PRIVACY LEGISLATION IS NEEDED AND WILL SUCCEED
LEGISLATION IS REQUIRED FOR ON LINE PRIVACY PROTECTION
Major R. Ken Pippin, Chief of Cadet Disenrollments at HQ USAFA/JA, United States Air Force Academy, Colorado. He is a member of the Bar of the State of Arkansas., "Consumer Privacy on the Internet: It's "Surfer Beware"", The Air Force Law Review, 1999, 47 A.F. L. Rev. 125, EE2001-JGM, p.141.
Privacy law in the United States is mainly comprised of a collection of statutes targeting specific industries that collect personal data. n102 As yet, no law specifically covers all consumers in the collection of personal data on-line. There also appears to be little in the way of constitutional protection. n103 As a result, the protection of personal information must be established by legislation. n104
ONLY NEW LEGAL PRIVACY RIGHTS CAN GUARANTEE PROTECTION
Leslie Miller; Elizabeth Weise USA TODAY, March 31, 1999, SECTION: LIFE; Pg. 4D TITLE: Keeping 'pry' out of the privacy debate New tools help consumers protect personal data from an encroaching Web // acs-EE2001
The missing link that will make the whole system work, he believes, is strong new legal privacy rights. As it stands, if something goes wrong, what chance do you have of getting it fixed? "All the experience lately suggests that the American consumer has got zip," he says.
A SOLUTION TO THE PERSONAL INFORMATION PRIVACY CRISIS IS TO FORMALLY CODIFY THE PRIVACY PRINCIPLES INTO LAW
Suzanne M. Thompson, "The Digital Explosion Comes With a Cost: The Loss of Privacy," Journal of Technology Law and Policy, Spring 1999, 4 J. Tech. L. & Pol'y 3, EE2001-JGM, P.81
A second option to protect informational privacy would be for the federal government to formally adopt the Privacy Principles; although to date, neither the executive nor legislative branch has formally adopted them as official policy. n218 Congress might also consider the formal adoption of the Privacy Principles as an omnibus privacy legislation. For example, "Congress might direct the Federal Trade Commission to undertake rule making to ensure that the collection and use of personal data in the commercial setting occurs in a manner consistent with the core principles of fair information practices -- notice, choice, access and integrity." n219 The Office of Management and Budget could either direct all federal agencies to incorporate the principles in their information practices or use their powers of persuasion to encourage state and local governments, as well as business leaders, to adopt and implement information practices set forth in the Privacy Principles. n220
LEGISLATION IS KEY TO PRIVACY PROTECTION BECAUSE IT PROVIDES DEFAULT RULES
Gregory Shaffer, Assistant Professor of Law, University of Wisconsin Law School, Winter, 2000; Journal of International Law, 25 Yale J. Int'l L. 1, Globalization and Social Protection: The Impact of EU and International Rules in the Ratcheting Up of U.S. Privacy Standards," EE2001-hxm lxnx
The market is not solely an alternative to legislation and judicial intervention. it is also a complement. Legislation creates default rules around which bargaining can take place. While Bibas, a proponent of a contractual/market approach to privacy protection, recognizes that "opt out" and "opt in" rights create default rules, he fails to acknowledge the importance of choosing between them. n140 In critiquing the EU Directive for being "centrally planned" and thus inefficiently allocating privacy rights, Bibas fails to note that, in almost all cases under the EU Directive, consumers can "opt into" or "out of" the free dissemination of personal information about them. n141 The "opt in" right creates a different default rule around which market negotiations can take place than an "opt out" right or no right whatsoever. n142 Companies are more likely to have to pay a price for individual consent under an "opt in" regime, thereby employing the very pricing mechanism Bibas advocates. Were U.S. law to require an individual's affirmative consent for personal information to be gathered for one purpose and marketed for another, private contracting could still occur. Companies would have to provide individuals with adequate notice and obtain their affirmative consent. The market would still function. The law, by requiring companies to provide more information to individuals, would place individuals in a stronger negotiating position. In fact, because companies would be less able to exploit information and transaction cost asymmetries, the pricing of privacy protection would more likely take place.