Comments on Willis Ware‘s“Contemporary Privacy Issues”
Loftus E. Becker, Jr.
Willis Ware has well summarized the major issues regarding one aspect of privacy
in the new information age. My intention here is to broaden the playing field
a little, and add a few remarks from a lawyer’s perspective.
We live in a time of increasing paradox. On the one hand we are driven to recognize
that knowledge is power. On the other hand we are drowning in a sea of information.
Medieval scholars could memorize the few books available to them. Few of us
have time to read even the abstracts of articles that bear on our interests.
The same is true for those who might (for fun, profit, or malice) want to know
the details of our lives. As Ware puts it, the “the completeness of the
dossier that can be developed” from information out of our control is terrifying.
But most of us are protected for the moment by the fact that nobody cares enough
to spend the time and money to develop it.
In devising more permanent controls on private information, we must recognize
that we face not one problem but two. On the one hand we need to give individuals
adequate control over what Erving Goffman has called the “presentation
of self.” On the other, we need to assure that in limiting the dissemination
of personal information, we do not by those limits create an “information
elite,” a privileged class to whom (and to whom alone) this powerful information
is available.
To take a current example, I do not myself know how much information about Clarence
Thomas’s life and background should be available. But I am quite sure that
it should not be the province of a privileged few. The dangers of limiting information,
and the power it gives, to a few individuals and groups can be as great or greater
than the dangers of making the information available to all.
Of course the first problem we face is deciding what kind of information we
want to protect as “private” or “personal.” But this is
only half the battle. It is equally difficult to devise mechanisms that give
real and not just theoretical protection.
To begin with, in the foreseeable future governmental agencies alone can give
only very limited protection. American governments are starved for funds. We’re
closing our public libraries and hospitals. Agencies from the IRS to the Environmental
Protection Agency lack the staff and money to do what they’re charged with
doing. An Information Privacy Agency, however well intentioned, will not fare
any better. For effective protection, we will have to devise schemes that mix
governmental power with private resources.
One good starting point would be a registration and disclosure requirement for
dealers in personal information. Obviously such a requirement would have to
be carefully written: too many small businesses have to file too many unread
reports. But there is little reason that the major players should not be required
to report, publicly, the kind of information they sell or rent, and their rules
(if any) for access to that information. Only when we know what’s actually
going on can we start to think clearly about how and whether we want to change
it.
Second, we should remember that the law is a blunt axe. It works best when its
rules are few and simple. Consider the sales tax. State legislators produced
sales taxes of exquisite discrimination, so that (for instance) in New York
State, Prell Shampoo is taxed (as a cosmetic), while Head and Shoulders (a medicine)
is not. The trouble, of course, is that drugstore clerks can’t and don’t
carry the rule book in their heads. So with regulations concerning the use and
dissemination of personal information. Perfect rules won’t work; we’re
going to have to settle for imperfect, but clear and understandable ones.
Third, although Willis Ware is undoubtedly correct in saying that, ultimately,
nationwide standards will be necessary, I think we should be slow to adopt them.
Put bluntly, we just don’t know enough about what’s happening or what
effect any proposed rules will have. One great virtue of our federal system
is the ability of the states to serve as, in Justice Brandeis’ words, little
“laboratories for experiment.” Letting the states try out a variety
of rules will in the long run serve us better than moving too quickly to a uniform
federal solution.
Fourth, we should not be too quick to back away from protecting privacy even
when the protections serve to shelter crime. No doubt the recent horrifying
murders in Detroit could have been avoided if, in 1984, we had put television
monitors in everyone’s bedroom. But few of us would be willing to give
up that much of our remaining privacy. The extent to which protecting privacy
will hinder the prevention and detection of crime is, assuredly, one of many
factors relevant to deciding how much protection to give. But it is only one
such factor, not a talisman in whose presence the right to privacy disappears.
Finally, if we want to do it there is neither a conceptual nor a legal bar to
creating at least a limited property right in personal information about oneself.
Babe Ruth’s name, and Charlie Chaplin’s image, are known to millions;
but anyone who markets a “Babe Ruth Baseball Bat,” or advertises her
product with a Chaplin look-alike, will quickly find that is no defense to an
action by their heirs. Similarly we could, if we so desired, forbid the selling
of mailing lists and other bits of personal information about an individual
even though that information may be on record from a variety of sources.
Nor does the information industry have a prescriptive right to continue to exist.
No person has a right to continue a business reasonably believed detrimental
to the general welfare, as the manufacturers of DDT and fluorocarbons well know.
Please note that I am not saying we should establish such a right, or that the
information industry should be shackled or destroyed. I am saying only that
the proposed right is not unusual in the law, and that should we ultimately
decide that the business of selling personal information does more harm than
good, the fact that it already exists is no legal bar to its regulation or abolition.
University of Connecticut School of Law
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