Can You Trust the Ministry of Privacy?

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With great fanfare, Vice President Al Gore has set out his “Electronic Bill of Rights,” declaring that new government initiatives are needed to protect our privacy. The contradiction here should be obvious; growing government power is the greatest threat to our rights and liberties, privacy among them. But one cannot expect any policy initiative driven by fear to make much sense. And — ironically, for Gore markets himself as an Information Age kind of guy — there’s little more than unthinking fear of technology behind Gore’s privacy initiative.

Many Americans have legitimate concerns about the privacy of their medical records — and the primary threat to that privacy is the growing interference by government with medical markets. The federal government is pouring billions of dollars in subsidies into a failing Medicare system, resulting in rampant fraud and waste as well as soaring medical costs. Rather than bite the political bullet and reform the system, the government wants its auditors to address the fraud problem by having more and more access to our health records. This culminated in the recent proposal by the Department of Health and Human Services to assign every American a “unique health identifier” to track his or her medical history from birth to death. Forcing such an identifier on the American people raises the possibility that those with mental illness, alcoholism or injuries inflicted by sexual abuse will avoid treatment to protect their privacy.

The administration’s recent announcement weasels around this issue, assuring us that “the administration is committed to not implementing the identifiers” until “strong privacy protections” for medical records are in place. But Secretary of Health and Human Services Donna Shalala’s earlier proposals sanctioned warrantless access to health records for police and auditors. Gore’s announcement does nothing to change this — and promises national health identifiers to come.

Government poses a unique and special danger to privacy because only government has the power to control the armies, the police and the courts…We do need to take the original restrictions on government seriously, especially when the growth of government threatens to shut down the Information Age.

The conclusion is inescapable. The logical result of growing government power over the health care system will be more and more government demands for access to our health records. Gore’s assurance that government can be trusted as the guardian of our medical privacy is a Band‐​Aid on a festering wound. The best way to protect medical privacy is to get the government out of the health industry.

But what about direct marketing? Gore thinks that “you should have the right to choose whether your personal information is disclosed; you should have the right to know how, when, and how much of that information is being used …” and he announced at New York University in May that he wants to “stop direct mail companies and telemarketers from using your personal information.” Premise by premise, that is an intellectually bankrupt attack on freedom of information.

Once we give information about ourselves to somebody else, it isn’t ours to control anymore — unless the other person agrees to keep it private, as, for example, a doctor or a lawyer would. If I buy a set of gardening tools from Sears, there are two parties involved in that transaction — Sears and I. I have no more right to demand that Sears keep the event a secret than Sears would have to demand that I not tell my friends — and Consumer Reports — about a problem with the garden tools.

As more and more commerce takes place over the Internet and through catalogs, it becomes harder for retailers to know what their customers want and need. Marketing to everybody on the chance that 1 or 2 percent will buy is expensive and wasteful. When entrepreneurs can capture and use information about customers’ habits, tastes and preferences, everybody wins. Consumers get less pointless junk mail; businesses trim needless costs. That’s only the beginning. Entire new product lines and businesses can use marketing information to get started. Discouraging direct marketing isn’t pro‐​consumer, it’s anti‐​competitive.

Countless small businesses and nonprofits rely on free trade in information about consumers to get started. Imagine that you want to start an organization to save greyhounds too old to race anymore. The way to do it is to buy a list of donors from an established humane society. Suppose the humane society had to go to every individual donor and get his permission before selling the list. There probably wouldn’t be a list at all, or it would be hopelessly expensive, and your greyhound group would never get off the ground.

How could an Information Age guru like Gore get it so wrong? Part of the answer is that people who are motivated by fear don’t think clearly. Gore’s address at New York University in May is again revealing: “Today, we see the rise of new fears, ones that are very real. In the course of an average day, you may use your credit card to buy groceries.…” What exactly does Gore think the credit card company is going to do with the information it gathers? The most likely outcome is that the company will send you an offer for a discount coupon for groceries. Compared with expanded federal wiretapping power and restrictions on encryption — which the Clinton‐​Gore administration has backed — the grocery example is utterly trivial.

Government poses a unique and special danger to privacy because only government has the power to control the armies, the police and the courts. So the Constitution of the United States carefully limits the powers of government; the Bill of Rights restricts the power of the police to snoop without a warrant. We do not need Gore’s new Privacy Bill of Rights. We do need to take the original restrictions on government seriously, especially when the growth of government threatens to shut down the Information Age.

Solveig Singleton

Solveig Singleton is director of information studies at the Cato Institute and coeditor of the upcoming book The Regulators’ Revenge: The Future of Telecommunications Deregulation (Cato Institute, 1998).