Polls, Policy and the FTC
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The last two chapters demonstrated that markets for commercial information are responding to consumers concerns and preferences with respect to privacy. There appears to be no evidence of market failure, or even of harm to consumers. There are, nonetheless, proposals for regulation, most prominently from the Federal Trade Commission.128 The National Association of Attorneys General (NAAG) has also proposed greater government involvement.129 In this chapter, we consider alternative rationales for expanded regulation, which seem largely to be based on public opinion and other survey data.
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- 129.Draft Memo, December 11, 2000, National Association of Attorney s General Avavliable online at http://www.pandab.org/E-Commercc%20Exec.%20Summary.html July, 2000; Pew /internet and American Life Project, “The Internet Life Report: Trust and Privacy Online: Why Americans want to rewrite the rules.” August, 2000. More informat ion available at www.pewinternet.org; The Wall Street Journal-Harris Interactive Poll, “Exposure in Cyberspace,” The Wall Street, March 21,2001.
- 130.Jerry Kang, “Information Privacy In Cyberspace Transactions” 50 Stanford Law Review 1193, April 1998, at 1198–1199, footnotes omitted. As of December 26, 2000, Westlaw indicate s that this article had been cited 100 times — a large number for a relatively new article. Moreover, it has been cited in many or most of the law review literature on privacy in cyberspace.Google Scholar
- 131.Jeff Sovern, “Opting In, Opting Out, Or No Option s At All: The Fight for Control of Personal Information,” 74 Washington Law Review 1033, October, 1999. at 1034, footnotes omitted.Google Scholar
- 132.From the Equifax survey, cited in Jeff Sovern, “Opting In, Opting Out, Or No Options At All: The Fight for Control of Personal Information,” 74 Washington Law Review 1033, October, 1999. p. 1061 and footnotes.Google Scholar
- 133.It is sometimes argued that the value of privacy is demonstrated by the willingness of many consumers to have unlisted phone numbers. But this is consistent with the argument here. A phone number is available to real people. It is quite consistent to value privacy with respect to what is known by humans more highly than privacy with respect to information held on computers. See Eli Noam, “Privacy and Self-Regulation: Markets for Electronic Privacy,” in Privacy and Self-Regulation in the Information Age, U. S. Department of Commerce, Washington, 1997, http://www.ntia.doc.gov/reports/privacy/selfreg1.htm.Google Scholar
- 135.We also note that the Supreme Court has rejected this argument in another context. In the case involving the Communications Decency Act (CDA) the government made the argument that the Internet would grow faster if there were regulation of pornography, an argument similar to that made with respect to protection of information. The opinion stated: In this court, though not in the District Court, the government asserts that — in addition to its interest in protecting children — its “equally significant” interest in fostering the growth of the Internet provides an independent basis for uphold ing the constitutionality of the CDA. The government apparently assumes that the unregulated availability of “indecent” and “patently offensive” material on the Internet is driving countless citizens away from the medium because of the risk of exposing themselves or their children to harmful material. We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship. See Janet Reno, Attorney General of the United States, et al., Appellants v. American Civil Liberties Union et al., No. 96–511, Supreme Court of the United States, decided March 19, 1997, at 15–16.Google Scholar
- 136.FTC Advisory Commission Report, separate statement of Stewart Baker, p. 40.Google Scholar