cell: (301) 213-9587,
> email: pswire () law gwu edu,
> web: www.osu.edu/units/law/swire.htm.
>
> CDT Contacts:
>
> Ari Schwartz
> Center for Democracy & Technology
> (202) 637-9800 x107
> ari () cdt org
>
> Paula J. Bruening
> Center for Democracy & Technology
> (202) 637-9800 x114
> pbruening () cdt org
>
> ------
>
>
> "Cato Privacy Paper Not Persuasive"
>
> Peter P. Swire
>
>         This document responds to a Cato Institute Briefing Paper 
> released on
> August 9, 2001, written by Professor Tom W. Bell and entitled "Internet
> Privacy and Self-Regulation: Lessons from the Porn Wars."  Available at
> www.cato.org.  The Briefing Paper criticizes the American Civil Liberties
> Union, the Center for Democracy and Technology, and the Electronic
> Information Privacy Center for supporting Internet privacy legislation while
> opposing legislation that would restrict Internet speech considered "harmful
> to minors."
>
>         This paper represents the personal views of Peter Swire, currently
> Visiting Professor of Law at George Washington University and formerly the
> Clinton Administration's Chief Counselor for Privacy from 1999 until early
> 2001.  This paper explains why the Cato paper is wrong on the facts, chiefly
> because self-help will not work for personal information once it is in the
> hands of outside parties.  The paper also explains why the Cato paper is
> wrong on the law.   The Cato paper would seem to make the doctor/patient and
> attorney/client privileges unconstitutional as violations of doctor and
> lawyer free-speech rights.  Any such analysis is subject to serious doubt
> indeed.
>
>         (1)  Why the Cato paper is wrong on the facts.
>
>         Professor Bell states:  "Digital self-help offers more hope of
> protecting Internet users' privacy than it does of effectively filtering out
> unwanted speech, and the availability of such self-help casts doubt on the
> constitutionality of legislation restricting speech by commercial entities
> about Internet users."  The ACLU, CDT, and EPIC have all supported use of
> self-help, also known as privacy-enhancing technologies, as an important
> component of protecting privacy on the Internet.  Although the groups have
> differed about the desirability of one such technology, known as the
> Platform for Privacy Preferences, it is after extensive experience with
> privacy-enhancing technologies that the groups have each concluded that
> Internet privacy legislation is needed.
>
>         Professor Bell lists a number of existing privacy-enhancing
> technologies, none of them used by a large portion of Internet users.  These
> technologies can indeed do specific useful tasks, such as rejecting cookies
> or preventing a web site from knowing the identity of an anonymous surfer.
> Professor Bell suggests that surfers should arm themselves with an arsenal
> of privacy-protecting software in order to fend off data collection by web
> sites.
>
>         Reasonable people may doubt whether ordinary surfers can, or 
> will, out-
> fox the data collection efforts of sophisticated web sites.  Even if surfers
> use every weapon in their arsenal, however, the technologies cannot provide
> any help with a pervasive problem of Internet privacy -- what will happen to
> data once the web site knows it.  A web site may require your name to ship a
> product, sign you up to a subscription, register your software, or allow
> access to the site itself.  Anyone who wishes to participate in e-commerce
> or many other Internet activities will repeatedly have to provide his or her
> personal information simply to carry out that activity.  Without privacy
> rules in place, all of that identifying information can be shipped from the
> first site to any other, with no possibility of technological self-help by
> the individual.
>
>         The hard problem about privacy, then, is that technology does not 
> work
> once the data is in the hands of outside parties such as a web site.  By
> contrast, self-help offers a more compelling answer for what a family
> downloads to its own computer.  The parent or other family member can set
> criteria for what is read on the computer.  The rest of the world can make
> its own choices about what to read on the Web, while self-help works
> effectively in the home.
>
>         (2) Why the Cato paper is wrong on the law.
>
>         Professor Bell briefly refers to a lack of controlling case law, but
> then concludes that Internet privacy legislation would "almost certainly"
> face the fairly strict standard that applies to commercial speech and "might
> well" face the strict scrutiny test that applies to political and other
> speech that is most protected under the First Amendment.  I believe these
> conclusions are wrong, and they fly in the face of the most authoritative
> court decisions to date as well as the principal scholarship on which
> Professor Bell relies.
>
>         The only case that Professor Bell mentions in his text is a Tenth
> Circuit decision, [1] issued over a sharp dissent, that discussed privacy
> and the First Amendment but never made any holding on the subject.  He
> relegates to a footnote a recent, unanimous D.C. Circuit decision that found
> no First Amendment obstacle to a privacy rule that barred sale of names and
> addresses for target marketing purposes. [2] He does not mention another
> recent federal decision that upheld the Gramm-Leach-Bliley financial privacy
> protections against a similar challenge.  [3] This kind of unconsented-to
> sale of personal information is precisely the sort of regulation that is at
> the heart of most proposed Internet privacy legislation.  To my knowledge,
> no judge has followed the dicta of the 10th Circuit and found any First
> Amendment basis for striking down data privacy protections.
>
>         The deeper problem with Professor Bell's analysis is that it 
> proves far
> too much.  Professor Bell focuses on the First Amendment rights of those who
> receive the individual's personal information.  His analysis, though, would
> seem to apply generally to those who receive personal information from
> another.  For instance, is the doctor-patient privilege unconstitutional
> because it limits doctors' rights to speak about their patients?  Is the
> attorney-client privilege an unconstitutional burden on the attorney's right
> to blab client secrets?  No.  The First Amendment has existed comfortably
> for two centuries together with the power of the legislature to set
> appropriate limits on the disclosure of client information.  That is what is
> contemplated by Internet privacy legislation as well.  A web site could
> receive a customer's information, but not disclose that information to
> others except pursuant to the customer's choice.
>
> Indeed, the 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.  Professor Eugene Volokh says that
> "contract law not to reveal information" is "eminently defensible under
> existing free speech doctrine."  Although Professor Volokh expresses
> concerns about other sorts of speech restrictions, he specifically states
> that the telecommunications privacy rules struck down on other grounds by
> the 10th Circuit "are constitutionally permissible." [4]
>
> In sum, the legal portion of Professor Bell's argument is contrary to the
> only federal court rulings on the subject, contrary to the leading academic
> article on which he claims to rely, and gives no basis for upholding the
> constitutionality of the doctor/patient and attorney/client privileges.
>
> Endnotes:
>
> 1. U.S. West, Inc. v. FCC, 182 F.3d 1224 (10th Cir. 1999).
> 2. Trans Union Corp. v. FTC, 245 F.3d 809 (D.C. Cir. 2001).
> 3. Individual Reference Services Group, Inc. v. FTC, 145 F. Supp. 2d 6
> (D.D.C. 2001).
> 4.   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 (2000), at 1057 & 1060 n. 37.
>
>
>
> Contact information: Professor Peter Swire, cell (301) 213-9587, email:
> pswire () law gwu edu, web: www.osu.edu/units/law/swire.htm.  The web sites of
> the groups criticized in the Cato paper are www.aclu.org, www.cdt.org, and
> www.epic.org.
>
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