IP: response to Swire?

[David Farber <dave () farber net>]

> 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.



For archives see: http://www.interesting-people.org/