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Privacy — Get It While You Can

According to a recent Op-Ed opinion, Google wants to know us better than we know ourselves. That reminded me of something I’ve been wanting to write about for a long time. Consumers must put up with a lot of unnecessary annoyance, expense and invasions of privacy from the various businesses they deal with, even from “free” services like Google. No one, to my knowledge, has ever approached the most obvious and clean-cut way to attack all of this stockpiling of data about people and the use of it by business (legal and illegal) in ways that we wouldn’t approve of. Hence, I propose a law to solve at least most of the problems. Congress needs to pass legislation that recognizes that

All information about a person is owned by that person.

Anyone who maintains information about a person without permission or anyone who uses permitted information in a way that is not permitted is guilty of a crime and will be prosecuted in the courts. Pretty simple and straightforward, right? Yes! It is so logical and so simple that I’m surprised that I’ve never seen it raised before. It would be easy to implement, with no intricate complexities that only a lawyer can understand.

  • If some firm has data about you and you haven’t given that company (written!) permission to have it – Theft! – call the cops. You don’t have to pay a lawyer and sue because theft is a criminal offense and the criminal courts would handle it.
  • If a company to which you have given permission to hold data about you maintains incorrect information – Trespass! – call the cops; someone would get arrested and be prosecuted. The same would go if the company shared any information about you in a way that you don’t permit.
  • If a business, such as a direct mail firm, has your address with permission, and would like to sell a list of addresses to another company, it must negotiate with you, and perhaps cut you in on the deal. If it doesn’t – Theft! – call the cops. Ditto for companies that want to sell your marketing profile.
  • If you give your advance permission, credit reporting companies could continue to maintain credit information on you and make credit reports. Or, you could opt out of the credit reporting system, pay cash and take your chances, and the credit reporting companies would have to destroy all information about you. Of course, since the business doesn’t own the data, you do, it couldn’t charge you for a credit report on what you already own.

Get the picture? Of course, business will scream bloody murder, say it’s unconstitutional to take away “their” information, and raise the specter of clogged jails and courtrooms, but that is nonsense.

Nothing Really New Here

This law wouldn’t be breaking any new legal ground. There are plenty of privacy protection laws already in place; they just do a lousy job of it because they don’t get down to the essence of the matter, and, in general, they don’t define violations as criminal. This means that individuals must sue to get some semblance of justice, and the courts have become the the protectors of the rich. This legislation leaves the decisions up to a jury of twelve of our peers.

Opponents would also say that the Constitution doesn’t give us the right to privacy. They would be right, but the Constitution doesn’t give us any of our rights. The Bill of Rights is there to keep government from infringing on rights we already have. That’s what “government with the consent of the governed” really means. The fact that that the Bill of Rights doesn’t specifically mention privacy does not mean that it is not our right: remember the ninth and tenth amendments!

Of course, there would need to be certain limited types of exceptions, police maintaining criminal records for example. Public entities might be permitted by law to maintain certain records necessary to carrying out the duties of government, such as tax records, but they must be limited to what is actually necessary, and non-permitted disclosure would be a crime.

I’m sure that the government (read: IRS) would insist on being able to store information about you without your permission. But there is no reason at all why it should be exempted from the criminal penalties for misusing your data, for maintaining erroneous data or, especially, for trying to collect taxes that you don’t owe!

No More Free Ride

One way businesses have thwarted the intent of existing privacy laws is to claim that you have business relationships with them and that they have certain implicit permissions to hold and use information about you. For example, if you call a catalog company and place an order, you become a customer, and it wouldn’t be a violation (they say) for the company later to send you a catalog. The better firms provide a way for you to instruct them not to, but that’s backwards! It’s still your data and they should be asking you to use it, not you asking them not to.

Any business, including the telemarketers who call you at your home, will have to be able to demonstrate that your address or phone number was obtained legally, with your advance consent. If your address or phone number is listed in the phone directory (no charge for not being listed, because the phone company can only list you with your approval!), that’s public and some company can look you up and call you or send you something. However, it can’t store the information about you without permission and every time it wants to contact you it would have to look you up in the phone book again.

No more junk mailing lists!! Any organization with a mailing list would have to send you a letter to get your permission to continue to maintain, use and share your address, and if you didn’t respond with permission within, say 30 days, the list owner would have to purge all information about you. Or, you could say “sure, you can keep my information, but every time you give out my address, I get $1, take it or leave it.” Let you make the money for a change.

One More Little Thing

Well, little but important. How do we keep businesses from frustrating the intent of privacy laws by subtly coercing people to permit businesses to exploit their personal data in exchange for “free” services? It’s easy: by requiring that any request to use someone’s information be separate from any other agreement. For example, a grocery store can give you a discount card or not, as it chooses, but any request to compile your shopping data must be separate, and can’t be tied to the use of the card.

Summing Up

Once such a law is on the books, corporate America will adjust, for the better of all of us. Credit reporting firms will be much more careful. Direct marketers will have to focus their mailing lists more carefully because of the increased cost of the lists – getting folks’ permission to maintain the information databases and having to share the profits with the owners of the data will add up.

Such a law would be a solid foundation on which people could maintain the degree of information privacy they desire. It can be as flexible or as limiting as individuals want it to be. BUT … it will never happen until people start DEMANDING it boisterously from their Senators and Representatives. Those slippery characters are for sale to the highest bidder and the only thing they will understand is “do what the voters want or we’ll recall you from office and elect someone else.” Cynics will say that it’s impossible. It will take work and persistence from lots of folks, but it’s possible.

What do we want? CONTROL! When do we want it? NOW!

July 13, 2007


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