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Until now, debates over privacy have always been cast as a battle between good and evil, a struggle between Big Brother and Lady Liberty. On Big Brother's side was the government seeking to gather and control more information. In the camp of Lady Liberty was a coalition of citizens and advocacy groups that sought to protect the right to be left alone.
In the wake of the September 11 terrorist attacks, however, it's no longer that simple. Privacy advocates have trouble mustering a case against government plans to intelligently link their databases with those of the State Dept. and the FBI to help prevent terrorist suspects from entering the country (see BW Online, 10/12/01, "The Immigration Laws' Bureaucratic Babel"). After September 11, how many Americans will really complain if they are thoroughly checked out before boarding an airplane? In the new America, no one can afford to be a privacy absolutist.
That doesn't mean that the battle over privacy rights is over, however. In the next few months, the government will be making dozens of critical decisions about who has access to what data and how it will be scanned, sorted, and linked. That's why now, more than ever, it's essential to strike a balance between security and the right to be left alone (see BW Online, 10/18/01, "The Cyber-Surveillance Bill and You").
EARLIER MODELS. The solution is to empower a federal agency with clear jurisdiction to enact privacy rights policy. Why not create a federal privacy commission within the Office of Homeland Security? Envision a pragmatic and dedicated team of privacy and technology experts who can help the government decide how to ensure national security while maintaining privacy and minimizing the opportunity for abusing sensitive information.
The concept of an independent privacy body is nothing new to the private sector. Beleaguered Internet ad firm DoubleClick and Predictive Networks, a Massachusetts company that tracks the paths of Internet users to develop behavior models, both set up independent boards in May, 2000. In both cases, the move came on the heels of harsh criticism in the press. In Predictive's case, a high-profile article in The Wall Street Journal suggested that Predictive's software pushed "digital eavesdropping to a new level."
The article was a wake-up call, says Predictive Network founder and CEO Devin Hosea. "Although we felt from a technical point of view that we were privacy-friendly, we hadn't done a good job telling the public that we were monitoring ourselves," he says.
TRINITY OF EXPERTS. Hosea considered hiring a chief privacy officer to create an appropriate policy that would address complaints, but he soon realized his best option was a "truly independent" privacy board. The company persuaded a trinity of privacy experts with experience in law, policy, and technology to act as company ombudsmen. The board includes civil liberties lawyer Harvey Silverglade, George Washington University law professor Jeffrey Rosen, and Whitfield Diffie, the inventor of a popular type of encryption that scrambles data.
The board's role is to monitor and consult on privacy concerns and complaints about Predictive's technology. All correspondence and press calls are automatically forwarded to members of the board, who are free to comment publicly or, if necessary, instruct the company to change its policy. To ensure independence, all three members are tenured, and each is paid a modest cash stipend rather than being given stock in the company.
"The average person can't parse through exactly what we do," says Hosea. "The technology is complicated. The policy is complicated. We needed a third party to figure out what makes sense and to act as an advocate for the consumer."
"IT'S ESSENTIAL." To date, the board hasn't reprimanded the company. Silverglade, who acts as chairman of the privacy board, says he has been called in to consult about a dozen times in his tenure. But he believes just the board's existence is key to building Predictive Networks' reputation. The same would be true for the government. "The prospect of what we call 'better information sharing' presents a threat to the modality that has protected privacy," he says. "If it becomes a reality, I think it's essential to have an independent privacy board or ombudsman to watch for abuses."
Fran Maier, executive director of TRUST-e, agrees. TRUST-e is a nonprofit venture that tries to build user confidence online by assigning labels and seals of approval to Web sites that successfully implement their privacy policies. She likens the notion of a government agency to her organization. "The same way the average person doesn't bother to read privacy policies, they won't bother or can't understand how their data will now be shared. Third-party oversight really makes sense," says Maier.
What has served the private sector well could work for the public sector, too -- now more than ever. The aggressive push for antiterror legislation in the weeks following the attack suggests that neither the White House nor Congress wants another agency that could slow decision-making and restrict its ability to collect and sort intelligence.
DON'T IGNORE. The Bush Administration also appears to be putting privacy concerns on the back burner. On Oct. 4, Timothy Muris, the new head of the Federal Trade Commission, which oversees privacy efforts in the commercial sector, announced that it would repeal calls for tough new privacy laws. Instead, it would focus on improving enforcement and educating the public.
But the Administration is wrong to ignore privacy concerns, especially when hundreds of important changes are going to be made to the way the government collects and stores personal data. And without executive branch power, a privacy board would end up as just another blue-ribbon panel that issues reports with little or no follow-up.
Witness what happened to the U.S. Commission on National Security for the 21st Century. Led by former Senator Gary Hart and Senator Warren Rudman, the panel's report warned in January, 2001, that the U.S. was under imminent threat of a domestic terrorist attack. The Bush Administration, however, ignored the warning. Instead, it announced in May that Vice-President Dick Cheney would study the issue more, even though the commission had spent two and a half years researching its findings.
Having a dedicated agency responsible for assuring privacy rights could help the government avoid serious missteps in these turbulent times, while assuring Americans that privacy is part of the freedom it has vowed to defend.
Black covers privacy issues for BusinessWeek Online. Follow her twice-monthly Privacy Matters column, only on BW Online Edited by Patricia O'Connell
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Copyright 2001 , by The McGraw-Hill Companies Inc. All rights reserved.
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