09-02-2000

TECHNOLOGY: Can Congress Keep Up?

Like Greta Garbo, millions of Americans want to be left alone-freed from
telemarketers who know too much and call too often, insurance companies
that circulate confidential health records, employers who monitor every
computer keystroke, and government agencies that can track electronic
messages with the flip of a software switch.


So privacy protection is the bright new bandwagon on Capitol Hill:
everyone is jumping on it, so as not to be seen as soft on snooping.
"Privacy issues are huge," said Sen. Christopher J. Dodd,
D-Conn. Rep. Edward J. Markey, D-Mass., who has supported privacy
legislation for many years, says the issue "will break like a
sprinter out of the blocks" and help Democrats more than
regulation-averse Republicans in elections this fall.


Members of Congress cite opinion polls showing widespread concern over
people's ability-and inability--to protect their personal, financial, and
medical records, and have this year introduced dozens of bills that would
bar various assaults on privacy. Few of these measures have moved very
far, and little time remains in this congressional session. But there is a
growing political consensus that regardless of the outcome of the November
elections, sweeping privacy protections might clear Congress next
year.


Treading Slowly


But can Capitol Hill really legislatively stop the sometimes dirty work of
a new generation of electronic peeping toms, secret stalkers, and data
trackers? It can try, but Congress will probably never be able to write
enough laws to keep up with the constantly evolving technology of the new
"e-universe"-where information is generated, sent, and stored at
speeds and in quantities that defy the imagination. Indeed, some privacy
advocates in Congress wonder whether there is a cyberspace equivalent of a
privacy arms race: as fast as new communications technologies appear, so
do new capabilities for diverting information in unintended ways.


The concerns about privacy cross partisan and ideological lines in
Congress. An unlikely alliance-archliberal Sen. Charles E. Schumer,
D-N.Y., and archconservative Republican Reps. Bob Barr of Georgia and
Charles Canady of Florida-is sponsoring legislation that would require
employers to notify their employees if they monitor electronic messages or
listen in on telephone calls in the workplace. "We would never stand
for it if an employer steamed open an employee's mail, read it, and put it
back," Schumer said. He says the bill gives workers "a first
line of defense against a practice that amounts to nothing more than a
blatant invasion of privacy."


A united House recently passed another measure that attempts to balance
the rights of consumers and business interests. The vote was 426-1 (with
contrarian Rep. Ron Paul, R-Texas, voting no) to curb so-called
spam-unrequested, junk e-mail sent by advertisers or others. The measure
would require commercial e-mail originators to allow recipients to
"opt out" of receiving unwanted messages.


While shielding personal privacy may be hotly debated in Congress,
lawmakers have been trudging very slowly on several other key privacy
fronts, such as protecting medical information and financial data, and
preventing the sale of Social Security numbers that could be used to
"steal" personal identities. There is now no federal law barring
the sale and receipt of Social Security numbers, and prominent privacy
advocates-such as Sens. Richard C. Shelby, R-Ala., and Richard H. Bryan,
D-Nev., and Rep. Markey-back legislation to ban such sales, which have
become common on the Internet. (Members cite the case of a young New
Hampshire woman, Amy Boyer, who was stalked and killed last year by a man
who had tracked her down after buying her Social Security number from a
Web site for $45.) The problem of people impersonating others to commit
credit card fraud, buy cars, or borrow money is mushrooming. "It is,
I believe, the fastest growing crime in America," said Sen. Dianne
Feinstein, D-Calif., at a recent hearing on stolen Social Security
numbers.


But there is also almost a grudging acceptance that an erosion of privacy
will continue, no matter how many laws Congress approves. And while many
lawmakers talk a good game about privacy, they are reluctant to rush into
legislation that would ban new technologies outright. In privacy matters,
as in other legislative areas, the House and Senate tread slowly before
making major changes, and when they do act, it is sometimes too late
because new techniques or loopholes have overtaken new laws. "The
technology has gone in front of the Congress," Marc Rotenberg,
director of the Electronic Privacy Information Center in Washington and a
privacy law professor at Georgetown University, said in an interview. In
addition, "Congress has been reluctant to legislate," he said,
because members "don't want business practices
regulated."


`Get Over It'


On the other side of the spectrum, Federal Trade Commissioner Orson
Swindle worries that Congress will rush to fill a vacuum created by the
reluctance of businesses to regulate themselves. Swindle was one of two
commissioners who opposed a May 22 decision by the FTC to urge Congress to
adopt privacy protection. At a little-noticed Heritage Foundation forum in
June, Swindle warned that privacy issues "will be demagogued beyond
anything you have ever seen.... We have an enormous propaganda battle
going. And the private sector is losing that battle.... Industry is not
telling the story well enough. It is easy to tell about the bad things,
because the emotion is so high." Swindle was quoted in Tech Law
Journal as saying that "industry has got to step up to the
plate" and "tell the people the marvelous benefits from all this
technology. And they have also got to convince customers they care about
them."


But some technology business leaders shrug off such suggestions. "You
already have zero privacy-get over it," said Scott McNealy, the CEO
of Sun Microsystems, in response to a media question at a show introducing
new technology. McNealy's statement was cited by Jeffrey Rosen, a George
Washington University Law School professor, in a New York Times article
adapted from his new book, The Unwanted Gaze: The Destruction of Privacy
in America.


McNealy has a point: board an airplane, and your suitcase is X-rayed; walk
into the U.S. Capitol, and you pass through magnetometers. In many places,
schoolchildren are checked for weapons before they enter their classrooms,
and their lockers are searched. Banks, convenience stores, and other
businesses videotape customers routinely. Police cameras film cars running
red lights; but these same cameras may also photograph innocent drivers
and pinpoint who was where, and when.


And one group is even monitoring what radio stations motorists listen to
on the highway. Sen. Frank Murkowski, R-Alaska, is sponsoring the
Motorists Privacy Act of 2000, which would ban devices attached to
billboards and buildings to monitor the radio preferences of passing
motorists. The systems, which detect electronic signals emitted by
oscillators in car radios, are already in place in Indianapolis, Los
Angeles, Phoenix, Boston, and other cities, Murkowski noted. The
information is sold to radio stations and advertisers to help them market
products to audiences measured by the monitors. "There is nothing
wrong with surveying radio usage, so long as a citizen voluntarily chooses
to participate in such a survey," Murkowski told the Senate.
"However, when private enterprise or the government begins to monitor
radio or television usage without the knowledge of the citizen, then a
line is crossed that can only lead down the path to Big
Brother."


How pervasive is this technique? The company behind it, Mobiltrak,
maintains that nearly 143 million cars have been listened in on since Jan.
1, 1999. It calls itself the "world's largest media survey," and
company officials, naturally enough, defend its practices. A company
spokesman said its technology "is incapable of invading an
individual's privacy, primarily because the data collected cannot be
linked to individuals or even to particular vehicles."


Potentially much more intrusive are breakthroughs in medical technology
and research into human genes. The debate over genetic information became
a political firefight in late June when the Senate voted 54-44, along
party lines, against a proposal by Minority Leader Thomas A. Daschle,
D-S.D., to prohibit insurance companies from determining premiums based on
genetic information or from requiring genetic tests for customers. The
legislation would also have barred employers from using genetic
information to hire or promote workers and would have given employees a
right to sue based on genetic discrimination. Instead, the Senate voted
58-40 in favor of a narrower Republican-sponsored bill to restrict use of
information by insurance firms in ways similar to present laws that bar
health plans from denying coverage or raising premiums based on genetic
information.


"On genetic discrimination, Republicans said they want to prevent it,
same as us," Daschle grumbled to reporters after the vote. "Then
they kill our bill and pass a weaker bill that does absolutely nothing to
protect people from genetic discrimination in the workplace."


Privacy issues may be generating some heat on Capitol Hill, but in the
presidential contest, both Democratic Vice President Al Gore and
Republican Gov. George W. Bush of Texas are jumping on the privacy
bandwagon-with few precise proposals.


Gore told USA Today that a key issue facing the next President would be
"how we deal with Internet privacy ... how we deal with the
provocative ethical questions that will come streaming out of the new
discoveries in biotechnology." During a meeting with New York Times
editors, Gore also said he favored requiring consumer permission before
banks and other businesses could share personal information.


Bush told USA Today: "Privacy issues should be addressed. The issue
of security on the Internet needs to be addressed." He said a
President had to work with lawmakers "as well as members of the
industry to come up with different solutions, innovative
solutions."


In a few months, a new President and a new Congress will take up the
privacy issue in earnest. But it is unlikely that laws can ever truly stop
the all-too-human desire to peek at other people's secrets. Perhaps the
late Judy Garland put it best when she reportedly said, "I've never
looked through a keyhole without finding someone was looking
back."


Michael Posner

National Journal