Baltimore Sun political writer H.L. Mencken wrote that politicians are mostly interested in conjuring up some plausible hobgoblin, then announcing an array of Government programs to safeguard a grateful electorate.
Well, privacy may be a hobgoblin that doesn't require any political conjuring. The worries one hears now about the threats posed by the marriage of computers and communications are hardly new. President Nixon in 1974, after all, created a national privacy protection study commission, chaired by then-Vice President Gerald Ford. But privacy -- and, especially the challenges posed by the worldwide Internet -- certainly stand higher on the political agenda in Washington today.
Several things are worth noting. First, there's a good deal of Federal law in this area already -- plus a Federal agency that has proven commendably conscientious in tackling privacy concerns (the Federal Trade Commission (FTC)). Second, the real question isn't whether there'll be rules, regulations, or more laws, but rather who's planning to enforce them and how. To date, the FTC has gone along with industry proposals for enlightened self-regulation -- which isn't much different from the "regulated self-regulation" the European Commission and other organizations have suggested.
We could, in theory, balloon the bureaucracy to handle all the privacy concerns and complaints likely to be engendered by more people, more computers, and more worries. Alternatively, maybe the American Trial Lawyers Association needs a new tort to pursue. No matter which option is picked, however, it could get dicey.
Finally, it's important to realize that not all "invasions" of personal privacy are necessarily insidious. Take medical records. The "gateway" to significant health care in this country remains hospital emergency rooms. If staff can't readily access medical records, and friends and family are vague or uninformed about a loved-one's medications or sensitivities, the delivery of life-saving services may well be impaired. That's especially true if the individual is traveling.
If you were in a car wreck far from home, wouldn't you want the attending doctor to be able quickly to learn about any allergies, sensitivities, or other problems? Sure you would -- but over-zealous privacy protection sorts might complicate access to online medical records.
Or, try the political process. Mass mailings are enormously costly, and if groups can't readily ascertain those likely to support them, what do they do? They either don't solicit, or they run up crushing solicitation costs -- neither of which is particularly compatible with the idea of open and robust political debate.
But what direct-mail marketing experts have achieved in recent years is a means of allowing groups as diverse as Emily's List or the National Right to Life Organization to raise money efficiently -- by targeting only those folks their screening suggests would be amenable to being solicited.
Bar the use of such information and you achieve two undesirable things. First, you may end up with lots of people who ARE NOT interested at all in being solicited. Second, you may forestall fundraising by those espousing minority views.
Privacy is a legitimate public policy concern. But is it something that lends itself to a single, universal statutory or regulatory panacea? Probably not.
Kenneth Robinson is a Washington communications attorney who was senior legal adviser to Federal Communications Commission Chairman Alfred C. Sikes during the Bush Administration. Robinson earlier worked at the Justice Department's Antitrust Division, the Commerce Department's National Telecommunications & Information Administration, and the Office of Telecommunications Policy in the Executive Office of the President during the Nixon Administration.