Page 100 - Privacy in a Cyber Age Policy and Practice

THE PRIVACY MERCHANTS 87

that the directive was enacted relatively early in the Internet’s lifespan, while
a comprehensive American approach has yet to be articulated. However,
the differences between the American and European approaches are much
less pronounced than they may first seem. This is the case because Europe-
ans do allow involuntary secondary usages for a variety of purposes, which
include national security, preventing criminal activity, journalistic free-
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dom of speech, and personal use (for instance, an address book); because
the United States has limited a variety of secondary usages of what might
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be called “sensitive information;” and because of what is called a “com-
pliance gap”—that is, a gap between what is mandated by European laws
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and the extent to which governments enforce these laws. The European
Union’s privacy protections suffer from this gap.
The ban on involuntary secondary usages burdens consumers, who
have limited capacity to evaluate various privacy statements and corpo-
rate assurances that statements are indeed heeded. They are unaware of the
risks of PVT. Business lobbies tend to strenuously oppose this approach,
which makes it very unlikely to be enacted in the United States or heeded
in Europe. And differences in laws and enforcement levels among coun-
tries, across whose borders the same information readily flows, greatly
limit the value of this way of protecting privacy from private invasions.

4. Ban Public Use of Private Information?

Those who adhere to the traditional distinction between the public and pri-
vate realm and to the precept that the main danger to privacy comes from
Big Brother may suggest that banning the government from using private
data banks is the way to proceed. The 1974 Privacy Act already states that
the government may not maintain personal data records for citizens who
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are not the subjects of investigations; it would be relatively simple to add
that they also may not use records that already exist in the private sector.
Still, these clarifications would not be necessary if the privacy merchants
were limited to trading only in less sensitive information, and they would
be of little use if the privacy merchants were not so limited. If the law per-
mitted the use of sensitive information, it would, in effect, assume that it
should be acceptable for data banks to be used for profit but not to enhance
public health, security, or other components of the common good. (Secu-
rity these days often brings to mind measures taken to prevent terrorist
attacks. A considerable number of civil liberty advocates hold that these
dangers have been exaggerated and that rights have therefore been unduly
curtailed. However, one should note that security also encompasses criminal
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justice systems, which have utilized data banks to curb criminals. )