Garfinkel on privacy in the Nation

[Paul Jones <pjones@metalab.unc.edu>]

Dated 2/28/2000 this seems like a peek into the near future, by Simson
Garfinkel who was recently featured on Science Friday (see link from
earlier in the semester) on Privacy from his book Database Nation: The
Death of Privacy in the 21st Century (O'Reilly).

PRIVACY AND THE NEW TECHNOLOGY
What They Do Know Can Hurt You
by SIMSON GARFINKEL

You wake to the sound of a ringing telephone--but how could that happen?
Several months ago, you reprogrammed your home telephone system so it
would never ring before the civilized hour of 8 am. But it's barely 6:45.
Who was able to bypass your phone's programming?

You pick up the receiver, then slam it down a moment later. It's one of
those marketing machines playing a recorded message. What's troubling you
now is how this call got past the filters you set up. Later on you'll
discover how: The company that sold you the phone created an undocumented
"back door"; last week, the phone codes were sold in an online auction.

Now that you're awake, you decide to go through yesterday's mail. There's
a letter from the neighborhood hospital you visited last month. "We're
pleased that our emergency room could serve you in your time of need," the
letter begins. "As you know, our fees (based on our agreement with your
HMO) do not cover the cost of treatment. To make up the difference, a
number of hospitals have started selling patient records to medical
researchers and consumer-marketing firms. Rather than mimic this
distasteful behavior, we have decided to ask you to help us make up the
difference. We are recommending a tax-deductible contribution of $275 to
help defray the cost of your visit." The veiled threat isn't empty, but
you decide you don't really care who finds out about your sprained wrist.
You fold the letter in half and drop it into your shredder. Also into the
shredder goes a trio of low-interest credit-card offers. Why a shredder? A
few years ago you would never have thought of shredding your junk
mail--until a friend in your apartment complex had his identity "stolen"
by the building's superintendent. As best as anybody can figure out, the
super picked one of those preapproved credit-card applications out of the
trash, called the toll-free number and picked up the card when it was
delivered. He's in Mexico now, with a lot of expensive clothing and
electronics, all at your friend's expense.

On that cheery note, you grab your bag and head out the door, which
automatically locks behind you.
 This is the future--not a far-off future but one that's just around the
corner. It's a future in which what little privacy we now have will be
gone. Some people call this loss of privacy "Orwellian," harking back to
1984, George Orwell's classic work on privacy and autonomy. In that book,
Orwell imagined a future in which a totalitarian state used spies, video
surveillance, historical revisionism and control over the media to
maintain its power. But the age of monolithic state control is over. The
future we're rushing toward isn't one in which our every move is watched
and recorded by some all-knowing Big Brother. It is instead a future of a
hundred kid brothers who constantly watch and interrupt our daily lives.
Orwell thought the Communist system represented the ultimate threat to
individual liberty. Over the next fifty years, we will see new kinds of
threats to privacy that find their roots not in Communism but in
capitalism, the free market, advanced technology and the unbridled
exchange of electronic information.

The problem with this word "privacy" is that it falls short of conveying
the really big picture. Privacy isn't just about hiding things. It's about
self-possession, autonomy and integrity. As we move into the computerized
world of the twenty-first century, privacy will be one of our most
important civil rights. But this right of privacy isn't the right of
people to close their doors and pull down their window shades--perhaps
because they want to engage in some sort of illicit or illegal activity.
It's the right of people to control what details about their lives stay
inside their own houses and what leaks to the outside.

Most of us recognize that our privacy is at risk. According to a 1996
nationwide poll conducted by Louis Harris & Associates, 24 percent of
Americans have "personally experienced a privacy invasion." In 1995 the
same survey found that 80 percent felt that "consumers have lost all
control over how personal information about them is circulated and used by
companies." Ironically, both the 1995 and 1996 surveys were paid for by
Equifax, a company th at earns nearly $2 billion each year from collecting
and distributing personal information.

Today the Internet is compounding our privacy conundrum--largely because
the voluntary approach to privacy protection advocated by the Clinton
Administration doesn't work in the rough and tumble world of real
business. For example, a study just released by the California HealthCare
Foundation found that nineteen of the top twenty-one health websites have
privacy policies, but most sites fail to follow them. Not surprisingly, 17
percent of Americans questioned in a poll said they do not go online for
health information because of privacy concerns. * * *

But privacy threats are not limited to the Internet: Data from all walks
of life are now being captured, compiled, indexed and stored. For example,
New York City has now deployed the Metrocard system, which allows subway
and bus riders to pay their fares by simply swiping a magnetic-strip card.
But the system also records the serial number of each card and the time
and location of every swipe. New York police have used this vast database
to crack crimes and disprove alibis. Although law enforcement is a
reasonable use of this database, it is also a use that was adopted without
any significant public debate. Furthermore, additional controls may be
necessary: It is not clear who has access to the database, under what
circumstances that access is given and what provisions are being taken to
prevent the introduction of false data into it. It would be terrible if
the subway's database were used by an employee to stalk an ex-lover or
frame an innocent person for a heinous crime.

"New technology has brought extraordinary benefits to society, but it also
has placed all of us in an electronic fishbowl in which our habits, tastes
and activities are watched and recorded," New York State Attorney General
Eliot Spitzer said in late January, in announcing that Chase Manhattan had
agreed to stop selling depositor information without clear permission from
customers. "Personal information thought to be confidential is routinely
shared with others without our consent." Today's war on privacy is
intimately related to the recent dramatic advances in technology. Many
people today say that in order to enjoy the benefits of modern society, we
must necessarily relinquish some degree of privacy. If we want the
convenience of paying for a meal by credit card or paying for a toll with
an electronic tag mounted on our rearview mirror, then we must accept the
routine collection of our purchases and driving habits in a large database
over which we have no control. It's a simple bargain, albeit a Faustian
one.

This trade-off is both unnecessary and wrong. It reminds me of another
crisis our society faced back in the fifties and sixties--the
environmental crisis. Then, advocates of big business said that poisoned
rivers and lakes were the necessary costs of economic development, jobs
and an improved standard of living. Poison was progress: Anybody who
argued otherwise simply didn't understand the facts.

Today we know better. Today we know that sustainable economic development
depends on preserving the environment. Indeed, preserving the environment
is a prerequisite to the survival of the human race. Without clean air to
breathe and clean water to drink, we will all die. Similarly, in order to
reap the benefits of technology, it is more important than ever for us to
use technology to protect personal freedom.

Blaming technology for the death of privacy isn't new. In 1890 two Boston
lawyers, Samuel Warren and Louis Brandeis, argued in the Harvard Law
Review that privacy was under attack by "recent inventions and business
methods." They contended that the pressures of modern society required the
creation of a "right of privacy," which would help protect what they
called "the right to be let alone." Warren and Brandeis refused to believe
that privacy had to die for technology to flourish. Today, the
Warren/Brandeis article is regarded as one of the most influential law
review articles ever published.

Privacy-invasive technology does not exist in a vacuum, of course. That's
because technology itself exists at a junction between science, the market
and society. People create technology to fill specific needs and desires.
And technology is regulated, or not, as people and society see fit. Few
engineers set out to build systems designed to crush privacy and autonomy,
and few businesses or consumers would willingly use or purchase these
systems if they understood the consequences. * * *

How can we keep technology and the free market from killing our privacy?
One way is by being careful and informed consumers. Some people have begun
taking simple measures to protect their privacy, measures like making
purchases with cash and refusing to provide their Social Security
numbers--or providing fake ones. And a small but growing number of people
are speaking out for technology with privacy. In 1990 Lotus and Equifax
teamed up to create a CD-ROM product called "Lotus Marketplace:
Households," which would have included names, addresses and demographic
information on every household in the United States, so small businesses
could do the same kind of target marketing that big businesses have been
doing since the sixties. The project was canceled when more than 30,000
people wrote to Lotus demanding that their names be taken out of the
database.

Similarly, in 1997 the press informed taxpayers that the Social Security
Administration was making detailed tax-history information about them
available over the Internet. The SSA argued that its security
provisions--requiring that taxpayers enter their name, date of birth,
state of birth and mother's maiden name--were sufficient to prevent fraud.
But tens of thousands of Americans disagreed, several US senators
investigated the agency and the service was promptly shut down. When the
service was reactivated some months later, the detailed financial
information in the SSA's computers could not be downloaded over the
Internet.

But individual actions are not enough. We need to involve government
itself in the privacy fight. The biggest privacy failure of the US
government has been its failure to carry through with the impressive
privacy groundwork that was laid in the Nixon, Ford and Carter
administrations. It's worth taking a look back at that groundwork and
considering how it may serve us today.

The seventies were a good decade for privacy protection and consumer
rights. In 1970 Congress passed the Fair Credit Reporting Act, which gave
Americans the previously denied right to see their own credit reports and
demand the removal of erroneous information. Elliot Richardson, who at the
time was President Nixon's Secretary of Health, Education and Welfare,
created a commission in 1972 to study the impact of computers on privacy.
After years of testimony in Congress, the commission found all the more
reason for alarm and issued a landmark report in 1973.

The most important contribution of the Richardson report was a bill of
rights for the computer age, which it called the Code of Fair Information
Practices. The code is based on five principles:

§ There must be no personal-data record-keeping system whose very
existence is secret. § There must be a way for a person to find out
what information about the person is in a record and how it is used.

§ There must be a way for a person to prevent information about the
person that was obtained for one purpose from being used or made available
for other purposes without the person's consent.

§ There must be a way for a person to correct or amend a record of
identifiable information about the person.
 § Any organization creating, maintaining, using or disseminating
records of identifiable personal data must assure the reliability of the
data for their intended use and must take precautions to prevent misuse of
the data. * * *

The biggest impact of the Richardson report wasn't in the United States
but in Europe. In the years after the report was published, practically
every European country passed laws based on these principles. Many created
data-protection commissions and commissioners to enforce the laws. Some
believe that one reason for Europe's interest in electronic privacy was
its experience with Nazi Germany in the thirties and forties. Hitler's
secret police used the records of governments and private organizations in
the countries he invaded to round up people who posed the greatest threat
to German occupation; postwar Europe realized the danger of allowing
potentially threatening private information to be collected, even by
democratic governments that might be responsive to public opinion.

But here in the United States, the idea of institutionalized data
protection faltered. President Jimmy Carter showed interest in improving
medical privacy, but he was quickly overtaken by economic and political
events. Carter lost the election of 1980 to Ronald Reagan, whose aides saw
privacy protection as yet another failed Carter initiative. Although
several privacy-protection laws were signed during the Reagan/Bush era,
the leadership for these bills came from Congress, not the White House.
The lack of leadership stifled any chance of passing a nationwide
data-protection act. Such an act would give people the right to know if
their name and personal information is stored in a database, to see the
information and to demand that incorrect information be removed.

In fact, while most people in the federal government were ignoring the
cause of privacy, some were actually pursuing an antiprivacy agenda. In
the early eighties, the government initiated numerous "computer matching"
programs designed to catch fraud and abuse. Unfortunately, because of
erroneous data these programs often penalized innocent people. In 1994
Congress passed the Communications Assistance to Law Enforcement Act,
which gave the government dramatic new powers for wiretapping digital
communications. In 1996 Congress passed two laws, one requiring states to
display Social Security numbers on driver's licenses and another requiring
that all medical patients in the United States be issued unique numerical
identifiers, even if they pay their own bills. Fortunately, the
implementation of those 1996 laws has been delayed, thanks largely to a
citizen backlash and the resulting inaction by Congress and the executive
branch. * * *

Continuing the assault, both the Bush and Clinton administrations waged an
all-out war against the rights of computer users to engage in private and
secure communications. Starting in 1991, both administrations floated
proposals for use of "Clipper" encryption systems that would have given
the government access to encrypted personal communications. Only recently
did the Clinton Administration finally relent in its seven-year war
against computer privacy. President Clinton also backed the Communications
Decency Act (CDA), which made it a crime to transmit sexually explicit
information to minors--and, as a result, might have required Internet
providers to deploy far-reaching monitoring and censorship systems. When a
court in Philadelphia found the CDA unconstitutional, the Clinton
Administration appealed the decision all the way to the Supreme Court--and
lost.

One important step toward reversing the current direction of government
would be to create a permanent federal oversight agency charged with
protecting privacy. Such an agency would:

§ Watch over the government's tendency to sacrifice people's privacy
for other goals and perform governmentwide reviews of new federal programs
for privacy violations before they're launched. § Enforce the
government's few existing privacy laws.

§ Be a guardian for individual privacy and liberty in the business
world, showing businesses how they can protect privacy and profits at the
same time.
 § Be an ombudsman for the American public and rein in the worst
excesses that our society has created.

Evan Hendricks, editor of the Washington-based newsletter Privacy Times,
estimates that a fifty-person privacy-protection agency could be created
with an annual budget of less than $5 million--a tiny drop in the federal
budget.

Some privacy activists scoff at the idea of using government to assure our
privacy. Governments, they say, are responsible for some of the greatest
privacy violations of all time. This is true, but the US government was
also one of the greatest polluters of all time. Today the government is
the nation's environmental police force, equally scrutinizing the actions
of private business and the government itself.

At the very least, governments can alter the development of technology
that affects privacy. They have done so in Europe. Consider this: A
growing number of businesses in Europe are offering free telephone
calls--provided that the caller first listens to a brief advertisement.
The service saves consumers money, even if it does expose them to a subtle
form of brainwashing. But not all these services are equal. In Sweden both
the caller and the person being called are forced to listen to the
advertisement, and the new advertisements are played during the phone call
itself. But Italy's privacy ombudsman ruled that the person being called
could not be forced to listen to the ads.  There is also considerable
public support for governmental controls within the United States
itself--especially on key issues, such as the protection of medical
records. For example, a 1993 Harris-Equifax survey on medical privacy
issues found that 56 percent of the American public favored "comprehensive
federal legislation that spells out rules for confidentiality of
individual medical records" as part of national healthcare reform
legislation. Yet Congress failed to act on the public's wishes.

The Fair Credit Reporting Act was a good law in its day, but it should be
upgraded into a Data Protection Act. Unfortunately, the Federal Trade
Commission and the courts have narrowly interpreted the FCRA. The first
thing that is needed is legislation that expands it into new areas.
Specifically, consumer-reporting firms should be barred from reporting
arrests unless those arrests result in convictions. Likewise,
consumer-reporting firms should not be allowed to report evictions unless
they result in court judgments in favor of the landlord or a settlement in
which both the landlord and tenant agree that the eviction can be
reported. Companies should be barred from exchanging medical information
about individuals or furnishing medical information as part of a patient's
report without the patient's explicit consent. * * *

We also need new legislation that expands the fundamental rights offered
to consumers under the FCRA. When negative information is reported to a
credit bureau, the business making that report should be required to
notify the subject of the report--the consumer--in writing. Laws schould
be clarified so that if a consumer-reporting company does not correct
erroneous data in its reports, consumers can sue for real damages,
punitive damages and legal fees. People should have the right to correct
any false information in their files, and if the consumer and the business
disagree about the truth, then the consumer should have a right to place a
detailed explanation into his or her record. And people should have a
right to see all the information that has been collected on them; these
reports should be furnished for free, at least once every six months.

We need to rethink consent, a bedrock of modern law. Consent is a great
idea, but the laws that govern consent need to be rewritten to limit what
kinds of agreements can be made with consumers. Blanket, perpetual consent
should be outlawed.

Further, we need laws that require improved computer security. In the
eighties the United States aggressively deployed cellular-telephone and
alphanumeric-pager networks, even though both systems were fundamentally
unsecure. Instead of deploying secure systems, manufacturers lobbied for
laws that would make it illegal to listen to the broadcasts. The results
were predictable: dozens of cases in which radio transmissions were
eavesdropped. We are now making similar mistakes in the prosecution of
many Internet crimes, going after the perpetrator while refusing to
acknowledge the liabilities of businesses that do not even take the most
basic security precautions.

We should also bring back the Office of Technology Assessment, set up
under a bill passed in 1972. The OTA didn't have the power to make laws or
issue regulations, but it could publish reports on topics Congress asked
it to study. Among other things, the OTA considered at length the
trade-offs between law enforcement and civil liberties, and it also looked
closely at issues of worker monitoring. In total, the OTA published 741
reports, 175 of which dealt directly with privacy issues, before it was
killed in 1995 by the newly elected Republican-majority Congress.

 Nearly forty years ago, Rachel Carson's book Silent Spring helped seed
the US environmental movement. And to our credit, the silent spring that
Carson foretold never came to be. Silent Spring was successful because it
helped people to understand the insidious damage that pesticides were
wreaking on the environment, and it helped our society and our planet to
plot a course to a better future. Today, technology is killing one of our
most cherished freedoms. Whether you call this freedom the right to
digital self-determination, the right to informational autonomy or simply
the right to privacy, the shape of our future will be determined in large
part by how we understand, and ultimately how we control or regulate, the
threats to this freedom that we face today.



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This article is adapted by permission from Database Nation: The Death of
Privacy in the 21st Century (O'Reilly). Simson Garfinkel is a columnist
for the Boston Globe and a fellow at the Berkman Center for Internet and
Society at Harvard Law School.



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