AFFIRMATIVE – COUNTERPLAN – FREE MARKET

AFFIRMATIVE — COUNTERPLAN — FREE MARKET — ANSWERS 93

SELF-REGULATION FAILS

SELF-REGULATION CANNOT BE TRUSTED

The Buffalo News, July 21, 1999, SECTION: EDITORIAL PAGE, Pg. 2B, TITLE: SHARING YOUR PRIVACY ON THE WEB // acs-EE2001

That the industry has a long way to go is a vast understatement, and how long it would take to catch up remains a mystery.

Self-regulation, however well-intended, is just that: regulating oneself. That's like allowing batters to decide strikes and balls, or running backs to measure their own yardage. As President Reagan used to say: Trust, but verify.

THERE ARE NUMEROUS NORMATIVE FLAWS IN THE THEORY OF SELF-REGULATION FOR INFORMATIONAL PRACTICES

Joel R. Reidenberg, Professor of Law and Director of Graduate Program Academic Affairs, Fordham University School of Law, " Restoring Americans' Privacy in Electronic Commerce," Berkeley Technology Law Journal, Spring, 1999, 14 Berkeley Tech. L.J. 771, EE2001-JGM, P. 771

Despite the claims of industry partisans, there are critical normative flaws in the theory of self-regulation for information practices. First, self-regulation assumes that all privacy values can and should be resolved by a marketplace. In contrast, privacy interests are central to democratic governance n17 and privacy has been hailed as a necessary condition for participatory governance. n18 In contrast, totalitarian governments prefer the surveillance state. n19 Indeed, a democratic government typically does not sell basic political rights. But even if one rejects this position, a marketplace can only function efficiently if there is transparency; citizens must be able to identify the collectors and users of their personal information. However, for personal information, the natural tendency of the marketplace is to obscure the its treatment.

THE THEORY OF SELF-REGULATION IS PURE SOPHISTRY

In effect, the American experience during the last two decades shows that the theory of self-regulation is pure sophistry. Time and again, the U.S. government has acknowledged that self-regulation remains hypothetical in corporate America. The Department of Commerce held a long awaited "Public Meeting on Internet Privacy" in June 1998, initially designed to give industry a chance to show its self-regulatory successes. n23 Unfortunately, industry had very little to show in terms of concrete implementation of privacy practices and the Secretary of Commerce had to admit conceded that the business community was failing to show demonstrate effective self-regulatory practices regulation. n24 The Chairman of the Federal Trade Commission, in testimony to Congress during the summer of 1998, stated that "despite the Commission's considerable efforts to encourage and facilitate an effective [*777] self-regulatory system, we have not yet seen one emerge." n25 Several months later, the first government review of the position paper A Framework for Global Electronic Commerce wistfully admits that industry has only tentatively responded to privacy concerns even in the face of heavy government pressure. n26

SELF REGULATION HAS RARELY PROTECTED PRIVACY

David Banisar and Simon Davies, Deputy Director of Privacy International (PI) and Director General of Privacy International and a Visiting Fellow at the London School of Economics, "GLOBAL TRENDS IN PRIVACY PROTECTION: AN INTERNATIONAL SURVEY OF PRIVACY, DATA PROTECTION, AND SURVEILLANCE LAWS AND DEVELOPMENTS," The John Marhall Journal of Computer & Information Law , Fall, 1999, 18 J. Marshall J. Computer & Info. L. 1, EE2001-JGM, P.

Data protection can also be achieved - at least in theory - through various forms of self-regulation, in which companies and industry bodies establish codes of practice. However, these efforts were disappointing, with little evidence that the aims of the codes are regularly fulfilled. Adequacy and enforcement are the major problem with these approaches. Industry codes in many countries tend to provide only weak protections and lack enforcement. This is currently the policy promoted by the governments of U.S., Japan, and Singapore.

THE DIRECT MARKETING INDUSTRY IS NOT WILLING TO SELF REGULATE INFORMATION COLLECTION

Suzanne M. Thompson, "The Digital Explosion Comes With a Cost: The Loss of Privacy," Journal of Technology Law and Policy, Spring 1999, 4 J. Tech. L. & Pol'y 3, EE2001-JGM, P.46

However, the polls suggest that less than 25% of the industry is willing to initiate self-regulatory practices. n124 The DMA guidelines state that personal data should be collected by "fair and lawful means for a direct marketing purpose." n125 While the DMA guidelines indicate that personal information should be transferred between direct marketers only for direct marketing purposes, companies seem to construe the meaning of direct marketing purposes rather broadly n126 -- that all personal information can be used for the purpose of marketing. n127 Furthermore, many people in the industry advocate secondary use of personal information for the purpose of direct marketing. n128 Although some of the direct marketing practices are merely annoying, such as intrusive phone calls marketing products, others are a more serious invasion of privacy, such as the distribution of a list of men who buy fashion underwear.