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WEAK JUSTIFICATIONS LIKE "ANNOYED," "UNEASY," ETC. ARE INADEQUATE JUSTIFICATIONS FOR A NEW PRIVACY POLICY

ANNOYANCE AND CONFUSION IS NO SUFFICIENT GROUND FOR PRO-PRIVACY LEGISLATION

But annoyance or confusion cannot provide a moral foundation for pro-privacy legislation. Much that annoys should clearly remain legal. Some are annoyed by whiny children in restaurants, or street merchants and musicians, or repeated requests from neighbors trying to borrow tools. Those who find junk mail annoying may complain loudly, but annoyance does not give anyone a moral imperative to regulate.(71)

ANNOYANCE AND CONFUSION ARE TOO SUBJECTIVE TO BE USED AS A JUSTIFICATION FOR PRIVACY REGULATION

Both "annoyance" and "confusion" are too trivial and too subjective to supply a moral foundation for the creation of new privacy rights.

First, we differ widely in what we find annoying or confusing. In one survey, 71 percent of 18- to 24-year-olds said they would like to receive mail on products that interested them; 68.7 percent of those aged 65 and over reported they would not.(72) Another survey reported that 52 percent of consumers would be interested in subscriber-profiling activities over interactive networks that resulted in their receiving information about special offers.(73)

THERE IS NO MORAL JUSIFICAION FOR CONTROLLING INFORMATION FLOW JUST BECAUSE IT IS TRYING TO SELL YOU SOMETHING

The supposed "moral" justifications for restricting the compilation of customer information by private companies do not make sense. The main impulse behind the pro-regulation forces seems to be that commercial exchanges are somehow ignoble or wrong, a sentiment out of place in a country that owes so much to free enterprise.

THE ABUSE OF MAILING LISTS DOES NOT JUSTIFY AN OPT-IN RULE

Would the danger of the abuse of lists justify a mandatory opt-in rule? Though such abuse is certainly real and not a trivial matter like "annoyance," mailing lists should not be singled out as the only area of concern. Public libraries contain information about how to make nuclear bombs. Newspapers contain extraordinary amounts of personal information that criminals could use. In one infamous case, an imprisoned pedophile used stories about children from small-town newspapers to compile a list of 300 potential victims.(83) But such dangers would not justify regulation of newspapers, even though convicts have much greater access to newspapers than to mailing lists. The First Amendment protects free speech, even though that right might be abused.

JUNK MAIL AND TELEMARKETING ARE TRIVIAL CONCERNS AND SHOULD NOT JUSTIFY PRIVACY REGULATION

Third, the problem of junk mail, on a scale of human concerns, is trivial. We can deal with the annoyance of junk calls during the dinner hour by using caller ID, screening calls, or just hanging up. We can toss unwanted mail in the wastebasket. New technology such as anonymous digital cash stored on "smart cards" will help people preserve their privacy in online transactions;(74) "anonymizers" can let people cruise the Internet without revealing their identities.(75)

JUST BECAUSE PEOPLE ARE NERVOUS ABOUT INFORMATION CIRCULATION IS NO REASON TO STOP INFORMATION FROM FLOWING

But, more importantly, businesses are within their rights in collecting and trading information about real events and real people. It would be wrong to intervene simply because this makes some people nervous. We don't grant folks a general right to be protected from everything that makes them vaguely uneasy.

NEW FORMS OF ELECTRONIC COMMUNICATION DO NOT JUSTIFY A NEW CONCEPTION OF THE RIGHT TO PRIVACY AND A NEED FOR REGULATION

The creation of an entirely new legal regime is hard to justify under any circumstances. Privacy advocates have tried to justify the creation of a new privacy regime by arguing that consumer databases present a new or unique problem. In making these arguments, however, privacy advocates immediately run into difficulty. There is an obvious similarity between the information collected in databases about consumers and the information we regularly exchange with one another informally ("Mrs. Horton has a new car!"). For the vast majority of people, the casual exchange of this type of information--commonly called "gossip"--is not an evil great enough to justify regulation. So privacy advocates must argue that gossip is fundamentally safer, more trivial, and of much less economic consequence than the new databases. But as the following discussion shows, private-sector databases have consequences similar to those of gossip, can serve the same economic and social functions, are more likely to be accurate, and are less likely to contain errors motivated by malice.