FOR EDUCATIONAL USE ONLY
University of San Francisco Law Review
Summer 2000
Article
*633 OUR DATA,
OURSELVES: PRIVACY, PROPERTIZATION, AND GENDER [FN1]
Ann Bartow [FNa1]
Copyright © 2000 University of San Francisco School of Law;
Ann Bartow
CYBERSPACE BRIEFLY HELD a lot of promise for women. [FN2] It was the closest we could expect to come
to being "brains in . . . boxes." [FN3] In cyberspace, we would not be judged by
our bodies. No one would know when we were having bad hair days. We would not
ever have to wear make-up and high heels. We could even be "men"
without hormones or expensive surgery. Then we began shopping and chatting over
the Internet. Shortly thereafter, we learned that anyone in cyberspace could
ascertain our gender, ages, incomes, education levels, marital status, sizes,
consumer purchase proclivities, aspects of our health, and employment
histories, and the number, ages, and genders of our children, and that this
information could be used to sell us *634 goods and services. [FN4] Now, instead of brains in boxes, we are
"eyeballs with credit cards." [FN5]
Cyberspace has become fertile ground for the harvesting of consumer data, and
consumers have very little ability to keep their personal information private,
especially online. Yet, we are unlikely to see any sector of government launch
comprehensive, enforceable online privacy initiatives based on the precept that
privacy is a good unto itself. [FN6] At the same time, copyright, trademark,
and patent protections obtained by companies for words, thoughts, ideas, and
symbols are expansive and seemingly grow broader on a daily basis. [FN7]
This article considers the possibility that one evil can be remedied by
another. Perhaps the current corporate-friendly intellectual property
framework, so effective at turning the information superhighway into a toll
road, can be co-opted to enable individuals to "own" and control our
own personal information, giving us the tools to "gatekeep" our own
informational privacy. [FN8] Perhaps we should have the same property
rights in our names and personal information that corporations have in their
names and data. At a minimum, we should have the same property rights that
corporations have in our names and personal information. Perhaps, if nothing
else, an attempt to secure property rights in our personal information will
draw attention to the ongoing corporate propertization of everything.
The data collection issue is of
singular importance to "web swimming" women. [FN9] Women do most of the shopping in real
space and will inevitably do the same in cyberspace, where we are appearing in *635
ever increasing numbers. [FN10] Women control 80 to 85% of all personal
and household goods spending and are reportedly the fastest-growing audience on
the web, a market "expected to grow to 65 million in 2002 from 45 million
today." [FN11] Internet analysts agree that
"anybody who wants to make money on the Internet cannot afford to ignore
[women]." [FN12]
In cyberspace, women are inherently desirable, but only because things of
value, data, and ultimately money, can be taken from us. In the abstract, many
of us may be concerned about personal privacy, but when we are out swimming the
web, this concern may be overshadowed *636 by a desire to
participate fully in online life. [FN13] We are lured to special "women-
oriented" web sites that efficiently facilitate the extraction of our
personal information assets and our nummular currency. [FN14] Attracted to interesting, high quality
content and the promise of supportive, dynamic online communities, we are
easily persuaded to actively share personal information with site owners and
advertisers. [FN15] Simultaneously, and often unmindfully, we
also passively share information about ourselves through the articles that we
select to read, the topics that we elect to post about, and the sites and
advertisers that we choose to visit. [FN16] Docilely, we allow corporate entities to
monitor our online efforts to educate and inform ourselves, support each other,
and purchase goods and services for our families and ourselves. [FN17] This data is then used to more
efficiently separate us from our money. [FN18] *637 The fact that we give
web sites information of greater value than the content we receive is
obfuscated by our sense of gratitude that we are no longer ignored in
cyberspace; that typing the keyword "woman" into a search engine now
produces something besides pornography sites; that we finally have cyber-rooms
of our own. Indeed, web analysts postulate that some women actually form
emotional bonds with certain sites, using cyber fora to create social networks
for themselves. [FN19] Electronic entities then attempt to
exploit this sharing and networking for commercial gain. [FN20]
Online data collection should be a serious concern to everyone who ventures
into cyberspace, regardless of gender. This phenomenon is particularly
problematic for women because, as explained above, women do most of the hunting
and gathering for themselves and their families, and are therefore becoming the
primary targets of marketers in cyberspace. [FN21] The admittedly problematic (and perhaps
appallingly cynical) solution proposed, however, applies equally well to men.
If all individuals are awarded the same broad property rights *638
in their personal data that business interests successfully assert in words,
ideas, and information, people can control how much online privacy they have
and, correspondingly, the levels of targeted marketing to which they are
subjected.
In cyberspace women are the
quarry, and we are "targeted" by web sites that are "aimed at
us." Online companies create content that will lure women to their web
sites. Touted by the New York Times as a "place for serious
sisterhood," iVillage [FN22] has immense corporate backers, including
General Electric, America Online, Intel, Tele-Communications, Ralston Purina,
Kimberly-Clark, AT&T, Ford, and Amazon.com. [FN23] An iVillage spokesman stated, "We're
very focused on the fact that the Web is one of the best mass- marketing
opportunities ever." [FN24] The company offers a plethora of online
shopping opportunities and "targets" affluent women between the ages
of 25 and 49, a "highly valued demographic." [FN25]
One tactic that iVillage uses is blending content and commerce as seamlessly as
possible. Candice Carpenter, the primary architect of iVillage "pioneered
the use of 'integrated sponsorships,' where advertisers participate in the
creation of content, the information, articles, and services that appear on the
company's Web sites." [FN26] For example, Ralston Purina sponsors a
pet channel, which offers chat rooms, message boards, and access to a pet
expert. The pet expert also happens, completely uncoincidentally, to be a
Ralston Purina employee, who *639 can refer web swimmers to
products available at an accompanying online pet store. [FN27] Similarly, "[i]n what it called a
breakthrough partnership with the milk industry, iVillage established a
'behavior modification program' of 'weekly chats, E-mail reminders, and lively
message boards' to encourage 'the habit of drinking three glasses of milk per
day." ' [FN28] One will not find any information
challenging the purported benefits of milk present at this site, so there is no
need to worry our pretty little heads about conflicting data regarding the
health benefits or utility of high levels of milk consumption.
iVillage also maintains a network of many web sites and claims millions of
registered members. [FN29] It seeks to build a community of women on
the Internet around issues such as divorce, miscarriage, breast cancer, child
discipline, job stress and "unfortunate taste in boyfriends," and
then "monetize" the community by profitably selling products and
advertising. [FN30] One example is found at the iVillage site
Parent Soup, [FN31] where "a pregnant woman can enter
her due date and receive a calendar showing day by day what's likely to be
happening inside her body." [FN32] Women with overlapping calendars are
directed to a "Pregnancy Circle," an online support group where they
can trade advice and concerns and are simultaneously prompted to purchase items
such as books from Amazon.com, [FN33] baby goods from iVillage's iBaby, [FN34] and maternity clothes from iVillage's
iMaternity. [FN35]
Another alleged "place for serious sisterhood" is Microsoft's online
magazine, insipidly named Underwire [FN36] and ostensibly "more serious and
sedate" than iVillage. [FN37] Microsoft also maintains WomenCentral, [FN38] a web site/Internet channel of the
Microsoft Network. [FN39] WomenCentral features content from
Women.com, [FN40] another *640 online
publisher of "women's material," as well as content from Underwire
and other original material. [FN41]
Oxygen Media, backed in part by Oprah Winfrey, has also constructed online
flypaper for female consumers, and runs three "women-oriented" sites
it bought from America Online in the fall of 1998: Electra, [FN42] ThriveOnline, [FN43] and Moms Online. [FN44] Its main site [FN45] appeared in late May of 1999. [FN46] The concept of Oxygen is to fuse the
television, the Internet, and the telephone, creating a strongly tight-knit,
multimedia community of women. [FN47] Aspects of Oxygen Media's mission were
imbued with an aura of public interest legitimacy when Markle Foundation President
Zoe Baird announced a joint venture between Oxygen Media and the charitable
Markle Foundation. [FN48] The venture involves $8.5 million dollars
worth of research, $4.5 million of which the Markle Foundation is providing, on
"the information needs of women." [FN49] According to Baird,
The Oxygen/Markle Pulse will develop baseline ongoing research, day in and day
out, to find out what women want, what they are concerned about, and how they
feel about the world around them. All of this will be made public so that other
companies can use it. We hope it will influence public perception and women's
perception about their influence. [FN50]
Thus, while the information generated by this research may somehow give women
more political power, as Baird seems to intend, in part, it will also, by
design, assist companies seeking to identify, understand *641 and
target female consumers. [FN51] This approach seems to reflect a
fundamental assumption that meeting the needs of women requires the efficient
sales and marketing of goods and services to women. In other words, our need to
shop is so powerful that a charitable foundation will, in the name of the
public good, spend millions of dollars assisting for-profit companies with
efforts to more sensitively and responsively take our money.
Other gateway pages are bawdier, such as Estroclick, [FN52] which bills itself as "an estrogen
powered web network." [FN53] This site promises "broad-based
content" (get it?) at "girl sites that don't fake it" and
features links to special interest sites like hipMama, [FN54] Wench, [FN55] Bust, [FN56] and Hissyfit. [FN57] Still other sites do not bother offering
much in the way of content at all, instead pitching their sites as time and
money savers that research products and services on our behalves. [FN58]
III. Buy This 16-Year-Old and Get All Her Friends
Absolutely Free [FN59]
Like women, "teenagers"
are also seen as a lucrative emerging e-market. [FN60] Many companies especially want to collect
data from teenage*642 women, a highly coveted audience. [FN61] In addition to their purchasing power at
present, they are "proto-consumers whose purchasing habits and brand
identification are still soft enough to shape" and "at the very
beginning of their lifetime value as a customer [sic]." [FN62] Data is collected first to measure, and
then ultimately to influence the popularity of consumer goods aimed at young
women. Ironically, one site designed to ensnare teenagers for market research
purposes, SmartGirl Internette, [FN63] has the (apparently) trademarked,
non-ironic slogan "smart girls decide for themselves." [FN64] At the "Speak Out" section of
the SmartGirl site, [FN65] "girls answer multiple-choice
questions and opine to their hearts' content in open response areas. Their
teenage sentiments are collected, cross-referenced and sold to SmartGirl
clients or sent out in press releases for promotional purposes." [FN66] SmartGirl uses the data it collects to
perform customized research and surveys. [FN67] It then publishes a line of subscription reports,
including the Celebrity Report, which appears six times per year and costs
$10,000 annually, and the shorter monthly Trend Report, which costs $2,000 per
year. [FN68] SmartGirl framed this market research as
a service to its teenaged readers, as a way to keep the site free of
advertising, and as a mechanism for determining "what girls want so
companies can make better stuff for you and really meet your needs." [FN69]
Empirically, teenagers are willing not only to provide data about themselves,
but also to divulge information about their friends and *643
other family members. [FN70] A recent study conducted by the Annenberg
School of Communications at the University of Pennsylvania determined that
while teenagers expressed a general nervousness about privacy on the Internet,
most would provide personal information about themselves and their families,
especially in exchange for a free gift. [FN71] Teenaged girls are also likely to engage
in very personal online dialogues. [FN72]
IV. Now That They've Come, What Can We Sell Them?: Data
Collection and Targeted
Marketing [FN73]
What sets so-called
"women-centric" sites apart from traditional real space, hard copy
women's magazines is that, in addition to providing content and subjecting
readers to advertisements, these sites can record which articles we read and
which ads catch our eyes, collecting reams of intimate personal data from each
person who accesses the site. [FN74] Computers can gather, store, sort,
retrieve, and *644 disperse previously incomprehensible
quantities of data. [FN75] As one observer stated:
It's not just that technology collates existing information like public records
in new and ways. It also creates new kinds of information. One of the most
interesting is "clickstream" monitoring, a page-by-page tracking of
people as they wander through the Web. Your clickstream reveals your interests
and tastes with unnerving precision. (Did you go from slate.com to a Volvo
dealer's Web site? Did you then buy some brie from peapod.com, the online
grocery? You may be one of those limousine liberals we've been hearing about.)
And when Web merchants combine clickstream analysis with another new software
technique known as "collaborative filtering," which makes educated
inferences about your likes and dislikes based on comparing your user profile
with others in the database, they have a marketing tool of high potential not
only for customer satisfaction but also for abuse. [FN76]
One Internet security consultant demonstrated that a data miner could easily
collect our names, street addresses, e-mail addresses, birthdays, transactional
information, and insight about products that interest us after we had visited
fewer than ten web sites. [FN77] The collection and assessment of
"clickstream" [FN78] data enables delivery of precisely
directed, sometimes personalized, advertisements. These advertisements are
rabidly sought after by advertisers, so that "targeting" *645
can be as accurately calibrated as possible. [FN79] After an advertisement draws us to a
site, the customization continues.
[What e-commerce companies term] the utopian vision of true "one-to- one
marketing" . . . is predicated on gleaning as much information as possible
about a customer and building a storefront tailored to that particular
individual. After gathering personal data and tracking a shopper's movements
within the site, Internet retailers can display products to suit that
customer's tastes and price range, or list customized specials and sales. [FN80]
As a result, "an Internet user who looks up tourist information about
England on a travel site . . . might be fed ads for airlines flying into
Heathrow Airport and for hotels in London as he checks sports scores." [FN81] Marketing analysis of a "women's
site" web swimmer might therefore transpire as follows: [FN82]
She's reading the articles on weight loss. Cross-reference this with her
shopping records, which indicate she purchases clothing in rather large sizes. Her
income level looks like it could support medication, prepackaged food, a diet
center, and/or a health club, or perhaps we could entice her with a rich line
of desserts and designer chocolates. Her medical records bespeak a family
history of hypertension and heart disease. She has articulated a desire to shed
pounds and increase her level of physical fitness in an online discussion.
She's also *646 worried that she would have trouble maintaining a
healthy diet if she were to become pregnant. Let's send some select banner ads
her way, and some precisely targeted, personalized e-mail advertisements as
well, because effective marketing is the true purpose of this web site, and
marketing in the guise of sisterhood, friendship, and support is the most
potent of all. [FN83]
Online merchants will not voluntarily forgo these opportunities: The concept of
online privacy "is directly as odds with one of the most attractive aspects
of doing business online--the Net's capacity for helping target marketing and
advertising efforts directly at specific users." [FN84] Gerry Laybourne, the self described
Chairman, CEO, and Founder of Oxygen Media, has boasted:
70% of women cannot stand the way America advertises to them. It's insulting.
It's demeaning. It doesn't understand what motivates them. And they don't want
to be sold. They want to buy, they want information, and they want to be talked
to as real human beings. And I know this from what we did with Nickelodeon,
where the same stereotypes were held for kids. And it is amazing what you can
do when you like your audience, you're an advocate for your audience and you're
on their side. [FN85]
Oxygen Media and its competitors may indeed do "amazing" things for
its corporate clients, after we freely provide the tools--copious amounts of
our personal data. Once the data is disgorged and tabulated, we are placed
squarely in vendors' sights, with our cyber-bull's eyes clearly e-outlined,
ready to be aimed at. We are simply prey. The chief executive of Women.com,
after describing techniques for luring women to and through a web site with
quality content, enthused, "For advertisers, it's fantastic because you're
catching a consumer right in flight." [FN86] Targeted marketing techniques can
significantly increase the response to an advertisement and web sites can
correspondingly charge a premium for delivering ads aimed at certain users. [FN87] One company has even patented a
"[m]ethod and apparatus *647 for determining [the]
behavioral profile of a computer user." [FN88] This method "provides targeting of
appropriate audience based on psychographic or behavioral profiles of end
users" that are formed by "recording computer activity and viewing
habits" for the purpose of "continually auto-target[ing] and
customiz[ing] ads for the optimal end user audience." [FN89] Targeted advertising has been called the
"Holy Grail" of the online advertising industry because it allows
publishers to charge higher rates based on a perception of enhanced efficacy. [FN90]
Women's sites with compelling content will certainly make their owners wealthy.
As one commentator observed, "The Internet has changed the characteristics
of information. It used to be that a bank robber would go to a bank to steal
money. Now the information about customers is almost as valuable as the
financial assets themselves." [FN91] Another opined, "The Internet is an
absolute gold mine" of exploitable personal information. [FN92] Still others stated, "The digital
deposits of . . . [online] transactional details are so deep that the practice
of exploiting their commercial value is called 'data-mining,' evoking the
intensive, subterranean, and highly lucrative labors of an earlier age." [FN93] At least one commercial web site
illustrated just how valuable it considered consumer data when it downgraded
customers' ability to evaluate its products by cutting a zoom feature in order
to free up bandwidth--so it could "employ a sophisticated database that
can track inventory as a user enters the site and can serve registered
customers*648 images of items they might like." [FN94] Further evidence of the value of personal
information is provided by the actions of Free-PC.com. [FN95] This company gave away 10,000 computers
to individuals who were willing to provide extensive demographic data and
accept a constant stream of advertisements, and a host of other companies
providing ostensibly "free" goods and services over the Internet. [FN96]
Meanwhile, web sites encourage web swimmers to "shop naked." [FN97] Presumably, the intended meaning is that
we can e-shop as we are, without toting children, hiring babysitters, applying
make-up, or even bothering to dress. A second denotation is more ominous--shop
naked because we are figuratively nude. Netscape and its clients know
everything about us, our personal flaws and most intimate attributes have been
stripped from us and are known to all. We are e-naked while we e-shop on the
Internet. The more we shop, the more exposed we become. As two observers
articulated, "Imagine walking through a mall where every store,
unbeknownst to you, placed a sign on your back. The sign tells every other
store you visit exactly where you have been, what you looked at, and what you
purchased. Something very close to this is possible on the Internet." [FN98] It is not only our online transactions
that will define us in cyberspace. Some Internet marketers, in an effort to be
fully comprehensive, will "[combine] information gathered from people
online with vast stores of data on *649 these same people kept by
companies that compile traditional mailing lists." [FN99] Indeed, "[a] series of initiatives .
. . are converging to transform the browse-and-surf Internet into a giant
information exchange, one that features a tug-of-war between consumers and Web
sites for everything from e-mail addresses to shoe sizes." [FN100] Paul Schwartz has described this as
"the privacy horror show currently existing in cyberspace." [FN101] In the future, even our home appliances
may contribute information to our marketing profiles. [FN102]
Sometimes data collected on us will be used to deny, rather than sell us
material things. [FN103] A newly formed debit credit bureau
"will combine data from full credit reports with demographics and other
information 'mined' from various computer sources. A computer-generated credit
score will [then] determine whether a store should accept an individual's debit
card." [FN104] Related practices, involving use of a
person's banking, insurance, credit card, brokerage transactions records (and,
conceivably, cyber-indicia of race, age or religion) to determine whether she
is too risky a candidate to receive a loan or line of credit, have been
christened "digital redlining." [FN105] In other instances, data derived from a
collective us will be used to maximize certain types of popular content and
minimize or eliminate features that are less frequently accessed, thereby
denying desired content to individuals with less mainstream interests. [FN106]
*650 Commercial entities track which advertisements lure
particular web swimmers without warning us that in the process of learning
about a product or service, we are also educating merchants and advertisers
about ourselves. In "real space," consumers who might answer surveys
or participate in focus groups could hardly do so without some awareness that
they were giving information or being observed. Sitting alone in a room in our
homes, with a computer we have purchased, swimming the web on time we are
paying for, is not an activity we would expect to have extensively monitored.
We might expect our online purchases to register and of course they do. But,
individual Internet services amass detailed records of who uses their sites,
how the sites are used, and can then cooperatively pool data "into a
central database containing digital dossiers on potentially every person who
surfs the Web." [FN107] In fact, even the act of placing objects
in online "shopping carts," but later declining to purchase them, is
closely observed.
Using this information, online merchants can then devise ways to convert
browsers to buyers, such as by giving shoppers fewer opportunities to abandon
purchases to maximize impulse spending. [FN108] Borrowing (and trampling) a cliche
familiar to lawyers everywhere, this has been characterized as "'mak [ing]
a consumer's purchase decision as slippery a slope as possible." ' [FN109] One online department store actually
pursues shoppers who abandon large purchases, calling or e-mailing them to try
to close the sale, identifying them with information knowingly or unknowingly
provided. [FN110]
There is a snowball effect too. The more information an entity has about us,
the more they are able to collect. Information from credit card purveyors
documents not only our creditworthiness, but also our travels by recording
airline or train tickets, rental cars, gasoline purchases, and hotel charges.
Information from food markets gives big clues about our consumption of fat,
sugar, red meat, cigarettes, and alcohol, as well as how many servings of
fruits and vegetables *651 we are likely imbibing. Simply paying
for a purchase by credit card may also provide the vendor with our social
security numbers. [FN111]
Web merchants lure women to
putatively supportive sites, learn about our frailties and desires in the
context of the articles we read, the discussion groups we post to, the chat
rooms we visit (and what we say when we are there). In the guises of
helpfulness and sisterhood, they then use this information to sell us products
and services, free of targeted intervention, for which we have not expressed or
entertained desires or needs. [FN112] As Jerry Kang observed:
After all, personal information is what the spying business calls
"intelligence," and such "intelligence" helps shift the
balance of power in favor of the party who wields it. . . . [A]nother's control
of our personal information can make us susceptible to a whole range of
ungenerous practices. It could subject us to influence that crosses the line
between persuasion and undue influence. Sophisticated advertisers, for example,
do not merely track consumer demand; they manufacture it outright. Detailed
knowledge of who we are and what we consume makes the job of preference
fabrication that much easier. [FN113]
The insidious effectiveness with which a marketer can infiltrate and co-opt a
discreet subculture is exemplified by Nike's successful campaign to market
shoes to skateboarders. [FN114] After discerning that skateboarders felt
victimized by intolerant police officers and local government officials, Nike
produced an ad that humorously asked what it would look like if other athletes
were harassed and fined the way skateboarders apparently routinely are. [FN115] By acknowledging and harnessing feelings
of persecution, Nike calculatedly transformed itself from an enemy into a
sympathizer, bringing the skaters "into the brand's fold." [FN116] The one-to-one marketing possible over
the Internet will give Nike and other companies the power to ascertain,
collect, monitor, and manipulate not only the emotions and perceptions of
subcultures, but also of individuals.
*652 Data mining, data aggregation, and data distribution in
cyberspace also perpetuate targeted "direct marketing" in real space.
By acquiring and compiling information about individuals, direct mailers can
eschew mass mailings in favor of customized pitches and marketing niches,
improving their bottom lines. [FN117] No trees are saved in the process,
though. "Junk mailings" actually increased in 1998 and appear to be
stoked, rather than usurped, by the Internet and the information it provides. [FN118]
It should be noted that some of the people deriving wealth from women accessing
these and other women-directed sites are in fact other women. While the folks
making millions from hardware and software are radically disproportionately
male, the consumer service and marketing aspects of e- commerce have brought
cognizable numbers of women into the web e-conomy. [FN119] Some argue that simply bringing more
women into the design, application, and evaluation of new technologies will
integrate women into cyberspace in a healthy, productive way. [FN120] We might reasonably anticipate that just
as the involvement *653 of smart, talented women in enterprises
such as Oxygen Media will result in better online content, the involvement of
women in developing technology will inevitably lead to better technology.
However, in both cases, the end result will be attempts to sell more goods and
services to women--either by advertising the goods and services on high quality
women oriented sites or through inventions embodying technology developed by women.
The assumption that being enticed to buy more things benefits women is
bolstered, rather than questioned. [FN121]
Datum by datum, woman by woman,
the cyber-definition of "female" is being constructed. One observer
remarked that reading about the behavioral studies and statistical sum-ups that
advertisers create made her feel like "a discarded lump of target-audience
Spam." [FN122] Compilers of her information will decide
what she means in cyberspace. [FN123] Derivative e- stereotypes, braced by a
plenitude of personal *654 information, will appear scientific
and incontrovertible. [FN124] Aggregations of data will certify to
entities engaged in commerce:
This is what older cyber-women want to wear, that is what younger cyber-women
want to read, these are the toys that appeal to middle class cyber-women with children,
those are the hats and wigs likely to be purchased by cyber-women undergoing
chemotherapy.
Data collectors thus position themselves as interpreters of the popular will.
Women.com deserves special mention for proclaiming that it had conducted research
demonstrating that all women fall into one of six categories, or
"psychographic segments" for net marketing purposes: Pillars, Movers,
Trendsetters, Believers, Breadwinners, and Explorers. [FN125] Meanwhile, an advertising agency, with
many online clients, subdivides mothers into a mere four assemblages: June
Cleaver: The Sequel, Tug of War, Strong Shoulders, and Mothers of Invention. [FN126]
Additionally, online activities may also be monitored for social science
research purposes that may or may not have a direct relationship to commerce,
making web swimmers unwitting subjects of research without their consent. [FN127] Chat rooms and "clickstreams"
are tools that can be utilized for example, either by anthropologists in
academia or "industrial anthropologists" who are employed by
companies to study consumer behavior. [FN128] The advertising firm Ogilvy & Mather
overtly recruits "anthropology Ph.Ds who have 'no ideological or moral
objections to consumption/materialism." ' [FN129] Behavioral *655 scientists
are also employed to observe consumers and, ultimately, to persuade them to
make certain purchasing decisions. [FN130]
It has been argued that extensive, nonconsensual observation is in tension with
human dignity, in part because it interferes with exercises of choice and leads
inexorably to self-censorship. [FN131] Such observation can also sell a lot of
sneakers. Nike marketers embarked on "an ethnographic fact finding
tour" of high school girls' basketball in meet space, and based on its
findings, the company invented a replica girls' high school basketball team,
which was "made the subject of intentionally low-budget-looking commercials
that document the team's arduous, unsung road to a fictitious state
championship." [FN132] Consumers found the faux authenticity
very convincing. [FN133] The ability to cheaply and efficiently
collect reams of data in cyberspace will enable much smaller, less wealthy
companies to fabricate its own targeted marketing campaigns.
Ironically, while we may be targeted individually for marketing purposes, the
only content that may ultimately be available to us is what is demonstrably
popular to the masses (via "clickstream" accretion), which we may
find bland and unoriginal, or even patently offensive. One journalist observed,
"The more we learn about exactly how much and why you like us, the less
excuse we'll have to rely on our own judgment." [FN134] He further noted:
In print publications, certain departments depend on an at best fragile feeling
of editorial obligation to keep them running; rare is the magazine that can
justify a book review section--not to mention, *656 say, dance or
visual arts coverage--on readership alone. Glamour magazine couldn't even
justify continuing the only women-in-politics column in a major women's mag,
killing it last fall. Improved metrics could only worsen this tendency. The
online-media business is already founded on mealy-mouthed rationalizations
about how editorial/business compromises--commerce links next to articles,
selling placements within search-engine results--are really just foresighted,
win-win strategies to empower users and give them what they want. As we
[journalists] get better and better at giving readers exactly what they want,
what will be the percentage in trying to give readers what we think they need? [FN135]
Desirable, online content may still be unavailable if we do not wish to provide
personal information. [FN136] Even when we are willing to capitulate,
we may still be denied access if we do not have a large enough income or fit
other demographic criteria. [FN137] According to at least one webtrepreneur,
"[t]he Web of the future will be all about 'coach, business and first
class." ' [FN138] Consumers may be categorized by
variables such as income and purchasing habits. [FN139] Content would be made available to them
based on whether they occupied "basic, gold, [or] platinum tiers." [FN140] Digital redlining can be "employed
to determine who gets--and who is excluded from--all kinds of opportunities
like jobs, housing and education." [FN141]
The use of e-data for e-stereotyping will not be limited to women. Dispersal
and collection of personal data online has comparable ramifications for
cognizable demographic groups such as racial minorities. [FN142] At present, companies are more
interested in "women" than they are in "minorities" per se
because women do most of the *657 shopping across racial lines. [FN143] As more racial minority members gain
Internet access, race specific sites will undoubtedly develop apace. [FN144] These sites will likely feature quality
content intended to draw the targeted group to the site, where data will be
collected and reactions to specific content offerings will be measured and
evaluated. [FN145] Site visitors will be exposed to
advertisements tailored by racial expectations and stereotypes, which in turn
may be "verified" or "fine-tuned" by data that is reaped. [FN146]
One could argue that the right to
privacy is a platform from which to wrest control of our personal information.
Certainly, a privacy-based approach would be doctrinally preferable to those
aghast and appalled at the prospect of expanding the scope of intellectual
property protection in the manner discussed below. However, it is not *658
likely to be successful. [FN147] We certainly do not have personal
information privacy at the moment. We are not like Europeans, who are protected
by "strict and broad data privacy laws that protect personal information,
like where a citizen lives, what [s]he buys, and how much money [s]he
makes." [FN148] The only recent data protection law
enacted in the United States protects only children.
A. The Children's Online Privacy Protection Act
The Children's Online Privacy Protection Act [FN149] ("COPPA" or "Act")
was passed in October of 1998. This Act requires a "website or online
service directed to children" to obtain verifiable "parental
consent" prior to collecting individually identifiable personal
information from children under the age of thirteen. [FN150] Parents are also to be provided access
to personal information collected about their children and the opportunity to
prevent further use or collection of this personal information. [FN151] Commercial web site operators are
further required to "establish and maintain reasonable procedures to
protect the confidentiality, security, accuracy, and integrity of personal
information collected from children." [FN152]
The Federal Trade Commission ("FTC") is the agency charged with
promulgating regulations to implement COPPA. On October 20, 1999, the FTC
issued the Children's Online Privacy Protection Rule [FN153] *659 ("Rule"),
which went into effect on April 21, 2000. The Rule requires certain commercial
web sites to obtain parental consent before "collecting, using, or
disclosing" personal information from children under thirteen. FTC
Chairman Robert Pitofsky asserted, "The rule meets the mandates of the
statute. It puts parents in control over the information collected from their
children online, and is flexible enough to accommodate the many business
practices and technological changes occurring on the Internet." [FN154] COPPA's implementation was driven partly
by a March 1998 survey of 212 commercial children's web sites, which found that
"while 89 percent of the sites collected personal information from children,
only 24 percent posted privacy policies, and only one percent required parental
consent [for] the collection or disclosure of children's information." [FN155]
COPPA applies to commercial web sites and online services "directed to
children that collect[ ] personal information from children or . . . that ha
[ve] actual knowledge that [they are] collecting personal information from . .
. child[ren]" under thirteen. [FN156] These sites will be required to provide
site-based notice about their policies with respect to the collection, use, and
disclosure of children's personal information, and (with certain statutory
exceptions) to obtain "verifiable parental consent" before
collecting, using or disclosing personal information from children. COPPA
defines "verifiable parental consent" as "any reasonable effort
(taking into consideration available technology) . . . to ensure that a parent
of a child . . . authorizes the collection, use, and disclosure" of a
child's personal information. [FN157]
The Rule "temporarily adopts a 'sliding scale' approach that [enables] Web
sites to vary their consent methods based on the intended use[ ] of the child's
information." [FN158]
For a two-year period, use of the more reliable methods of consent [, such as]
print-and-send via postal mail or facsimile, use of a credit card or toll-free
telephone number, digital signature, or e-mail accompanied by a PIN or
password[,] will be required only for those activities that pose the greatest
risks to the safety and privacy of children--i.e., disclosing personal
information to third parties or making it publicly available through chatrooms
or other interactive activities. [FN159]
*660 "For internal uses of information, such as an
operator's marketing back to a child based on the child's personal information,
operators will be permitted to use e-mail, as long as additional steps are
taken to ensure that the parent is providing consent." [FN160] The Rule requires operators to
"give the parent the option to consent to the collection and use of the
child's personal information without consenting to disclosure of his or her
personal information to third parties." [FN161]
However, the Rule also "sets forth several exceptions to the requirement
of prior parental consent that permit operators to collect a child's e-mail
address for certain purposes." [FN162] "For example, no consent is
required to respond to a one-time request by a child for 'homework help' or
other information." [FN163] "In addition, an operator can enter
a child into a contest or send a child an online newsletter as long as the
parent is given notice of these practices and an opportunity to prevent further
use of the child's information." [FN164] "The Federal Register notice
accompanying the [R]ule makes clear that [it] covers only information submitted
online, . . . not information requested online but submitted offline." [FN165] This exception creates a potentially
large loophole through which companies can circumvent COPPA strictures. [FN166] Moreover, the "personal
information" referenced in *661 COPPA is defined as
"individually identifiable information about an individual collected
online." [FN167] Asking a child about her age, gender,
height, weight, grade in school, interests, habits, hobbies, pets, friends, zip
code, even her first name (only) and then recording her preferences and
movements online would not be susceptible to COPPA regulations as long as her
first and last name, address, phone number, or other contact information was
not solicited. [FN168]
Additionally, the Rule makes clear that schools can act as parents' agents, or
as intermediaries, between web sites and parents in the notice and consent
process. [FN169] In an age of advertisements, corporate
sponsorships, product placements, and Channel One in schools, this loophole is
potentially cause for concern. [FN170] Companies may seek to trade cash for
student access and data, and schools are empirically likely to acquiesce. [FN171] America Online ("AOL") has
offered free service to schools nationwide, purportedly to build brand loyalty
and create *662 a generation of future AOL customers. [FN172] AOL claims that no marketing information
will be gathered on students because they will use only a first name and a
password to access the service in school. [FN173] However, while it is possible that
personally identifiable information will not be collected, it defies credulity
that AOL will pass up a golden opportunity to collect aggregate marketing
information about school children utilizing this "free" access. While
few web marketers wanted to openly oppose the viscerally appealing concept of
protecting children online, most argued that COPPA should impose the least
restrictive consent requirements possible, and successfully opposed parental
control of data after consent has been obtained. [FN174]
B. The European Union's Data Protection Directive
Ultimately, in terms of protecting the privacy of personal information,
COPPA compares unfavorably to the European Union's Data Protection Directive
("Directive"). The Directive requires entities collecting data to
inform citizens what their data will be used for, provide citizens free access
to data about themselves, the ability to correct false information, and notice
and opportunity to "opt out" of data transfers to third parties. [FN175] European citizens have the specifically
enumerated right:
*663 [To] object, on request and free of charge, to the
processing of personal data relating to him which the controller anticipates
being processed for the purposes of direct marketing, or to be informed before
personal data are disclosed for the first time to third parties or used on
their behalf for the purposes of direct marketing, and to be expressly offered
the right to object free of charge to such disclosures or uses. [FN176]
The Directive is premised on "the fundamental idea that 'my' personal
information is none of 'your' business." [FN177] It "treats privacy as a basic human
right and seeks to protect individuals against violations of the right . . .
and says to other countries that it is none of their business to intrude on the
privacy rights of persons in the European Union." [FN178] By contrast, "the United States
does not have a single, comprehensive privacy law or agency charged with
administering such laws," [FN179] reflecting a nation more concerned with
commerce and less with individual rights. [FN180] The Directive gives more data privacy
protection to European adults than COPPA gives to American children. Possible
explanations for the differences between the data privacy regulatory cultures
in the United States and Europe include hypotheses that Americans are more
trusting of the private sector; that Americans believe the mass media will expose
market sector privacy abuses; that Americans believe technology can solve the
problem; and that *664 Americans are more wary of government
regulation. [FN181] Europeans, it is posited, prefer to err
on the side of overprotection of personal data because they view informational
privacy as a fundamental right of citizens. [FN182] Americans, on the other hand, "are
more likely to cherish the principles embodied in the First Amendment--which
favors a free flow of information--as fundamental human rights." [FN183]
The European Union's Data Protection Directive is intensely disliked by
American companies that do not want to comply with it when engaging in e-
commerce overseas. [FN184] They are specifically concerned about
provisions that give individuals and private organizations the right to sue
companies that do not provide adequate privacy protections. [FN185] United States' commercial interests are
pushing for the ability to have access to European data, while agreeing only to
self-regulation, and to have "safe harbor" status for certain
business practices. [FN186] These discordant views of privacy
oversight are currently the subject of international negotiation. [FN187] Even if the safe harbor approach is
adopted, as appears likely, Americans will not get the same privacy protections
as Europeans, rendering us, from a privacy standpoint, "second-class
citizens in [our] own country." [FN188]
*665 C. The United States' Approach to Privacy Protection
The United States' legislative approach to informational privacy is best described
as piecemeal. By way of illustration, cable subscription records and video
rental records have statutory privacy protections, but medical records do not. [FN189] As a result of the gaping holes in
privacy protection, information about us circulates widely without our control,
or even our awareness:
Finding out what agencies have information on you is tricky--if not impossible.
The number of bureaus that have the potential to get information on you has
soared amid technological advances that have made data processing cheaper and
faster than ever. The spread of personal information is also facilitated by
so-called information brokers, who make it worth the major credit bureaus'
while to sell data. These brokers buy data in bulk and then sell it in smaller,
more affordable portions to other agencies. Smaller agencies have also been
empowered by information-sharing with their clients. If you bounce a check at
Macy's, for example, the department store will share that fact with a
monitoring service. That service, in turn, will warn Bloomingdale's when you
try and write a check there. [FN190]
Players in the information industry, who profitably buy, collect, and sell huge
data banks of personal information about Americans, have successfully lobbied
against government regulation of most of their practices. [FN191] The Clinton administration asserted that
"U.S. companies should not be forced to give people access to personal
information about themselves" and actively opposed the adoption of broad
privacy safeguards. [FN192] When President Clinton spoke in favor of
consumer *666 privacy, his focus was primarily on individual
financial information and medical records, rather than general personal data. [FN193] While he has, on occasion, spoken in
favor of expanding general consumer privacy, he has not backed his words with actions.
[FN194] Quite the contrary, his administration
recently declined to support a proposal by the Federal Trade Commission for
Internet consumer privacy legislation. [FN195]
Members of Congress who express concern about data privacy seem primarily
focused on potential privacy violations by the government and do not seem troubled
by intrusions by commercial entities. *667 [ FN196] Congress has promulgated statutory
restraints upon law enforcement's ability to collect data related to phone records,
[FN197] cable subscriber records, [FN198] video rental records, [FN199] credit reports, [FN200] and medical records. [FN201] It also enacted the Driver's Privacy
Protection Act, [FN202] which prohibits state motor vehicle
registration agencies from disclosing personal information about its drivers
without their express *668 consent. [FN203] These are all prohibitions on the "jackbooted
thugs" of government and largely do not affect the jackboot-selling agents
of commerce, except to the extent private entities acquire data from government
sources. The Privacy Act of 1974, [FN204] the United States' most comprehensive
privacy law to date, addresses the automation of records held on individuals by
the federal and state governments, but not those gathered by private entities. [FN205]
1. Self-Regulation
In July of 1999, the FTC released
a report entitled "Self-Regulation and Privacy Online: A Report to
Congress." [FN206] The FTC concluded that "legislation
to address online privacy is not appropriate at this time" because
"self-regulation is the least intrusive and most efficient means to ensure
fair information practices [online], given the rapidly evolving nature of the
Internet and computer technology." [FN207] By May of 2000, however, the FTC
appeared less enamored of self-regulation, and voted to ask Congress for new
regulatory powers over collection and use of consumer information on the
Internet. [FN208] The FTC actually floated a proposal for
legislation to protect consumer privacy on the Internet, but it was rejected by
both the Republican-*669 controlled Congress and the Clinton
administration. [FN209] The FTC's newfound interest in consumer
privacy originated not out of an independent concern for individual
informational integrity, but as a result of trepidation that privacy concerns
hamper the growth of online retail sales. [FN210]
Private sector efforts at self-regulation have emerged, including
"seal" programs such as those administered by TRUSTe, [FN211] the Better Business Bureau's Online
Privacy Program [FN212] ("BBBOnLine"), and the Online
Privacy Alliance. [FN213] Commercial web sites that carry an
online "seal," a unique logo, purport to subscribe to a corresponding
set of privacy principles articulated by the organization providing the seal. [FN214] Use of such seals is not particularly
widespread at present. [FN215] *670 Moreover, purveyors
of seals may be paid by sites to post their symbol, which presents an inherent
conflict of interest. Giving a web site a poor privacy rating may lower
consumer participation and the site's revenues. [FN216] In addition, the efficacy of TRUSTe in
particular appears dubious. A security expert discovered that TRUSTe licensee
RealNetworks [FN217] was secretly collecting personally
identifiable information on what users were playing and recording from
consumers using its RealJukebox software. [FN218] RealNetworks did not disclose its
extensive information gathering practices in the long privacy policy posted on
its web site, nor in the licensing agreement users approved when installing the
RealJukebox program. [FN219] TRUSTe distinguished the RealJukebox
software from the RealNetworks site where the software was downloaded. [FN220] TRUSTe maintained that the web site was
what had earned the TRUSTe seal and the software available at the site was
outside of the seal's purview. [FN221] TRUSTe's CEO has publicly conceded that
even a site that collects consumers' e-mail addresses and then sells them to a
direct-marketing company could *671 "earn" the TRUSTe
seal. [FN222] He also conceded that TRUSTe has never
removed its seal from a site for bad behavior and that very few sites get
rejected from the seal program. [FN223]
The pressure on privacy seal companies to keep their privacy requirements mild
and corporate friendly is illustrated by an exchange between BBBOnLine and
eBay, [FN224] the online auction company. [FN225] After BBBOnLine investigated a consumer
complaint against eBay, it rendered a decision criticizing eBay for not
informing eBay users what purposes their personal information was being used
for in some contexts. [FN226] The decision concluded that eBay needed
to take corrective action to conform to BBBOnLine privacy policies. [FN227] In response, eBay stated that it
believed that BBBOnLine had "erroneously accepted" the consumer
complaint, had "subsequently mishandled resolution of the complaint,"
and had "demonstrated its complete lack of understanding of both the
Internet and software." [FN228] After pointing out that it far preferred
the resolution of this issue proffered by TRUSTe, eBay concluded its diatribe
against BBBOnLine by announcing "[I]t is with great regret that eBay
announces that it will withdraw from the BBBOnLine program, should this matter
not be satisfactorily resolved." [FN229] If other BBBOnLine participants take
criticism as poorly as eBay, BBBOnLine will have to choose between maintaining
a credible seal with fewer subscribers, or watering down its privacy policies
and enforcement practices. Overall, there is little reason to hope that seal
programs, as currently constituted, will advance informational privacy very far.
[FN230]
*672 2. Asking Big
Brother for Assistance
Opinion polls have indicated the
public's desire for government regulation of online data collection. [FN231] However, even if the government could be
persuaded to protect consumer data, it is uncertain what the scope and nature
of that protection would ultimately be. [FN232] Not everyone is comfortable having the
government make decisions about who gets access to our personal information. As
one commentator noted:
It's ironic that Americans are asking for privacy protection from the same
government that has in the last few years expanded electronic surveillance
beyond Richard Nixon's wildest dreams--always with an appeal to public fear and
mistrust. Federal agencies are creating centralized databases to track every
new job hire in the country (to catch illegal immigrants and deadbeat dads), to
make sure that welfare recipients don't overstay their five years by changing
states and to provide instant "terrorist" profiling to airport
security agents. The country has not hesitated in the last few years to wipe
out the civil liberties of whole swaths of the population in futile gropes for
greater public security that's never attained. [FN233]
In the name of curbing crimes such as terrorism, identity theft, and retail
fraud, the government actively thwarts sales and development of technology that
would improve privacy in electronic communications. [FN234] The government often seems as eager as
commercial *673 entities to collect information about citizens. [FN235] For example, it was recently reported
that a company that built a national database of driver's license photographs
received extensive financial support from Congress and technical assistance
from the United States Secret Service. [FN236] In the closing days of the 105th
Congress, the Clinton Administration proposed that the federal government's
"New Hires" database, ostensibly authorized to track down parents who
were failing to pay child support, be made available to the Department of
Education for tracking down defaulting student loan holders. [FN237] Personal information is as attractive to
the government as it is to the private sector. [FN238] As one observer noted, "Now that
financial data are compiled and stored digitally, it is cheap, easy, and
tempting for the government to cast a wider and wider financial dragnet to
build increasingly intrusive computer profiles of citizens." [FN239]
3. Bartering Information for Access
Along with asserting that
collecting our data helps commercial interests serve us better and perpetuates
"female empowerment," [FN240] web site merchants also argue that if
consumers accept an offer for free content in exchange for personal
information, there is an information exchange that does not infringe upon
privacy interests. [FN241] This would be a reasonable position if
the terms of the exchange are mutually understood and agreed upon, and if the
freely conferred information is not subsequently divulged to others, nor used
for any unintended, undisclosed purposes. However, as Jerry Kang noted,
"For numerous reasons, such as transaction costs, individuals and
information collectors do not generally negotiate and conclude express privacy
contracts before engaging in each and every cyberspace transaction." [FN242]
In a related vein, Paul Schwartz has pointed out that that the cyberspace use
of personal data "helps set the terms under which we *674
participate in social and political life and the meaning that we attribute to
information- control." [FN243] By this, he means that
"consenting" to the terms and conditions of web site access or an
Internet transaction superficially appears to represent an informed
"exercise of self-reliant choice." [FN244] However, these terms and conditions are
offered on a take-it-or-leave-it basis, which severely constrains consumer
choice, and "locks in" a low level of privacy. [FN245]
Even if consumers were able and willing to bargain over collection and
disclosure of their personal information in an intelligent and informed
fashion, data collectors may, for efficacy and utility reasons, be disinclined
toward negotiating with consumers in a transparent and straightforward manner. [FN246] American data merchants are generally
loathe to rely exclusively on voluntary "information exchanges." This
dislike is based on empirical evidence that when individuals are directly and
openly confronted with a request for information, they are unwilling to part
with it without compensation and may not agree to divulge it at all. [FN247] For example, people resist filling out
online registration forms, which seem invasive, and do not have a real space
counterpart. [FN248] As one commentator noted, "Imagine
going to a 7- Eleven to buy a can of Coke, and having to fill out a
registration form that asks you about marital status." [FN249]
Jerry Kang has persuasively argued that individuals do not generally have
enough information to know the value of their personal data. [FN250] Perhaps we do not feel
"robbed" when it is taken, but many people do feel invaded at some
level. Recent studies have indicated that "Internet users are increasingly
uncomfortable with the amount of personal data gathered by online companies . .
. as online companies [are] becom[ing] more aggressive about collecting that
information." *675 [ FN251] One study found that 87% of people
online want "complete control" over their personal data. [FN252] Jerry Berman and Deirdre Mulligan
recounted:
[S]everal recent incidents involving the sale and disclosure of what many
perceive as less sensitive information indicate a rising of privacy concerns
among the public. In recent years, a number of corporations . . . have learned
the hard way that consumers are prepared to protest against services that
appear to infringe on their privacy. In 1996, public criticism forced
Lexis-Nexis to withdraw a service known as P-Trak, which granted easy online
access to a database of millions of individuals' Social Security numbers. Also
in 1996, Yahoo faced a public outcry over its People Search service. The
service, jointly run with a marketing list vendor, would have allowed Net
searchers to put an instant finger on 175 million people, all culled from
commercial mailing lists. After hearing the complaints, Yahoo decided to delete
85 million records containing unlisted home addresses. During August of 1997,
American Online ("AOL") announced plans to disclose its subscribers'
telephone numbers to business partners for telemarketing. AOL heard loud
objections from subscribers and advocates opposed to this unilateral change in
the "terms of service agreement" covering the use and disclosure of
personal information. In response, AOL decided not to follow through with its
proposal. [FN253]
Moreover, an April 2000 study by a market research firm determined that
"[a] notable 92% of online households agree or agree strongly with the
statement, 'I don't trust companies to keep personal information about me
confidential, no matter what they promise." ' [FN254] This mistrust is not misplaced. By way
of illustration, "Gizmoz" is a technology that "uses consumers
to pass along marketing messages and content embedded in email to develop a
'viral network." ' [FN255] "Viral *676
marketing" is a technique used to spread information from person to person
like a virus, so that consumers are provided with incentives to effectively
become part of a company's sales force, and pass marketing messages to their
friends and acquaintances. [FN256] Gizmoz's technology then leaves an
electronic trail that marketers can follow to see where content and promotions
go. [FN257] A major Gizmoz investor publicly
asserted that "privacy is a key concern of Gizmoz and the company does not
request nor pass on private information about individuals." [FN258] Gizmoz's terms-of-service agreement
tells a very different story, stating that users "should not have an
expectation of privacy in (their) account." [FN259]
Allowing a user to opt in to a data collections scheme puts a web swimmer on
notice that she is being watched and followed, and gives her the opportunity to
obfuscate or to say no to such practices. However, if she accedes to a site's
practices, knowing that her "clickstream" is being observed and
recorded will cause her to self-censor, compromising the data collected. [FN260] Passive, sub rosa data collection
techniques are therefore preferred by database assemblers to straightforward
requests for personal information, as they do not cost anything, nor draw
attention to the nature or scope of the data mining that is occurring. Passive
collection may also prove more accurate, as "[s] urvey after survey has
indicated that online users resent being asked for personal information, don't
trust companies that do ask for such information and often--as much as 25 percent
of the time--enter false information when prompted for personal details." [FN261]
Ironically, the commercial enterprises so eager to collect or take advantage of
consumer data collections hypocritically object when data is collected by
others about their consumer bases or commercial activities. In some instances,
web publishers and advertising agencies quarrel with each other concerning
exclusive ownership of our *677 data. [FN262] Once companies have assembled databases,
many would like to impose criminal penalties on others that steal
"their" information. [FN263] Of course, even though corporations may
not be able to protect their data by invoking a right to privacy, they are able
to do so using contract, tort, and intellectual property law. [FN264] As Jerry Kang has pointed out:
[A] potent array of unfair competition, trade secret, patent, trademark, and
copyright law, in addition to confidentiality agreements, support an
institution's ability to control various types of information identifiable to
itself. In addition, collective entities often have the wherewithal to employ
self-help security measures so that information in their control flows only in
ways they choose. [FN265]
The possibility of giving individuals similar tools to control our personal
information is explored at the end of this article.
A. Ad-Blocking Software
Web software to block advertising is already available and attractive to
some web swimmers. In addition to keeping advertisements off their screens,
"ad- blocking software can mean faster performance. Files that contain ads
laden with graphics and animation take far longer to load than files with
text." [FN266] Ad-blocking utility programs sometimes
include firewalls intended to prevent intrusions by hackers and other features
that limit or prevent web sites from collecting "clickstream" data
through cookie files. [FN267]
Not surprisingly, most web site operators and advertisers generally both fear
and oppose ad-blocking software, maintaining that it will "clog their
revenue stream, and challenge the fundamental structure of the emerging
Internet industry." [FN268] Use of such software is characterized
not only as unfair but practically bigoted. As one webtrepeneur *678
stated, "The audience already allows overt advertising in mainstream
media, so they must be tolerant in the context of the online model as
well." [FN269] Another maligns the desire for privacy
as deviant and dishonest, analogizing ad-blocking to shoplifting, and asserts
that his site uses "software code that prevents anyone using an ad blocker
from even logging onto the company's site." [FN270] Ad- blocking software poses very high
risks for some companies. For example, when CDNow's marketing budget was
divided by the number of people who make purchases from the site, the result
indicated that the company was spending $45 in advertising to attract each
paying customer. [FN271] Some data collection techniques are kept
intentionally surreptitious, so that web swimmers seeking data privacy will not
even know what to avoid. For example, one simple animated mouse pointer has
been secretly tracking its users' web travels on behalf of companies such as
Yahoo, Lycos, theglobe.com, Warner Bros., Universal Studios, RealNetworks,
MindSpring, M&M/Mars, MSNBC, Energizer, CNET, Comedy Central, United Media,
and Universal Press Syndicate. [FN272] As is sadly typical with many electronic
data collection techniques, this practice was exposed, rather than disclosed.
If an independent software analyst had not figured out that Comet Systems was
using its cursor software for web tracking purposes, the public would still be
unaware that this was occurring. [FN273]
B. Cookie Disablement
"Cookies" in the cyber context are data files created on our own
computer hard drives when we visit a web site. [FN274] Cookie files contain unique tracking
numbers that can be read by the web site, and advertising servers, tracking us
as we swim from one web page to another. [FN275] The technologically proficient can set
our Internet browsers to refuse *679 cookies, but sites that use
cookie files, which includes almost all commercial sites, will then refuse us
access. [FN276]
C. Consequences of Self Help in Protecting Our Privacy
Average web swimmers are aware of some technological solutions to data
collection techniques, such as ad-blocking software and cookie disablement.
These solutions theoretically exist for people who like to look at
advertisements, but do not want their movements through commercial cyberspace
tracked and recorded, as well as for those who prefer to avoid advertisements
altogether. However, such "self help" is easily thwarted by web site
operators who will simply refuse access to web swimmers who will not submit to
banner ads and cookie files. [FN277] Unless web sites are required to accept
visitors who block ads and/or refuse cookies, technology will not effectively
or consistently protect consumer privacy without effecting access. Given the
opposition to regulating the Internet, which flows from so many quarters,
imposition of such requirements seem highly unlikely. Similarly, use of
"anonymizers," [FN278] to the extent they are even held to be
legal, could be blocked by web sites. [FN279] Web sites can require confirmation of
identity before allowing access if they so choose. Some types of cyberspace
transactions make anonymity impractical anyway. For example, when we purchase
goods and services, we have to pay for them and provide an address for
delivery. This requirement could be avoided through extensive pre-planning, but
most people are not likely to be prepared to shoulder the burdens of losing
access to some sites, navigating the *680 complexities of an
anonymous payment system such as digital cash, and obtaining real space
"mail drops" for delivery of tangible goods, in order to avoid
disclosing personal data online. As Paul Schwartz observed:
For the current online industry . . . personal information largely has the
quality of nonrivalrous consumption, which means that one firm's utilization of
it does not leave any less for any other company. As a result, almost all major
Internet enterprises and computer companies benefit from developing standards,
including new technology, that preserve the current status quo of maximum
information disclosure. [FN280]
Data collections will lock in low levels of privacy through collaborative
standard setting, forcing consumers to choose between informational privacy and
the Internet. [FN281]
D. Buying Back Our Privacy
Another technological solution involves companies called
"infomediaries." These companies will, for a price, provide security
mechanisms that help consumers "regain control" over who purchases
their personal data and for what purpose. [FN282] This service takes the quixotic
experience of having to pay extra to have a phone company not publish your
telephone number to new extremes. It would require us to buy back control of
our personal data and means that we would have to make decisions about how much
information privacy we can afford. It would also force us to trust a commercial
entity to manage our personal information for us and to forgo the enticing
profits that exploitation of our data would offer.
Moreover, relying upon technology or technological changes to prevent the
distribution of personal data is likely to provide more information privacy for
wealthier, better educated web swimmers, and less for poorer, less computer
savvy members of the population. Some "privacy rating" services are
available to consumers for free, but are either beholden to the sites that they
rate for income, which creates a conflict of interest, or they subject users to
advertising and give marketers *681 access to user lists. [FN283] As Peter Swire and Robert Litan have
noted:
It can be daunting for an individual consumer to bargain with a distant
Internet merchant or a telephone company about the desired level of privacy. To
be successful, bargaining might take time, effort, and considerable expertise
in privacy issues. Even then, the company might not change its practices. Even
worse, a bargain once reached might be violated by the company, which knows
that violations will be hard for the customer to detect. [FN284]
E. Opting Out of Data Collection
Another purported solution to protect privacy compromised by data
collection is allowing a web swimmer to "opt out" by filling out a
form (online or on paper) asking web entities not to disseminate personal
information. [FN285] This option places the burden on
consumers to be constantly vigilant and possibly fill out a form for every web
site visited, which could quickly get onerous. [FN286] Compounding the arduousness of any
attempt at uniform and consistent opting out is the fact that some sites for
services may require consumers to assert "privacy preferences" more
than once. [FN287] For example, AOL requires subscribers
desiring personal information privacy to fill out an opt out form once a year. [FN288] If they do not submit timely annual
renewal forms, their privacy preferences "expire" and information
collected from their AOL usage may be sold to marketers and other interested
parties. [FN289] Additionally, large-scale data compiler
DoubleClick's opt out system was recently determined to be
"ineffective" with certain versions *682 of the
Netscape Communications web browser. [FN290] Preferences for high security were
reverting back to low security without notice to the user. [FN291] People who had affirmatively opted out
of data collection schemes were secretly, and involuntarily, opted back in to
them. [FN292]
Additionally, opting out of a data collection and distribution framework may
fence the privacy-seeking web swimmer off from content or other perquisites of
a site. The iWon website's so-called privacy policy aptly illustrates this
capability. [FN293] One may access the website without
providing personally identifiable information, but failing to provide such
information renders one ineligible for the "free" daily, weekly,
monthly, and yearly drawings and prize giveaways, the only reason most people
would access the site in the first place. [FN294] The iWon Privacy Policy site touts its
TRUSTe seal and then states in pertinent part:
During registration, iWon collects personal information including your name, address,
email address, birth date, gender, zip code and phone number. After providing
iWon with this information, you are no longer anonymous. You do not have to
provide any personal information to use the iWon service. However, if you
choose to withhold requested information, you will not be registered and you
will not earn entries into the iWon Sweepstakes when using iWon. In addition,
we may not be able to provide you with some of the other services dependent
upon the collection of such information, such as a personalized home page. [FN295]
The entire policy is rather lengthy and discloses that iWon will do just about
anything it pleases with our data, including matching it with personally
identifiable consumer data collected by other entities and selling it. [FN296] The company is therefore unlikely to jeopardize
its TRUSTe seal by not complying with its stated privacy policy, as it would be
virtually impossible for iWon to do anything that ran afoul of its stunningly
broad self proscribed privacy mandate. Just in case iWon changes its mind, it
reserves the right to modify its privacy policy at *683 any time.
[FN297] The only way site users will learn of
the change is by constantly monitoring the policy and comparing it to earlier
versions. [FN298]
F. Opting In
The mirror image of "opt out" is "opt in," which puts
the burden on a data collector to get an individual's approval of the data
harvesting. Mandatory opt in is one approach to privacy promoted by some online
privacy advocates. However, when and how it could be implemented is unclear. A
federal appeals court recently concluded that an FCC regulation requiring phone
companies to secure opt in style consent from customers before using their
personal information for commercial purposes violated the phone companies First
Amendment free speech rights. [FN299] Moreover, an opt in scenario would be
efficacious only if full disclosures of the nature and scope of the data
collection were made, with the ability to opt out of any objectionable portions
of whatever plans a web site has for the data.
If sites can exclude web swimmers unwilling to fully opt in to data collection
schemes, this approach will not solve anything. We will be required to opt in
before we can access content and fully utilize desirable aspects of the
Internet. Any freedom of choice associated with opting in will be illusory.
Moreover, an opt in approach does not solve the problems posed by our inability
to value our own data. [FN300] It also raises legitimate concerns for
data collectors about the accuracy of data that is permissively and
transparently obtained. [FN301]
IX. Machiavelli in Cyberspace: The Possibility That Another
Wrong Can Make
Things Right
Politicians and judges who may be
unwilling to safeguard personal privacy are downright enthusiastic about
protecting intellectual *684 property. This enthusiasm, if
appropriately channeled, could allow the intellectual property framework to
provide structural support for personal information privacy. The definition and
scope of intellectual property is expanding at a rapid rate. In addition to the
apocryphal "better mousetrap," patents now "protect" plants,
animals, and even business methods. [FN302] Copyrights accrue to minimally original
expressive works at the moment of creation, usually lasting 70 years from the
deaths of their creators. [FN303] Copyrights are increasingly treated as
ordinary chattel. [FN304] Both patents and copyrights can be
bought, sold, or licensed like tangible goods. [FN305]
Trademarks have evolved into intangible commercial property that can be
defended not only against infringement, but also against trespasses such as
"blurring" and "tarnishment." [FN306] Product packaging and the not-
particularly-original layouts and design schemes of stores and restaurants are
protectable as "trade dress." [FN307] Ideas, methods, inventions, processes,
and even vendor and customer lists that are not eligible for formal
intellectual property protection can still be proprietary as "trade
secrets." [FN308] Initiatives to more rigorously protect
data collections, which are already partially covered by copyrights, have been
unsuccessful, but are still ongoing. [FN309]
This expansion of the scope of proprietary intellectual property is detrimental
to society, and fundamentally wrong. However, the tide seems irreversible.
Jessica Litman observed that:
Commodification is the preeminent engine of progress. Transforming ephemeral
figments into saleable property is a patriotic act, and the fact, without more,
that an offer to sell something will *685 find customers is
reason enough to sanction its appropriation from the commons. There has been
inexorable pressure to recognize as an axiom the principle that if something
appears to have substantial value to someone, the law must and should protect
it as property. [FN310]
If the rigid commodification of information is indeed inevitable, perhaps it is
time for individuals to appropriate the intellectual property framework so
eagerly constructed by corporate interests, and to seek control of the data we
generate and a share of the proceeds this information produces. We must assert
proprietary interests in ourselves and hoist consumer data merchants by their
own cyber-petards. We must definitively establish that consumer information is
intellectual property that belongs to the consumers themselves. Rosemary Coombe
has trenchantly observed that:
To read a book, listen to a song, scan an encyclopedia, pass along a newspaper
article to a friend, exchange recipes and furniture-finishing instructions with
a neighbor--these were communicational activities encouraged within liberal
democracies with an Enlightenment faith in the progress of arts and sciences.
The same activities may well be deemed forms of theft--illegal trespassing upon
private property--in the digital environment. [FN311]
If the expanding scope of intellectual property will burden our ability to
share with each other in cyberspace, then we should not freely share our
information with business enterprises that drive this expansion of intellectual
property rights in cyberspace and then claim our data as their intellectual
property, simply by virtue of their having collected it from us. Our rights to
our own personal information can be deemed to flow from an amalgam of the law
of copyrights, trademarks, and the right of publicity. When Congress inevitably
passes a sui generis data protection scheme, ideally we will have a specific,
legislatively enacted ability to reap the financial rewards of our personae. [FN312]
A. Rewarding the Sweat of the Wrong Brows
Legislation under consideration seeks to establish the rights to our data,
not in ourselves, but in the first corporate entity to gather it. The
legislation would prevent the commercial extraction of use of quantitatively or
qualitatively substantial parts of a collection of information,*686
gathered or maintained by another, so as to harm the actual or potential market
for a product or service containing that collection of information. [FN313] In other words, this data protection
legislation would give the first entity to collect our personal information a
cause of action against a second entity that "extracted it" from the
collection without permission. Our collected personal data would therefore
transmogrify into the first entity's property. These property rights would
putatively arise as compensation for the "sweat of the brow"
generating labor that the first entity engaged in while collecting our data. [FN314] Data merchants assert that they own our
data by virtue of their investment in building and developing "information
assets." [FN315] Jessica Litman stated:
Data mining--the collection, extraction, correlation, categorization, and sale
of identifying personal data--claims to be a new engine of breathtaking
economic growth. The miners are seeking intellectual property protection for
their collections of information about whose eyeballs are valuable to whom. It
is no wonder that advertisers feel proprietary about our eyeballs. From their
viewpoint, those are their eyeballs. They paid for them. [FN316]
But what about the perspiration generating efforts we exude while
"creating" our data, living our lives? We must work to create
employment records, visit (and remunerate) physicians to produce medical
records, register for Social Security numbers, pay to obtain and maintain phone
numbers and e-mail accounts. A single real space visit to the Department of
Motor Vehicles to obtain a Driver's License or register a car requires a lot
more time and effort than compiling thousands of cookie file results. Why
should collecting data about the arrival of a new baby give birth to a property
right in the information, if 24 hours of excruciating labor does not? Why, when
we ask a company*687 where it obtained personal information about
us, should we accept answers like "it's proprietary" or "we
won't tell you" ? [FN317]
B. Turning a Wrong Into a "Right"
Simply put, if information about us is to be bought and sold, the initial
purchase should be from us, since we are the ultimate content providers. If
intangible property rights are rewards for the effort expended in creating the
thing to be protected, we are entitled to ownership of our personal
information. [FN318] As owners, we should get royalties every
time our data is used or transferred for commercial purposes, and these
transactions should transpire only with our affirmative consent. Like companies
protecting their intellectual property, we ought to be further entitled to veto
power over use of our names and attendant information. [FN319] With this power, we can prevent our
names from being used by companies that annoy or offend us because "the
unauthorized use of an individual's persona potentially poses the maximum harm
to [that individual] when the persona is being appropriated in an objectionable
context or for an objectionable purpose." [FN320] Europeans may have the precept of
privacy to defend themselves against direct marketers, but here in the United
States, apparently only property rights get respected and protected. For this
reason, we need to assert and defend property rights in ourselves. While *688
the common law tort-based misappropriation doctrine might be of some use to
protect our data, if corporate intellectual property owners can seek recourse
in the federal courts, then we should be able to also. [FN321] The legal and social mores that create
an information subsidy in favor of data collectors should end.
Several economists have proposed "granting individuals property rights in
their personal information as a way of resolving the data privacy
controversy." [FN322] In discussing this proposal, Pamela
Samuelson observed:
Given the fact that the market in personal information is already very
substantial and personal data are commercially valuable, the idea of granting
individuals property rights in their personal information is perhaps not as
radical as it might initially seem. Propertizing personal information would
merely extend this market and give members of the public some control, which
they currently lack, over the traffic in personal data. [FN323]
Samuelson has also articulated some of the difficulties she sees in recognizing
property rights in personal data, including the need for a complex bureaucratic
infrastructure to enable efficient market transactions in data, and doctrinal
conflicts with rights-based conceptions of privacy. [FN324] She has expressed particular concern
that a property rights approach to personal data protection would establish a
new form of intellectual property right in information which would be at odds
with fundamental intellectual property principles (promotion of *689
science and the useful arts), further straining the already fragmenting
coherence of intellectual property law. [FN325]
Instead, she favors consideration of alternatives for promoting information
privacy such as promulgation of modified trade secrecy default rules. [FN326] She has asserted that, "The general
rule of trade secrecy licensing law is that if the licensor has provided data
to another for a particular purpose, the data cannot be used for other purposes
without obtaining permission for the new uses." [FN327] Licensing law, she has argued, generally
accommodates the reasonable expectations of the parties, allows reasonable
enforcement of implicit limitations on use where appropriate, and permits
revocation for material breach of terms. [FN328]
Along similar lines, Eugene Volokh has expressed a preference for a contract-
based approach to information privacy, at least as an alternative to the
propertization of personal data. [FN329] Volokh's particular concern is the
detrimental effect on free speech that ownership of information can have. [FN330] Volokh has noted that promises not to
reveal information in the form of contracts not to speak are enforceable, and
do not conflict with First Amendment free speech protections, even when such
contracts are implicit. [FN331] He also asserted that statutory default
rules could clarify obligations concerning the use and disclosure of data, and
are preferable to leaving the courts to guess about what was assumed or
expected with respect to personal information. [FN332] Volokh concluded that the great free
speech advantage of the contract model of information privacy does not endorse
any right to stop people from speaking about each other. [FN333] Instead, he argued, it simply endorses a
right to stop people from violating their promises. [FN334] He noted that there are two limitations
to this approach: people can restrict use and disclosure of information
("speech") only *690 by parties with whom they have a
contract to do so; and parties can waive (or compel waiver) of
speech-restricting contract terms. [FN335]
While both Samuelson and Volokh raise important concerns about propertizing
data, it is not clear that a contract or licensing based approach can truly
avoid the pitfalls they describe. One cannot usually bargain over the sale or
lease of something without conceptualizing it at some level as a good or
service. To the extent personal data is treated as a good in licensing or
contract negotiations, it will assume the characteristics of intangible personal
property. As a result, courts addressing personal information contract or
licensing disputes may then import both personal property law and intellectual
property constructs in an attempt to define and circumscribe the subject of the
contract and the meaning of its terms. While a straight property based approach
is not without drawbacks, at least a governing body of law already exists,
incoherent as it may sometimes be.
Until database (or other) legislation provides us property rights in our own
personal information, or an equity-minded court recognizes that we had them all
along, we can assert the right to overlapping intellectual property protection
classifications currently available. Fortuitously for these purposes, corporate
interests have so widened (and some would say corrupted) the scope of
intellectual property categories that personal information requires little
doctrinal stretch for protection. [FN336]
Donna Rawlinson MacLean, a poet and waitress, recently applied for a patent in
the United Kingdom on an invention she created and called "Myself,"
explaining, "[I]t has taken thirty years of hard labor for me to discover
and invent myself, and now I wish to protect my invention from unauthorized
exploitation, genetic or otherwise." [FN337] While she may very well be novel,
useful, and nonobvious, patents are the mode of intellectual property that are
least adaptable to personal information. [FN338] Other forms, discussed below, seem to
have the potential for being far more accommodating.
*691 X. Legal
Underpinnings: Copyrights, Trademarks, and the Right of
Publicity
A. Copyrights: Rights in Our Personal Data Compilations
Whether or not we traditionally view ourselves as the expression of ideas,
our existences are at least minimally creative and original. [FN339] We are in every sense the
"author" of our personal biographical data, and so should
automatically own our personally identifiable, personally generated
information. [FN340] It is bedrock copyright doctrine that
discrete bits of factual information are not in and of themselves
copyrightable. [FN341] However, when factual information is
incorporated into an original compilation, it acquires copyright protection. [FN342] Compilations are defined as a collection
and assembly of preexisting materials or of data that are selected,
coordinated, or arranged so that the resulting product constitutes an original
work of authorship. [FN343] The compilation copyright construct is
broad enough to embrace mail order catalogues, yellow pages data in phone
books, and a guidebook of used car values, so there is no doctrinal impediment
preventing the construct from encompassing personal data compilations. [FN344]
While our individual "facts" may not be copyrightable, they are not
independently valuable either. [FN345] No entity can effectively exploit our
income ranges without e-mail addresses to "spam," or real space addresses
to target with catalogs. Most would prefer to know our gender and a host of
other variables. Each component of our personhood may be singularly
unprotectable, but we select, coordinate, and arrange our lives at great effort
and expense, and our investments *692 should be preserved. [FN346] We therefore deserve protection as
compilations. [FN347]
Individual data compilations do not, as a policy matter, appear to require the
lengthy term assured to ordinary copyright. Few compilations will have value
after the compiler--the person living the life that is reflected in the data--expires,
severely limiting her earning and spending capacities and making her data
irrelevant. However, all copyrights receive a lengthy term of protection
regardless of the social or economic value of the underlying work. In the event
that post mortem personal data proves valuable, for research purposes or
otherwise, we ought to be able to devise ownership of our information to our
heirs, rather than allowing companies to reap a free "public domain"
data windfall. If unlicensed use of personal data occurs, especially if it
leads to unsolicited commercial contacts, statutory damages could be an
efficient remedy, so long as awards are sufficiently large to serve as an
effective deterrent. Large-scale, intentional, non-permissive use of personal
data could, like other copyright infringements, be criminally sanctioned. [FN348]
B. Trademarks: Rights in Our Personmarks
As one commentator has observed:
Companies have successfully claimed trademark rights in the decor of a
restaurant, an artistic style of painting, the design of a golf course, the
shape of a faucet handle, the diamond shape of a lollipop, the unique
registration process of a toy fair, the shape of a mixer, and the design of
personal organizers . . . . [FN349]
It is hardly hyperbole to suggest that, against a backdrop of word and symbol
ownership, one ought to be able to assert independent Lanham Act [FN350] rights in her name, phone number, and
"snail" and e-mail addresses. They are as unique and perform as much
of a distinguishing, source-identifying function in commerce as do trademarks,
servicemarks, and trade dress. Famous people have already used the Lanham Act
to protect "personas" in the context of the "right of
publicity," which has roots in both privacy and property doctrines. [FN351] *693 Courts have recently
"relied on trademark-like rubrics to uphold claims to exclusive rights in
names, faces, voices, gestures, phrases, artistic style, marketing concepts,
locations, and references." [FN352]
The intangible property right in the personal information of celebrities and
non-celebrities alike could, for clarity's sake, be called
"personmarks." Trademarks are protectable for as long as they
continue to be used in commerce. [FN353] Personmarks should therefore receive protection
for as long as the data is "in use," meaning accurately reflecting a
sentient being who is immersed to some degree in the stream of commerce, which
is to say, alive.
When unlicensed use is made of a personmark, infringement awards could reflect
the varying worth of personal data compilations. If we indulge in
indiscriminate licensing, this would reduce our damages, because if we have
agreed to receive solicitations from a wide array of companies, a few
unlicensed mark-infringing solicitations would be less injurious to us than to
a person who inflates the value of her data by restricting access to it.
Persuasive arguments have been made against the propertization of trademarks.
For example, Mark Lemley has written:
[P]ropertizing trademarks comes at a rather significant cost to society.
Sometimes that cost takes the form of lost opportunities: Important political
and social commentary and works of art may be suppressed entirely. It may also
take the form of higher prices: When we protect the design of products as
trademarks, we prevent competition in the sale of those products, and the price
goes up accordingly. Other social costs are more diffuse, but no less real: Our
language and our culture are impoverished when we cannot use the most familiar
words to discuss--or make fun of, or criticize--the products and companies that
are the basis of our economy. At the very least, it becomes inconvenient to do
so. And perhaps most important, trademark licensing is expensive. The more we
propertize, the more transaction costs we impose on everyone. Companies and
individuals will have to hire more lawyers, delay introducing their products,
and spend money in merchandising fees to acquire the rights to use words,
logos, or product configurations. Because trademarks so often overlap,
propertization may also reduce certainty, making trademark searching and
clearance more difficult and leading to more litigation. [FN354]
Lemley is absolutely correct. A personmark scenario might impose costs upon
society quite similar to those he described. However, it would also bring
benefits, such as promoting broad personal information *694
privacy and conferring upon individuals the same ability to own and control
information that companies have. Given that the data at issue is already
propertized to a substantial extent, personmark protections might not
significantly exacerbate an already burgeoning propertization trend. They would
certainly fragment and complicate the ownership picture, increasing commercial
transaction costs. However, if society can tolerate ownership of information by
companies, there is no compelling reason not to accord analogous property
rights to individuals. To the extent that any resulting commercial friction
results in a general, broad-based reconsideration of the trend toward the
propertization of trademarks, society will benefit.
C. Publicity Rights for Pre-celebrities
Celebrities have state law based control over their personas [FN355] and a federal right to publicity may be
established in the future. The right of publicity is an increasingly robust doctrine,
wafting from the otherwise withering privacy penumbra. [FN356] It ostensibly protects individuals from
misappropriation of their names and likenesses and has been judicially extended
to nicknames, signatures, physical poses, characterizations, singing style,
performance style, vocal characteristics, frequently used phrases, mannerisms
and gestures, and body parts, if found to be distinctive and publicly identified
with the pertinent individual. [FN357] "Personal attributes are . . .
treated just like business attributes." [FN358] If famous people can claim and profit
from a right of publicity, then this right should be available to everyone. [FN359] We are all in some sense
"pre-celebrities." [FN360] Our data can be deemed unequivocally
distinctive and publicly identified with us as individuals. In fact, the unauthorized
use of a private person's photograph impelled *695 the right of
privacy decisions almost one hundred years ago that are now viewed as the
origin of the right of publicity doctrine. [FN361]
Attorneys for celebrities who assert property rights in themselves characterize
those who utilize or reference some audio or visual aspect of the celebrity
without permission as "pirates who rob famous people of their own chances
to market themselves and control how they are depicted." [FN362] This characterization of personal
characteristics as wealth that can be "robbed" by "pirates"
helps illustrate the degree to which the right of publicity is propertized.
There is no reason that the right of publicity cannot apply to all individuals,
celebrity or not, who want to prevent unwanted commercial exploitation and
protect against usurpation of the investment that they have in their own
individual characteristics. [FN363] As celebrities successfully seek to
prevent commercial exploitation of their individual persona, we should also
have the ability to prevent unlicensed, commercial exploitation of our own
individual attributes. As Alice Haemmerli articulated:
As to whether a person should be able to claim a property right in the use of
her objectified identity, there is no logical reason why she should not and
every reason why she should: if one's own image, for example, is treated as an
object capable of "being yours or mine," why should it not be claimed
by the person who is its natural source? [FN364]
The right of publicity has been resoundingly criticized on several grounds. The
argument against the right of publicity that most resonates with this author is
the manner in which publicity rights facilitate ownership, censorship, control
of popular culture, and the making of social meaning. [FN365] Michael Madow provides the following
(lengthy but worthwhile) example:
A few years ago, a bill was introduced in the New York Legislature to create a
broad and descendible right of publicity. During hearings on the bill, some of
the testimony referred to a greeting card, said to be sold chiefly in gay
bookstores. The card bears a picture of John Wayne, wearing cowboy hat and
bright red lipstick, above the caption, "It's such a bitch being
butch." Wayne's children, *696 among others, objected to the
card not only on the ground that its sellers were making money from The Duke's
image--money that should go to them, or, in this case, to the charity of their
choosing. They objected also, indeed primarily, because in their view the card
was "tasteless" and demeaned their father's (hard-earned)
conservative macho image. To his children, as to most of his fans, "John
Wayne" epitomizes traditional America's mythic and idealized view of
itself, its history, and its national character. What Wayne stands for--what
his image means in the mainstream cultural grammar--is rugged individualism,
can- do confidence, physical courage, and untroubled masculinity. That is the
"preferred meaning" of "John Wayne." It was on this
preferred meaning that [then] President Bush drew easily and effectively in
communicating his military plans in the [Persian] Gulf. It is on that meaning,
too, that Wayne Enterprises drew when it licensed the Franklin Mint to sell
(for $395) a "serially numbered, non-firing" replica of the
.45-caliber automatic pistol that Wayne "carried in so many great military
films." Nevertheless, against- the-grain readings of John Wayne are also
possible. For instance, in a course on how to survive as a prisoner of war, the
U.S. Navy uses the term "John Wayning it" to mean trying foolishly to
hold out against brutal torture. The particular greeting card that Wayne's
children and others objected to so strenuously represents an even more
subversive inflection of Wayne's image. The card uses his image to interrogate
and challenge mainstream conceptions of masculinity and heterosexuality. It
recodes Wayne's image so as to make it carry a cultural meaning that presumably
works for gay men, among others, but which Wayne's children (and no doubt many
of his fans) find deeply offensive. If the New York Legislature were to make
John Wayne's right of publicity descendible, however, it would confer on Wayne
Enterprises the power to determine that this particular appropriation of the
John Wayne image is "illegitimate," and to enforce that determination
by denying a license to the greeting card maker. Wayne Enterprises would
henceforth have the power to fix, or at least try to fix, the meaning that
"John Wayne" has in our culture; his meaning for us. [FN366]
Jessica Litman similarly observed that "'Mickey Mouse,' 'Twinkies,' 'Star
Wars,' and 'Spam' are trade symbols, but they are also now metaphors with
meanings their proprietors would not have chosen. They got that way in spite of
any advertising campaigns because the general public invested them with
meaning." [FN367] Because society broadly constructs and
adopts these metaphors, the owners of the pertinent trademarks cannot readily
appeal to the courts to enjoin their use. However, as is illustrated in Madow's
John Wayne anecdote, attempts are sometimes made to use right of
publicity-based litigation *697 to control the meaning of societal
icons. The possibility that such efforts could succeed is disturbing.
However, self-ownership of personal information poses few risks in this regard.
Sheldon Halpern has argued that protection of the right of publicity is not a
balancing "between the rights of the public at large and a fortuitously
placed individual; the choice is between the individual to whom that
associative value attaches and a stranger to the process who would make money
out of it." [FN368] This "associative value" is
derived from fame, and celebrity is exploited differently than the personal
information of ordinary individuals. Celebrity generates economic value in
three central ways: sales of information about the lives and activities of
celebrities (news stories, biographies, interviews, etc.), sales of merchandise
bearing the names and identifiable characteristics of celebrities (clothing,
posters, toys etc.), and celebrity advertising and endorsements directed at
selling collateral products. [FN369] In other words, celebrity is used to
sell goods and services to us, the non-famous. Our personal information is
collected for the exact opposite end, to persuade us to spend our money in
particular ways. Unless aggregated, it is not likely to have broad meaning or
to serve as the basis for far-reaching meaning making. Once compiled, however,
the analysis changes because aggregate data about even non-famous individuals
is very meaningful and important to the creation and alteration of meaning. To
the extent that corporate entities usurp the meaning derived from this data for
commerce purposes, perhaps we lose only our ability to be targeted so
precisely.
It is possible that power over our own personal "publicity" may also
prevent us from organizing, identifying others with similar interest, and
speaking with unified voices. However, as Jerry Kang has pointed out:
The commerce argument [against information privacy], presumes that privacy
necessarily entails information blockage. But this is not so. If individuals
will truly benefit by releasing their personal data . . . they will rationally
choose to do so. Information privacy does not mandate informational quarantine;
it merely requires that the individual exercise control within reasonable
constraints over whether, and what type of, quarantine should exist. [FN370]
*698 We will, therefore, have to trust ourselves to freely and
willingly disseminate our data enough to keep our social and political
connections.
Ironically, in some respects, the right of publicity does offer ordinary folks
some protections it does not provide celebrities. The "newsworthiness
privilege" [FN371] underpinning "celebrity
journalism" and so-called tabloid television effectively negates a
celebrity's right to personal privacy. Whereas, the rest of us, when acting in
non-newsworthy fashion, do have a cognizable, if unsubstantial, right to be
free from public disclosure of our most intimate affairs. [FN372]
Using the right of publicity as a mechanism for gaining control over our
personal information has not yet met with success in the courts. In one case
that generated a fair amount of press, one individual attempted to assert a
property-like right in his personal information using state privacy law and a
right of publicity theory. [FN373] In 1995, Ram Avrahami unsuccessfully
tried to recover actual and punitive damages from U.S. News & World Report
after it sold his name and address to two publishing companies. [FN374] He argued that his name was his personal
property because the Virginia General Assembly "established and protected
a person's property right in his own name" when it promulgated a state
Privacy Act. [FN375] The Act states (in pertinent part):
Any person whose name, portrait or picture is used without having first
obtained the written consent of such person . . . for advertising purposes or
for the purposes of trade, such persons may maintain a suit in equity against
such person, firm or corporation so using such person's name, portrait or
picture to prevent and restrain the use thereof. [FN376]
*699 He also cited Virginia Supreme Court cases that stated that
this statute creates a property right in one's name and likeness. [FN377] His claims were primarily privacy based,
but ultimately unpersuasive to a court that viewed his injuries as trivial. [FN378]
Nor are we likely to be accorded privacy rights in our likenesses. When South
Carolina Attorney General Charles M. Condon sued a company that was compiling a
database of driver's license pictures comprise of 3.5 million digital
photographs, a state judge ruled that the photo database was "no more
intrusive on the privacy of an individual than showing the driver's license
itself." [FN379]
More ominously, the Federal Trade Commission tried to protect consumer privacy,
promulgating rules that prevented telephone companies from using customer
information (such as phone numbers called and phone services subscribed to)
without consumer consent. [FN380] The Tenth Circuit Court of Appeals held
that these regulations violated the First Amendment by interfering with the
phone companies' ability to engage in commercial speech with customers. [FN381]
Eugene Volokh recently wrote an
interesting article about the burdens information privacy laws can place upon
the exercise of free speech. [FN382] In pertinent part, Volokh addressed the
idea of assigning people a property right in their personal information, and
expressed concern that this would inhibit the beneficial flow of information *700
through society. [FN383] Though acknowledging that the Supreme
Court has found that the speech restrictions imposed by intellectual property
rights are constitutional, he asserted that the Court has stressed that
intellectual property owners do not have the power to suppress facts. [FN384] He argued that this is a critical
distinction, because, in his view, granting individual property rights in
personal information would bestow upon them the undesirable and
unconstitutional capacity to suppress facts. [FN385]
Volokh supported his argument that First Amendment jurisprudence does not allow
intellectual property owners to suppress facts by citing Supreme Court cases
that seem to stand for this proposition. [FN386] In the copyright context, Volokh relied
upon Harper & Row v. Nation Enterprises, [FN387] which certainly contains strong language
about the Copyright Act's differentiation between copyrightable expression and
uncopyrightable facts and ideas. What the case does not do, however, is offer
any meaningful guidance about distilling one from the other. The Harper &
Row case concerned a "purloined" copy of former President Gerald
Ford's memoirs, which The Nation described and reviewed in a published article,
without authorization, prior to planned publication of an excerpt of the memoir
in Time magazine. [FN388] Harper & Row, which owned the memoir
copyright, successfully brought a copyright infringement claim, despite The Nation's
argument that all it took from the memoir was factual information, most of
which was paraphrased, interspersed with a few short quotations. [FN389] The Supreme Court concluded that, for
example, Ford's quoted narrative about the Nixon pardon was protectable
expression, even though it was fact based and discussed historical events that
Ford witnessed and participated in. [FN390] Even the act of paraphrasing Ford's
recounting of an historical event did not divorce fact from expression
sufficiently to avoid copyright infringement, according to the Court. [FN391] The decision in Harper & Row
demonstrates that copyright allows the suppression of facts quite handily.
*701 With respect to trademarks, Volokh asserted that trademark
law does not prohibit noncommercial speech that communicates facts or opinions
about a product. [FN392] As a doctrinal matter, he is essentially
correct. As a practical matter, though, trademark law impacts free speech
tremendously. If one writes a novel in which the protagonist attributes tooth
decay to drinking too much of a name brand cola, or makes disparaging remarks
about the taste of a certain brand of soda, and her publisher actually allows
her to use the trademarked name in print (which is unlikely), then the
carbonated beverage company may bring suit, and at least one of the claims
would likely be trademark based. The author would in all probability then agree
to remove the trademarked name from future editions of the novel to settle the
suit as expeditiously and inexpensively as possible.
Even seemingly benign uses of trademarks will provoke letters from lawyers. If
one writes a novel in which a character "xeroxes" something, she may
very well receive a letter from the Xerox company asking her to kindly
substitute the word "photocopy" for their trademark in the future (so
that their trademark does not commit genericide). [FN393] If she writes about "kitty
litter," which is also a trademark, and it comes to the trademark owner's
attention, she will get a similar letter asking her to eschew the "kitty
litter" trademark in favor of the generic term "cat box filler."
[FN394] If she moves away from fiction into the
world of fact, and constructs a web site critical of a company or product,
trademark law will be used in an attempt to shut down her site and shut her up:
First Amendment values might ultimately triumph over trademark, but only after
expensive, potentially protracted litigation. [FN395]
*702 Volokh may be correct that an absolute property right in
personal information could have a deleterious effect on free speech. However,
to the extent personal information is treated like a copyrighted database or a
trademark, and bound by the same First Amendment jurisprudence, concerns about
free speech should be no greater for personal data than for informational
components of intellectual property. Individuals would have a level of
information control tied to that enjoyed by commercial entities, and subject to
the same restrictions. If this stimulated a broad reevaluation of the interplay
between intellectual property and the First Amendment, that would surely
represent a positive development.
"Fair use" is the
doctrine that allows one to use another's intellectual property for (usually)
limited purposes without the owner' s consent, or in some situations, even
contrary to the owner's wishes. Fair use has been called an equitable rule of
reason with no real definition. [FN396] Most clearly delineated in the
copyrights context, fair use doctrine embodies the policy against freighting
ideas and information with proprietary claims. [FN397] Intangible (or "intellectual")
property is vested with a public interest and intended to achieve an
"important public purpose." [FN398] There is a societal bargain implicit in
the legal protections accorded intellectual property. Owners are given tools in
the form of exclusive rights which they can use to financially exploit creative
endeavors. However, this gift is conditioned upon an understanding that the
ultimate goal of the legal framework is to maximize *703 the
number of creative works available to the public, not to benefit individual
intellectual property owners. [FN399] Fair use, therefore, represents ample
control withheld from an intellectual property owner when a grant is made,
rather than a right or privilege owners earn or acquire that is subsequently
"taken."
Courts have held that the scope of copyright fair use is inversely related to
ease of licensing. [FN400] If contracting for our data is fast and
efficient, there will not be a need for any non-permissive fair use as
corporate interests currently construe the doctrine. [FN401] Only descriptive, noncommercial uses of
our data without a license would likely be fair under a Lanham Act analysis, so
our personmarks could only be fairly used without our consent within a limited
range of contexts. To the extent our data is protected by our rights of
publicity, it may not be susceptible to fair use at all because fair use is not
a defense in that context. [FN402]
We therefore have little to fear from fair use, in terms of losing power or
exclusivity, thanks to the industrious efforts of commercial content owners. We
can accrue the benefits of information exchange when we voluntarily disclose
our personal information and permit uses of our data. Non-permissive fair uses
are unlikely to be significant enough to impact our privacy, given the current
narrow scope of fair use generally. [FN403]
*704 Conclusion
If every woman gains control over
her own personal information, commercial expectations could be kept off
balance. Corporations will not know whether someone has allowed her personal information
to be purchased because she is interested in a product, or interested in
obtaining a royalty. They will know only what we allow them to know, not the
other way around, and may at times be forced to rely on their own judgments.
Corporations will, however, be freed from the web of conflicting privacy laws
they have railed and lobbied against. [FN404] Rather than varying privacy standards
for different jurisdictions, these companies will simply have to come to terms
with uniform, consistent, predictable, straightforward, universal property
rights, to the extent the legislative and judicial bodies of government can
proscribe them.
Once I own my own data, I personally look forward to formulating a reverse
"click-wrap" license, whereby any enterprise that wants me to visit
its web site will have to agree to MY list of terms and conditions, which may
look something like this:
By inviting me into your site, you, the web entity, agree to the following:
You will not leave any cookie files without my express authorization, and even
with my express authorization will leave the least invasive cookie file
possible, the purpose and goals of which will be clearly communicated to me,
along with instructions for removing the cookie file if and when I desire to.
You will not record any aspect of my clickstream without express authorization
from me, and even with authorization will not record it in conjunction with
information that identifies me. You will not use any information I permit you
to collect to generate personalized advertisements or direct them at me. If you
violate any of the terms of this agreement, you agree to pay me $10,000 per
occurrence, plus reimburse any legal fees I incur.
[FN1]. See Boston Women's Health Collective, Our
Bodies, Ourselves: A Book By and For Women (2d ed. 1976). The title of this
article references this seminal work that enabled women to learn about and gain
control over their bodies and health. Use of the third person plural is also in
homage to this groundbreaking book.
[FNa1]. Assistant Professor of Law, University
of South Carolina School of Law. Many thanks to Llew Gibbons, Vernellia
Randall, Andrea Seielstad, and Molly O'Brien for sharing their thoughts and
comments about early drafts of this article. This article is dedicated to Jim
McKenney and Casey Bartow- McKenney.
[FN2]. Where are women in cyberspace? After
watching Bob Cringely's PBS documentary "Nerds 2.0.1: A Brief History of
the Internet," one could readily conclude that women spend most of their
online time appearing on porn sites, batting their cursors and looking for
cyber-dates, or e-shopping. See Nerds 2.0.1 (visited May 28, 2000)
<http://www.pbs.org/opb/nerds2.0.1/>. With few exceptions (most notably,
Sandy Lerner, co-founder of Cisco Systems, who was subsequently ousted from the
company and currently runs Urban Decay, a successful cosmetics company that she
founded), women did not seem to have much of a role in founding the Internet,
which like so many modern marvels has moved smoothly from creation as an
instrument of military communication to civilian application as an implement of
commerce. See Nerds 2.0.1- Cast of Characters (visited July 19, 2000) <http://www.pbs.org/opb/nerds2.0.1/cast/>
(listing the names of people responsible for the development of the Internet).
[FN3]. Tama Janowitz, Slaves of New York 59
(1986).
[FN4]. See discussion infra Parts II, III, IV.
See generally Leslie A. Kurtz, The Invisible Becomes Manifest: Information
Privacy in a Digital Age, 38 Washburn L.J. 151, 165-66 (1998)
(explaining how personal information is collected via cyberspace).
[FN5]. Net marketers often describe visitors to
web sites as "a pair of eyeballs." See Erik Larson, Free Money, New
Yorker, Oct. 11, 1999, at 76, 78.
[FN6]. See discussion infra Part VII.
[FN7]. See discussion infra Part IX.
[FN8]. "Information privacy"
references the ability to control the dissemination of personal information,
data that is identifiable to an individual. See Information Infrastructure Task
Force: Privacy and the National Information Infrastructure (June 6, 1995)
<http:// www.iitf.nist.gov/ipc/ipc/ipc-pubs/niiprivprin_final.html>.
[FN9]. The author uses the more gender-neutral
"web swimming" rather than "web surfing," since most
surfers are male. It also is more apropos, since using the Internet is more
like plunging in and thrashing around than gracefully skimming a surface.
[FN10]. See Lindsey Arent, How Women Buy, and
Why (Nov. 17, 1999) <http://
www.wired.com/news/print/0,1294,32483,00.html> (discussing a joint study
conducted by Harris Interactive, Procter & Gamble and Women.com Networks
entitled The Online Woman: How to Tap Into Her Buying Power, which determined
that women handle 75% of the family finances and control roughly 80% of family
purchasing decisions); Laurie J. Flynn, Microsoft is Starting Web Site Aimed at
Women (Feb. 8, 1999) <http://
www.nytimes.com/library/tech/99/02/biztech/articles/08net.html> (citing
Michael Goff, MSN's director of programming); John Frederick Moore, iVillage
IPO Takes Off (Mar. 19, 1999) <http:// cnnfn.cnn.com/1999/03/19/technology/ivillage/index.htm>;
see also Martha Slud, Web Targets Women Users: From iVillage to Oprah.com, the
Net is Making a Play for the Female Market (Apr. 2, 1999) <http://
cnnfn.cnn.com/1999/04/02/technology/women2/index.htm> ("By 2002, women
are projected to comprise 51 percent of all Internet users.... [W]omen wield
huge control over household spending and are expected to be the catalysts if
and when major growth in online shopping takes place."); Bob Tedeschi, Online
Retailers Applaud Increase in Women Shoppers (July 12, 1999) <http://
www.nytimes.com/library/tech/99/07/cyber/commerce/12commerce.html>.
[T]he percentage of World Wide Web Shoppers who are women has jumped the last
12 months, to 38 percent from 29 percent, according to a Commercenet/Nielsen
Media Research study.... "The early part of the e-commerce revolution was
a revolution of rich white males," said Katherine Borsecnik, senior vice
president for strategic business at America Online. "That's changing. And
with 80 to 85 percent of household spending controlled by women, the total
retail dollars involved in that change is very high."
Id. But see Jim Frederick, $6 Billion in Online Holiday Sales by the End of
This Month! $24 Billion in Internet Ads by 2003! 2.3 Trillion E-Biz Predictions
by 2010! (Dec. 19, 1999) <http://
www.nytimes.com/library/magazine/home/19991219mag-frederick9.html> (casting
doubt on the reliability of predictions about e-commerce).
[FN11]. Flynn, supra note 10. See Lisa
Moskowitz, What Kind of Mother Are You? (Feb. 28, 2000) <http://
www.salon.com/mwt/feature/2000/02/28/marketing/print.html> ("According
to Sales and Marketing Management magazine, women in the United States control
80 percent of all household buying decisions."); cf. Mark Boal, Women Are
Easy (June 2-8, 1999)
<http://www.villagevoice.com/features/9922/boal.shtml> ("[W] hen it
comes to spending--the litmus test for advertisers--women match men in dollar
power, and in some areas outspend them. Total monthly credit card expenditures
by women 18 to 34 exceed male spending by 2 percent, according to MediaMark, a
top New York consumer research firm.").
[FN12]. Slud, supra note 10 (quoting Susan
Williams Defife, President and CEO of Womenconnect.com).
[FN13]. See, e.g., Denise Caruso,
Exploiting--and Protecting--Personal Information (Mar. 1, 1999) <http://
www.nytimes.com/library/tech/99/03/biztech/articles/01digi.html>; Peter
McGrath Privacy, Please (Apr. 15, 1999) <http://www.newsweek.com/nw-
srv/tnw/today/cs/cs02we_1.htm>.
[FN14]. See discussion infra Part II.
[FN15]. But see Lakshmi Chaudhry, Breath Oxygen,
Be Free (Mar. 3, 2000) <
http://www.wired.com/news/print/0,1294,34264,00.html> (quoting Emily
Hancock, editor of Moxie, a feminist e-zine, for the proposition that the need
to sell produces insipid content, and quoting Lisa Jervis, editor of Bitch
magazine, for the proposition that despite their use of feminist rhetoric,
sites like iVillage, Women.com, and Oxygen Media "merely recycle the
traditional women's magazine formula of health-beauty-sex" and sadly
circumscribe women's interests to be only about makeup because advertisers do
not trust women to want interesting content).
[FN16]. See Peter McGrath, Knowing You All Too
Well (Mar. 25, 1999) <http://
www.newsweek.com/nw-srv/printed/us/st/ty0113_1.htm>, <http://
www.newsweek.com/nw-srv/printed/us/st/ty0113_2.htm>, <http://
www.newsweek.com/nw-srv/printed/us/st/ty0113_3.htm>.
[FN17]. Women do not seem to be doing much
hacking, so cyber-women would not appear to be online troublemakers. Hacking is
a "boy culture," predominantly white, suburban, male, and premised on
the formation of masculinity. See, e.g., Ellen Messmer, Security Expert
Explains New York Times Site Break In (Sept. 18, 1998)
<http://cnn.com/TECH/computing/9809/18/nythack.id g/index.html>
(discussing the group that hacked New York Times site and called itself
"Hackers for Girlies." It was apparent from context that the
"Girlies" reference was not intended to be complimentary, and did not
describe the individuals who had entered and altered the site.).
[FN18]. See Bob Tedeschi, Can Merchants Buy
Loyal Customers? (Sept. 19, 1999) <http://
www.nytimes.com/library/tech/99/07/cyber/commerce/19commerce.html>.
To join, [Mypoints customer rewards program] members must also ante up
something of value: they have to fill out a form detailing their interests and
shopping preferences. Once they do so--on the condition that Mypoints will not
reveal their identity to marketers, or sell personal information without the
customers' permission--Mypoints sends them an e-mail with "targeted,
relevant offers" daily or every other day, said Steve Markowitz, Mypoints'
chief executive.
Merchant partners, meanwhile, pay on average 25 cents for every e-mail message
that Mypoints sends on their behalf. Since Mypoints collects detailed
demographic data from its users, those e-mails can produce strong results.
For example, in a promotion conducted for Egghead.com earlier this year,
Mypoints sent an e-mail offer to 20,000 of its members. Even though this
campaign was much smaller than Egghead's typical direct marketing effort, James
Kimball, a marketing analyst for Egghead, said it was a "tremendous
success."
"Our customer list is well over 2 million, which we send e-mails to once
or twice a week. But since Mypoints has such amazing information on their
customers, we could target a very specific demographic, and we got a click-
through rate on that mailing that was eight times our normal e-mail response,
and a conversion rate that was about three times our normal rate," Kimball
said, referring to the rate at which companies turn browsers into buyers."
Id. See generally Kurtz, supra note 4, at 159-61 (discussing monitoring
techniques).
[FN19]. See Slud, supra note 10; Paul Schwartz, Privacy and Democracy in Cyberspace, 52
Vand. L. Rev 1609, 1647-50 (1999). The Internet "has the
potential to emerge as an essential focal point for communal activities and
political participation...forming new links between people and marshalling
these connections to increase collaboration in democratic life." Id. at 1648. See generally
Jeffrey Rosen, The Eroded Self (Apr. 30, 2000) <http://
www.nytimes.com/library/magazine/home/20000430mag-internetprivacy.html>.
The sociologist George Simmel observed nearly 100 years ago that people are
often more comfortable confiding in strangers than in friends, colleagues or
neighbors. Confessions to strangers are cost-free because strangers move on;
you never expect to see them again, so you are not inhibited by embarrassment
or shame. In many ways the Internet is a technological manifestation of the
phenomenon of the stranger.
Id.
[FN20]. See, e.g., Bob Tedeschi, Now That
They've Come, What Can We Sell Them?, N.Y. Times, Mar. 29, 2000, at 9
(discussing how initially the Internet "assumed a quaint identity as a
place where people offered information freely"; then came e-commerce,
tremendous interest in making money from the large number of people who
frequent a site, and profound changes for community sites).
[FN21]. See supra notes 9-12 and accompanying
text.
[FN22]. iVillage.com (visited June 4, 2000)
<http://www.ivillage.com/>.
[FN23]. See Nina Teicholz, Places for Serious
Sisterhood (Oct. 22, 1998) <
http://www.nytimes.com/library/tech/98/10/circuits/library/22ivil.html>;
iVillage Offering is Priced Higher (Mar. 17, 1999) <http://
www.nytimes.com/library/tech/99/03/biztech/articles/17village.html>; Larson,
supra note 5, at 78-79.
[FN24]. Teicholz, supra note 23 (quoting Jason
Stell, "an iVillage spokesman").
[FN25]. Moore, supra note 10. Do not expect
iVillage to employ a lot of women, though; instead it relies on the labor of
over a thousand presumably grateful volunteers. See Lisa Napoli, America Online
is Facing Challenge Over Free Labor (Apr. 14, 1999) <http://
www.nytimes.com/library/tech/99/04/biztech/articles/14aol.html> ("For
instance, Ivillage [sic], an online women's network, uses more than 1,000
volunteers to manage message boards and chat communities."). Web entities
are happy to sell products to women consumers, but perhaps less eager to hire
them. Jesse Jackson has labeled this "one-way trading." See Matt
Richtel, Jackson Says Silicon Valley Companies Discriminate (Mar. 1, 1999)
<http://
www.nytimes.com/library/tech/99/03/cyber/articles/01jackson.html>; see also
Diana Lynch, If Women Made Computers... (Feb. 23, 1999) <http://
abcnews.go.com/sections/tech/WiredWomen/wiredwoman990223.html> ("[T]he
brave new digital world is no democracy, and strength in numbers isn't buying
[women] influence on the Web or employment in the corporate offices of the
high-tech firms that increasingly control it.").
[FN26]. Larson, supra note 5, at 76.
[FN27]. See id. at 78.
[FN28]. Id. at 85.
[FN29]. See id. at 78-79.
[FN30]. Id. at 78.
[FN31]. Parent Soup (visited June 17, 2000)
<http://www.parentsoup.com>.
[FN32]. Larson, supra note 5, at 78.
[FN33]. Amazon.com (visited June 17, 2000) <http://www.amazon.com>.
[FN34]. iBaby.com (visited June 17, 2000)
<http://www.ibaby.com>.
[FN35]. iMaternity.com (visited June 17, 2000)
<http://www.imaternity.com>. See Larson, supra note 5, at 78.
[FN36]. Underwire (visited June 17, 2000) <http://www.underwire.msn.com>.
[FN37]. Flynn, supra note 10.
[FN38]. WomenCentral (visited June 17, 2000)
<http://womencentral.msn.com/>.
[FN39]. The Microsoft Network (visited June 17,
2000) <http://www.msn.com/>. See Flynn, supra note 10.
[FN40]. Women.com (visited June 17, 2000)
<http://women.com/>.
[FN41]. See Flynn, supra note 10.
[FN42]. Electra (visited June 17, 2000)
<http://www.electra.com/>.
[FN43]. ThriveOnline (visited June 17, 2000)
<http:// www.thriveonline.oxygen.com>.
[FN44]. Moms Online (visited June 17, 2000)
<http://momsonline.oxygen.com/>.
[FN45]. Oxygen (visited June 17, 2000)
<http://www.oxygen.com/>.
[FN46]. See Slud, supra note 10.
[FN47]. See James Poniewozik, Will Women Take a
Breath of Oxygen? (Jan. 31, 2000)
<http://www.time.com/time/magazine/articles/0,3266,38042,00.html>, <
http://www.time.com/time/magazine/articles/0,3266,38042-2,00.html>; Courtney
Macavinta, Oxygen: Lipstick and Recipes or a Media Revolution? (Oct. 25, 1999)
<http://news.cnet.com/news/0-1014-201-920020-0.html>.
[FN48]. See James Ledbetter, Net Investing for
the Good of Mankind (Aug. 9, 1999)
<http://www.thestandard.com/article/display/0,1151,5756,00.html>
("Many of Markle's Internet investments have the aura of do-gooder
high-mindedness associated with traditional foundation grants."); The
Markle Foundation (visited June 4, 2000)
<http://www.markle.org/index.html> (displaying the homepage for the
private not-for-profit Markle Foundation).
[FN49]. Courtney Macavinta, U.S. Official
Directs Net Funding, Puts Consumers First (Nov. 15, 1999)
<http://news.cnet.com/news/0-1005-200- 1438333.html> (interviewing Zoe
Baird). See also Amy Harmon, For Zoe Baird, a New Opportunity for Public
Service (July 26, 1999) <http://
www.nytimes.com/library/tech/99/07/biztech/articles/26zoe.html>.
[FN50]. Macavinta, supra note 49.
[FN51]. Zoe Baird has urged readers to use the
Internet to focus on "unmet markets" and "unmet needs":
For example, there also may be large, untapped markets in low-income areas. A
recent study found that inner-city consumers wield $85 billion in annual
spending power, yet are under served by traditional retail services. We need to
understand the needs and attitudes of these populations better so businesses
have the information to tap these new markets.
Zoe Baird, Use Web for More Than Shopping (Dec. 9, 1999) <http://
www.markle.org/news/Clipping.199912091055.1172.html>. See also Ledbetter,
supra note 48 ("Geraldine Laybourne acknowledges that the Markle project
amounts to doing market research for her competitors, an arrangement she calls
'highly unusual." ').
[FN52]. Estroclick (visited June 17, 2000)
<http:// estroclick.chickclick.com/>.
[FN53]. Id.
[FN54]. hipMama (visited June 17, 2000)
<http://www.hipmama.com/>.
[FN55]. Wench (visited June 17, 2000)
<http://www.wench.com/>.
[FN56]. Bust (visited June 17, 2000)
<http://www.bust.com/>.
[FN57]. Hissyfit (visited June 17, 2000)
<http://www.hissyfit.com/>. See Chickclick Press Releases (visited July
19, 2000) <http:// www.chickclick.com/faq/press.html>; Elizabeth Weise,
Oxygenating the Women's Market (Feb. 3, 2000)
<http://www.usatoday.com/life/cyber/tech/net001.htm>.
[FN58]. See, e.g., iWon Women's Consumer Center
(visited July 19, 2000) <
http://www.iwon.com/home/shopping/womens_center_overview/0,13826,,00.html>
("Start saving time and money today. Leave the comparison shopping and
haggling to us!").
[FN59]. See Jean Kilbourne, Deadly Persuasion:
Why Women and Girls Must Fight the Addictive Power of Advertising 33 (1999)
(referring to the title of Chapter One, "Buy This 24-Year-Old and Get All
His Friends Absolutely Free").
[FN60]. See, e.g., Bob Tedeschi, E-Commerce
Sites Target Next Generation of Buyers (Mar. 29, 1999) <http://
www.nytimes.com/library/tech/99/03/cyber/commerce/29commerce.html>
("According to industry executives and analysts, Internet commerce
companies are recognizing the natural confluence of e-commerce and the 18-and-under
set, and are positioning themselves more aggressively at that
intersection.").
[FN61]. See Janelle Brown, Cool Hunters Hit the
Web Jungle (May 13, 1999) < http://www.salonmagazine.com/tech/feature/1999/05/13/smartgirl/index.html>,
<
http://www.salonmagazine.com/tech/feature/1999/05/13/smartgirl/index1.html>.
[FN62]. Id. (quoting Kevin Mabley, director of
research at online market research firm Cyber Dialogue).
[FN63]. SmartGirl Internette (visited June 4,
2000) <http:// www.smartgirl.com/> (displaying the homepage for coyly
named website, highlighting the phrase "Smart girls decide for
themselves," followed by a prominent "TM").
[FN64]. Id.
[FN65]. Speak Out (visited July 8, 2000)
<http:// www.smartgirl.com/pages/speak.html>.
[FN66]. Brown, supra note 61.
[FN67]. See id.
[FN68]. See id.
[FN69]. Speak Out (visited July 8, 2000)
<http:// www.smartgirl.com/pages/speak.html>. Although SmartGirl at one
time did not accept advertising, that is no longer their policy. "Because
of economic demands, SmartGirl now includes some advertising. All advertising
is clearly marked as advertising." Id.
[FN70]. See Joseph Turow & Lilach Nir, The
Internet and the Family 2000, The View From Parents, The View From Kids, Report
Series No. 33 (May 2000) <http:// www.appcpenn.org/finalrepor_fam.pdf>
(displaying report done by the Annenberg Public Policy Center on the differing
points of view regarding the importance of Internet privacy).
[FN71]. See id.
[FN72]. See Janelle Brown, Girl Talk (July 28,
1999) <http://
www.salonmagazine.com/tech/feature/1999/07/28/girl_talk/index.html>.
[FN73]. See Bob Tedeschi, supra note 20, at 9.
This section title refers to the title of this article.
[FN74]. See Jerry Berman & Deirdre Mulligan,
Privacy in the Digital Age: Work in
Progress, 23 Nova L. Rev. 551, 554 (1999).
The Internet accelerates the trend toward increased information collection,
which is already evident in our offline world. The data trail, known as
transactional data, left behind as individuals use the Internet is a rich
source of information about their habits of association, speech, and commerce.
Transactional data, click stream data, or "mouse droppings," as it is
alternatively called, can include the Internet protocol address ("IP
address") of the individual's computer, the browser in use, the computer
type, and what the individual did on previous visits to the Web site, or
perhaps even other Web sites. This data, which may or may not be enough to
identify a specific individual, is captured at various points in the network
and available for reuse and disclosure. Some of the data generated is essential
to the operation of the network, like the phone number that connects a calling
party to the intended recipient, the IP address is necessary, for without it
the network cannot function. However, other pieces of data may serve purposes beyond
network operation. Along with information intentionally revealed through
purchasing or registration activities, this transactional data can provide a
"profile" of an individual's activities. When aggregated, these
digital fingerprints reveal the blueprint of an individual's life. This
increasingly detailed information is bought and sold as a commodity by a
growing assortment of players.
Id. at 554. See also Jerry Kang, Information Privacy in Cyberspace
Transactions, 50 Stan. L. Rev. 1193, 1223-30 (1998) (discussing the
information exchanged in a typical e-commerce transaction).
[FN75]. See Schwartz, supra note 19, at 1623-26.
[FN76]. McGrath, supra note 16.
[FN77]. See D. Ian Hopper, New Tool Offers
Privacy Without Crippling Browsing Habits (Mar. 21, 2000) <http://
www.cnn.com/2000/TECH/computing/03/21/idcide/index.html>.
If the networks are allowed to track, they can record all sorts of information
about your habits. Security consultant and privacy watchdog Richard M. Smith
showed how DoubleClick can mine personal data from a user's habits on such
popular Web sites as AltaVista, Travelocity, DrKoop.com, Buy.com and the
Internet Movie Database. By visiting less than 10 sites, the network had his
name, street address, e-mail address and birthday. The ad company also saved
transactional information such as the route of a plane trip, what search terms
he used in a search engine, and what products he browsed on e-commerce sites.
Id.
[FN78]. For a discussion of the meaning of
"clickstream," see Hiawatha Bray, They're Watching You, Boston Globe,
Feb. 11, 1999, at G6.
Here's how it works: Many commercial Web sites feature banner ads linked to the
DoubleClick network. When someone visits one of these sites, his or her
computer gets a cookie that notes the particular ad being displayed. The cookie
continues to track the user, noting every visit to a site featuring DoubleClick
ads. The cookie tracks which ads the user clicks on for more information, and which
ads he or she ignores.
Id.
[FN79]. See Saul Hansell, Big Web Sites to Track
Steps of Their Users, N.Y. Times, Aug. 16, 1998, at A1. See generally Simson
Garfinkel, Database Nation: The Death of Privacy in the 21st Century (2000)
(criticizing the proliferation of technologies used by businesses, the
government and others to invade personal privacy). For a broader, more detailed
explanation of how "finely granulated personal data" can be harvested
via computer, see Schwartz, supra note 19, at 1621-31.
[FN80]. Bob Tedeschi, Targeted Marketing
Confronts Privacy Concerns (May 10, 1999) <http://
www.nytimes.com/library/tech/99/05/cyber/commerce/10commerce.html>. See also
Schwartz, supra note 19, at 1641.
[FN81]. Hansell, supra note 79, at A1.
[FN82]. See McGrath, supra note 16. The Web has
evolved into a marketplace, and in the process transformed privacy from a right
to a commodity. High-speed networking and powerful database technologies have
made it possible for businesses to amass, quickly and at low cost, a wealth of
personal information on nearly 200 million Americans, especially the 40 or so
million who cruise the Web. You want a list of people in the wealthy
Westchester County suburbs of New York, sorted by household income and
"lifestyle interests" ? No problem. Go to myprospects.com, which will
charge you as little as 16 cents a name, no questions asked. You want to know
if a potential business partner has a history of bad credit or fraud? Hundreds
of investigative sites, such as discreetresearch.com, will oblige. You want to
buy the executive travel records of your competitor, so you can figure out not
only where they're going but whom they're meeting with? Companies that do
"competitive intelligence" can mine the database, as the giant
accounting firm PricewaterhouseCoopers recently found out to its chagrin.
Id.
[FN83]. See, e.g., Andrew Leonard, Your Profile,
Please (June 26, 1997) <
http://www.salonmagazine.com/june97/21st/article970626.html> ("Says Ted
Kamionek, Firefly's director of communications: 'If an advertiser comes to us
and says, I want to reach males who live in the Midwest who like athletic
activities and R.E.M. and want to buy T-shirts, we can manage that
relationship." '). See also Hansell, supra note 79, at A1, A24.
[FN84]. Leonard, supra note 83. But see Denise
Caruso, A New Model for the Internet: Fees for Services (July 19, 1999)
<http:// www.nytimes.com/library/tech/99/07/biztech/articles/19digi.html>
(discussing how Internet-centered businesses are moving away from the
ad-supported business model and toward the transaction model).
[FN85]. From the Speeches of Gerry Laybourne
(visited May 1, 1999) <http:// www.oxygen.com/html/ox_vi_spch.htm>. This
web page is no longer accessible.
[FN86]. Tedeschi, supra note 10.
[FN87]. See Hansell, supra note 79, at A1.
[FN88]. Freedom of Information, Inc., U.S. Patent No. 5848396 (Dec. 8, 1998)
(Thomas A. Gerace, Inventor).
[FN89]. USPTO Entry of U.S. Patent No. 5848396 (visited June
17, 2000) < http://164.195.100.11/netacgi/nph-Parser? Sect
=PTO1&Sect2 =HITOFF&d =PALL&p =1&u = /
netahtml/srchnum.htm&r=1&f=G&l=50&s1='5848396'.WKU.&
OS=PN/5848396&RS=PN/5848396> (displaying the abstract and claims of the patent).
See Patently Personal (Dec. 18, 1998) <http://
www.privacytimes.com/index_ecom.htm>.
Be Free Inc., a small start-up in Marlborough, Mass., expects to receive a
patent for a method of passively collecting behavioral profiles and
psychographic data (attitudes and life styles) in individual computer users,
storing this information in a huge database and then using it to decide which
consumers should see which ads.
Id.
[FN90]. See Marius Meland, The Other Online
Profiler (Feb. 25, 2000) <
http://www.forbes.com/tool/html/00/Feb/0225/mu2.htm>.
[FN91]. Tedeschi, supra note 80 (quoting Julie
Williams, chief counsel of the Comptroller of the Currency, a federal agency
that oversees banking activities). See also Tedeschi, supra note 18.
[FN92]. Leonard, supra note 83 (quoting Jerry
Kang, a law professor at UCLA).
[FN93]. Berman & Mulligan, supra note 74, at
571-72.
[FN94]. Bob Tedeschi, Seeking Ways to Cut the
Web-Page Wait (June 14, 1999) <http:// www.nytimes.com/library/tech/99/06/cyber/commerce/14commerce.html>
(quoting Jonathan Morris, executive vice president of Bluefly, a discount
apparel retailer).
[FN95]. See Debra Aho Williamson, The
Information Exchange Economy (Apr. 30, 1999)
<http://www.cnn.com/TECH/computing/9904/30/infoexchange.idg/>.
[FN96]. See Saul Hansell, In a Wired World, Much
is Free at Click of a Mouse (Oct. 14, 1999) <http://
www.nytimes.com/library/tech/99/10/biztech/articles/14free.html>; see, e.g.,
Michelle Finley, Want Free DSL? You'll Pay For It (Mar. 27, 2000) <http://
www.wired.com/news/print/0,1294,35104,00.html>.
[FN97]. See Taylor & Jerome, Offend Your
Mother (Dec. 1999) <http://
www.zdnet.com/pccomp/stories/all/0,6605,2386401,00.html>; How to Shop Online
(visited July 12, 2000) <http://
www.netguide.com/special/primers/shopping/home.html>.
[FN98]. Berman & Mulligan, supra note 74, at
558. See also Michael Stroud, You Are What You Ware (Sept. 28, 1999)
<http:// www.wired.com/news/print/0,1294,31529,00.html> ("You're
walking around some huge computer show wearing a cracker-sized sliver of
silicon that was part of your conference registration package. Your stylish
'infocharm' comes with a tiny infrared transceiver that automatically captures
which booth you visited, whom you talked to, and how long you spent
there."); Beyond 2000--Supermarkets Check You Out (Mar. 8, 2000)
<http://www.beyond2000.com/news/story_475.html>. See, e.g., James Glave,
Levi's Brave New World (Aug. 16, 1999) <http://
www.wired.com/news/print_version/business/story/21268.html> (discussing
something close to this is actually available in real space at Levi's San
Francisco store, which uses biometrics, including fingerprinting, to track and
learn about customers).
[FN99]. Hansell, supra note 79, at A24 (Adforce
Inc., of Cupertino, California, is "seeking to persuade Internet service
providers to give [it] the name and address of each visitor as he or she surfs.
Adforce would then instantly retrieve demographic and buying-habit data kept by
Metromail about that person and use it to display advertisements aimed at him
or her.").
[FN100]. Williamson, supra note 95.
[FN101]. Schwartz, supra note 19, at 1612.
[FN102]. See Steve Lohr, Online Industry Seizes
the Initiative on Privacy (Oct. 11, 1999) <http://
www.nytimes.com/library/tech/99/10/biztech/articles/11priv.html>.
The spread of Internet technology will result in a data collection network of
previously unimagined reach as telephones, televisions, cars and appliances--
not just personal computers--are connected to the global digital network before
long. And the rapidly developing fields of data-mining and profiling software
will enable corporations to increasingly slice and search through this ocean of
data to identify personal patterns of buying and behavior--and make inferences,
accurate or not, about a person's likely behavior.
Id.
[FN103]. See Who Watches Your Credit? (June 2,
1999) <http:// cnnfn.com/1999/06/02/life/q_creditaccess/> (discussing how
various agencies gather and use people's credit information).
[FN104]. Id.
[FN105]. Jeri Clausing, Revised Banking
Legislation Raises Concerns About Privacy (Oct. 25, 1999) <http://
www.nytimes.com/library/tech/99/10/biztech/articles/25priv.html>.
[FN106]. See discussion infra Part VI.
[FN107]. Hansell, supra note 79, at A1.
[FN108]. See Bob Tedeschi, Internet Retailers
Work to Turn Shoppers Into Buyers (Mar. 8, 1999) <http://
www.nytimes.com/library/tech/99/03/cyber/commerce/08commerce.html>.
[FN109]. Id. (quoting Andy Halliday,
vice president for Excite's commerce division).
[FN110]. See id. (stating "[a]bout
15 percent of the customers the company pursues ultimately complete the
sale").
[FN111]. See, e.g., Peter H. Lewis, Forget Big
Brother, N.Y. Times, Mar. 8, 1998, at G1 (expressing consternation that the
Holiday Inn chain used his Social Security number as his hotel membership
number, apparently after obtaining it on its own initiative).
[FN112]. See Tedeschi, supra note 80
("Internet retailers are... hoping customers view their [one-to-one
marketing] efforts as helpful, not intrusive.").
[FN113]. Kang, supra note 74, at 1215-16
(footnotes omitted).
[FN114]. See Thomas Frank, Brand You, Better
Selling through Anthropology, Harper's Magazine, July 1999, at 74, 78.
[FN115]. See id.
[FN116]. Id.
[FN117]. See Stuart Elliot, Despite the
Internet, Direct-Mail Pitches Multiply (Oct. 25, 1999) <http://
www.nytimes.com/library/tech/99/10/biztech/articles/25adco.html>.
[FN118]. See id. ("[D]irect mail...
is proliferating faster than it did before the Internet, climbing to 44 percent
of all pieces of mail handled last year by the post office from 41 percent a
decade ago and 32 percent in 1978.").
[FN119]. See Marci McDonald, A Start-Up of Her
Own (May 15, 2000) <http://
www.usnews.com/usnews/issue/000515/women.htm>; Sue Zeidler, Net Shatters
Not- So-Sacred Gender Myths (Mar. 8, 2000) <http://
www.zdnet.com/zdnn/stories/news/0,4586,2457975,00.html> ("The roaring
new economy is a genderless frontier with equal opportunity for men and
women.").
[FN120]. For example, the Institute for Women
and Technology has asserted:
The application of technology to the lives of women has often been either an
afterthought or based on stereotypical assumptions about the roles and needs of
women and without the input or participation of those women. The situation has
improved when it has been recognized that the difference in men's and women's
situations, whether physiological or environmental, warrant different tools,
techniques or solutions, and when design is based on women's real needs and
desires. This enlightenment most often occurs when women are involved as
creators and when their input as users/subjects is actively sought and used. It
is no accident that as women entered medicine in large numbers, medicine began
to question the application to women of research results from studies using
only male subjects. Nor is it an accident that serious development of
non-stereotypical computer tools and games appealing to girls is being
initiated by women who listen to girls. Just as every invention reflects the
values, perspectives, background and needs of the inventor, the variety and
impact of new technologies will depend on the degree to which women are
involved and the degree to which women's needs are taken into account.
Involving women actively in technology policy, design, development and
deployment will create a better world for everyone. Both studies and
evaluations of the real world indicate that when resources are given to women
they are likely to be used for the betterment of the entire community. This is
true whether the resources are education or money. We posit that the same will
be true if the resource is information technology. We believe that there has
been no other time in history when the possibility for transformation towards
equity is more possible, nor when it is more dangerous if we do not step up to
the challenge.
The Institute for Women and Technology: Background (visited July 13, 2000) <
http://www.parc.xerox.com/oct/projects/iwt.org/background.html>.
[FN121]. Professor Jessica Litman has made a
related observation in a different context, noting:
Ralph [Brown] argued [in his 1948 article] Advertising and the Public Interest
that just because people paid more for products did not mean there had been any
actual increase in productivity and welfare--rather, we had let ourselves be
talked into paying more money for the same stuff. That, he insisted, was
obviously in the interest of the producers whose advertising had persuaded the
public to pay a higher price, but was wasteful for the public at large. Today,
that once self-evident point is controversial. Productivity seems to be
measured less by what people make than by what people are inclined to buy. What
consumers are willing to pay has become synonymous with value.
Jessica Litman, Breakfast With Batman: The Public
Interest in the Advertising Age, 108 Yale L.J. 1717, 1725 (1999).
[FN122]. Jenn Shreve, Advertising Stole My
Humanity (June 4, 1999) <http://
www.salonmagazine.com/media/col/shre/1999/06/04/ad/index.html>.
[FN123]. Cf. Niva Elkin-Koren, Cyberlaw and Social Change: A
Democratic Approach to Copyright Law in Cyberspace, 14 Cardozo Arts & Ent.
L.J, 215, 238 (1996) (discussing how compilers of information
necessarily must categorize that information, "perpetuat[ing] meanings
assumed by the compilers").
[FN124]. See, e.g., Rosen, supra note 19.
[FN125]. See Arent, supra note 10.
[FN126]. See Moskowitz, supra note 11 (quoting
Denise Fedewa of the Leo Burnett advertising firm).
[FN127]. See Florence Olsen, On-Line Research
With Human Subjects Deserves More Scrutiny, Scientists Say (June 13, 1999)
<http:// www.chronicle.com/free/99/06/99061501t.htm>; see also CASRO:
Code of Standards and Ethics for Survey Records (visited May 28, 2000) <http://
www.casro.org/casro.htm> (displaying the homepage for the Council of
American Survey Research Organizations, claiming to be "the national trade
association of commercial survey research companies located in the United
States"). CASRO requires its 170 members to subscribe to the CASRO Code of
Standards and Ethics for Survey Research, which prohibits (with some
qualifications) directing individual marketing efforts toward survey
respondents "beyond those actions taken toward the entire database population
group" simply because of participation in a survey. Id.
[FN128]. See Katie Hafner, Coming of Age in Palo
Alto (June 10, 1999) < http://www.nytimes.com/library/tech/99/06/circuits/articles/10anth.html>.
[FN129]. Frank, supra note 114, at 79.
[FN130]. See Ruth Shalit, The Return of the
Hidden Persuaders (Sept. 27, 1999)
<http://www.salon.com/media/col/shal/1999/09/27/persuaders/index.html>;
Lynn Burke, Fiddling with Human Behavior (Mar. 6, 2000) <http://
www.wired.com/news/print/0,1294,34526,00.html>; Arthur Allen, Shrinks and
Con Men (Feb. 28, 2000) <http://
www.salon.com/mwt/feature/2000/02/28/shrinks/print.html> (Langebourne Rust
has a Ph.D. in developmental psychology from Columbia University, and uses his
skill "to convert knowledge of kids and their families into messages that
sell."); Kilbourne, supra note 59, at 9 ("Many companies these days
are hiring anthropologists and psychologists to examine consumers' product
choices, verbal responses, even body language for deeper meanings.").
[FN131]. See Kang, supra note 74, at 1260;
Schwartz, supra note 19, at 1656- 58; Kurtz, supra note 4, at 167.
[FN132]. Frank, supra note 114, at 79.
[FN133]. See id.
[FN134]. James Poniewozik, We are All Page-View
Whores Now (visited May 28, 2000)
<http://www.salon.com/media/col/poni/1999/05/06/msnbc/index.html>, <
http://www.salon.com/media/col/poni/1999/05/06/msnbc/index1.html>. See also
Felicity Barringer, As Data About Readers Grows, Newspapers Ask: Now What?
(Dec. 20, 1999) <http://
www.nytimes.com/library/tech/99/12/biztech/articles/122099outlook-medi.html>
(discussing how online periodical publishers use data collected on their visitors).
[FN135]. Poniewozik, supra note 134.
[FN136]. See Williamson, supra note 95.
[FN137]. See id.
[FN138]. Id. (quoting Rich LeFurgy, chairman of
the Internet Advertising Bureau and a consultant to venture-capital firm Walden
International Investment Group).
[FN139]. See id.
[FN140]. Id.
[FN141]. Lohr, supra note 102. See also Martha
M. Hamilton, Web Retailer Kozmo Accused of Redlining (Apr. 14, 2000)
<http://www.washingtonpost.com/wp- dyn/articles/A9719-2000Apr13.html>
(discussing the accusations against Kozmo for violating civil rights laws by
denying Internet service to predominantly African-American neighborhoods in
Washington, D.C).
[FN142]. For example, at the moment the Hispanic
market may not appear lucrative. See Bob Tedeschi, Bringing Technology to the
Barrio (Sept. 23, 1998) <http:// www12.nytimes.com/library/tech/98/09/cyber/articles/23barrio.html>
(quoting Anthony Wilhelm, author of a Tomas Rivera Policy Institute report and
speaker at a Silicon Barrio conference: "Companies like IBM and Microsoft
don't have a strategy that exploits Hispanic markets.... They're never quite
candid about why, but basically I think they don't want to spend a whole lot of
resources going after an unproven market.").
[FN143]. See id.
[FN144]. See Janet Stites, Black Entrepreneurs
Spread the Word About "Digital Freedom" (Feb. 22, 1999) <http:// www.nytimes.com/library/tech/99/02/biztech/articles/22pros.html>
("According to [Forrester Research of Boston] 2.7 million African-American
households (out of about 11 million) have access to the Internet....").
[FN145]. See Kilbourne, supra note 59, at 3.
"At $446 billion, African American buying power is more than the GNP of
Switzerland," says an ad in Advertising Age. Another, for a
"Black-owned agency," implies it can "get you inside the soul of
the African American consumer." "Are You Skirting a Major
Market?" asks an ad for a local Florida television station picturing a
Latina in a very short skirt. It concludes, "Channel 23. Because South
Florida spends a lot of dinero!" An ad for a Latina magazine says
"She's Latina. She spends more." And the Hispanic Network tells
advertisers that "Hispanic families are more responsive to advertising.
And ads in Spanish are 5 times more persuasive."
Id.
[FN146]. For discussions of the impacts of
racial stereotyping, see Keith Aoki, "Foreign-ness" and Asian
American Identities: Yellowface, World War II Propaganda, and Bifurcated Racial
Stereotypes, 4 U.C.L.A. Asian Pac. Am. L.J. 1 (1996) and Alice Abreu, Lessons From LatCrit: Insiders and
Outsiders, All At The Same Time, 53 U. Miami L. Rev. 787 (1999). See
also Kang, supra note 74, at 1210.
Under one interpretation of the privacy definition, because... information is
directly about [a] group and not the individuals that constitute the group, the
data are not personal and stand outside privacy's realm. But this seems
formalistic. A more functional approach would recognize that groups, even those
recognized as legal persons, function only through the actions of the human
individuals who are its members. Accordingly, information concerning a group
concerns also those individuals that constitute the group. What we ultimately
label as "personal" should thus depend on context, such as the size
of the group and the degree of focus the information places on some subset of
that group.
Id.
[FN147]. See discussion infra Part VII.C.
[FN148]. Carl S. Kaplan, Strict European Privacy
Law Puts Pressure on U.S. (Oct. 9, 1998) <http://
www.nytimes.com/library/tech/98/10/cyber/cyberlaw/09law.html>. See also
Karlin Lillington, Hands Off that Data--I'm European! (July 7, 1998)
<http:// www.salonmagazine.com/21st/feature/1998/07/07feature.html>.
[Because I am European, i]f I return a product registration card, I know that
the personal information I offer cannot be sold to others as part of a sales
database unless my permission has been obtained. I am never asked, except by
the government department that issued it, to identify myself by a nationally
assigned number. And any organization that holds any information about me--
banks, medical offices, telephone companies, the supermarket whose loyalty
program I belong to, my gym, the videorental shop or the place where I returned
a product registration card--must, at my request, supply me with full details
of its computer records bearing my name.
Id.
[FN149]. 15 U.S.C. §§ 6501-6506 (2000).
[FN150]. Id. § 6502(b)(1)(A).
[FN151]. See id. § 6502(2)(b)(1)(B).
[FN152]. Id. § 6502(b)(1)(D).
[FN153]. 16 C.F.R. pt. 312 (2000). On October
20, 1999, the FTC announced issuance of its "final rule" with a press
release, noting that the Rule would be published shortly in the Federal
Register. See New Rule Will Protect Privacy of Children Online (Oct. 20, 1999)
<http:// www.ftc.gov/opa/1999/9910/childfinal.htm> [hereinafter FTC Press
Release].
[FN154]. FTC Press Release, supra note 153.
[FN155]. Id.
[FN156]. 15 U.S.C. § 6502(b)(1)(A).
[FN157]. Id. § 6501(9).
[FN158]. FTC Press Release, supra note 153; 16 C.F.R. § 312.5(b)(2) (2000).
[FN159]. FTC Press Release, supra note 153. The
press release also states:
The notice must state the name and contact information of all operators, the
types of personal information collected from children, how such personal
information is used, and whether personal information is disclosed to third
parties.
The notice also must state that the operator is prohibited from conditioning a
child's participation in an activity on the child's disclosing more personal
information than is reasonably necessary. In addition, the notice must state
that the parent can review and have deleted the child's personal information,
and refuse to permit further collection or use of the child's information.
Id.
[FN160]. Id. The press release also states:
Such steps could include sending a confirmatory e-mail to the parent following
receipt of consent, or obtaining a postal address or telephone number from the
parent and confirming the parent's consent by letter or telephone call. The
"sliding scale" will sunset two years after the effective date of the
rule, at which time the more reliable methods would be required for all uses of
information, unless the Commission determines more secure electronic methods of
consent are not widely available.
Id.
[FN161]. Id.
[FN162]. Id. See also 16 C.F.R. § 312.5(c) (2000)
(setting forth one such exception to parental consent).
[FN163]. FTC Press Release, supra note 153.
[FN164]. Id.
[FN165]. Id.
[FN166]. The press release states:
The statute also includes a "safe harbor" program for industry groups
or others who wish to create self-regulatory programs to govern participants'
compliance. Commission-approved safe harbors will provide Web site operators
with the opportunity to tailor compliance obligations to their business models
with the assurance that if they follow the safe harbor they will be in
compliance with the rule. Sites participating in such Commission-approved
programs will be subject to the review and disciplinary procedures provided in
those guidelines in lieu of formal Commission action.
Id.
[FN167]. 15 U.S.C. § 6501(8) (2000).
[FN168]. See id. § 6502(a)(1); see also Children's Online Privacy Protection
Rule, 64 Fed. Reg. 59,888, 59,892 (1999) (codified at 16 C.F.R. pt.
312 (2000)).
One commenter [sic] asked the Commission to clarify that operators are not
required to provide parental notice or seek parental consent for collection of
non-individually identifiable information that is not and will not be
associated with an identifier. The Commission believes that this is clear in
both the Act and the Rule.
Id.
[FN169]. See FTC Press Release, supra note 153.
("The Federal Register notice accompanying the rule makes clear that
schools can act as parents' agents or as intermediaries between Web sites and
parents in the notice and consent process.").
[FN170]. See Daniel Golden, Is ZapMe Collecting
Data on School Kids? (Jan. 19, 2000)
<http://www.zdnet.com/filters/printerfriendly/0,6061,2423767- 2,00.html>
(discussing firm that brings online advertising into schools, allegedly helping
advertisers collect the names and addresses of minors for marketing purposes
without parental consent using equipment installed in 1,300 schools with a
total of more than a million students). Channel One is a company that provides
schools with "free" televisions and educational programming, but also
broadcasts advertisements to students while they are in school and during
school hours. Legislators seem to have taken notice of this practice. See
Rebecca S. Weiner, Parents Should Know Cost of Free Computers, Legislators Say
(July 12, 2000) <http:// www.nytimes.com/library/tech/00/07/cyber/education/12education.html>.
[FN171]. See Paul Tolme, AOL Offers Free Service
To Schools (May 17, 2000) < http://www.cnn.com/2000/TECH/computing/05/17/aol.in.school.ap/index.html>.
[FN172]. See id.
[FN173]. See id.
[FN174]. But see, e.g., Comments of the Direct
Marketing Association, Inc. on the Children's Online Privacy Protection Rule
(June 11, 1999) <http:// www.ftc.gov/privacy/comments/dma.htm>.
[The Direct Markers Association] urge[s] the Commission in its final rules to:
(1) endorse easy-to-use e-mail-based consent mechanisms that will not chill the
availability of interactive sites for children; (2) reject parental
"rights" to pick and choose between practices set forth in the
operator's privacy notice, rather than accepting or refusing to consent to the
operator's practices as a whole; (3) clarify certain exceptions to parental
consent; (4) reject a parental "right" to alter data an operator has
collected; (5) simplify significantly the rules' lengthy notice requirements;
(6) modify the safe harbor provision so that it is less prescriptive, provides
greater incentives for operators to join self- regulatory efforts, and leaves
room for true self-regulation to resolve compliance problems; (7) make clear
that the rules do not apply retroactively to information collected before the
statute's effective date; (8) modify the definition of "collection"
so that is does not apply to material submitted to an operator through other
media or to inadvertent collection of information; (9) clarify that the statute
does not impose strict or vicarious liability for the conduct of third-party
contractors where contractors agree to follow the requirements of the statute;
and (10) clarify the Commentary's discussion of security measures.
Id.
[FN175]. See European Community Directive On
Data Protection: Articles 11, 12, & 14 (visited July 13, 2000)
<http://www.acs.ohio- state.edu/units/law/swire1/psecdir.htm>; see also
Joel R. Reidenberg, Restoring Americans' Privacy in
Electronic Commerce, 14 Berkeley Tech. L.J. 771, 781-85 (1999).
[FN176]. European Community Directive On Data
Protection: Article 14(b) (visited June 17, 2000) <http://www.acs.ohio-
state.edu/units/law/swire1/psecdir.htm>. It should be noted that as of this
writing, several European countries have not yet passed national laws to carry
out the European Union's Data Protection Directive. See Edmund L. Andrews,
U.S.-European Union Talks On Privacy Are Sputtering, N.Y. Times, May 27, 1999,
at C6.
[FN177]. Peter P. Swire & Robert E. Litan,
None of Your Business: World Data Flows, Electronic Commerce, and the European
Privacy Directive 3 (1998).
[FN178]. Id.
[FN179]. Kaplan, supra note 148 (quoting Ohio
State University law professor Peter Swire).
[FN180]. See Bob Tedeschi, European Union
Advances E-Commerce Policies (Apr. 26, 1999)<http://
www.nytimes.com/library/tech/99/04/cyber/commerce/26commerce.html> (quoting
Laura Starita, analyst with the Gartner Group, a Stamford, Connecticut based
Internet research firm, "Europe is much more aggressive than the U.S. when
it comes to legislating these things.... Culturally, we have a much more
aggressive economic environment that's less concerned about individual
rights"); see also Edmund L. Andrews, European Law Aims to Protect Privacy
of Personal Data (Oct. 26, 1998) <http://
www.nytimes.com/library/tech/98/10/biztech/articles/26privacy.html>
("For years, European nations have been far tougher than the United States
about protecting privacy. Many countries essentially ban telephone marketing to
people's homes, and that prohibition is now being applied to unsolicited sales
approaches by fax and e-mail."); Kaplan, supra note 148 (quoting Peter
Swire, "[Europe's data law sets a] standard of legal rights for
individuals in Europe that go far beyond the legal rights of Americans.").
[FN181]. See Pamela Samuelson, Book Review: A New Kind of Privacy? Regulating Uses
of Personal Data in the Global Information Economy, 87 Calif. L. Rev. 751,
756-57 (1999) (reviewing Paul M. Schwartz & Joel R. Reidenberg,
Data Privacy Law: A Study of United States Data Protection (1996) and Swire
& Litan, supra note 177). For a more comprehensive discussion of the
differences between the United States and European approaches, see Domingo R.
Tan, Comment, Personal Privacy in the Information
Age: Comparison of Internet Data Protection Regulations in the United States
and the European Union, 21 Loy. L.A. Int'l & Comp. L.J. 661 (1999).
[FN182]. See Samuelson, supra note 181, at
757-58.
[FN183]. Id. at 758.
[FN184]. See Andrews, supra note 180.
[FN185]. See id.
[FN186]. See Kaplan, supra note 148; see also
International Safe Harbor Privacy Principles (Nov. 4, 1998)
<http://www.epic.org/privacy/intl/doc- safeharbor-1198.html> (displaying
the U.S. Dept. of Commerce's proposed safe harbor privacy principles in
Attachment B).
[FN187]. For comprehensive coverage of this
issue, see Swire & Litan, supra note 177 and Schwartz & Reidenberg,
supra note 181. For a discussion of the conflict between "cookie"
files and the Directive principles, see Victor Mayer- Schonberger, The Internet
and Privacy Legislation: Cookies for a Treat?, 1 W. Va. J. L. & Tech. 1
(1997) <http:// www.wvjolt.wvu.edu/wvjolt/current/issue1/articles/mayer/mayer.htm>.
For the latest draft of the compromise between the United States and the E.U.,
see U.S. Dept. of Commerce Electronic Commerce Task Force (visited July 13,
2000) < http://www.ita.doc.gov/td/ecom/menu.html>. See also Kurtz, supra
note 4, at 173 (discussing the negotiations between the E.U. and the United
States).
[FN188]. Ayla Jean Yackley, Safe Harbor Vote
Delayed (Apr. 17, 2000) <
http://www.wired.com/news/politics/0,1283,35406-2,00.html>, <http://
www.wired.com/news/politics/0,1283,35406-2,00.html>. The European Union and
the United States have recently reached an agreement on safe harbor principles.
See U.S.-E.U. Data Privacy Deal Near (June 5, 2000) <http://
www.salon.com/tech/wire/2000/06/05/privacy/index.html>.
[FN189]. See Cable Communications Policy Act of
1984, 47 U.S.C. § 551 (1994);
Video Privacy Protection Act of 1988, 18 U.S.C. § 2710 (1994). As
Paul Schwartz has pointed out, however, "the law in the United States
today protects transactional data for the viewer of a film when rented at the
video store, but not when seen over the Internet." Schwartz, supra note
19, at 1632 (footnote omitted). See Statement of Marc Rotenberg on the European
Union Data Directive and Privacy Before the House of Representatives Committee
on International Relations (May 7, 1998) <http://
www.epic.org/privacy/intl/rotenberg-eu-testimony-598.html>.
[FN190]. Who Watches Your Credit? (June 2, 1999)
<http:// cnnfn.cnn.com/1999/06/02/life/q_creditaccess/>.
[FN191]. See Andrews, supra note 180; see also
Caruso, supra note 13 ("People and companies that sell personal data want
to be able to collect and distribute it pretty much with abandon, and they
fight like cornered weasels at even the suggestion of government
regulation.").
[FN192]. Jeri Clausing, Administration Seeks
Input on Privacy Policy (Nov. 6, 1998) <http://
www.nytimes.com/library/tech/98/11/cyber/articles/06privacy.html>. See
Statement of Marc Rotenberg on the European Union Data Directive and Privacy
Before the House of Representatives Committee on International Relations (May
7, 1998)
<http://www.epic.org/privacy/intl/rotenberg-eu-testimony-598.html>; see
also Schwartz, supra note 19, at 1638-40; Kurtz, supra note 4, at 171-72
(discussing the limitations of the FTC's ability to investigate corporate
privacy practices).
[FN193]. See Stephen Labaton, White House and
Agency Split on Internet Privacy (May 23, 2000) <http://
www.nytimes.com/library/tech/00/05/biztech/articles/23privacy.html>
("Administration officials were decidedly lukewarm [to the FTC's proposal
for legislation to protect consumer privacy on the Internet]. They said that
the government should continue to rely on the industry to police itself and
that the White House had a deeper interest in promoting privacy laws in other
areas, including health care and financial services."); Remarks by the
President on Financial Privacy and Consumer Protection (May 4, 1999)
<http:// www.epic.org/privacy/financial/clinton_remarks_5_99.html>.
The technological revolution now makes it easier than ever for people to mine
your private, financial data for their profit. While some of your private
financial information is protected under existing federal law, your bank or
broker or insurance company could still share with affiliated firms information
on what you buy with checks and credit cards--or sell this information to the
highest bidder. This law, to put it mildly, is outdated and should be
changed--to give you the right to control your financial information, to let
you decide whether you want to share private information with anyone else. I
look forward to working with members in the House and the Senate on this issue.
Id. (quoting President Clinton). See also Bill Raises Risk of Violating Medical
Privacy, Physicians' Groups Say (July 22, 1999) <http://
www.contac.org/contaclibrary/rights12.htm>; Declan McCullagh, New Medical
Privacy Mandate (Oct. 29, 1999) <http://
www.wired.com/news/print/0,1294,32209,00.html> (discussing legislative
efforts to protect medical privacy); 2000-04-30 Remarks by President at Eastern
Michigan University (Apr. 30, 2000) <http://
ofcn.org/cyber.serv/teledem/pb/2000/apr/msg00230.html> (quoting President
Clinton's commencement speech advocating for more consumer privacy rights and
control over access to financial and medical records); Anne Gearan, Clinton
Pushes for Consumer Rights, Dayton Daily News, May 1, 2000, at 3A.
Clinton said during a commencement address at Eastern Michigan University [that
his] plan would require a company to tell customers it was going to share
sensitive consumer information such as medical and insurance records, or lists
of what people buy and where they buy it. [He also said his plan] would give
consumers the option not to have that information shared, and give consumers a
new right to review their credit reports for errors.
Id.
[FN194]. See Labaton, supra note 193
("Clinton administration officials today threw cold water on a proposal by
the Federal Trade Commission for legislation to protect consumer privacy on the
Internet.").
[FN195]. See id.
[FN196]. See William Matthews, Privacy Fears
Prompt Study, Delay (May 22, 2000) <http://www.cnn.com/2000/TECH/computing/05/22/new.privacy.study.id
g/index.html>.
Mike Hatch, the attorney general of Minnesota, was more blunt, saying Congress'
record on privacy protection is not good. For example, when Congress passed the
Gramm-Leach-Bliley Act, which was touted as protecting financial privacy, it
actually gave banks more authority to trade in consumers' financial information
than ever before, he said. Congress failed to meet an August 1999 deadline for
passing medical records privacy legislation, leaving it to the Department of
Health and Human Services to propose regulations.
Id. See also Daniel Verton, Efforts Made to Prevent Privacy Abuses Against U.S.
Citizens (June 7, 1999) <http://
www.cnn.com/TECH/computing/9906/07/privacy.idg/>; HouseDemocraticMajority.Gov:
Fueling the High-Tech Engine of Economic Growth and National Prosperity (Mar.
28, 2000) <http://
democraticleader.house.gov/media/speeches/readSpeech.asp?ID=12> (displaying
speech given by House Democratic Leader Richard Gephardt). The challenge of
protecting the privacy and security of those who use the Internet to engage in
e-commerce is significant and daunting in its scope. We can neither ignore this
issue nor can we believe that a simple legislative fix will solve this problem.
I support and encourage the self-regulatory efforts on the part of Internet
businesses in the area of privacy, such as the Better Business Bureau and
Trust-e, as well as the public efforts of the Federal Trade Commission. I also
encourage industry to take a more active role in educating the public and
members of Congress on its ongoing efforts to protect consumer privacy. But
Congress cannot stand idly by as consumer confidence in e-commerce is eroded
because of privacy concerns. If we must act, we should do so in a way that
gives consumers a meaningful choice in how their personal data is used, while
not impeding the ability of responsible businesses to collect data and
information which is the lifeblood of e- commerce.
Id. See also eContract 2000 (visited June 4, 2000) <http://
www.freedom.gov/econtract/econtract2k.asp> (quoting House Majority Leader
Dick Armey, "We hereby pledge to continue our legislative and oversight
efforts to remove the barriers to future innovation, competition, and growth.
We assert that freedom is the answer, not government intervention."); Paul
Shepard, GOP House Members See No Rush For New Internet Privacy Laws (May 22,
2000) <http://
www.cnn.com/2000/ALLPOLITICS/stories/05/22/netprivacy.ap/index.html>.
[FN197]. See 18 U.S.C §§ 2510-2522, 3121 (1994).
[FN198]. See Cable Communications Policy Act of
1984, 47 U.S.C. § 551 (1994).
[FN199]. See Video Privacy Protection Act of
1988, 18 U.S.C. § 2710 (1994).
[FN200]. See Fair Credit Reporting Act, 15 U.S.C. § 1681 (1994).
[FN201]. See Health Insurance Portability and
Accountability Act of 1996, 42 U.S.C. § 1320a-7e (2000);
see also Statement by President William J. Clinton Upon Signing H.R. 3103
[Health Insurance Portability and Accountability Act], 32 Weekly Comp. Pres.
Doc. 1480 (Aug. 26, 1996) ("It provides for... privacy protection
recommendations for health information generally, and in the absence of
additional legislation, regulations for privacy of health care claims information.").
[FN202]. 18 U.S.C. § 2721 (1994).
[FN203]. See id.; see also Reno v. Condon, No.
98-1464 (U.S. Jan. 12, 2000) (upholding Congress's constitutional authority to
promulgate the Driver's Privacy Protection Act of 1994).
[FN204]. 5 U.S.C. § 552a (1994).
[FN205]. See id; see also Statement of Marc
Rotenberg on the European Union Data Directive and Privacy Before the House of
Representatives Committee on International Relations (May 7, 1998) <http://
www.epic.org/privacy/intl/rotenberg-eu-testimony-598.html>.
[FN206]. FTC--Self-Regulation and Privacy
Online: A Report to Congress (July 13, 1999)
<http://www.ftc.gov/os/1999/9907/privacy99.pdf>.
[FN207]. Id. See also Prepared Statement of the
FTC on "Self-Regulation and Privacy Online" Before the House of
Representatives (July 13, 1999) <
http://www.ftc.gov/os/1999/9907/pt071399.htm> (displaying a copy of the
prepared statement by the FTC that accompanied submission of the report to
Congress).
[FN208]. See Jeri Clausing, Fate Unclear for
FTC's Privacy Push (May 22, 2000) <http://
www.nytimes.com/library/tech/00/05/biztech/articles/22priv.html>. In May of
2000, the FTC set forth new regulatory guidelines concerning some Internet
information sharing. See Keith Perine & Aaron Pressman, FTC Publishes
Internet Privacy Rule (May 12, 2000) <http:// www.thestandard.com/article/display/0,1151,15114,00.html?nl=mg>.
But when it takes effect on July 1, 2001, it will apply only to certain
"financial institutions," such as online mortgage brokers, real
estate brokers, and tax preparers. See id. These entities will be required to
provide customers with notice of their privacy policies, and refrain from
disclosing financial information to "unaffiliated third parties"
unless they satisfy various disclosure and opt out requirements, and affected
consumers have not elected to opt out of the disclosures. See Privacy of
Consumer Financial Information, 16 C.F.R. pt. 313 (2000).
[FN209]. See Labaton, supra note 193 (noting
that in opposing the FTC's proposal for legislation to protect consumer privacy
on the Internet, "[t]he Republican lawmakers found themselves in an odd
alliance with officials from the White House and the Commerce
Department"); see also FTC Wants More Privacy Regs (May 22, 2000)
<http://www.wired.com/news/print/0,1294,36516,00.html> ("[The FTC's
request for new powers to protect consumers' online privacy] faced an uncertain
future in Congress--the legislation is strongly opposed by the e- commerce
industry, disdained by Republicans, and lacking any known White House
push."); Jen Muehlbauer, FTC Privacy Plan May Be DOA (May 22, 2000)
<http:// www.thestandard.com/article/display/0,1151,15333,00.html>; Keith
Perine, The FTC Rethinks Privacy (May 29, 2000) <http:// www.thestandard.com/article/display/0,1151,15476,00.html>.
[FN210]. See Labaton, supra note 193.
One study cited in the agency's report found that consumer privacy concerns
resulted in as much as $2.8 billion in lost online retail sales last year,
while another suggested a potential loss of as much as $18 billion by 2002,
compared with a projected total of $40 billion. "Internet commerce will
not develop to the ultimate extent because people just will continue to not
have confidence that their private information will be protected to the
maximum," [FTC Chair] Pitofsky said.
Id.
[FN211]. TRUSTe: Building a Web You Can Believe
In (visited May 28, 2000) < http://www.truste.org>.
[FN212]. BBB Online Privacy Program (visited
June 4, 2000) <http:// www.bbbonline.org/businesses/privacy/index.html>.
[FN213]. Online Privacy Alliance (visited May
28, 2000) <http:// www.privacyalliance.org>.
[FN214]. Paul Schwartz expressed some optimism
about seal programs, but noted that their weaknesses are "that privacy
seal companies: (1) certify standards that may fall short of... fair
information practice, (2) are limited in their enforcement powers, and (3) have
brands that are not widely recognized at present." Schwartz, supra note
19, at 1694. He further observed that "[t] hese three shortcomings,
unfortunately, all magnify each other." Id.
[FN215]. See Prepared Statement of the FTC on
"Self-Regulation and Privacy Online" Before the House of
Representatives (July 13, 1999) <http:// www.ftc.gov/os/1999/9907/pt071399.htm>.
In the Commission's view, the emergence of online privacy seal programs is a
particularly promising development in self-regulation. Here, too, industry
faces a considerable challenge. TRUSTe, launched nearly two years ago,
currently has more than 500 licensees representing a variety of industries.
BBBOnLine, a subsidiary of the Council of Better Business Bureaus, which
launched its privacy seal program for online businesses last March, currently
has 42 licensees and more than 300 applications for licenses. Several other
online privacy seal programs are just getting underway. Together, the online
privacy seal programs currently encompass only a handful of all Web sites. It
is too early to judge how effective these programs will ultimately be in
serving as enforcement mechanisms to protect consumers' online privacy.
Id. See The New E-Industry: Privacy (Oct. 11, 1999) <http://
www.wired.com/news/business/0,1367,31841,00.html>; see also Labaton, supra
note 193 (discussing a recent FTC study determined that "only 8 percent of
the most heavily visited Web sites displayed a seal of approval from one of the
programs established by the industry").
[FN216]. See The New E-Industry: Privacy (Oct.
11, 1999) <http:// www.wired.com/news/business/0,1367,31841,00.html>
(quoting David Taylor, President, and CEO of enonymous.com, a TRUSTe
competitor).
[FN217]. RealNetworks (visited June 17, 2000)
<http:// www.realnetworks.com/>.
[FN218]. See Sarah Robinson, CD Software Is Said
to Monitor Users' Listening Habits (Nov. 1, 1999) <http://
www10.nytimes.com/library/tech/99/11/biztech/articles/01real.html>; see also
Reidenberg, supra note 175, at 777-78.
[FN219]. See Robinson, supra note 218; Marilynn
Wheeler, Targeted Real Ads a Real Nuisance (May 22, 2000) <http://
www.zdnet.com/zdnn/stories/news/0,4586,2573314,00.html>.
[FN220]. See Robinson, supra note 217.
[FN221]. See Lydia Lee, The Privacy Police?
(Mar. 13, 2000) <http:// www.salon.com/tech/view/2000/03/13/truste/print.html>.
RealNetworks has since created two different privacy statements, one for their
software and one for their website, the latter still bearing the TRUSTe seal.
See RealNetworks Consumer Software Privacy Statement (visited July 18, 2000) <http://
www.realnetworks.com/company/privacy/software.html?src=home_071400_nav>
(displaying the software privacy policy); RealNetworks Membership in the TRUSTe
Program (visited July 17, 2000) <http://
www.realnetworks.com/company/privacy/index.html?src=home_071400_nav>
(displaying the website privacy policy).
[FN222]. See Lee, supra note 221.
[FN223]. See id; see also Kaitlin Quistgaard,
Honesty is the Best Policy (Nov. 9, 1999)
<http://www.salon.com/tech/log/1999/11/09/truste/print.html>.
[FN224]. eBay (visited June 4, 2000)
<http://www.eBay.com>.
[FN225]. See BBB OnLine Privacy Program Dispute
Resolution Decision 2000- 003 (eBay, Inc.) (visited June 4, 2000) <http://
www.bbbonline.org/businesses/privacy/dr/decisions/2000-003.html>.
[FN226]. See id.
[FN227]. See id.
[FN228]. Id.
[FN229]. Id.
[FN230]. See, e.g., Reidenberg, supra note 175,
at 777-78 (criticizing TRUSTe's seal and BBB Online's programs).
[FN231]. See Statement of Marc Rotenberg on the
European Union Data Directive and Privacy Before the House of Representatives
Committee on International Relations (May 7, 1998) <http:// www.epic.org/privacy/intl/rotenberg-eu-testimony-598.html>
("The most recent Harris poll found that 53% of Americans believe that
'Government should pass laws now for how personal information can be collected
and used on the Internet." '); see also Swire & Litan, supra note 175,
at 179 ("There is undoubtedly strong public concern about privacy issues
in the United States, especially with respect to the Internet. Eighty-seven
percent of U.S. computer users report that they are concerned about privacy (56
percent are 'very concerned')." (citing Alan F. Westin & Danielle
Maurici, E-Commerce & Privacy: What Net Users Want (June 1998) <http://
www.pwcglobal.com/gx/eng/svcs/privacy/images/E-Commerce.pdf>, at vii)).
[FN232]. See Joseph I. Rosenbaum, Privacy On the Internet: Whose
Information is it Anyway?, 38 Jurimetrics J. 565 (1998) (asserting
that the U.S. notion of privacy is a "moving target," dependent on
ever changing technological capabilities, societal values and cultural norms);
Joshua B. Sessler, Note & Comment: Computer Cookie Control: Transaction
Generated Information and Privacy Regulation on the Internet, 5 J. L. &
Pol'y 627 (1997) (advocating for passage of personal information
privacy protection legislation).
[FN233]. Jeffrey Obser, Privacy is the Problem,
Not the Solution (June 21, 1997)
<http://www.salonmagazine.com/june97/21st/articleb970626.html>.
[FN234]. See, e.g., Communications Assistance
for Law Enforcement Act, 47 U.S.C. §§ 1001-1010 (1994); Declan
McCullagh, U.S. Wants Less Web Anonymity (Mar. 1, 2000)
<http://www.wired.com/news/print/0,1294,34659,00.html>; Declan McCullagh,
Clinton Favors Computer Snooping (Jan. 19, 2000) <http://
www.wired.com/news/print/0,1294,33779,00.html>.
[FN235]. See Robert O'Harrow, Jr. & Liz
Leyden, U.S. Helped Fund Photo Database of Driver IDs, Wash. Post, Feb. 18,
1999, at A1.
[FN236]. See id.
[FN237]. See Coalition Letter on Federal
Databases (Feb. 17, 1999) <http://
www.epic.org/privacy/databases/joint_letter_2_99.html>.
[FN238]. See Berman & Mulligan, supra note
74, at 560.
[FN239]. Eve Gerber, Account Overwrought (May
12, 1999) <http:// slate.msn.com/HeyWait/99-05-12/HeyWait.asp>.
[FN240]. See Brown, supra note 61 (noting
SmartGirl founder Isabel Walcott sees her website as a pro-girl cause, and
claims girls visiting site "feel really empowered").
[FN241]. See Williamson, supra note 95.
[FN242]. Kang, supra note 74, at 1248.
[FN243]. Schwartz, supra note 19, at 1661.
[FN244]. Id. at 1661.
[FN245]. See id. at 1662.
[FN246]. See Williamson, supra note 95.
[FN247]. See id. (quoting Seth Godin, VP of
direct marketing at Yahoo and Author of Permission Marketing, for the
proposition that without the inducement of a specific reward or benefit,
consumers will not provide personal information like phone numbers).
[FN248]. See Tedeschi, supra note 108.
[FN249]. Id. (quoting William Bryant, Chairman
of Qpass, a company that has developed a billing system for e-commerce sites).
[FN250]. See Kang, supra note 74, at 1246-67
(discussing the trade offs between privacy and the ability to participate in
the online market). For an expansive discussion of how little privacy people
have in any sphere, see A. Michael Froomkin, The Death of Privacy?, 52 Stan. L.
Rev. 1461 (2000).
[FN251]. Tedeschi, supra note 80. See also
Marcia Stepanek, The Privacy Backlash (Mar. 4, 1997) <http:// www.salonmagazine.com/march97/news/news2970304.html>
(quoting Mark Rotenberg's interpretation of parents' negative reaction to a
school district's proposal to create a database with 1,200 pieces of
information on each school student, including information about medical
histories and family income). But see Tedeschi, supra note 18
("[A]ccording to a study released last week by Privacy and American
Business in conjunction with the Opinion Research Corporation, 53% of Net users
say they would participate in an Internet program that exchanged benefits for
information, if the program fully explained how that information would be
used.").
[FN252]. See Caruso, supra note 13 (referencing
1997 Georgia Tech survey).
[FN253]. Berman & Mulligan, supra note 74,
at 564-65 (footnotes omitted).
[FN254]. Matt Richtel, Survey Shows Few Trust
Promises on Online Privacy (Apr. 17, 2000) <http://
www.nytimes.com/library/tech/00/04/biztech/articles/17data.html>. See
generally Lorrie Faith Cranor et al., Beyond Concern: Understanding Net Users'
Attitudes About Online Privacy (Apr. 14, 1999) <http://
www.research.att.com/projects/privacystudy/> (discussing results of an
extensive survey of Internet users).
[FN255]. Michael Stroud, Gizmos Gets a Hand from
Marketers (May 25, 2000) <
http://www.wired.com/news/print/0,1294,36484,00.html>.
[FN256]. See Karen J. Bannan, Marketers Try
Infecting the Internet (Mar. 2, 2000)
<http://www.nytimes.com/library/tech/00/03/cyber/articles/22viral.html>.
[FN257]. See Stroud, supra note 255.
[FN258]. Id. (quoting John Sculley, former Apple
and Pepsi executive).
[FN259]. Id. (quoting Evan Hendricks, editor of
website Privaytimes.com).
[FN260]. See Kang, supra note 74, at 1260.
[FN261]. Leonard, supra note 83. See also Rob
Fixmer, Traveling the Web Without Leaving Footprints (Aug. 16, 1999)
<http:// www.nytimes.com/library/tech/99/08/biztech/articles/16data.html>
("Little wonder that a recent Harris poll for Business Week found that
fears of losing privacy were the top reason people decided not to go online and
that among those who do, only three out of 10 give valid information when asked
to register at a site.").
[FN262]. See Bob Tedeschi, Web Publishers,
Advertisers Square Off on Ownership of Customer Data (Nov. 8, 1999) <http://
www.nytimes.com/library/tech/99/11/cyber/commerce/08commerce.html>; Kathryn
Kranhold & Michael Moss, Companies Fight to Protect Cookies (Mar. 20, 2000)
< http://www.zdnet.com/zdnn/stories/news/0,4586,2470654,00.html>.
[FN263]. See Hiawatha Bray, Going Too Far to
Stop Stealing, Boston Globe, July 15, 1999, at D1.
[FN264]. See Kang, supra note 74, at 1211.
[FN265]. Id. (footnotes omitted).
[FN266]. Laurie J. Flynn, Software Ad Blockers
Challenge Web Industry (June 7, 1999) <http://
www.nytimes.com/library/tech/99/06/biztech/articles/07adco.html>.
[FN267]. See id. For discussion of "cookie
files," see infra Part VIII.B.
[FN268]. Flynn, supra note 266.
[FN269]. Id. (quoting Scott Mathias, managing
editor of ITVWorld.com).
[FN270]. Id. (quoting Charles Arruda, a vice
president of Channelseek).
[FN271]. See Bob Tedeschi, CDNow Struggles to be
Heard (May 24, 1999) <
http://www.nytimes.com/library/tech/99/05/cyber/commerce/24commerce.html>.
[FN272]. See Chris Oakes, Mouse Pointer Records
Clicks (Nov. 30, 1999) <
http://www.wired.com/news/print/0,1294,32788,00.html>.
[FN273]. See id. (explaining how software
analyst Richard Smith, after discovering Comet's web tracking practices, wrote
Comet a letter of complain leading Comet to subsequently published a new
disclosure notice in the privacy policy section of its web site).
[FN274]. See Kranhold & Moss, supra note
262.
[FN275]. See id.
[FN276]. See Hansell, supra note 79, at A24. To
disable cookies on the most recent version of Microsoft Internet Explorer, go
to the Tools menu and select Internet Options. Go to the Security section and
select Custom Level. Scroll down to the Cookies portion of the menu and select
Disable. On the most recent version of Netscape Navigator, go to the Edit menu
and select Preferences. Click on Advanced and the Cookies options will be
displayed. Then, select Disable cookies.
[FN277]. See Bray, supra note 78, at G6 .
[FN278]. See, e.g., Peter Wayner, A Tool for
Anonymity on the Internet (Dec. 16, 1999) <http://
www.nytimes.com/library/tech/99/12/circuits/articles/16zero.html>
(describing Zero Knowledge); E-Shopping With Privacy (Oct. 4, 1999) <http://
www.wired.com/news/print/1,1294,31665,00.html> (describing enonymous.com);
Fixmer, supra note 261 (describing Web Incognito, a privacy service offered by
Privada); Hopper, supra note 77 (describing Privacy Companion); Kang, supra
note 74, at 1244-45 (discussing encryption technologies); John Borland, Anti-
Napster Fight Takes Aim at Online Anonymity (May 31, 2000) <http://
dailynews.yahoo.com/h/cn/20000531/tc/anti-napster_fight_takes_aim_at_online_
anonymity_1.html> (discussing anonymizers, Freenet and Zero Knowledge);
Kurtz, supra note 4, at 170-71 (discussing the Platform for Privacy Preferences
(P3P)).
[FN279]. Jerry Kang has pointed out that
"anonymity comes in shades." Kang, supra note 74, at 1209. Even when
a specific person is not identified facially, "the individual may be
identifiable in context or with additional research." Id.
[FN280]. Schwartz, supra note 19, at 1689-90
(footnote omitted).
[FN281]. See id. at 1690-96.
[FN282]. See Caruso, supra note 13; see also
Chris Oakes, PrivaSeek Seeks Attention (Aug. 12, 1999)
<http://www.wired.com/news/print_ version/business/story/21221.html>;
James Glave, The Dawn of the Infomediary (Feb. 24, 1999) <http://www.wired.com/news/print_
version/business/story/18094.html>.
[FN283]. See The New E-Industry: Privacy (Oct.
11, 1999) <http:// www.wired.com/news/business/0,1367,31841,00.html>.
[FN284]. Swire & Litan, supra note 175, at
8.
[FN285]. For a detailed discussion of the
economics of "opt in" and "opt out" data collection
scenarios, see Jeff Sovern, Opting In, Opting Out, Or No Options At
All: The Fight For Control of Personal Information, 74 Wash. L. Rev. 1033
(1999).
[FN286]. See William Safire, On Language: Opt
In, Outing the Inside Lingo of Privacy (Dec. 19, 1999)
<http://nytimes.com/library/magazine/home/19991219mag- onlanguage.html>.
[O]pt out puts the burden on the individual, to click on a box that says,
"No--you cannot disclose my personal information." Most people don't
know enough to care, or are easily duped into not checking the box by offers of
gifts or services--and thereby unwittingly make their purchasing decisions and
their lives an open book.
Id.
[FN287]. See AOL Privacy Policy Angers Critics
(Dec. 1, 1999) <http:// www.usatoday.com/life/cyber/tech/ctg789.htm>; see
also Christopher Sandlund, I Told You Once... (Nov. 23, 1999) <http://
www.salon.com/tech/log/1999/11/23/aol/print.html>.
[FN288]. See Sandlund, supra note 287.
[FN289]. See id.
[FN290]. See Stephanie Olsen & Evan Hansen,
Group Calls Privacy Protection Measures Ineffective (May 18, 2000)
<http://news.cnet.com/news//0-1005-200- 1891902.html?tag=st.cn.sr.ne.1>.
[FN291]. See id.
[FN292]. See id.
[FN293]. See iWon Privacy Policy (visited June
4, 2000) <http://
www.iwon.com/home/companyinfo/privacy/privacy_overview/0,11882,,00.html>.
[FN294]. See id.
[FN295]. Id.
[FN296]. See id.
[FN297]. See id.
[FN298]. See id.
[FN299]. See U.S. West, Inc. v. FCC, 182 F.3d 1224,
1240 (10th Cir. 1999); see also Court Won't
Review Phone Data Ruling (June 5, 2000) <http://
www.nytimes.com/reuters/business/business-court-teleco.html> (discussing the
United States Supreme Court's decision not to review the 10th Circuit's
decision).
[FN300]. See discussion supra Part VIII.C.3. But
see Lydia Lee, Opt-in Rules! (Mar. 6, 2000) <http://
www.salon.com/tech/view/2000/03/06/moore/index.html>.
[FN301]. See discussion supra text accompanying
note 261; see also Joanna Glasner, Debating How to Get Your Data (Mar. 2, 2000)
<http:// www.wired.com/news/print/0,1294,34685,00.html> ("If an
opt-in policy took effect, DoubleClick would need permission from users before
it could collect information about them. If that happened, DoubleClick would
have fewer profiles and would forgo extrapolating general information about
users.").
[FN302]. See State St. Bank & Trust Co. v.
Signature Fin. Group, 149 F.3d 1368 (Fed. Cir. 1998), cert. denied, 525 U.S. 1093 (1999).
[FN303]. See 17 U.S.C. § 302 (1999).
[FN304]. See Lydia Pallas Loren, Digitization, Commodification,
Criminalization: The Evolution of Criminal Copyright Infringement and the
Importance of the Willfulness Requirement, 77 Wash. U. L. Q. 835, 856-60 (1999).
[FN305]. See id. See, e.g., zPatents.com: Buy
& Sell Inventions & Patents! Inventions for Sale & Auction!
(visited July 19, 2000) <http:// www.zpatents.com/services.htm>
(displaying the web page of a company dedicated to helping inventors sell or
license their patents).
[FN306]. See Federal Trademark Dilution Act, 15 U.S.C. § 1125 (1997);
Lynda J. Oswald, "Tarnishment" and
"Blurring" under the Federal Trademark Dilution Act of 1995, 36 Am.
Bus. L.J. 255 (1999).
[FN307]. See, e.g., Two Pesos, Inc. v. Taco Cabana, Inc.,
505 U.S. 763 (1992) (holding that the certain appearance of a
Mexican food restaurant was protectable trade dress under the Lanham Act).
[FN308]. See 18 U.S.C. §§ 1832-1839 (Supp. IV 1999).
[FN309]. See Malla Pollack, The Right to Know?: Delimiting Database
Protection at the Juncture of the
Commerce Clause, the Intellectual Property Clause, and the First Amendment, 17
Cardozo Arts & Ent. L.J. 47, 48-50 (1999) (discussing the
Collections of Information Antipiracy Act).
[FN310]. Litman, supra note 121, at 1725.
[FN311]. Rosemary J. Coombe, Symposium:
Innovation and the Information Environment: Left Out on the Information Highway, 75
Or. L. Rev. 237, 239 (1996).
[FN312]. Cf. Bray, supra note 263, at D1
(discussing the criticisms of legislation aimed at protecting databases).
[FN313]. See Collections of Information
Antipiracy Act, H.R. 354, 106th Cong. (1999), H.R. Rep. No. 106-349, pt. 1
(1999). This bill was introduced January 19, 1999 by Howard Coble, Chairman of
the House Subcommittee on Courts and Intellectual Property. H.R. 354 is
virtually identical to the Collections of Information Act, H.R. 2652, 105th
Cong. (1998), H.R. Rep. No. 105-525 (1998), which the House passed twice, once
as a stand alone bill and once as part of the House's version of the Digital
Millennium Copyright Act.
[FN314]. The "sweat of the brow"
doctrine, the idea that effort should be rewarded, was the justification some
courts used for according otherwise uncopyrightable facts in databases
copyright protections. The Supreme Court, in Feist Publications, Inc. v. Rural Tel.
Serv. Co., 499 U.S. 340 (1991), overturned this doctrine.
[FN315]. See Schwartz & Reidenberg, supra
note 181, at 344 ("[D]ue to the commercial value of profile lists, direct
marketing companies will take careful measures to protect their business
assets.").
[FN316]. Litman, supra note 121, at 1734
(footnote omitted).
[FN317]. See Schwartz & Reidenberg, supra
note 181, at 326 and accompanying notes.
[FN318]. But see Litman, supra note 121, at
1730-31.
[With respect to justifications for exclusive control over trademarks] there is
the perennially popular justification of desert. Producers have invested in
their trade symbols, the argument goes; they have earned them, so they're
entitled to them. But so have we. The argument that trade symbols acquire
intrinsic value--apart from their usefulness in designating the source-- derives
from consumers' investing those symbols with value for which they are willing
to pay real money.... To the extent... that the impulse to protect something
beyond any prevention of consumer confusion derives from the perception that
this thing has value, that it is something people want to buy, then giving its
purveyor intellectual property protection is the wrong response. If the thing
itself is valuable, if it is in some sense itself a product, then we want other
purveyors to compete in offering it to consumers in their own forms and on
their own terms. Competition is, after all, the premise of the system. Without
competition, none of the rest of the rules make any practical sense.
Id. (footnotes omitted).
[FN319]. Niva Elkin-Koren has written that the
power to control access to information has the power to impose specific
meanings. See Elkin-Koren, supra note 123, at 236. Denying commercial access to
personal data is a mechanism by which individuals express personal meaning, and
perhaps sense of worth.
[FN320]. Roberta Rosenthal Kwall, The Right of Publicity vs. The First Amendment:
A Property and Liability Rule Analysis, 70 Ind. L.J. 47, 70 (1994).
[FN321]. The United States Supreme Court first
recognized the common law tort of misappropriation in International News Service v.
Associated Press, 248 U.S. 215 (1918), in order to protect
"quasi property" interests. In International News Service, the
defendant sold its publishing customers news stories plaintiff had gathered and
written. See id. at 230. The Court upheld an injunction against defendant,
holding that since plaintiff had gathered news by its own enterprise and
expense it had a quasi-property interest in its product; that the defendant's
appropriation thereof was unfair competition. See id. at 242. This holding
expanded the principle of unfair competition beyond misrepresentation to
embrace misappropriation. Tortious "misappropriation" has three basic
elements: (1) the plaintiff has created a "thing" through the
substantial investment of money, time, and effort such that the
"thing" can be characterized as "property"; (2) the
defendant has misappropriated this "property" without compensating
the plaintiff for its investment; and (3) the plaintiff has been injured by the
misappropriation. Thomas McCarthy, Trademarks and Unfair Competition § 10.25.
See also J.A. Brundage Plumbing &
Roto-Rooter v. Massachusetts Bay Ins. Co., 818 F. Supp. 553, 557 (W.D.N.Y.
1993) (holding "misappropriation of an advertising idea"
means "the wrongful taking of the manner by which another advertises its
goods and services").
[FN322]. Samuelson, supra note 181, at 770
(citation omitted). See also Richard S. Murphy, Property Rights in Personal
Information: An Economic Defense of Privacy, 84 Geo. L.J. 2381 (1996).
[FN323]. Samuelson, supra note 181, at 771 (footnote
omitted).
[FN324]. See Pamela Samuelson, Privacy as
Intellectual Property?, 52 Stan. L. Rev. (forthcoming 2000) (manuscript at
10-18, on file with author).
[FN325]. See id. (manuscript at 13, on file with
author).
[FN326]. See id. (manuscript at 23, on file with
author). She also raises the intriguing possibility of attributing some form of
"moral rights" to personal information. See id. (manuscript at 18, on
file with author).
[FN327]. Id. (manuscript at 27, on file with
author).
[FN328]. See id.
[FN329]. See Eugene Volokh, Freedom of Speech
and Information Privacy: The Troubling Implications of a Right to Stop People
From Speaking About You, 52 Stan. L. Rev. (forthcoming 2000) (manuscript at
6-7, on file with author).
[FN330]. See id. (manuscript at 2-3, on file
with author).
[FN331]. See id. (manuscript at 7, on file with
author).
[FN332]. See id. (manuscript at 8, on file with
author).
[FN333]. See id. (manuscript at 9, on file with
author).
[FN334]. See id. (manuscript at 9, on file with
author).
[FN335]. See id. (manuscript at 9-10, on file
with author).
[FN336]. But see Rochelle Cooper Dreyfuss,
Warren and Brandeis Redux: Finding (More) Privacy Protection in Intellectual
Property Lore, 1999 Stan. Tech. L. Rev. VS 8
<http://stlr.stanford.edu/STLR/Symposia/Privacy/99_VS_8/> ("[T]he
fit between what intellectual property provides and what privacy advocates want
is imperfect....").
[FN337]. Jeff Howe, Copyrighting the Book of
Life (Apr. 12, 2000) <http:// www.feedmag.com/dna/bookoflife.html>.
[FN338]. Novelty, utility, and non-obviousness
are the requirements for patentability. See 35 U.S.C. §§ 101, 102 (1994); 35 U.S.C. § 103 (1995).
Patents are generally recognized to be a stronger form of intellectual property
protection than copyrights, though they last for a substantially shorter period
of time.
[FN339]. The minimum threshold for
copyrightability is creativity and originality, as articulated by the Supreme
Court in Feist Publications, Inc. v. Rural Tel.
Serv. Co., 499 U.S. 340, 347 (1991).
[FN340]. For an example of exclusive rights
derived from authorship, see 17 U.S.C. § 106 (1994). Not
everyone agrees that authorship linearly bestows ownership and control. For
example, Marci Hamilton has written that copyright law is product-centered,
rather than author-centered. See Marci A. Hamilton, The Historical and
Philosophical Underpinnings of the Copyright Clause, Occasional Papers in
Intellectual Property No. 5 (Cardozo School of Law 1999) ("The more
commodified the product, the more it is capable of traveling through a culture
and its streams of commerce with value attached but without the identity or
controlling hand of the author attached.").
[FN341]. See Feist, 499 U.S. at 344.
[FN342]. See 17 U.S.C. § 101 (1994)
(defining "compilations").
[FN343]. See id.
[FN344]. See Craig Joyce et al., Copyright Law
232-33 (4th ed. 1998) & 728- 30 (Supp. 1999) (discussing protection of data
compilations).
[FN345]. See 17 U.S.C. § 102 (1994)
(defining copyrightable subject matter).
[FN346]. See id. § 101 (defining
"compilations").
[FN347]. See id. § 103 (1994) (discussing
extent of copyrightablity of compilations).
[FN348]. See 17 U.S.C. § 506 (Supp. 1997)
(criminalizing certain types of copyright infringement).
[FN349]. Mark A. Lemley, The Modern Lanham Act and the Death of
Common Sense, 108 Yale L.J. 1687, 1700 (1999).
[FN350]. 15 U.S.C. §§ 1051-1065 (1994).
[FN351]. See John Gibeaut, Image Conscious,
A.B.A. J., June 1999, at 47, 48.
[FN352]. Litman, supra note 121, at 1725-26
(footnotes omitted).
[FN353]. See 15 U.S.C. § 1058 (1994).
[FN354]. Lemley, supra note 349, at 1696
(footnotes omitted).
[FN355]. At present, publicity rights
"differ widely in the approximately 25 states that recognize them either
by statute or common law." Gibeaut, supra note 351, at 48.
[FN356]. But see Alice Haemmerli, Whose Who? The Case for a Kantian Right
of Publicity, 49 Duke L.J. 383, 406-07 (discussing how Judge Jerome
Frank of the Second Circuit severed the right of publicity from the right of
privacy in Haelen Labs, Inc. v. Topps Chewing Gum,
Inc., 202 F.2d 866 (1953)).
[FN357]. See Rosemary J. Coombe, Publicity
Rights and Political Aspiration: Mass Culture, Gender Identity and Democracy,
26 New Eng. L. Rev. 1221, 1226 (1992).
[FN358]. Dreyfuss, supra note 336.
[FN359]. But see Carl S. Kaplan, Celebrities
Have Trouble Protecting Their Names Online (July 30, 1999) <http://
www.nytimes.com/library/tech/99/07/cyber/cyberlaw/30law.html> (discussing
how several celebrities have difficulty in protecting their names online).
[FN360]. See Roberta Rosenthal Kwall, Fame, 73 Ind. L.J. 1, 31 (1997)
( "The growth of [television] has... contributed to the phenomenon of
making temporary celebrities out of 'ordinary folks." ').
[FN361]. See id. at 29 n.150.
[FN362]. Gibeaut, supra note 351, at 47.
[FN363]. See Kwall, supra note 360, at 32
("'[I]n the future everyone will be world famous for fifteen
minutes." ') (quoting Andy Warhol). But see Michael Madow, Private
Ownership of Public Image: Popular Culture and Publicity Rights, 81 Calif. L.
Rev. 125, 137 n.39 (1993) ("[T]he right of publicity is in reality special
celebrity right.").
[FN364]. Haemmerli, supra note 356, at 418
(footnote omitted).
[FN365]. See Madow, supra note 363, at 129;
Coombe, supra note 357, at 1237; Samuelson, supra note 181, at 772. But see
Haemmerli, supra note 356, at 431- 42 (analyzing the criticisms of publicity
rights, namely those of Professors Madow and Coombe).
[FN366]. Madow, supra note 363, at 144-45
(footnotes omitted) (emphasis added).
[FN367]. Litman, supra note 121, at 1733.
[FN368]. Sheldon W. Halpern, The Right of Publicity: Maturation of an
Independent Right Protecting the Associative Value of Personality, 46 Hastings
L.J. 853, 872 (1995).
[FN369]. See Madow, supra note 363, at 129.
[FN370]. Kang, supra note 74, at 1218 (footnotes
omitted).
[FN371]. At present, the First Amendment offers
some protection to "authors without authorization" who write about
celebrities, but is less likely to shield those who use images of famous
people, because a nonpermissive utilization of words gets more First Amendment
protection than an unauthorized use of pictures or sounds, especially when
digital technologies have been employed. When Dustin Hoffman sued Los Angeles Magazine
for merging an old photograph of him with a contemporary photograph of a
fashion model, the judge found that the photographs contained in the disputed
feature, which also featured the merged visages of other entertainers,
"were manipulated and cannibalized to such an extent that the celebrities
were commercially exploited and were robbed of their dignity, professionalism
and talent. To be blunt, the celebrities were violated by technology." Hoffman v. Capital Cities/ABC, Inc., 33
F. Supp. 2d 867, 873 (C.D. Cal. 1999).
[FN372]. See Madow, supra note 363, at 130 n.12.
[FN373]. See Avrahami's Trial Brief: U.S. News
& World Report v. Avrahami (visited June 17, 2000)
<http://www.epic.org/privacy/junk_mail/trial_ brief.txt>.
[FN374]. See id.
[FN375]. Id.
[FN376]. Va. Code Ann. § 8.01-40 (A)
(Michie 1995).
[FN377]. See Avrahami's Trial Brief: U.S. News
& World Report v. Avrahami (visited June 17, 2000)
<http://www.epic.org/privacy/junk_mail/trial_ brief.txt> (citing to Lavery v. Automation Management Corp.,
360 S.E.2d 336, 342 (Va. 1987) and Town & Country Properties v.
Riggins, 457 S.E.2d 356, 364 (Va. 1995)).
[FN378]. See Avrahami's Trial Brief: U.S. News
& World Report v. Avrahami (visited June 17, 2000)
<http://www.epic.org/privacy/junk_mail/trial_ brief.txt>.
[FN379]. O'Harrow Jr. & Leyden, supra note
235, at A1. It should be noted that the constitutionality of the Driver's
Privacy Protection Act of 1994, 18 U.S.C. §§2721-2725 (2000), was upheld in
Reno v. Condon, No. 98- 1464 (U.S. Jan. 12, 2000), in which Chief Justice
Rehnquist wrote that the Act, which bars states from disclosing personal
information obtained from their licensed drivers, simply "regulates the
States as owners of databases." Id. It was reported that in the oral
argument, "several justices noted with irritation that a few states earned
tens of millions of dollars from disclosing this personal data to mass
marketers." David G. Savage, The 5-4 Federalism Chasm, A.B.A. J., March
2000, at 37.
[FN380]. See U.S. West, Inc. v. FCC, 182 F.3d 1224
(10th Cir. 1999); see also Court Won't Review Phone Data Ruling
(June 5, 2000) <http://
www.nytimes.com/reuters/business/business-court-teleco.html> (discussing the
United States Supreme Court's decision not to review the 10th Circuit's
decision).
[FN381]. See U.S. West, Inc., 182 F.3d at 1240.
[FN382]. See Volokh, supra note 329.
[FN383]. See id. (manuscript at 11, on file with
author).
[FN384]. See id. (manuscript at 12, on file with
author).
[FN385]. See id.
[FN386]. See id.
[FN387]. 471 U.S. 539 (1985).
[FN388]. See id. at 542-43.
[FN389]. See id. at 569.
[FN390]. See id. at 568.
[FN391]. See id. at 565-66.
[FN392]. See Volokh, supra note 329 (manuscript
at 13, on file with the author).
[FN393]. Trademarks that become generic terms
for given products through widespread use lose trademark protection. For
example, Thermos was a trademark for a particular brand of insulated beverage
container, but is now a generic term used to describe any insulated beverage
container, and no longer serves a source identifying function. Thermos has
therefore "committed genericide."
[FN394]. See, e.g., Lori Schlotfeldt, Letters to
Spy, Spy Mag., Aug. 1989, at 20 (quoting member of the Customer Relations Dept.
of Edward Lowe Industries, the inventor of Kitty Litter, "In the article
in question, KITTY LITTER(R) Brand was referred to in a generic sense. As KITTY
LITTER(R) Brand is a registered trademark for a specific premium cat box filler
manufacture by Edward Lowe Industries Inc., any use of the name other than as
shown here is incorrect...").
[FN395]. See, e.g., Craig Bicknell, Site No
Longer Bugs Terminex, (Mar. 11, 2000)
<http://www.wired.com/news/print/0,1294,34906,00.html>; Kathleen
Melymuka, Ford Motors, Web Author Spar in Court (Aug. 31, 1999) <http://
www.cnn.com/TECH/computing/9908/31/ford.idg/index.html>; Dunkin' Donuts Buys
Out Critical Web Site (Aug. 27, 1999) <http://
www.nytimes.com/library/tech/99/08/cyber/articles/27dunkin.html>; Paul
Brandus, Hot Water: Starbucks Sues a Citizen (June 1, 2000) <http://
www.salon.com/business/feature/2000/06/01/starbuckssuit/print.html>; Sandy
Lawrence Edry, Furby Flap (June 9, 1999) <http://www.newsweek.com/nw-
srv/tnw/today/cs/cs01tu_1.htm>.
[FN396]. See Karen S. Frank & Michael J.
Higgins, Fair Use: In the Courts and Out of Control? 411 PLI/Pat 1, 3 (1995)
(citing H.R. Rep. No. 94-1476, at 65 (1976)).
Although the courts have considered and ruled upon the fair use doctrine over
and over again, no real definition of the concept has ever emerged. Indeed,
since the doctrine is an equitable rule of reason, no generally applicable
definition is possible, and each case raising the question must be decided on
its own facts.
Id. See also James J. Marcellino & Melise Blakeslee, Fair Use in the
Context of a Global Computer Network--is a Copyright Grab Really Going On?, 6
Info. & Comm. Tech. L. 137 (1997) (discussing how fair use may balance
between Internet content providers' rights and benefits to Internet service providers,
bulletin board operators and end-users).
[FN397]. See Harper & Row, Publishers, Inc. v.
Nation Enters., 471 U.S. 539, 589-90 (Brennan, J., dissenting).
[FN398]. Sony Corp. of Am. v. Universal City
Studios, 464 U.S. 417, 429 (1984).
[FN399]. See id. at 429 & n.10; see
also Albert D. Spalding, Fair Use of Research and Course Packets
in the Classroom, 31 Am. Bus. L.J., 447, 449-50 (1993); Robert A.
Kreiss, Accessibility and Commercialization in
Copyright Theory, 43 UCLA L. Rev. 1, 20 (1995); Jessica Litman, Revising Copyright Law for the
Information Age, 75 Or. L. Rev. 19, 31 (1996). Cf. Barbara Friedman,
From Deontology to Dialogue: The
Cultural Consequences of Copyright, 13 Cardozo Arts & Ent. L. J. 157, 160
(1994) (arguing that despite the consequentialist moorings of
American law, much of contemporary copyright theory is based on deontological
theories of personality or natural rights).
[FN400]. See American Geophysical Union v. Texaco,
Inc., 37 F.3d 881 (2d Cir. 1994).
[FN401]. I am perfectly willing to give a
royalty free partial license to my friends, and to at least some of my
relatives. They can have my address and phone number, occupation, date of
birth, and number of children. They do not need to know my income range,
though, or anything about my recent purchases. I am less inclined to give
educational institutions a free ride. After I have paid them thousands of
dollars in tuition, why should my alma maters be allowed access to my data for
free? I would require only a modest royalty to appear in an alumni directory,
as doing so will undoubtedly provide me with profitable exposure to other
potential licensors. I would demand a much larger payment if a university
wanted to use my personal data to solicit donations from me, especially if they
planned to call during the dinner hour.
[FN402]. See Coombe, supra note 357, at 1237.
[FN403]. See, e.g., Ann Bartow Educational Fair Use in Copyright: Reclaiming
the Right to Photocopy Freely, 60 U. Pitt. L. Rev. 149 (1998)
(discussing the scope of the fair use defense).
[FN404]. See Jonathan M. Winer, Too Much Privacy?
(May 8, 2000) <http://
www.thestandard.com/article/display/0,1151,14781,00.html>.