<nettime> EFF's McCandlish on TRUSTe's RealFnord dodge

[t byfield <tbyfield@panix.com>]

<ftp://vorlon.mit.edu/pub/f-c/v04.n322>

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Date: Mon, 1 Nov 1999 19:10:43 -0800
From: mech@eff.org (Stanton McCandlish)
Subject: Re: Real Audio spies on customers

At 5:18 PM -0800 11/1/99, James S. Tyre wrote:

> It does lead to an interesting segue, however.  Anyone who has followed EFF
> more closely than I have should please feel free to correct me if I am
> wrong (and I have copied this to Stanton McCandlish at EFF), but it appears
> to me as if EFF is changing its position on gov't regulation in this area.
[...]
> Again, I could be wrong that this is a change in EFF's position, but it
> surprised me when I read it.  If it is a change, I would be interested in
> hearing more about what led to it.

I had a simlar conversation with Seth Finkelstein about this, actually.
The short version is that it's not a change of position, per se. Or,
more accurately, it's by no means a reversal of position. It's a change
in that it's a clarification of position.  Our stance has basically
been that industry self-reg would be worth trying, but might or might
not be enough. We did the "proof of concept" ourselves, by launching
and spinning off TRUSTe. But TRUSTe was intended to be and is a
separate, independent entity, and was created as an experiment. The
experiment is in many ways a failure, and so now we observe and openly
state that it is not enough.

EFF has never been hostile to (genuine) pro-privacy regulation (indeed,
we've relied heavily on the Privacy Act and the Electronic
Communications Privacy Act in cases like Steve Jackson Games v. US
Secret Service, and we backed the recent California consumer privacy
law that regulates things like grocery store club cards).  Our main
caveat is that privacy regs should not interfere unduly with free
expression, and in our view the latter typically trumps the former.  On
the other hand we are not pleased with the US West v. FCC ruling in the
10th Cir. In that case, it looks to us like a rather bad misapplication
of "free speech" concepts.

There's an uncomfortable tension between free speech/press and privacy
in many cases, and we see the issue as something that needs to be
resolved on a case-by-case or issue-by-issue basis, not a blanket
"privacy argument always win" or "free speech arguments always win"
stance.

NB: My *personal* opinion on TRUSTe is that its principal failure is
that it doesn't do enough for users to make them care, and does too
much to companies to get them to buy in.  After 2 years or so of
hindsight it seems impossible to resolve by "self-regulation". The
restrictions that consumers would actually care about enough to buy in
would scare away almost every commercial player, while the weak
watchdogging that the industry would accept en masse would do little
for customers other than put them on notice that they have no privacy
at all. There is (or companies seem to be under the impression that
there is) more money to be made screwing over their customers by
selling out every detail they can about every customer to the highest
bidder, than in keeping their customers happy with them and comfortable
trusting them.  The number of customers actually willing to vote with
their feet (and knowing enough to do so or to threaten to do so) is
dwarfed by an order of magnitude by those who simply don't know or care
enough to shop elsewhere.  It's yet another example of average
Americans conveniencing themselves to death.  Even if they do get
pissed at company X for putting them on junkmail lists, they'll
probably keep shopping there anyway. The invisible hand is fumbling in
this area, as it were.


At 5:36 PM -0800 11/1/99, Lizard wrote:

> Now, in the interest of starting a flame war, I'll say I might have
> cause to rethink some of my privacy rhetoric a bit. To the extent
> government has a role in the world, it is in protecting private
> property.

Even most of the hardcore libertarians I know grant the state several
purposes, among them:

* protecting persons' private property;
* protecting persons from coercion, fraud and other abuses by other
persons; and
* protecting the nation from foreign aggression (military, economic, or
otherwise);

among others. The more "liberal" you get, the more purposes you grant
the state, such as maintaining "public infrastructure" like roads,
providing "basic education" to all children, ensuring "equal"
employment and housing opportunities for all, whatever.

Many consider (some forms of) commercial "privacy invasion", to use the
general but imprecise term, to be a type of abuse of citizens that
government should be protecting them from.  I think the debate is
largely going to be about what does and does not constitute such a
privacy invasion. I suspect the question of whether any of it will is
already moot.


- --
Stanton McCandlish      mech@eff.org       http://www.eff.org/~mech
Communications Coordinator & Webmaster, Electronic Frontier Foundation
voice: +1 415 436 9333 x105   fax: +1 415 436 9333   ICQ: 16631335
PGPfone: 204.253.162.21  ICQ Pager: http://wwp.mirabilis.com/16631335#pager

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