<DOC>
[106th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:58511.wais]
ELECTRONIC COMMERCE: THE CURRENT STATUS OF PRIVACY PROTECTIONS FOR
ONLINE CONSUMERS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON TELECOMMUNICATIONS,
TRADE, AND CONSUMER PROTECTION
of the
COMMITTEE ON COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
JULY 13, 1999
__________
Serial No. 106-39
__________
Printed for the use of the Committee on Commerce
------------------------------
U.S. GOVERNMENT PRINTING OFFICE
58-511 CC WASHINGTON : 1999
COMMITTEE ON COMMERCE
TOM BLILEY, Virginia, Chairman
W.J. ``BILLY'' TAUZIN, Louisiana JOHN D. DINGELL, Michigan
MICHAEL G. OXLEY, Ohio HENRY A. WAXMAN, California
MICHAEL BILIRAKIS, Florida EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas RALPH M. HALL, Texas
FRED UPTON, Michigan RICK BOUCHER, Virginia
CLIFF STEARNS, Florida EDOLPHUS TOWNS, New York
PAUL E. GILLMOR, Ohio FRANK PALLONE, Jr., New Jersey
Vice Chairman SHERROD BROWN, Ohio
JAMES C. GREENWOOD, Pennsylvania BART GORDON, Tennessee
CHRISTOPHER COX, California PETER DEUTSCH, Florida
NATHAN DEAL, Georgia BOBBY L. RUSH, Illinois
STEVE LARGENT, Oklahoma ANNA G. ESHOO, California
RICHARD BURR, North Carolina RON KLINK, Pennsylvania
BRIAN P. BILBRAY, California BART STUPAK, Michigan
ED WHITFIELD, Kentucky ELIOT L. ENGEL, New York
GREG GANSKE, Iowa THOMAS C. SAWYER, Ohio
CHARLIE NORWOOD, Georgia ALBERT R. WYNN, Maryland
TOM A. COBURN, Oklahoma GENE GREEN, Texas
RICK LAZIO, New York KAREN McCARTHY, Missouri
BARBARA CUBIN, Wyoming TED STRICKLAND, Ohio
JAMES E. ROGAN, California DIANA DeGETTE, Colorado
JOHN SHIMKUS, Illinois THOMAS M. BARRETT, Wisconsin
HEATHER WILSON, New Mexico BILL LUTHER, Minnesota
JOHN B. SHADEGG, Arizona LOIS CAPPS, California
CHARLES W. ``CHIP'' PICKERING,
Mississippi
VITO FOSSELLA, New York
ROY BLUNT, Missouri
ED BRYANT, Tennessee
ROBERT L. EHRLICH, Jr., Maryland
James E. Derderian, Chief of Staff
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Telecommunications, Trade, and Consumer Protection
W.J. ``BILLY'' TAUZIN, Louisiana, Chairman
MICHAEL G. OXLEY, Ohio, EDWARD J. MARKEY, Massachusetts
Vice Chairman RICK BOUCHER, Virginia
CLIFF STEARNS, Florida BART GORDON, Tennessee
PAUL E. GILLMOR, Ohio BOBBY L. RUSH, Illinois
CHRISTOPHER COX, California ANNA G. ESHOO, California
NATHAN DEAL, Georgia ELIOT L. ENGEL, New York
STEVE LARGENT, Oklahoma ALBERT R. WYNN, Maryland
BARBARA CUBIN, Wyoming BILL LUTHER, Minnesota
JAMES E. ROGAN, California RON KLINK, Pennsylvania
JOHN SHIMKUS, Illinois THOMAS C. SAWYER, Ohio
HEATHER WILSON, New Mexico GENE GREEN, Texas
CHARLES W. ``CHIP'' PICKERING, KAREN McCARTHY, Missouri
Mississippi JOHN D. DINGELL, Michigan,
VITO FOSSELLA, New York (Ex Officio)
ROY BLUNT, Missouri
ROBERT L. EHRLICH, Jr., Maryland
TOM BLILEY, Virginia,
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Anthony, Hon. Sheila F., Commissioner, Federal Trade
Commission................................................. 39
Cerasale, Jerry, Senior Vice President, Government Affairs,
Direct Marketing Association, Inc.......................... 99
Lewin, Robert, Executive Director, TrustE.................... 75
Lucas, Steve, Chief Information Officer and Senior Vice
President, Industry Government Relations, PrivaSeek........ 94
Mulligan, Deirdre, Staff Counsel, Center for Democracy and
Technology................................................. 79
Pitofsky, Hon. Robert, Chairman, Federal Trade Commission.... 9
Singleton, Solveig, Director of Telecommunications and
Technology Studies, Cato Institute......................... 89
Swindle, Hon. Orson, Commissioner, Federal Trade Commission.. 37
Thompson, Hon. Mozelle W., Commissioner, Federal Trade
Commission................................................. 45
Material submitted for the record by:
Gray, Peter, Chairman, The Internet Consumers Organization,
prepared statement of...................................... 125
(iii)
ELECTRONIC COMMERCE: THE CURRENT STATUS OF PRIVACY PROTECTIONS FOR
ONLINE CONSUMERS
----------
TUESDAY, JULY 13, 1999
House of Representatives,
Committee on Commerce,
Subcommittee on Telecommunications,
Trade, and Consumer Protection,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in
room 2322, Rayburn House Office Building, Hon. W.J. ``Billy''
Tauzin (chairman) presiding.
Members present: Representatives Tauzin, Stearns, Gillmor,
Cox, Deal, Largent, Cubin, Rogan, Shimkus, Pickering, Bliley
(ex officio), Markey, Boucher, Gordon, Eshoo, Luther, Sawyer,
and Green.
Staff present: Paul Scolese, professional staff member,
Elizabeth Brennan, legislative clerk, Andy Levin, minority
counsel, and Bruce Gwinn, minority counsel.
Mr. Tauzin. The subcommittee will please come to order.
Today the subcommittee will hear testimony on the current
status of privacy protection for online consumers. When this
subcommittee held a hearing last year on Internet privacy, the
effort by industry to create a self-regulatory scheme was still
in its infancy.
We heard what the industry planned to do in the coming
months and also criticism that industry was not doing enough
and that government regulation on privacy might be needed. Let
me say categorically that it will not necessarily be how the
Internet is taxed. It will not necessarily be how much money
flows in electronic commerce. It will certainly be how secure
electronic commerce is for consumers and for businesses who
wish to deal with them over the Internet. It will most
certainly be how much privacy is respected and protected on the
Internet that will determine the future of electronic commerce
as a vibrant and important part of our Nation's economy. It is
our hope that we use this hearing today to gauge just how much
progress we have made in protecting online privacy since last
year's hearing. Today's dialog should allow us an opportunity
to see where efforts have been successful and where efforts
have fallen short. I am hopeful that we can have a healthy
debate on whether or not we need government regulation or is
the threat of government regulation enough to further progress
in the industry.
I am pleased that we are having the FTC testify before this
subcommittee again. The work that the FTC has done on this
issue has been excellent. We look forward to hearing the
recommendations they will make today in public. I know from
reading an advanced copy of the testimony that the FTC is not
recommending legislation at this time to protect online
privacy. We will also be hearing from a number of private
sector witnesses who will speak about industry's efforts to
protect the privacy of their customers. We will also hear from
industry observers who will speak on the issue of self-
regulation versus government legislation or regulation.
Last Congress, I introduced H.R. 2368, the Data Protection
Act, which would establish voluntary industry guidelines to
limit the collection and use of personal information obtained
by the Internet. I believed that a private sector approach was
best, and I still believe that. As a witness to the ever
changing technological advances, enacting government
regulations at that time would more than likely have been too
inflexible for the rapidly changing electronic commerce
industry.
Is that true today? Today's hearing will perhaps give us
that answer. The Georgetown Internet privacy policy study which
was just released in May gives us a good indication of how far
industry has come in self-regulation. I think that the numbers
are very encouraging, although there is still more that the
industry can, should, must do.
One area that has not been much discussed is how consumers
can gain more control over their own personal information and
then release that information only when they believe they will
receive some benefit in exchange for that information. It is
obviously true that some of the software industries are
producing software products that would, in fact, enable
consumers just that power over their own information. As I
stated before, personal information does have value.
In fact, as the Internet has grown, e-commerce has grown.
There is more value in data bases now than there are in the
company assets themselves. Recently, a company announced that
they would give free computers with Internet access to the
first 10,000 individuals that applied. In the first few days,
over a half million people applied for one of those computers.
The only catch was that the applicant had to fill out a very
detailed application revealing personal information such as
what type of automobile they drove, which magazines they
subscribed to; in effect which purchases they liked to make. I
think this shows that when consumers get something of value in
return, some people are willing to part with detailed personal
information.
Before I close, I want to thank all of our witnesses this
morning for agreeing to testify on this most important issue.
My friend, Mr. Markey, has just arrived. He and I have
dedicated ourselves to ensure, along with the chairman of the
full committee who is also with us today, that our committee
will address thoroughly the issue of online privacy, the
privacy of individuals' information, the security of e-commerce
for our future. This will be an important step in that effort.
We look forward to hearing the testimony today. The Chair
yields back the balance of his time, and I welcome and
recognize as the ranking minority member, Mr. Markey, from
Massachusetts.
Mr. Markey. Thank you, Mr. Chairman, very much. I would
like to commend you for calling this hearing today on the
subject of online privacy.
This hearing coincides with the release of a privacy report
from the Federal Trade Commission which reflects the results of
an online survey conducted earlier this year by Professor Mary
Culnan at the Georgetown Business School. In its previous
report to Congress, the FTC articulated a number of core
principles for implementing fair information practices in the
online environment in order to establish key protections for
consumers. The Georgetown survey searched for these key privacy
criteria which are comprised of the following items.
Notice, ensuring that consumers receive clear conspicuous
notice of the personal information practices of the Web site.
Choice, giving consumers an effective means granting or
denying consent to the privacy practices of the Web site.
Access, ensuring that consumers could gain access to the
information collected by a Web site for correction and
information on whether personal data has been reused,
disclosed, or sold and to whom.
And security, ensuring that information collected by a site
has reasonable safeguards to protect security and integrity of
the personal data.
And five, contact information, ensuring that consumers have
a convenient method by which to contact the Web site manager
with questions, suggestions, and complaints.
The survey conducted at Georgetown found that less than 10
percent of sites collecting personal information had privacy
policies embodying these fair information criteria. Just 10
percent. This survey is quantitative. It doesn't even measure
the quality of the notice disclosure or so-called opt-out or
opt-in features.
Any privacy policy that doesn't incorporate these key
elements for consumers is a failure. The survey has found that
only a very small minority of sites have implemented these key
privacy elements. The industry as a whole continues to get a
failing grade.
The question remaining is how much credit people are
willing to give companies for merely taking the course while
they fail the subject matter. There is no question that
consumer concern over privacy has clearly heightened awareness
of the issue in the online business community.
The fact that many web sites are at least posting their
privacy policies is an improvement. Even in a failing group,
there is still some star pupils. I want to commend those
companies and individuals associated with online privacy
initiatives, seal programs such as TRUSTe and BBBOnLine as well
as the growing number of companies taking steps to better
inform consumers and offer comprehensive privacy protections on
their own initiative.
I think it is increasingly clear that we need a basic level
of privacy protections for all Americans online. I believe that
there is a role for a privacy marketplace and a role for
industry self-regulatory initiatives. No American, however,
should be left without any privacy protection in the online
environment.
In my view, we should pursue a legal framework which
should:
1) incorporate elements of industry self-regulation, 2)
allow technological tools to enhance privacy, and 3) guarantee
basic government-backed protections.
Less than 2 weeks ago, the House passed H.R. 10, the
Financial Services Act. This legislation includes privacy
provisions which purport to provide consumers with the core
principles, but with some huge loopholes that must be addressed
in conference.
For instance, we need to address the failure to provide
consumers with notice and the right to say no when a consumer's
information is disclosed to affiliates within a bank holding
company rather than an unaffiliated third party. This
artificial distinction between affiliates and third party
transfers of consumer information makes no sense. It is like
outlawing robbery while legalizing embezzlement. I look forward
to working with my colleagues on this committee in pursuing
privacy protections for consumers in H.R. 10 and for
cyberspace. I commend Chairman Tauzin for calling this hearing,
and I look forward to the testimony from our witnesses.
Mr. Tauzin. As usual, I thank my friend and the Chair now
yields to the gentleman from Richmond, Virginia, the chairman
of the full Committee on Commerce, Mr. Tom Bliley.
Chairman Bliley. Thank you, Mr. Chairman, for holding this
hearing. Protection of personal privacy is one of our most
talked about issues facing electronic commerce. All Americans
have legitimate concerns about how that personal information
they provide to web sites is used by the operator of that Web
site. As I have stated many times in the past, I believe that
ensuring safety, security, and privacy of online consumers is
key to consumer use and acceptance of the Internet. Without
these concerns being met, I believe that consumers may lose
confidence in electronic commerce.
This committee has been active on the issue of online
privacy since the 105th Congress. Online privacy is an issue
that I hear about many times from my constituents and also from
the many people I speak to in the industry. At the privacy
hearing that this subcommittee held last year, industry
witnesses laid out their plans to protect privacy of consumers.
At the time, I supported this effort rather than a Federal
regulatory approach. Electronic commerce changes so quickly
that I am concerned that a government-mandated privacy policy
would stifle innovation. We would be imposing a static policy
on a dynamic and constantly changing industry.
Since that hearing last year, I have been monitoring the
progress industry has made in self-regulation. I think the
progress to date has been very good. The recently completed
Georgetown privacy study showed impressive results in the
posting of privacy policy by commercial web sites.
Despite these good results, now is not the time for
industry to ease up. There is still much more work to be done.
Bricks and mortar businesses that are moving online need to
tailor their existing privacy policy to the online world. I
know that Commissioner Swindle is particularly interested in
the needs of small businesses as they move online. Also the
true test of a privacy policy is the remedy to consumers if
their privacy is violated. Their privacy policy is worth little
if their company can ignore consumers who seek redress.
Another area that deserves attention and which I will be
following closely, is the transfer of personally identifiable
information to third parties. Consumers should be told when
third parties may have access to their information and should
have the right to refuse the transfer to others of such
information. I know there are some legitimate business uses for
the transfer of this information. For example, consumers may
enjoy knowing about the benefits of getting a discount on a
rental car when they purchase an airplane ticket online. But
there are many consumers who would prefer not to have personal
information about their online reservations or purchases shared
with other parties. They should have the right to opt out of
the information sharing.
Before I close, I would like to make an announcement. Very
shortly, the Commerce Committee will be posting a privacy
policy on the committee Web site. We will be the first
committee in Congress to post a privacy policy so that visitors
to the committee Web site will know how the committee uses
information they provide during a visit to the committee Web
site.
I want to thank all of our witnesses today for testifying
on this issue before this subcommittee, and I would also like
to thank Chairman Pitofsky for all of the work that the FTC has
done on this issue. The FTC has been closely following this
issue and will be publicly releasing their recommendation on
dealing with online privacy. I understand that the FTC will not
be recommending legislation to regulate privacy at this time. I
welcome this recommendation, and I look forward to reviewing
the full set of recommendations.
Thank you, Mr. Chairman, and I yield back what little time
I may have left.
Mr. Tauzin. The Chair thanks Chairman Bliley. The Chair
wishes to congratulate him on the announcement he has made
today. I know we will all feel a lot more comfortable dealing
with the committee online. The Chair is now pleased to
recognize the gentlelady from California, Ms. Eshoo, for an
opening statement.
Ms. Eshoo. Thank you, Mr. Chairman, for holding this very
important hearing and I look forward to the testimony and want
to welcome the members--the chairman and the members of the FTC
and most especially Robert Lewin, the executive director of
TRUSTe who is also a constituent of mine. The issue of privacy
is something that every American cares intensely about.
In fact, I think they associate it with being an American.
It is a right that they want protected. It is a right that they
feel passionately about whether it is the protection of their
financial records, medical records, or certainly going online
and conducting business with e-commerce. So I think it is very
important today that this hearing takes place. We will be
measuring, by means of this hearing, the progress that has been
made since last year, and I look forward to hearing the
witnesses. And I yield back the balance of my time.
Mr. Tauzin. The Chair thanks the gentlelady, and the
gentleman from Illinois, Mr. Shimkus, is recognized.
Ms. Eshoo. Mr. Chairman, you need some water. Perhaps we
should pour some water for the chairman.
Mr. Shimkus. Mr. Chairman, I have no opening statements.
Mr. Tauzin. Then the Chair recognizes the gentleman from
California, Mr. Rogan.
Mr. Rogan. Mr. Chairman, thanks. I waive opening statement.
Mr. Tauzin. Then the Chair recognizes Mr. Luther.
Mr. Luther. Thank you, Mr. Chairman. I certainly want to
thank you and Mr. Markey for your efforts in putting this
hearing together today. This is an important issue that is
really grabbing the attention of the public. I think we saw
this in hearings that we held on the bank financial
modernization legislation. And, of course, my home State is
Minnesota.
Minnesota is where we had recent litigation by the attorney
general against a banking institution. And so I was able to
judge, to some extent, the public response and reaction to
that. And so I think the comments that have been made here by
Mr. Markey and Ms. Eshoo are very appropriate in that this is
an issue taken very seriously by the American public.
I think we are just beginning to see the attention that is
going to be paid to this particular issue. So despite the fact
that we didn't win all of the issues that we were pursuing,
particularly with the Markey amendment on the financial
modernization legislation, I am very pleased to see that we are
back talking about this issue again.
And so again, I commend you and Mr. Markey and the others
who are here today for taking on the issue that I think the
public wants us to deal with here in Congress: that is, their
privacy, who owns their information, how that ought to be dealt
with by other people. So thank you again, Mr. Chairman, and I
yield back.
Mr. Tauzin. I thank the gentleman. I suggest that if
anybody misbehaves in Minnesota that we just put Governor ``The
Body'' Ventura on them.
Mr. Luther. That is right. You will have to take us
seriously now.
Mr. Tauzin. The Chair recognizes the gentleman from
Tennessee, Mr. Gordon, for an opening statement.
Mr. Gordon. Mr. Chairman, I would just briefly thank you
for having this important meeting and I want to concur with Ms.
Eshoo that this is a very important personal issue for people
across the country and also concur with Chairman Bliley, in
that if we are going to have full access and use of electronic
commerce, then there is going to have to be confidence on the
net. This is a good hearing. We need to find where we stand and
how we can make this balance and I welcome the panelists.
Mr. Tauzin. I thank the gentleman from Tennessee. The Chair
and I ask unanimous consent that all members might have the
ability to introduce written statements into the record and all
of the written statements of our witnesses be part of the
record. Without objection it is so ordered.
[Additional statements submitted for the record follow:]
Prepared Statement of Hon. Barbara Cubin, a Representative in Congress
from the State of Wyoming
Thank you, Mr. Chairman, for holding this important hearing on
electronic commerce.
I think it is interesting to note that according to a 1998 World
Wide Web user survey, the most important issue facing the Internet was
privacy.
However, I think it is even more interesting to note that
government regulation of the Internet was also one of the most
important issues on the minds of Internet users.
The hearing today will help us to more fully understand what
privacy rights are being threatened and what, if any, government
regulations are needed to help protect Internet consumers from having
their right to privacy violated.
My preference is that industry work out a way in which to solve the
privacy issue.
The difficultly comes in policing many of the bad actors out there
that essentially make their living garnering and disbursing a
consumer's personal information.
There is a push under way for Congress to address this problem in
lieu of an industry solution. We should all know at this point that a
government solution will never be as good as industry self-governance.
The issue of privacy and the public's knowledge of privacy is
complex and unclear.
I look forward to hearing from the witnesses and hope to learn more
about this issue.
I'm also interested in what industry proposals are currently in
place and what solutions are currently being looked at to solve this
problem.
Thank you, Mr. Chairman. I yield back.
______
Prepared Statement of Hon. Thomas C. Sawyer, a Representative in
Congress from the State of Ohio
Thank you Mr. Chairman for holding this oversight hearing this
morning. I also want to thank the Commissioners from the Federal Trade
Commission (FTC) for coming to update us on the status of commercial
websites as they relate to online privacy policies.
The flexibility of the relatively unregulated environment has
greatly contributed to the growth of the Internet. It is becoming clear
to me that a primary reason for the Internet's success has been because
of the entrepreneurial spirit of the companies that have helped to make
it so extraordinary. Throughout this decade, the Internet has grown
from being used by a select few to being used by millions in the United
States and internationally for various purposes. The Internet is having
profound effect on the traditional ways human discourse and enterprise
are conducted, and on the way users receive and distribute information.
Not long ago, the Department of Commerce estimated that by the end
of this year electronic commerce in the United States alone could top
$9 billion. That is a significant increase over last year's figures.
Still, the widespread use of the Internet is relatively new; it is
less than a decade old. No one really knows what its full potential is.
However, one thing is true: if consumers are not confident with using
the Internet for fear of privacy invasions, electronic commerce may not
soon realize the full measure of its potential.
Consumers deserve assurances that their personal information when
using the Internet is safe, secure and available only to those they
authorize to have such information. On a similar note, consumers should
have the ability to review and modify information that is collected
about them. These are just basic principles that make good, sound
business practices.
Last year, when the Federal Trade Commission and the Online Privacy
Alliance came to testify before us, both recommended that Congress not
enact legislation requiring commercial websites to develop an online
privacy policy. However, they promoted self-regulation within the
industry as the immediate answer to address privacy concerns. They
reasoned that companies are different, and a uniform national system of
standards may not be adequate.
I am encouraged by the fact that the recent Georgetown and Online
Privacy Alliance studies shows that more commercial websites have
decided to develop and implement online privacy policies. The reports
show a dramatic increase from the Federal Trade Commission's previous
survey. I hope that this trend continues. I also want to commend
companies like TRUSTe and BBBOnLine certify that its membership
companies meet certain online privacy standards.
While it may still be too early to enact more comprehensive online
privacy legislation, there remains much room for improvement. And so
Mr. Chairman, I am glad you have called this very important oversight
hearing. I hope today's hearing will serve as a reminder that we take
privacy very seriously in Internet use, and users have every right to
keep their personal information private and confidential. Using the
Internet does not forgo those basic rights. Finally, Mr. Chairman, as I
mentioned before, the Internet is rapidly changing and if e-commerce is
going to flourish, then commercial websites need to seriously adopt on-
line privacy guidelines.
Thank you.
______
Prepared Statement of Hon. Karen McCarthy, a Representative in Congress
from the State of Missouri
Thank you, Mr. Chairman, for holding this hearing today on the very
important subject of online consumer privacy. As we progress deeper
into the Information Age, it is vital that we address issues of
consumer protection and privacy early and often in order to ensure that
we are providing our constituents with the security they need and
desire to comfortably deal in the Internet marketplace.
Research conducted over the past several years shows that consumers
are frustrated by the increasing ability of Internet companies to
gather personal information about consumers, often without the
consumers' knowledge or consent. In addition, many people, myself
included, are concerned about the growing use of the Internet for
financial and medical information, and the potential for that highly
sensitive and personal information to be shared with third parties.
I look forward to hearing the testimony of our witnesses today,
particularly those from the Federal Trade Commission (FTC), because I
am eager to work with my colleagues to resolve this issue of personal
privacy on the Internet. I hope that we will address consumer concerns
about receiving notice when information is being collected or when it
will be shared, having choices regarding how that information is used,
and being assured that their data is indeed secure, yet accessible by
the appropriate authorized parties.
I am confident that we will be able to achieve a balance between
consumer privacy and an open Internet marketplace that offers a wealth
of opportunity to both entrepreneurs and consumers. Thank you. I yield
back the balance of my time.
______
Prepared Statement of Hon. John D. Dingell, a Representative in
Congress from the State of Michigan
Mr. Chairman, I want to thank you for holding this hearing on the
privacy problems consumers face when using the Internet. At the outset,
let me welcome Chairman Pitofsky, Commissioner Anthony, Commissioner
Thompson, and Commissioner Swindle to the Committee. I admire the
important work you do in so many areas, and I look forward to hearing
your views on what to do about the very serious privacy problems
consumers face.
The Federal Trade Commission is the federal government's consumer
protection agency, and consumer privacy, both on and off the Internet,
is a matter of growing public concern. Consumers are justifiably
alarmed that the uncontrolled dissemination of personal data is
affecting their job opportunities, as well as their ability to qualify
for credit cards, mortgages, car loans, insurance, and more.
How are we going to make sure that on-line merchants do not violate
the consumer's wishes by selling information about drugs or other
products he or she purchases to employers, banks, and other retailers?
What will prevent a bank from ignoring a consumer's instructions and
selling his or her personal and account information to a telemarketer,
to a securities firm, or to an insurance company?
Consumer privacy problems demand the Commission's special and
immediate attention, and I certainly expect the Commission to give this
problem the attention it so rightly deserves.
Today, the consumer is fighting a losing battle to control the
dissemination and use of personal medical and financial data. Industry
has thus far failed to develop, implement, and enforce safeguards to
control how personal information may be used by others. Even when
private firms adopt policies that allow consumers to ``opt-out'' or
restrict the transfer of their personal data, the consumer's wishes are
too often ignored by banks and others who make huge profits from the
sale of personal and account data.
Last month, the Minnesota State Attorney General brought suit
against several banks in that State for transferring customer personal
and account data to third parties, despite instructions from some of
their customers not to do this. These banks had a privacy policy. That
privacy policy allowed their customers to ``opt-out'' from the transfer
of personal data to third parties. Yet when customers exercised this
right to ``opt-out'', their right was ignored. Lest anyone wrongly
conclude that the problem in Minnesota is unique, the Comptroller of
the Currency made a public statement in which he said these same abuses
are occurring far too frequently throughout the banking industry and
that they must be stopped.
In the on-line world, these privacy problems are magnified. The
special nature of the Internet demands greater sensitivity by
government to the privacy rights of individuals, and the Federal Trade
Commission can and should play a key role in protecting consumers'
interests.
Again, I look forward to hearing the testimony of the
Commissioners, and I want to thank them for their participation in this
hearing.
Mr. Tauzin. We will now welcome and call forward our first
panel which will consist of the chairman and members of the
Federal Trade Commission, beginning with the chairman, the
Honorable Robert Pitofsky, the Honorable Orson Swindle, the
Honorable Sheila Anthony, and the Honorable Mozelle Thompson;
all commissioners of the Federal Trade Commission. Ladies and
Gentlemen, if you would come forward. While you are coming
forward, let me remind you that at our last hearing last year,
I asked each of you to give me your letter grade on the
progress of the industry of protecting American's privacy
online.
Each of you at the termination of that hearing gave me your
letter grade estimate. Let me remind you what they were. Mr.
Swindle, you gave the industry a rising D. Ms. Anthony, you
gave the industry a D plus. Mr. Pitofsky, like a good
professor, you gave them an incomplete. Mr. Thompson, you
wouldn't give a letter grade, but you said there was
considerable room for improvement is the quote we have for you
last year. So a rising D, a D plus, an incomplete, and
considerable room for improvement. When you complete your
testimony today I would ask you--if you can be thinking about
it now--give me your latest grade on the industry so that we
can track the progress as we would any university.
We begin now by welcoming the Chairman of the Federal Trade
Commission, our friend, Mr. Robert Pitofsky, and we welcome
your testimony, Mr. Pitofsky.
STATEMENTS OF HON. ROBERT PITOFSKY, CHAIRMAN; HON. ORSON
SWINDLE, COMMISSIONER; HON. SHEILA F. ANTHONY, COMMISSIONER;
AND HON. MOZELLE W. THOMPSON, COMMISSIONER, FEDERAL TRADE
COMMISSION
Mr. Pitofsky. Thank you, Mr. Chairman, Mr. Markey, and
members of the committee. I am delighted to be here again to
discuss what we all agree is a tremendously important question
and to deliver the Commission's report on online privacy.
Incidentally, many things have changed about online
privacy. Statistics change over 2, 3, 4 years. But one thing
hasn't changed. If you ask people who don't do business on the
Internet, who don't make purchases, what is your reason for not
doing so, you will still hear that about 85 percent of the
people who avoid buying on the Internet offer as their reason
that they don't think that it is a secure transaction. And
privacy, of course, is a major element of that.
Let me see if I can start by finding some common ground
here. We at the Commission and I think members of the committee
all agree that consumers are entitled to have their privacy
protected when they do business on the Internet. And we all
agree that if we can do it, the best way to get there is
through industry self-regulation because this is such a
dynamic, changing, vigorous, and new sector of the economy. We
begin to see different opinions, however, when you move on to
some other questions. And as the opening statements indicated,
very reasonable people can differ about how to get there.
First, there are differences about how much has been
accomplished over the last year or so in terms of self-
regulation and pri-
vacy. And second, and perhaps even more important, how far will
self-regulation ever go in protecting consumers? Can we ever
get to an accepted level of protection for consumers on the
Internet through self-regulation and without some legislation?
You may recall that when we were here a year ago, we
delivered a report to this committee indicating disappointment
at the levels of privacy protection that existed then. A key
fact was that while 90 percent of the firms selling products on
the Internet collected personally identifiable private
information, only 14 percent even announced that they had a
privacy policy of any sort. And only about 2 percent had the
broad range of privacy policies that we call fair information
practices. I should say that on the busiest web sites, not all,
but on the busiest, privacy policies were published in about 44
percent of the instances.
It is now a year later and a good deal has happened. One
interesting development is considerable agreement on
essentially what are fair information practices. They are
pretty much what Mr. Markey outlined. Notice, consent, because
if you don't have notice and consent, privacy protection
doesn't work at all. If people don't know what their rights are
and what is going to happen to the information that they give,
then you have no privacy at all. Reasonable access such that
consumers can find out what sellers are doing with the
information, how they are selling it and whether there are
errors in the information. Finally, some security arrangements.
Second, there has been a sharp improvement in the level of
notice that people are getting on the Internet. I said it was
14 percent a year ago. The newest Georgetown University study,
which is not exactly comparable to the last study but is pretty
close, indicates that we have gone from 14 percent to 66
percent of web sites that post privacy policies. Of web sites
that have the full range of fair information practices, we have
gone from 2 percent up to 10 percent.
I think that is pretty good in 1 year. We have seen in
other sectors of the economy that self-regulation doesn't
happen overnight. It takes a while. Certainly we have seen
strong important steps in the right direction and real
progress. We have also seen in the last year the development of
seal programs by a number of different organizations. They have
established standards for privacy protection and then give out
a seal of approval only to those companies that abide by their
commitment to those standards.
Now, this is just the beginning. There are a million web
sites. Altogether there are probably about a thousand firms
that have committed to a seal programs. But TRUSTe, Better
Business Bureau OnLine and others do appear to be moving in the
direction of seals of approval and in the direction of
monitoring whether people abide by their commitment, and to
enforcing their seal programs. Because of this progress, the
majority of the Commission recommends no legislation at this
time.
That is not to say that all that needs to be done has been
done. There is a long way to go before we can say that we are
at a level at which consumers can be confident that their
privacy has been protected. For example, even though 66 percent
post privacy policies, that still means that 34 percent have no
privacy policies whatsoever. And even though 66 percent post
the privacy policy, as we have heard, only about 10 percent
touch all of the bases that we think are necessary to protect
privacy.
Therefore, although we don't believe legislation is
appropriate at this time, we do believe there has been
considerable progress. The FTC certainly is not abandoning the
field. We intend to conduct workshops over the next year
focussing, for example, on issues like personnel profiling,
task forces in which we will work with industry and consumer
groups to try to understand particular issues like technology
developments, and whether there are technological fixes in this
area.
We are going to work with the Department of Commerce on
consumer education which in the long run may be one of the more
important ways to get to what I have described as the goal
line, and we will commit now to monitor this important new
marketplace and come back here with a report the next time
around, about a year from now. We want to let some time go by
to see if there is continued progress.
The next report is going to be different. These reports so
far essentially involve counting noses. How many sellers have a
privacy policy; how many sellers don't. We want to get at the
question of whether those privacy policies are worth the screen
that they appear on. We want to ask qualitative questions. We
want to ask about access. We want to ask about security.
And we want to ask--if we are going the self-regulation
route--we want to ask about monitoring and enforcement. It is
not enough to put a privacy policy up there. We have to be
confident that people are paying attention to it and are really
doing what they say.
In conclusion, let me say that I think developments over
the year indicate that the idea of giving self-regulation a
chance was the right approach. The business community deserves
a lot of credit for working hard to produce the changes that
they have produced. On the other hand, this progress must
continue. It is not time to declare victory on this issue. I
would say this: If the progress does not continue at something
like the pace that we have seen in the past year, then I think
it is time to reconsider a legislative solution. Thank you.
[The prepared statement of Hon. Robert Pitofsky follows:]
Prepared Statement of Hon. Robert Pitofsky, Chairman, Federal Trade
Commission
Mr. Chairman and members of the Subcommittee, I am Robert Pitofsky,
Chairman of the Federal Trade Commission (``FTC'' or ``Commission''). I
appreciate this opportunity to present the Commission's views on the
progress of self-regulation in the area of online privacy.<SUP>1</SUP>
I. Introduction and Background
The FTC's mission is to promote the efficient functioning of the
marketplace by protecting consumers from unfair or deceptive acts or
practices and to increase consumer choice by promoting vigorous
competition. As you know, the Commission's responsibilities are far-
reaching. The Commission's primary legislative mandate is to enforce
the Federal Trade Commission Act (``FTCA''), which prohibits unfair
methods of competition and unfair or deceptive acts or practices in or
affecting commerce.<SUP>2</SUP> With the exception of certain
industries, the FTCA provides the Commission with broad law enforcement
authority over entities engaged in or whose business affects commerce
<SUP>3</SUP> and with the authority to gather information about such
entities.<SUP>4</SUP> Commerce on the Internet falls within the scope
of this statutory mandate.<SUP>5</SUP>
In June 1998 the Commission issued Privacy Online: A Report to
Congress (``1998 Report''), an examination of the information practices
of commercial sites on the World Wide Web and of industry's efforts to
implement self-regulatory programs to protect consumers' online
privacy.<SUP>6</SUP> Based in part on its extensive survey of over 1400
commercial Web sites, the Commission concluded that effective self-
regulation had not yet taken hold.<SUP>7</SUP> The Commission
recommended that Congress adopt legislation setting forth standards for
the online collection of personal information from children; and
indeed, just four months after the 1998 Report was issued, Congress
enacted the Children's Online Privacy Protection Act of
1998.<SUP>8</SUP> As required by the Act, on April 20, 1999, the
Commission issued a proposed Children's Online Privacy Protection Rule,
which implements the Act's fair information practices standards for
commercial Web sites directed to children under 13, or who knowingly
collect personal information from children under 13.<SUP>9</SUP>
Commission staff is reviewing comments on the proposed rule and will
issue a final rule this fall.
When the 1998 report was released, there were indications that
industry leaders were committed to work toward self-regulatory
solutions. As a result, in Congressional testimony last July the
Commission deferred judgment on the need for legislation to protect the
online privacy of consumers generally, and instead urged industry to
focus on the development of broad-based and effective self-regulatory
programs.<SUP>10</SUP> In the ensuing year, there have been important
developments both in the growth of the Internet as a commercial
marketplace and in consumers' and industry's responses to the privacy
issues posed by the online collection of personal information. The
Commission has just issued a new report on these developments, Self-
Regulation and Online Privacy: A Report to Congress (June 1999) (``1999
Report'').<SUP>11</SUP> The 1999 Report assesses the progress made in
self-regulation to protect consumers' online privacy since last June
and sets out an agenda of Commission actions in the coming year to
encourage industry's full implementation of online privacy protections.
I am pleased to present the 1999 Report's findings to the Committee.
II. The Current State of Online Privacy Regulation
The Commission believes that 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. During the past year the Commission has been monitoring
self-regulatory initiatives, and the Commission's 1999 Report finds
that there has been notable progress. Two new industry-funded surveys
of commercial Web sites suggest that online businesses are providing
significantly more notice of their information practices than they were
last year. Sixty-six percent of the sites in the Georgetown Internet
Privacy Policy Survey (``GIPPS'') <SUP>12</SUP> post at least one
disclosure about their information practices.<SUP>13</SUP> Forty-four
percent of these sites post privacy policy notices.<SUP>14</SUP>
Although differences in sampling methodology prevent direct comparisons
between the GIPPS findings and the Commission's 1998 results,
<SUP>15</SUP> the GIPPS Report does demonstrate the real progress
industry has made in giving consumers notice of at least some
information practices. Similarly, 93% of the sites in the recent study
commissioned by the Online Privacy Alliance (``OPA Study'') provide at
least one disclosure about their information practices.<SUP>16</SUP>
This, too, represents continued progress since last year, when 71% of
the sites in the Commission's 1998 ``Most Popular'' sample posted an
information practice disclosure.<SUP>17</SUP>
The new survey results show, however, that, despite the laudable
efforts of industry leaders, significant challenges remain. The vast
majority of the sites in both the GIPPS and OPA surveys collect
personal information from consumers online.<SUP>18</SUP> By contrast,
only 10% of the sites in the GIPPS sample, <SUP>19</SUP> and only 22%
of the sites in the OPA study, <SUP>20</SUP> are implementing all four
substantive fair information practice principles of Notice/Awareness,
Choice/Consent, Access/Participation, and Security/
Integrity.<SUP>21</SUP> In light of these results, the Commission
believes that further improvement is required to effectively protect
consumers' online privacy.
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.<SUP>22</SUP> 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.<SUP>23</SUP> Several other online privacy seal programs are
just getting underway.<SUP>24</SUP> 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.
III. Conclusion
The self-regulatory initiatives discussed above, and described in
greater detail in the 1999 Report, reflect industry leaders'
substantial effort and commitment to fair information practices. They
should be commended for these efforts. Enforcement mechanisms that go
beyond self-assessment are also gradually being implemented by the seal
programs. Only a small minority of commercial Web sites, however, have
joined these programs to date. Similarly, although the results of the
GIPPS and OPA studies show that many online companies now understand
the business case for protecting consumer privacy, they also show that
the implementation of fair information practices is not widespread
among commercial Web sites.
Based on these facts, the Commission believes that legislation to
address online privacy is not appropriate at this time. We also believe
that industry faces some substantial challenges. Specifically, the
present challenge is to educate those companies which still do not
understand the importance of consumer privacy and to create incentives
for further progress toward effective, widespread implementation.
First, industry groups must continue to encourage widespread
adoption of fair information practices. Second, industry should focus
its attention on the substance of web site information practices,
ensuring that companies adhere to the core privacy principles discussed
earlier. It may also be appropriate, at some point in the future, for
the FTC to examine the online privacy seal programs and report to
Congress on whether these programs provide effective privacy
protections for consumers.
Finally, industry must work together with government and consumer
groups to educate consumers about privacy protection on the Internet.
The ultimate goal of such efforts, together with effective self-
regulation, will be heightened consumer acceptance and confidence.
Industry should also redouble its efforts to develop effective
technology to provide consumers with tools they can use to safeguard
their own privacy online.
The Commission has developed an agenda to address online privacy
issues throughout the coming year as a way of encouraging and,
ultimately, assessing further progress in self-regulation to protect
consumer online privacy:
<bullet> The Commission will hold a public workshop on ``online
profiling,'' the practice of aggregating information about
consumers' preferences and interests gathered primarily by
tracking their movements online. The workshop, jointly
sponsored by the U.S. Department of Commerce, will examine
online advertising firms' use of tracking technologies to
create targeted, user profile-based advertising campaigns.
<bullet> The Commission will hold a public workshop on the privacy
implications of electronic identifiers that enhance Web sites'
ability to track consumers' online behavior.
<bullet> In keeping with its history of fostering dialogue on online
privacy issues among all stakeholders, the Commission will
convene task forces of industry representatives and privacy and
consumer advocates to develop strategies for furthering the
implementation of fair information practices in the online
environment.
<bullet> One task force will focus upon understanding the costs and
benefits of implementing fair information practices online,
with particular emphasis on defining the parameters of the
principles of consumer access to data and adequate
security.
<bullet> A second task force will address how incentives can be
created to encourage the development of privacy-enhancing
technologies, such as the World Wide Web Consortium's
Platform for Privacy Preferences (P3P).
<bullet> The Commission, in partnership with the U.S. Department of
Commerce, will promote private sector business education
initiatives designed to encourage new online entrepreneurs
engaged in commerce on the Web to adopt fair information
practices.
<bullet> Finally, the Commission believes it is important to continue
to monitor the progress of self-regulation, to determine
whether the self-regulatory programs discussed in the 1999
Report fulfill their promise. To that end, the Commission will
conduct an online survey to reassess progress in Web sites'
implementation of fair information practices, and will report
its findings to Congress.
The Commission is committed to the goal of full implementation of
effective protections for online privacy in a manner that promotes a
flourishing online marketplace, and looks forward to working with the
Subcommittee as it considers the Commission's 1999 Report.
ENDNOTES
<SUP>1</SUP> The Commission vote to issue this testimony was 3-1,
with Commissioner Anthony concurring in part and dissenting in part.
Commissioner Anthony's statement is attached to the testimony.
Commissioner Swindle's concurring statement is also attached. My oral
testimony and responses to questions you may have reflect my own views
and are not necessarily the views of the Commission or any
Commissioner.
<SUP>2</SUP> 15 U.S.C. Sec. 45 (a).
<SUP>3</SUP> The Commission does not have criminal law enforcement
authority. Further, certain entities, such as banks, savings and loan
associations, and common carriers, as well as the business of insurance
are wholly or partially exempt from Commission jurisdiction. See
Section 5 (a) (2) of the FTC Act, 15 U.S.C. Sec. 45 (a) (2), and the
McCarran-Ferguson Act, 15 U.S.C. Sec. 1012 (b).
<SUP>4</SUP> 15 U.S.C. Sec. 46 (a). However, the Commission's
authority to conduct studies and prepare reports relating to the
business of insurance is limited. According to 15 U.S.C. Sec. 46 (a):
``The Commission may exercise such authority only upon receiving a
request which is agreed to by a majority of the members of the
Committee on Commerce, Science, and Transportation of the Senate or the
Committee on Energy and Commerce of the House of Representatives. The
authority to conduct any such study shall expire at the end of the
Congress during which the request for such study was made.''
The Commission also has responsibility under approximately forty
additional statutes governing specific industries and practices. These
include, for example, the Truth in Lending Act, 15 U.S.C.
Sec. Sec. 1601 et seq., which mandates disclosures of credit terms, and
the Fair Credit Billing Act, 15 U.S.C. Sec. Sec. 1666 et. seq., which
provides for the correction of billing errors on credit accounts. The
Commission also enforces over 30 rules governing specific industries
and practices, e.g., the Used Car Rule, 16 C.F.R. Part 455, which
requires used car dealers to disclose warranty terms via a window
sticker; the Franchise Rule, 16 C.F.R. Part 436, which requires the
provision of information to prospective franchisees; and the
Telemarketing Sales Rule, 16 C.F.R. Part 310, which defines and
prohibits deceptive telemarketing practices and other abusive
telemarketing practices.
<SUP>5</SUP> The Commission held its first public workshop on
online privacy in April 1995. In a series of hearings held in October
and November 1995, the Commission examined the implications of
globalization and technological innovation for competition issues and
consumer protection issues, including privacy concerns. At a public
workshop held in June 1996, the Commission examined Web site practices
in the collection, use, and transfer of consumers' personal
information; self-regulatory efforts and technological developments to
enhance consumer privacy; consumer and business education efforts; the
role of government in protecting online information privacy; and
special issues raised by the online collection and use of information
from and about children. The Commission held a second workshop in June
1997 to explore issues raised by individual reference services, as well
as issues relating to unsolicited commercial e-mail, online privacy
generally, and children's online privacy.
These efforts have served as a foundation for dialogue among
members of the information industry and online business community,
government representatives, privacy and consumer advocates, and experts
in interactive technology. Further, the Commission and its staff have
issued reports describing various privacy concerns in the electronic
marketplace. See, e.g., Individual Reference Services: A Federal Trade
Commission Report to Congress (December 1997); FTC Staff Report: Public
Workshop on Consumer Privacy on the Global Information Infrastructure
(December 1996); FTC Staff Report: Anticipating the 21st Century:
Consumer Protection Policy in the New High-Tech, Global Marketplace
(May 1996).
The Commission has also brought enforcement actions under Section 5
of the Federal Trade Commission Act to address deceptive online
information practices. In 1998 the Commission announced its first
Internet privacy case, in which GeoCities, operator of one of the most
popular sites on the World Wide Web, agreed to settle Commission
charges that it had misrepresented the purposes for which it was
collecting personal identifying information from children and adults
through its online membership application form and registration forms
for children's activities on the GeoCities site. The settlement, which
was made final in February 1999, prohibits GeoCities from
misrepresenting the purposes for which it collects personal identifying
information from or about consumers, including children. It also
requires GeoCities to post a prominent privacy notice on its site, to
establish a system to obtain parental consent before collecting
personal information from children, and to offer individuals from whom
it had previously collected personal information an opportunity to have
that information deleted. GeoCities, Docket No. C-3849 (Feb. 12, 1999)
(Final Decision and Order available at http://www.ftc.gov/os/1999/9902/
9823015d&o.htm).
In its second Internet privacy case, the Commission recently
announced for public comment a settlement with Liberty Financial
Companies, Inc., operator of the Young Investor Web site. The
Commission alleged, among other things, that the site falsely
represented that personal information collected from children,
including information about family finances, would be maintained
anonymously. In fact, this information was maintained in identifiable
form. The consent agreement would require Liberty Financial to post a
privacy policy on its children's sites and obtain verifiable consent
before collecting personal identifying information from children.
Liberty Financial, Case No. 9823522 (proposed consent agreement
available at http://www.ftc.gov/os/1999/9905/lbtyord.htm).
Since the fall of 1994, the Federal Trade Commission has brought 91
law enforcement actions against over 200 companies and individuals to
halt fraud and deception on the Internet. The FTC has not only attacked
traditional schemes that have moved online, like pyramid and credit
repair schemes, but in addition, the FTC has brought suit against modem
hijacking, fraudulent e-mail marketing, and other hi-tech schemes that
take unique advantage of the Internet. The Commission pioneered the
``Surf Day'' concept and has searched the Net in tandem with law
enforcement colleagues around the world, targeting specific problems
and warning consumers and new entrepreneurs about what the law
requires. The Commission has also posted ``teaser pages'' online, i.e.,
fake scam sites that give consumers education just when they are about
to fall victim to an Internet ruse.
<SUP>6</SUP> The Report is available on the Commission's Web site
at http://www.ftc.gov/reports/privacy3/index.htm.
<SUP>7</SUP> 1998 Report at 41.
<SUP>8</SUP> Title XIII, Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, 112 Stat.
2681, ---------- (Oct. 21, 1998), reprinted at 144 Cong. Rec. H11240-42
(Oct. 19, 1998). The Act requires, inter alia, that operators of Web
sites directed to children under 13 or who knowingly collect personal
information from children under 13 on the Internet: (1) provide parents
notice of their information practices; (2) obtain prior, verifiable
parental consent for the collection, use, and/or disclosure of personal
information from children (with certain limited exceptions); (3) upon
request, provide a parent with the ability to review the personal
information collected from his/her child; (4) provide a parent with the
opportunity to prevent the further use of personal information that has
already been collected, or the future collection of personal
information from that child; (5) limit collection of personal
information for a child's online participation in a game, prize offer,
or other activity to information that is reasonably necessary for the
activity; and (6) establish and maintain reasonable procedures to
protect the confidentiality, security, and integrity of the personal
information collected.
<SUP>9</SUP> 64 Fed. Reg. 22750 (1999) (to be codified at 16 C.F.R.
pt. 312).
<SUP>10</SUP> Commission testimony on Consumer Privacy on the World
Wide Web before the House Subcommittee on Telecommunications, Trade and
Consumer Protection, Committee on Commerce (July 21, 1998) (available
at http://www.ftc.gov/os/1998/9807/privac98.htm). The Commission also
presented a legislative model that Congress could consider in the event
that then-nascent self-regulatory efforts did not result in widespread
implementation of self-regulatory protections. Id. at 5-7.
<SUP>11</SUP> A copy of the Report is attached as an appendix. The
Report is available on the Commission's Web site at www.ftc.gov/
reports/privacy99/index.html.
<SUP>12</SUP> The report is available at http://www.msb.edu/
faculty/culnanm/gippshome.html [hereinafter ``GIPPS Report'']. The
following analysis is based upon the Commission's review of the GIPPS
Report itself; Commission staff did not have access to the underlying
GIPPS data.
<SUP>13</SUP> GIPPS Report, App. A at 5.
<SUP>14</SUP> Id.
<SUP>15</SUP> The GIPPS Report discusses findings on the
information practices of 361 Web Sites drawn from a list of the 7,500
busiest servers on the World Wide Web. The list, a ranking of servers
by number of unique visitors for the month of January 1999, was
compiled by Media Metrix, a site traffic measurement company. As larger
sites are more likely to have multiple servers, the largest sites on
the Web had a greater chance of being selected for inclusion in the
sample drawn for the GIPPS survey. See GIPPS Report, App. A at 2; App.
B at 9 n.iii. The Commission's 1998 Comprehensive Sample was drawn at
random from all U.S., ``.com'' sites in the Dun & Bradstreet Electronic
Commerce Registry, with the exception of insurance industry sites. 1998
Report, App. A at 2. Unlike the Media Metrix list used in the GIPPS
sample, the Dun & Bradstreet Registry does not rank sites on the basis
of user traffic.
<SUP>16</SUP> Online Privacy Alliance, Privacy and the Top 100
Sites: A Report to the Federal Trade Commission at 3, 8 (1999)
(available at http://www.msb.edu/faculty/culnanm/gippshome.html). The
following analysis is based upon the Commission's review of the OPA
Study report itself; Commission staff did not have access to the
underlying OPA Study data.
<SUP>17</SUP> 1998 Report at 28.
<SUP>18</SUP> Ninety-three percent of the sites in the GIPPS
survey, GIPPS Report, App. A at 3, and 99% of the sites in the OPA
Study, OPA Study at 3, 5, collect personal information from consumers.
<SUP>19</SUP> The GIPPS results show that thirty-six sites in the
sample (or 10%) posted at least one survey element, or disclosure, for
each of the four substantive fair information practices. GIPPS Report
at 10 and App. A at 12 (Table 8C). Thirty-two of these sites (or 8.9%)
also posted contact information. Id. Georgetown University Professor
Mary Culnan, author of the GIPPS Report, reports the number of sites
posting disclosures for the four substantive fair information practice
principles and for contact information in two additional ways: as a
percentage of sites in the sample that collect at least one type of
personal information (9.5%); and as a percentage of sites in the sample
that both collect at least one type of personal information and post a
disclosure (13.6%). GIPPS Report, App. A at 12 (Table 8C).
<SUP>20</SUP> Twenty-two sites in the OPA Study (or 22%) posted at
least one survey element, or disclosure, for each of the four
substantive fair information practices. OPA Study at 9-10 and App. A at
10 (Table 6C). Nineteen of these sites (or 19%) also posted contact
information. Id. Professor Culnan also reports the number of sites
posting disclosures for the four substantive fair information practice
principles in two additional ways: as a percentage of sites in the
sample that collect at least one type of personal information (22.2%);
and as a percentage of sites in the sample that both collect at least
one type of personal information and post a disclosure (23.7%). OPA
Study, App. A at 10 (Table 6C).
<SUP>21</SUP> The Commission's 1998 Report discussed the fair
information practice principles developed by government agencies in the
United States, Canada, and Europe since 1973, when the United States
Department of Health, Education, and Welfare released its seminal
report on privacy protections in the age of data collection, Records,
Computers, and the Rights of Citizens. 1998 Report at 7-11. In addition
to the HEW Report, the major reports setting forth the core fair
information practice principles are: The U.S. Privacy Protection Study
Commission, Personal Privacy in an Information Society (1977);
Organization for Economic Cooperation and Development, OECD Guidelines
on the Protection of Privacy and Transborder Flows of Personal Data
(1980); U.S. Information Infrastructure Task Force, Information Policy
Committee, Privacy Working Group, Privacy and the National Information
Infrastructure: Principles for Providing and Using Personal Information
(1995); U.S. Dept. of Commerce, Privacy and the NII: Safeguarding
Telecommunications-Related Personal Information (1995); The European
Union Directive on the Protection of Personal Data (1995); and the
Canadian Standards Association, Model Code for the Protection of
Personal Information: A National Standard of Canada (1996). The 1998
Report identified the core principles of privacy protection common to
these government reports, guidelines, and model codes: (1) Notice/
Awareness; (2) Choice/Consent; (3) Access/Participation; (4) Integrity/
Security; and (5) Enforcement/Redress. 1998 Report at 7-11.
The Notice/Awareness principle is the most fundamental: consumers
must be given notice of a company's information practices before
personal information is collected from them. The scope and content of
the notice will vary with a company's substantive information
practices, but the notice itself is essential. The other core
principles have meaning only if a consumer has notice of an entity's
information practices and his or her rights with respect thereto. Id.
at 7.
The Choice/Consent principle requires that consumers be given
options with respect to whether and how personal information collected
from them may be used. Although choice in this context has been
traditionally thought of as either ``opt-in'' (prior consent for use of
information) or ``opt-out'' (limitation upon further use of
information), id. at 9, interactive media hold the promise of making
this paradigm obsolete through developments in technology. Id. The
Access/Participation principle requires that consumers be given
reasonable access to information collected about them and the ability
to contest that data's accuracy and completeness. Id.
The Integrity/Security principle requires that companies take
reasonable steps to assure that information collected from consumers is
accurate and secure from unauthorized use. Id. at 10. Finally, the
effectiveness of the foregoing privacy protections is dependent upon
implementation of the Enforcement/Redress principle, which requires
governmental and/or self-regulatory mechanisms to impose sanctions for
noncompliance with fair information practices. Id. at 10-11. The 1998
Report assessed existing self-regulatory efforts in light of these fair
information practice principles.
<SUP>22</SUP> Information about TRUSTe is taken from materials
posted on TRUSTe's Web site, http://www.truste.org, and from public
statements by TRUSTe staff. Several hundred additional companies have
joined the TRUSTe program but are not yet fully licensed. See ``TRUSTe
Testifies Before House Judiciary Committee,'' May 27, 1999 (press
release available at http://www.truste.org/about/about--
committee.html).
<SUP>23</SUP> Information about BBBOnline is taken from materials
posted on the BBBOnline Web site, located at http://www.bbbonline.com,
and from other public documents and statements by BBBOnLine staff.
<SUP>24</SUP> CPA WebTrust, the online privacy seal program created
by the American Institute of Certified Public Accountants (AICPA) and
the Canadian Institute of Chartered Accountants, currently has 19
licensees (program description available at http://
www.cpawebtrust.org). The Electronic Software Rating Board's ESRB
Privacy Online program was launched on June 1, 1999 (description
available at http://www.esrb.org).
[GRAPHIC] [TIFF OMITTED] T8511.001
[GRAPHIC] [TIFF OMITTED] T8511.002
[GRAPHIC] [TIFF OMITTED] T8511.003
[GRAPHIC] [TIFF OMITTED] T8511.004
[GRAPHIC] [TIFF OMITTED] T8511.005
[GRAPHIC] [TIFF OMITTED] T8511.006
[GRAPHIC] [TIFF OMITTED] T8511.007
[GRAPHIC] [TIFF OMITTED] T8511.008
[GRAPHIC] [TIFF OMITTED] T8511.009
[GRAPHIC] [TIFF OMITTED] T8511.010
[GRAPHIC] [TIFF OMITTED] T8511.011
[GRAPHIC] [TIFF OMITTED] T8511.012
[GRAPHIC] [TIFF OMITTED] T8511.013
[GRAPHIC] [TIFF OMITTED] T8511.014
[GRAPHIC] [TIFF OMITTED] T8511.015
[GRAPHIC] [TIFF OMITTED] T8511.016
[GRAPHIC] [TIFF OMITTED] T8511.017
[GRAPHIC] [TIFF OMITTED] T8511.018
[GRAPHIC] [TIFF OMITTED] T8511.019
[GRAPHIC] [TIFF OMITTED] T8511.020
[GRAPHIC] [TIFF OMITTED] T8511.021
Mr. Tauzin. Thank you, Mr. Chairman.
The Chair is now pleased to welcome for his opening
statement Commissioner Orson Swindle.
STATEMENT OF ORSON SWINDLE
Mr. Swindle. Thank you, Mr. Chairman. I appreciate the
opportunity to speak before the committee and Mr. Markey and
the rest of the committee members. I voted to submit ``Self-
Regulation and Privacy Online: A Report'' to Congress because
it ultimately reaches what I believe to be the correct and
obvious conclusion, that no legislative action at this time is
required.
I do not believe, however, that the report accurately
reflects reality. Strangely, the unfavorable 1998 FTC study
results are prominently described in the first seven pages of
the report while the current and more favorable 1999 Georgetown
survey results are only briefly mentioned in the middle of the
report. In my mind, the report is a good example of damning
with faint praise.
Second, the report overemphasizes the failure of industry
to sufficiently implement all elements of comprehensive fair
information practices, and I happen to agree with those
practices, which the Commission first articulated only a year
ago.
Third, the report only sparingly mentions the leadership on
privacy issues that IBM, Microsoft, Disney, AOL, The Direct
Marketing Association, privacy seal organizations and many
others in the private sector have demonstrated over the past
year. The no legislative action recommendation appears at the
very end of the report, almost as if the recommendation was
some trivial afterthought.
The report should have emphasized prominently and in the
beginning that cooperative and creative efforts by a public-
private partnership have achieved substantial progress and will
achieve more progress far more quickly than more laws and more
regulation. I think significant progress has been made on the
privacy issue. However, we must strive for more. We all
recognize that.
More laws and regulations are not the answers. Industry,
privacy and consumer advocates, and the Commission will make
further progress by continuing to work hard and work together.
I would caution industry that there are many in Congress and
the government eager and willing to regulate the industry on
privacy matters. Industry, both large and small, must continue
to lead the way if it wishes to have the freedom to adopt
privacy policies and practices in response to market incentives
rather than government regulation.
Last month, the University of Texas Business School
introduced a study of the current status of electronic
commerce. It was one of the very first attempts to measure this
thing that we talk about as the Internet economy. According to
the study sponsored by Cisco Systems, the Internet economy
generated an estimated $301 billion in revenue in 1998 and was
responsible for the creation of over 1.2 million jobs. The
Internet economy is already bigger than the energy industry,
the telecommunications industry, and almost as big as the
automobile industry. Retail Internet commerce is tripling
annually. Obviously, consumers are not inching timidly into
this new form of choice in purchasing.
As John Chambers, the CEO of Cisco Systems commented, ``We
need to be very careful not to rush in and really stifle the
opportunity this gives our country in terms of job growth and
economic growth by applying old world regulations to this new
world.'' I could not agree with him more.
In our deliberations as law makers and regulators, let us
remember first, do no harm.
Thank you, Mr. Chairman. I look forward to answering
questions.
[The prepared statement of Hon. Orson Swindle follows:]
Prepared Statement of Hon. Orson Swindle, Commissioner, Federal Trade
Commission
Mr. Chairman, Members of the Committee, thank you for the
opportunity to testify today.
I voted to submit ``Self-Regulation and Privacy Online: A Report''
(the ``Report'') to Congress because it ultimately reaches the correct
and obvious conclusion: no legislative action is necessary at this
rime.
I do not believe, however, that the Report accurately reflects
reality. Strangely, the unfavorable 1998 FTC Study results are
prominently described in the first seven pages of the Report, while the
current and favorable 1999 Georgetown Survey results are only briefly
mentioned in the middle of the Report. The Report is a good example of
damning with faint praise.
Second, the Report overemphasizes the failure of industry to
sufficiently implement all elements of comprehensive ``fair information
practices,'' which the Commission first articulated in detail only last
year.
Third, the Report only sparingly mentions the leadership on privacy
issues that IBM, Microsoft, Disney, AOL, The Direct Marketing
Association, privacy seal orga-
nizations, and many others in the private sector have demonstrated over
the past year.
The ``no legislative action?'' recommendation appears at the very
end of the Report, almost as if the recommendation were some trivial
afterthought. The Report Should have emphasized prominently that
cooperative and creative efforts by a public-private partnership have
achieved substantial progress and will achieve more progress far more
quickly than will more laws and regulations.
I think significant progress has been made on the privacy issue.
However, we must strive for more. More laws and regulation are not the
answers. Industry, privacy and consumer advocates, and the Commission
will make further progress by continuing to work hard and work
together. I would caution industry that there are many in Congress and
government eager and willing to regulate. Industry, both large and
small, must continue to lead the way if it wishes to have the freedom
to adopt privacy policies and practices in response to market
incentives rather than government regulation.
Last month, the University of Texas Business School introduced a
study of the current status of electronic commerce--one of the very
first attempts to measure the Internet economy. According to the study,
sponsored by Cisco Systems, the Internet economy generated an estimated
$301 billion in revenue in 1998 and was responsible for over 1.2
million jobs.\1\
---------------------------------------------------------------------------
\1\ These estimates are based on worldwide sales of Internet-
related products and services by U.S.-based companies.
---------------------------------------------------------------------------
The Internet economy is already bigger than the energy industry
($230 billion) or the telecommunications industry ($270 billion) and is
almost as big as the automobile industry ($350 billion). Retail
Internet commerce is tripling annually. Obviously, consumers are not
inching timidly into this new form of choice and purchasing.
As John Chambers, CEO of Cisco Systems Inc., commented, ``We need
to be very careful not to rush in and really stifle the opportunity
this gives our country in terms of job growth and economic growth by
applying old-world regulations to this new world.'' I could not agree
more.
In our deliberations as lawmakers and regulators, let us remember
first: ``Do no harm.''
Mr. Tauzin. Thank you, Commissioner Swindle.
Now, the Chair is pleased to welcome Commissioner Anthony
for her opening statement. Would you please pass the mike to
her, Mr. Swindle? Thank you. Ms. Anthony.
STATEMENT OF HON. SHEILA F. ANTHONY
Ms. Anthony. Mr. Chairman, members of the subcommittee,
thank you for holding this hearing today on an issue of great
importance to the American people. As the commission's report
states, only 10 percent of the well-traveled sites on the
Internet in a recent survey had privacy disclosures that cover
all four substantive information practices of notice, consent,
access, and security.
Even among the top 100 most frequently visited Internet
sites, only some 20 percent have privacy disclosures addressing
these four principles. This chart illustrates the substantial
gap that exists between the online collection of personal
information in which 93 to 99 percent of the surveyed companies
engaged, and the opportunity of customers, consumers, to
transact their online business under notice, consent, access,
and security. Some industry leaders have taken significant
efforts to protect online privacy. To name a few, they are
Disney Online, IBM, Microsoft, AT&T, Eastman Kodak, Dell
Computer, Fox Broadcasting, the Boston Globe, the San Francisco
Chronicle, the Wall Street Journal, CyberBills, Educational
Communications, Inc., and worldtravelcenter.com.
Mr. Tauzin. And the Commerce Committee.
Ms. Anthony. And the Commerce Committee and the FTC. In
addition, the seal programs show promise. But some companies
have made a business out of collecting, buying and selling
individually identifiable information. I was shocked to
discover shortly after I joined the Commission that at least
one of the several information brokers operating in the
marketplace had my name, my husband's name, our Social Security
numbers, our address, the value of our home, the years in which
our Social Security numbers were issued, our mothers' maiden
names, the address where we lived before coming to Washington
in 1978, our two daughters' names, their husbands' names, their
Social Security numbers, their addresses at every place they
had lived, and even our 3-year-old grandchild's name and Social
Security number. I might add there were several mistakes in
this report.
We in the government, especially those of us who have gone
through a confirmation process or you who have stood through
election are accustomed of having your lives laid bare. But
most Americans are not and do not want to. The studies of which
I am aware consistently show a high level of concern about
online privacy. For example, a study just released by Harvard,
MIT, AT&T Labs and the University of California, Irvine, in
April found that 87 percent of Internet users were concerned
about personal privacy threats. One year ago, these online
privacy concerns were held by 81 percent of Internet users. So
over the years, public concern has increased not decreased as
shown plainly by this chart.
I respectfully disagree with my colleagues in that I
believe the time is ripe for Congress to enact Federal
legislation to protect online consumer privacy, at least to the
extent of providing minimum Federal standards. As a whole,
industry progress has been far too slow since the Commission
first began encouraging the adoption of voluntary fair
information practices in 1996.
Notice, while an essential first step, is not enough if the
privacy policies themselves are toothless. I do believe that
Congress is the appropriate place for the debate about this
issue, and I notice that there are several bipartisan online
privacy bills pending in both the House and the Senate, at
least one, by members of this committee. These bills can serve
as starting points to craft balanced privacy legislation.
I am concerned without widespread implementation of fair
information practices on commercial web sites and absent
effective privacy protections, several results are inevitable.
First, the dissatisfaction of the American people will grow in
pitch and intensity as it has in the past.
Second, a patchwork of State laws to protect online privacy
will emerge. Several States, for example California,
Connecticut, Delaware, Washington, and Maine have moved in that
direction. Consider the confusing environment that could result
for consumers, online marketers, and the courts under such a
patchwork.
Third, consumer confidence will be undermined which will
hinder the advancement of electronic commerce and trade.
Sometimes the personal information such as health and financial
information will require heightened security and protection.
Without the widespread adoption of fair information practices,
however, not even an across-the-board minimum standard of
protection exists.
Let me conclude by saying that I am troubled by the results
of the Georgetown surveys that show much less progress than I
had hoped. I am pleased to say the Commission will continue its
involvement in the privacy area, and our report sets out a
number of initiatives for the coming year.
Thank you for the opportunity to share my views.
[The prepared statement of Hon. Sheila F. Anthony follows:]
Prepared Statement of Hon. Sheila F. Anthony, Commissioner, Federal
Trade Commission
Mr. Chairman and members of the Subcommittee on Telecommunications,
Trade, and Consumer Protection, I am delighted to be here this morning,
and I appreciate your holding this hearing today to address a topic of
extreme importance to the American people. I will speak briefly about
online privacy protection.
As the Commission's 1999 report to Congress states, only 10% of
well-traveled Internet sites in a recent survey have privacy
disclosures that speak to all four substantive fair information
practice principles of notice, consent, access, and
security.<SUP>1</SUP> Even among the top 100 most frequently visited
Internet sites, only some 20% have privacy disclosures addressing these
four principles.<SUP>2</SUP>
---------------------------------------------------------------------------
\1\ Federal Trade Commission, Self-Regulation and Privacy Online: A
Report to Congress, 7 n.10. (July 1999) [hereinafter Report].
\2\ Report at 7 n.42; see FIPs Compliance Gap, chart infra.
---------------------------------------------------------------------------
Last year I was asked to grade the online privacy performance of
the industry as a whole. I generously gave industry a D+.<SUP>3</SUP> I
expected industry's performance to substantially improve.
---------------------------------------------------------------------------
\3\ Statement of the Honorable Sheila F. Anthony before the House
of Representatives, Committee on Commerce, Subcommittee on
Telecommunications, Trade, and Consumer Protection (July 21, 1998).
---------------------------------------------------------------------------
Some industry leaders have undertaken significant efforts to
protect online privacy, including Disney Online, IBM, Microsoft, AT&T,
Eastman Kodak, Dell Computer, Fox, the Boston Globe, the San Francisco
Chronicle, the Wall Street Journal, CyberBills, Educational
Communications, Inc., and Worldtravelcenter.com. In addition, the seal
programs show promise. But some companies have made a business out of
collecting, buying, and selling individually identifiable information
online.
I was shocked to discover, shortly after I joined the Commission,
that at least one of the several ``information brokers'' operating in
the marketplace had my name and my husband's name, our address, the
value of our house, our social security numbers, the year they were
issued, our mothers' maiden names, the address where we lived before
coming to Washington in 1978, our two daughters' names, their husbands'
names, their social security numbers, every address where they had
lived, and even our 3-year-old grandchild's name and social security
number. I might add that there were several mistakes in that report on
me.
We in the government, and especially those of us who have
experienced a confirmation process or you who have stood for election,
know what it is to have our private lives laid bare. But most Americans
do not, nor do they want to.
I am disappointed that sufficient progress by industry as a whole
has not been made toward the protection of online privacy under a self-
regulatory approach. Such a lack of progress is surprising, given the
Commission's clear articulation of fair information practice principles
in our 1998 Online Privacy Report. Even prior to my arrival at the
Commission, the Agency had encouraged industry to adopt voluntary fair
information practices.<SUP>4</SUP> Indeed, Secretary of Commerce Brown
plainly expressed the fair information principles of notice and consent
as long ago as 1995.<SUP>5</SUP> The self-regulatory environment has
not advanced the ball as far as I would have expected. Thus, consumer
privacy remains an issue about which 87% of online Americans, including
me, are extremely concerned.
---------------------------------------------------------------------------
\4\ Federal Trade Commission Letter to Senator John McCain 6 n.2
(July 31, 1997).
\5\ Ronald H. Brown, U.S. Department of Commerce, Privacy and the
NII: Safeguarding Telecommunications-Related Personal Information pt.
III.A-B(Oct. 1995), available at National Telecommunications and
Information Administration, Privacy and the NII: Safeguarding
Telecommunications-Related Personal Information (visited June 23, 1999)
<http://www.ntia.doc.gov/ntiahome/ privwhitepaper.html> at 13-16.
---------------------------------------------------------------------------
Privacy is ``one of our most cherished freedoms.'' <SUP>6</SUP> Too
often, however, the debate about privacy and the protection of personal
information that is surreptitiously gathered takes on an ethereal
quality and looks for proof of direct harm. Direct harm is not
necessary to justify fair information practices, but is evident, for
example, in cases of cyberstalking and identity theft.
---------------------------------------------------------------------------
\6\ Statement of President Clinton, Morgan State University (May
18, 1997), available at The White House, Commencement Address by the
President at Morgan State University (May 18, 1997) http://
www.pub.whitehouse. gov/ uri-res/I2R?urn:pdi://oma.eop.gov.us/1997/5/
19/1.text.1.
---------------------------------------------------------------------------
The American public deeply values its privacy, quite apart from
notions of direct harm. The studies of which I am aware consistently
show a high level of concern about online privacy. For example, a study
just released by Harvard, MIT, AT&T Labs, and the University of
California-Irvine in April found, as I mentioned earlier, that 87% of
Internet users were concerned about personal privacy
threats.<SUP>7</SUP> One year ago these online privacy concerns were
held by 81% of Internet users.<SUP>8</SUP> So, over the years public
concern has increased, not decreased.<SUP>9</SUP>
---------------------------------------------------------------------------
\7\ Lorrie Faith Cranor et al., Beyond Concern: Understanding Net
Users' Attitudes About Online Privacy, Research Technical Report, TR
99.4.3 (Apr. 14, 1999), available at AT&T Labs, Beyond Concern:
Understanding Net Users' Attitudes About Online Privacy 3, 5-6 (visited
June 22, 1999) <http://www.research.att. com/library/trs/TRs/99/99.4/
99.4.3/report.htm [hereinafter AT&T Labs].
\8\ See id., available at AT&T Labs, supra note 7, at 4.
\9\ See Growing Public Concern, chart infra; Cranor, supra note 7,
available at AT&T Labs, supra note 7, at 5-6 (1999 figure); Louis
Harris & Associates, Privacy & American Business, summarized in Privacy
Exchange, Consumers & Credit Reporting 1994 (visited July 6, 1999)
<http:www.privacyexchange.org/iss/surveys/con--cre. html> at 1 n.1
(1993 figure); Louis Harris & Associates, The Road After 1984,
summarized in Equifax, Equifax Executive Summary 1990 (visited July 6,
1999) <http:www.privacyexchange.org/iss/surveys/eqfx.execsum.1990.
html> at 1 (1983 figure); Louis Harris & Associates, Dimensions of
Privacy, summarized in Equifax, Equifax Executive Summary 1990, supra,
at 1 (1978 figure).
---------------------------------------------------------------------------
In reporting on the status of self-regulation and online privacy
protection, the Commission has fulfilled its promises to collect
information regarding online privacy and provide a response to the
Congress.<SUP>10</SUP> I respectfully disagree with my colleagues in
that I believe that the time is ripe for Congress to enact federal
legislation to protect online consumer privacy, at least to the extent
of providing minimum federal standards. As a whole, industry progress
has been far too slow since the Commission first began encouraging the
adoption of voluntary fair information practices in 1996.<SUP>11</SUP>
Notice, while an essential step, is not enough if the privacy practices
themselves are toothless. I do believe that Congress is the appropriate
place for the debate on the online protection of consumer privacy, and
I note that several bipartisan online privacy bills are pending in both
the House and the Senate, including at least one by members of this
Committee. These bills can serve as starting points to craft balanced
privacy legislation.
---------------------------------------------------------------------------
\10\ See Letter to Senator McCain, supra note 4; Federal Trade
Commission, Privacy Online: A Report to Congress (June 1998).
\11\ See Federal Trade Commission, Public Workshop on Consumer
Privacy on the Global Information Infrastructure, Staff Rept. (Dec.
1996).
---------------------------------------------------------------------------
I am concerned that, without widespread implementation of fair
information practices on commercial Web sites and absent effective
privacy protections, several results are inevitable. First, the
dissatisfaction of the American people will grow, as it has in the
past, in both pitch and intensity.
Second, I am concerned that a patchwork of state laws to protect
online privacy will emerge. Several states, for example, California,
Connecticut, Delaware, Washington, and Maine, have moved in that
direction.<SUP>12</SUP> Consider the confusing environment that could
result for consumers, online marketers, and the courts under such a
legal patchwork.<SUP>13</SUP>
---------------------------------------------------------------------------
\12\ See, e.g., Conn. H. B. 6895, File No. 608, as amended by House
Amendment Schedule A (reissued and approved by Legislative Commissioner
on May 7, 1999) (passing law to prohibit state from requiring social
security numbers of voter registrars); Cal. S.B. 417, Supermarket Club
Card Disclosure Act of 1999 (heard June 15, 1999 by Assembly Committee
on Consumer Protection, Governmental Efficiency & Economic
Development); Del. H.B. 100 (House concurred in Senate amendments with
additional amendments and forwarded bill to Senate for concurrence on
June 17, 1999) (making videography or photography where reasonable
expectation of privacy exists a felony); Wash. H.B. 2220 (to House
Committee on Criminal Justice and Corrections on Feb. 22, 1999),
amending ch. 9.73 RCW (making visual surveillance where reasonable
expectation of privacy exists a misdemeanor); see also Thomas Shapley,
A Move to Ban Videos that Invade Privacy, Seattle Post-Intelligencer,
Mar. 2, 1999, available at Seattle Post-Intelligencer, Seattle PI-Plus
(visited June 24, 1999) <http://www.seattle-pi.com/local/peep02.
shtml>; Maine S.P. 93--L.D. 232--P.L. 17 (interim enactment on Mar. 19,
1999), amending Sec. 1 20-A MRSA Sec. 6001, as amended by P.L. 1989, c.
911 Sec. 1.
\13\ The point about courts goes to establishing a uniform legal
standard of a ``legitimate expectation of privacy.'' See, e.g., Smith
v. Maryland, 442 U.S. 735, 735 (1979).
---------------------------------------------------------------------------
Third, I am concerned that the absence of online privacy
protections will continue to undermine consumer confidence and hinder
the advancement of electronic commerce and trade, specifically of trade
with the European Union and its 320 million consumers. Some types of
personal information, such as health and financial information, will
require heightened privacy protections. Without the widescale adoption
of fair information practices, however, not even an across-the-board
minimum standard of protection exists.
Let me conclude by saying that I am troubled by the results of the
Georgetown surveys that show much less progress than I had hoped. I am
pleased to say that the Commission will continue its involvement in the
privacy arena, and our report sets out a number of initiatives for the
coming year.
Thank you for the opportunity to share my views.
[GRAPHIC] [TIFF OMITTED] T8511.022
[GRAPHIC] [TIFF OMITTED] T8511.023
Mr. Tauzin. Thank you, Commissioner Anthony.
Following is the Honorable Mozelle Thompson of the Federal
Trade Commission. Commissioner Thompson.
STATEMENT OF HON. MOZELLE W. THOMPSON
Mr. Thompson. Good morning, Mr. Chairman. I also thank the
committee for allowing us to appear this morning.
Today we discuss the FTC's latest report on online privacy.
Almost exactly a year ago, we appeared before this committee to
discuss the state of that issue. At that time, we noted that
consumer's confidence that their personal information would not
be misused was a key element for gaining consumer acceptance
for the electronic marketplace. Yet we were disappointed about
industry progress.
I specifically voiced my concerns about coverage, the
breadth of total web sites actually posting privacy policies,
and the development and implementation of enforcement
mechanisms. Those concerns remain. Now 1 year later, I find the
record of progress mixed.
If we are going to be a leader in a global system of
electronic commerce and e-commerce is going to continue to lead
our new economy, we must reach collective understanding on
principles that will provide consumers with the confidence that
they need to accept e-commerce as a way of life. I would point
out that the Commission is already on record in our testimony
last July as to the exact elements we consider necessary to
ensure fair information practices.
During the past year, industry leaders have expended
substantial effort to build self-regulatory programs. They
should be commended for their efforts and encouraged to
buildupon them. However, as the Georgetown and OPA studies
clearly show, while many leading online companies understand
the business case for protecting consumer privacy, the
implementation of their information practices is not widespread
among commercial web sites.
In fact, a mere 10 percent of the companies in the
Georgetown survey have done so. Although the OPA does not audit
its members for compliance with privacy guidelines, the results
of its own studies show that only 22 percent of the top 100 web
sites, most of which are OPA members, have implemented all four
elements of fair information practices. These findings suggest
that even these industry leaders are only slowly rising to the
challenge they have set.
As our report suggests, the important challenges to be
addressed include reaching those businesses that have not taken
steps to protect consumer privacy, especially small- and
medium-sized businesses that will provide the real base for
real growth in e-commerce and encouraging widespread adoption
of all of the information practices including educating
consumers about the value of self-regulatory efforts. The
workshops and other activities that the Commission has planned
for the coming months are designed to help us pinpoint specific
problem areas for action. Congressional review of privacy
issues is also helpful in this regard, and I feel strongly that
there is a value to continued hearings and debate about
legislative proposals.
And so, despite my concerns about the pace of industry
progress, I believe it may be more appropriate to defer
decision on legislative action until our newly developed agenda
sheds more light on these issues. I continue to be hopeful that
industry can solve this problem. The recent initiatives by IBM,
Microsoft, Disney, and others on Internet advertising are steps
in the right direction. But I would ask the industry redouble
its efforts to develop effective technological tools that
consumers can use to safeguard their own privacy online because
even well-crafted legislation will not achieve 100 percent
compliance. Ideally, easy to use technology will empower
consumers by allowing them to predetermine the circumstances
under which they will share personal information. I am pleased
to note that one of our proposed workshops for the coming
months deals specifically with this issue.
In sum, achieving a robust level of privacy protection will
require cooperation between industry, government, and
consumers. While we have chosen to let industry lead in solving
this public policy problem, public confidence in electronic
commerce will erode if they fail to live up to the challenge.
Ultimately, government officials like us are directly
accountable to the public, and we must also continue to play a
role in shaping solutions. In any case, the FTC will continue
to pursue its enforcement role against those who deceive
consumers by misusing personal data.
So has progress been made since the last report to
Congress? Absolutely. Have we solved the problem of online
privacy? No. But I believe that self-regulation will succeed
only if industry acts on the specific shortcomings that these
recent studies document. Moreover, Congress, the
administration, and others must remain vigilant and should not
foreclose the possibility of legislative and regulatory action
if we cannot make swift and significant additional progress.
Thank you.
[The prepared statement of Mozelle W. Thompson follows:]
Prepared Statement of Hon. Mozelle W. Thompson, Commissioner, Federal
Trade Commission
I am pleased to appear before the Commerce Committee with my fellow
Commissioners to discuss the FTC's latest report on online privacy. As
you are aware, the Commission has spent much time and energy working on
this issue, and each of us thought it important to share our individual
views and insights.
Almost exactly one year ago, we appeared before this Committee to
discuss the state of on-line privacy. At that time, we noted that
consumers' confidence that their personal information would not be
misused was a key element for gaining consumer acceptance for the
electronic marketplace; yet, we were ``disappointed'' about industry
progress. I specifically voiced my concerns about coverage (i.e., the
breadth of total web sites actually posting privacy policies) and the
development and implementation of enforcement mechanisms. Now, one year
later (and three years after the FTC first started working with
industry on Internet issues), I find the record of progress is mixed.
If we are going to be the leader in a global system of electronic
commerce, and e-commerce is going to continue to lead our ``New
Economy'', we must reach a collective understanding on principles that
will provide consumers with the confidence they need to accept e-
commerce as a way of life. And I would point out that the Commission is
already on record in our testimony of last July as to the exact
elements that we consider necessary to ensure fair information
practices.
During the past year, industry leaders have expended substantial
effort to build self regulatory programs. They should be commended for
these efforts and encouraged to build upon them. However, as the
Georgetown and OPA studies clearly show, while many leading online
companies understand the business case for protecting consumer privacy,
the implementation of fair information practices is not widespread
among commercial web sites. In fact, a mere ten percent of companies in
the survey have done so. Although the OPA does not audit its members
for compliance with its privacy guidelines, the results of its own
study show that only 22 percent of the top 100 web sites (most of which
are OPA members) have implemented all four elements of fair information
practices. These findings suggest that even these industry leaders are
only slowly rising to the challenge they have set.
As our report suggests, the most important challenges to be
addressed include:
1) Reaching those businesses which have not taken steps to protect
consumer privacy, especially small and medium-sized businesses
which will provide the base for real growth in e-commerce; and
2) Encouraging widespread adoption of all of the fair information
practices, including educating consumers about the value of
these self-regulatory efforts.
The workshops and other activities the Commission has planned for
the coming months are designed to help us pinpoint specific problem
areas for action. Congressional review of privacy issues is also
helpful in this regard and I feel strongly that there is a value to
continued hearings and debate about legislative proposals. And so,
despite my concerns about the pace of industry progress on privacy, I
believe that it may be more appropriate to defer a decision on
legislative action until our newly developed agenda sheds more light on
these issues.
I continue to be hopeful that industry can solve this problem.
Recent initiatives by IBM, Microsoft and Disney on Internet advertising
are steps in the right direction. I would also ask industry to redouble
its efforts to develop effective technology tools that consumers can
use to safeguard their own privacy on line, because even well-crafted
legislation will not achieve 100 percent compliance with fair
information practices. Ideally, easy-to-use technology will empower
consumers by allowing them to predetermine the circumstances under
which they will share personal information. I am pleased to note that
one of our proposed workshops for the coming months deals specifically
with these issues.
In sum, achieving a robust level of privacy protection will require
cooperation between industry, government and consumers. While we have
chosen to let industry lead in solving this public policy problem,
public confidence in electronic commerce will erode if they fail to
live up to the challenge. Ultimately, government officials like us are
directly accountable to the public and we must also continue to play a
role in shaping solutions to the privacy problem. In any case, the FTC
will continue to pursue its enforcement role against those who deceive
consumers by misusing their personal information.
Has progress been made since our last report to Congress?
Absolutely. Have we solved the problem of online privacy? Of course
not. But, I believe that self-regulation will succeed only if industry
acts on the specific shortcomings that these recent studies document.
Moreover, Congress and the Administration must remain vigilant and
should not foreclose the possibility of legislative and regulatory
action if we cannot make swift and significant additional progress.
Mr. Tauzin. Thank you, Commissioner Thompson.
Let me ask you all quickly now what I had asked you to do
at the beginning. Starting with you, Mr. Chairman, you gave the
industry a considerable room for improve grade last year. What
do you give them this year?
I am sorry, you gave them an incomplete.
Mr. Pitofsky. I have to break it down in two ways. If the
question is how much progress they have made over the last
year, I would give them a pretty good grade. I would give them
a B plus, maybe even better than that. If the question is are
we there yet, do we have a privacy policy that is acceptable to
all of us, I would still say they are down around a C, and
there is a long way to go.
Mr. Tauzin. Let's go to you, Mr. Swindle. You gave them a
rising D last year.
Mr. Swindle. Yes, sir. And I agree with the chairman on his
assessment and would point out that we will get there. I think
the cooperation between industry and consumer privacy groups
and the FTC in our role as regulators and enforcers, will get
us there.
Mr. Tauzin. You gave them an overall C with a B plus for
improvement. Ms. Anthony, you gave them a D plus last time,
barely passing.
Ms. Anthony. This year I would give the leaders of the
class, the industries whose names I mentioned this morning and
others who have adopted all four information practices an A.
They deserve it. They have stepped up to the plate. Industry as
a whole still gets get a D plus in my view.
Mr. Tauzin. Mr. Thompson, you said considerable room for
improvement. I have seen that in my report a few times. What
does that mean? Are you prepared to raise that grade?
Mr. Thompson. I would give them a C minus. While I still
think there are some industry leaders, unfortunately from a
consumer's perspective, the industry is going to be judged by
its totality and not necessarily by its individuals.
Mr. Tauzin. The reason I did this, of course, is because it
kind of--perhaps as we go through these hearings it kind of
gauges for us where you see the progress of the industry and
where it is currently positioned.
Let me first thank Chairman Pitofsky and all of you, the
commissioners of the FTC, for the work that you are doing. I
think the oversight, consumer education forums, I think are
critical elements of industry progress. Much of the progress
that I think that you have cited today can be attributed to the
fact that you are doing such good work, and I want to commend
you for it and encourage you.
Let me ask you in that regard. In that, 66 percent of the
sites now have at least some notice policy, that notice may say
that we collect no information or it may say we collect it and
here is our policy. In regard to that--and Mr. Chairman, you
sort of agreed with Mr. Markey that the four elements of a good
notice policy would be notice, consent, access, and security.
Has anyone--the seal organizations or OPA--has anyone ever
considered doing what the old Siskel and Roberts thing used to
do with movies? Some kind of rating system, but not a
Government imposed one; a private rating system so that
consumers have an easy way of gauging whether or not this is a
good privacy policy or a bad one? For example, a four star
system for those that have all four elements or three stars
that have all three out of the four?
If we are going to have self-regulation, if consumers are
going to look at these notices and make judgments about whether
there is a site they want to trust, this is a business they
want to deal with, this is a service provider who is literally
helping them deal with companies or firms to which they can
trust for their information, should there be a simple way for
them to gauge how well or how good that industry is, in fact,
performing on a privacy policy? Is that a good idea, or is that
something you would encourage in the private industry? Mr.
Pitofsky.
Mr. Pitofsky. On your first question, I don't really know
what every one of these seal groups--there must be almost a
half dozen of them now. I think as to most of them, the ones
that I know the best, I would grade them on a pass-fail basis.
Either you get the seal or you don't get the seal. The seal is
an indication that people are abiding by the information
practices.
Is it a good idea? I'm not sure.
I certainly think that the pass/fail with monitoring and
enforcement is critical. If you want to go further than that,
two stars, three stars, four stars, it wouldn't hurt. The more
information in the marketplace, the better off consumers are. I
guess I would think it is a good approach. I would be concerned
about administration, who is going to make these decisions
between two stars and three stars. It may be that it is easier
and better and adequate to go pass/fail.
Mr. Tauzin. In regards to--Siskel and Ebert. I don't know
why I said Roberts.
The concern that some have expressed about the bad players,
and assuming everybody continues to make progress, but there
are still some bad players out there who just refuse to put up
a notice policy, refuse to put up any privacy. Some will say,
well, then, let the consumer beware. If there is no notice
policy, don't deal with those people.
Others would say that there ought to be some fallback, some
safety net to make sure that those individuals who will not
agree to be part of the online privacy organization or the
alliance part of one of the seal programs, there ought to be
some sort of fallback requirement for someone who refuses to
submit to self-regulation within the industry.
What are your thoughts on that?
Mr. Pitofsky. Let me start, and then I will ask my
colleagues to pitch in. That is a problem with self-regulation
in every sector of the economy. No matter how good self-
regulation is, there are a few sellers who will just ignore it.
You don't get 100 percent law enforcement either when you pass
a law, although it can be argued that you can get closer to
universal coverage with a law than with self-regulation.
I do believe that once the seals are adopted and effective
that buyers will then have the information and they can protect
their own interests. There was a study that came out just last
week that says that most people, if they have notice and an
opportunity to opt out, are content. That is really what they
want. We are talking about 85, 86, 87 percent. So most people
will be satisfied with that. This is an Alan Westin study that
was published last week.
So I think giving people information, letting them protect
their own interests, is a pretty good way to go.
Mr. Tauzin. Anybody else want to comment on that? Ms.
Anthony.
Ms. Anthony. My comment is that self-regulation doesn't
need to end if Federal legislation establishing a basic
standard exists. We have self-regulation in a lot of industries
where there is a baseline minimum standard set by the Congress.
The seal programs do furnish an impetus to industry, and
some comfort for consumers. But at present, it may be difficult
for consumers to distinguish among the various seal programs.
So that would be my comment. Self-regulation doesn't need to
end, and the seal programs are a good way to continue.
Mr. Tauzin. Anyone else? Mr. Thompson?
Mr. Thompson. Sure. I think your question was an important
one, in that is there a core group that you might not be able
to get to, and how big is it? I think that that is one of the
things that we may try to assess because it is important to
look at scale here as well. If you take all of the companies
who are in seal programs now, who are applying, have the
application pending, if you take the companies in the online
privacy alliance, and add that all together, you maybe have
1,000 companies. Now, there are a million Web sites out there.
If you assume that only 1 percent actually sell to people, that
is 10,000.
So what we are talking about is how to get the market
moving so that there is a condition under which consumers feel
comfortable that their privacy is going to be protected. It is
going to take a larger effort on the part of government,
industry and consumers alike. So there probably isn't any one
element.
Mr. Tauzin. Mr. Swindle.
Mr. Swindle. Yes, sir. I believe the question had to do
with the existence of bad players, people who will perhaps
refuse to participate in a voluntary program of seals. I call
it the bad player assumption, that is, those who do not
participate are bad players. I think that is a highly
questionable assumption that everybody who doesn't have a
privacy statement is doing something wrong. Commercial Web
sites are increasing at some indescribable rate right now. So
the reality is, we are never, ever going to have everybody
under any kind of program, seals or laws or otherwise. That is
just a reality.
With regard to the 10,000 commercial sites versus 1,000
seal programs, I think a better way to look at it is to focus
on the sites that people visit the most to do commerce. We can
narrow this thing down through survey techniques to discover
where 90 percent of the people are going. If those sites have
privacy policies, I think we are accomplishing or getting
toward accomplishing our goal. I think the point that I would
like to make is first, let's don't assume that anybody who
doesn't have a privacy policy is bad. This country is not
founded on that principle. Second, if we keep encouraging and
working toward it, we will get there.
One more point, Mr. Chairman. The problem that I see, when
you establish a law that says you will all have it, then you
have to enforce it. I am trying to imagine how the FTC or any
other agency can enforce this. Then, if you do not obey the
law, and it could be that you didn't know you had to and many
people like that, then we must punish. That represents a heck
of a dilemma for us in government, I think.
Mr. Tauzin. We will leave that issue, and I will ask my
last question, but just to let you know that what is hanging
out there is a question as to whether or not there is anything
either the government can do through the FTC or through the
legislative process that encourages people to want to be part
of a self-policing operation, rather than to submit some system
of either government regulatory authority or what have you.
That is sort of hanging out there. I don't think we get to the
answer until we know exactly what that universe of bad--so-
called, maybe, bad players is.
Last question. The Washington Post, June 27, 1999. Uncle
Sam has all your numbers.
Chairman Bliley today, before most of the members got here,
announced that our Commerce Committee is posting a privacy
policy. The FTC has posted its own privacy policy. I want to
commend Chairman Bliley again and commend the FTC for your
examples of government agencies, saying what we are going to do
with information we obtain in our work in regard to
constituents.
But, here is the headline and the story in the Washington
Post, June 27, 1999: As part of a new and aggressive effort to
track down parents for child support, the Federal Government
has created a vast, computerized data monitoring system that
includes all individuals with new jobs and names and addresses,
Social Security numbers and wages of nearly every working adult
in the United States. Government agencies have long gathered
personal information for specific reasons, such as collecting
taxes, but never before has a Federal official had the legal
authority or technical ability to locate so many Americans
found to be delinquent parents or such potential to keep tabs
on Americans accused of nothing.
The system was established under the little known part of
the law forming welfare reform a few years ago. Starting next
month, the system will reach further. Large banks and other
financial institutions will be obliged to search for data about
delinquent parents by name on behalf of the government
providing authorities with details about bank accounts, money
markets, mutual funds, other holdings of the parents, et
cetera.
The story goes on to detail about other government data
collection systems at the IRS and at other Federal agencies
dealing with citizens.
Mr. Pitofsky, is anybody doing any analysis of how well
Government itself is providing privacy notices and privacy
protections in regards to how it gathers information on
citizens in this country?
Mr. Pitofsky. We have not been investigating collection of
data by the government. But I do--now I would like to join my
colleague, Shiela Anthony here. I had the same reaction when I
first came to the Commission this time around.
It is astonishing how much information is collected in
various ways, and this isn't just an online issue now. We are
talking online, off-line, collection of information in a
variety of ways. I know Congress is concerned about this. I
know that members have been addressing it, and I really do
think that this is something that we have to pay attention to.
When people realize how much information is available about
them for a price, they are shocked at the sort of resume of
information that Commissioner Anthony noted. And we do have to
keep an eye on this issue.
Often information is collected with what purports to be
good reasons, but you never know how it is actually used.
Mr. Tauzin. But no one is doing any kind of analysis of
government collection of data and governments and agencies of
government's ability or willingness to post any kind of policy
on the use of that data and the collection of that data?
Mr. Pitofsky. I don't know about no one. We have not--that
is a little outside our jurisdiction.
Mr. Tauzin. Mr. Swindle.
Mr. Swindle. Mr. Chairman, I applaud you bringing up this
subject, because when I saw the article back on June 27 or
whenever it was, my first reaction was that I was appalled that
this kind of an operation could come into existence in today's
environment where we have so many--I mean there are daily
stories about con-
sumer and privacy advocates, and I think in a great sense
rightfully, clamoring for something to get better in this
matter of protecting people's privacy.
I have subsequently been astounded that there has been no
clamoring on this particular point. In fact, if I recall
correctly, there has only been about a 1-day story on that. It
just sort of disappeared. If people are concerned about mom and
pop operations selling chile sauce over the Internet not having
a privacy statement, where is the concern about the Federal
Government collecting data on every single person in this
country?
Mr. Tauzin. Obviously, it is being collected in many cases
for a good purpose. The question is, what can it be used for
and what are the rules? Mr. Thompson.
Mr. Thompson. Just two short points. One is, I don't want
us to forget that there is still the Privacy Act. It covers the
Federal Government and contains limits on how we use and share
information about individuals in this country. That is one.
Second of all, I am aware that the folks at the Office of
Management and Budget are working with agencies right now to
work on their Web sites, to post privacy policies. So I know
that is an initiative that they are undertaking right now.
Mr. Tauzin. Thank you, Mr. Commissioner.
The Chair now recognizes the gentleman from Massachusetts,
Mr. Markey.
Mr. Markey. Thank you, Mr. Chairman, very much.
First of all, with regard to some of the grades that were
given out here today to the online industry, I think we really
are in the era of great inflation, Mr. Chairman. Giving a B
plus to this industry and its effort is, from my perspective,
absolutely inappropriate. This industry deserves a big, fat F.
It is not, as an industry, providing real privacy to consumers
in our country online. Ninety percent of the industry is
auditing the course, the Georgetown study makes that clear.
Now, if we are going to deal with this realistically, we
are going to say, I guess that is what I am hearing from some
of the people out here, that we believe that we really don't
need Federal agencies, and if we don't need the Securities and
Exchange Commission, because most people are honest. We don't
need the Federal Trade Commission. We can repeal most of the
statutes we have empowered them to look at in terms of fraud,
because most people are honest.
If we believe that this industry is ever going to reach 100
percent compliance, and I guess that is what we are going to
hear today, that you believe that self-regulation will lead to
100 percent compliance, then we don't need any laws in most
areas where the Federal Trade Commission is now empowered, or
with the Securities and Exchange Commission, or with the
Federal Communications Commission. Because as Mr. Swindle is
saying, that is not what this country is all about. We don't
believe that people do things wrong. I don't know why anyone
would even want to serve on a Commission like this, Mr.
Swindle, if that is what we believe.
Mr. Swindle. Can I respond, sir?
Mr. Markey. When I finish, yes.
Mr. Swindle. Yes.
Mr. Markey. Mr. Pitofsky, do you believe that core privacy
criteria of notice, choice, access, and security are a good
idea, a noble gesture by online sites, or a necessary consumer
protection for privacy online?
Mr. Pitofsky. Necessary protection.
Mr. Markey. Are they essential?
Mr. Pitofsky. Yes, I believe they are. The only question is
how to get there.
Mr. Markey. Is disclosure alone enough protection?
Mr. Pitofsky. Well, I think it is the most important of the
various protections, but I don't think it is enough.
Mr. Markey. Is it enough?
Mr. Pitofsky. I don't think so.
Mr. Markey. Okay. Now, in your testimony, Mr. Chairman, on
page 5 of your testimony, you say, only a small minority, only
a small minority of commercial Web sites, however, have joined
these programs, these voluntary programs, to date. They also
show that as a study, that the implementation of fair
implementation practices is not widespread amongst commercial
Web sites.
Then your very next sentence says, based on these facts,
the Commission believes that legislation to address online
privacy is not appropriate at this time.
How long will we have to wait, Mr. Chairman, for this
administration to take a stand on this issue? How long will it
take, deep into, now, the online commerce era for us to realize
that most of the participants in this industry won't have a
privacy protection policy which is meaningful unless the
Federal Government puts one on the books to provide that for
all Americans?
Mr. Pitofsky. May I answer a couple of your earlier points
and then come to how long? As an academic, I have to respond to
the question of grade inflation. Remember, all I said was, on
energy, effort, commitment, they get a B plus. As far as where
we are now, I give them a C, so there is a long way to go.
Do I think that we don't need any law because everybody is
honest? Of course not. We bring hundreds of cases every year in
the antitrust and consumer protection fields. Self-regulation
only works when the industry comes to the conclusion that it is
in their interests to abide by certain principles. That is not
true in many areas of law, and therefore, the government has to
crack down. It remains to be seen whether industry will come to
the view in this area, as they should, that consumers want,
care about, and need privacy, and that it is in industry's
interests to make sure it is introduced.
How long should we take? You know, the most, I have often
said, the most effective self-regulation program in this
country is the advertising industry's National Advertising
Review Board. If we had come along 2 years after people started
thinking about that, and said, forget it, we are going to
handle this by law and law alone, you wouldn't have that kind
of self-regulation. You have to give some time for these
programs to develop.
I would say--I would say this. We had a good year, good
progress; internet industry leadership is committed to self-
regulation. If we have the same sort of year next year, then I
would say that we are going to make vast progress. As a matter
of fact, at the pace that notice is being made available, you
will practically see universal notice within a year.
Mr. Markey. Do you believe we are going to reach 100
percent compliance next year?
Mr. Pitofsky. No.
Mr. Markey. The year after?
Mr. Pitofsky. No, sir.
Mr. Markey. One hundred percent compliance.
Mr. Pitofsky. Mr. Markey, I don't think we ever will.
Mr. Markey. Okay. Then do we need a law?
Mr. Pitofsky. No, I don't think so.
Mr. Markey. You don't think we will need a law if there is
not going to be 100 percent compliance with protection of
privacy in the country?
Mr. Pitofsky. As I said earlier, you pass a law and you
still won't get 100 percent compliance.
Mr. Markey. So your standard is because you cannot get 100
percent compliance with any law, then there should be no laws.
Is that your position?
Mr. Pitofsky. No, not at all.
Mr. Markey. That is what you just said.
Mr. Pitofsky. No.
Mr. Markey. That applies to every law, sir, not just
privacy.
Mr. Pitofsky. Mr. Markey, if I appeared to say that I
misspoke. Let me be clear.
Mr. Markey. You said that the protections were essential.
You said that there would never be 100 percent compliance, and
yet you say that we shouldn't pass laws just because there
isn't going to be 100 percent compliance with essential
protections which Americans need.
Mr. Pitofsky. It is ``just because'' that I have to
explain. We are at the dawn of the most impressive new
marketing sector of the economy that this country has ever
seen. It is dynamic. It is fast changing. It is remarkable--the
extent to which people are becoming committed to doing commerce
on the Internet. In a circumstance like that, you want to stay
flexible about the nature of regulation that you impose.
Mr. Markey. Mr. Chairman, technology is changing rapidly.
So what? Are people not entitled to privacy? Are people not
entitled to protection against fraud, just because technology
is moving rapidly? Are we to say for the next whole generation
of e-commerce that we can never pass any laws to protect
people's privacy or protect them against fraud or protect their
children online because the technology moves rapidly? I think
that it is our responsibility, Mr. Chairman, to move forward in
a way that ensures the protections are put on the books against
people who will exploit people just because they are online and
they are on no protections.
I think this argument that you are making runs completely
contrary to the whole history of the Federal Trade Commission
and its commitment to try to stay apace of the changes which
are happening with the economy, rather than saying that we
can't catch up because it is moving too rapidly. I don't think
that is a standard which we can use. Fraud, privacy, and
protection of the consumer are standards which are eternal
regardless of the industrial era, the information era that we
happen to be in. I don't think that those are standards which
we should say can't be, can't be maintained.
In fact, we have it upside down. The people who put privacy
protections online, we can sue them for deceptive practices,
but if the industry participants don't put any privacy
protections on the books, then we don't have any right to go
against them because they haven't deceived anyone, because they
have no protections whatsoever.
And what you are saying is that the system is broken, but
we are going to ask the people who have allowed it to remain
broken throughout all of the 1990's to continue to try to
improve it even though they have a 90 percent failure rate. I
don't believe that the American people, looking at those
statistics that were produced earlier in this hearing, indicate
that the American people are getting more confident; in fact, I
believe they are getting less confident in this online
industry's ability to provide security, be able to provide
privacy, to be able to provide access, to be able to provide
notice that their information is being compromised.
Mr. Tauzin. The gentleman's time has expired.
The gentleman had offered to Mr. Swindle a chance to
respond to his comments. I think the chairman probably ought to
do that.
Mr. Swindle. I applaud the Chairman's position on this. I
think he did state the case correctly. I don't believe any one
of us here, and we have obviously different views on how we
should approach this, have made statements as Mr. Markey
alluded to. Each of us has been out meeting with industry and
attempting to get--encourage industry, and I think we have been
successful on that from our different perspectives, and I think
the Commission is doing good work in that regard.
I don't recall anyone saying that is no need for Federal
agencies, not even the slightest insinuation of such. I
certainly didn't. The idea of self-regulation reaching 100
percent or a law reaching 100 percent, I think I said in my
earlier statement, there is no way. We will not get there.
Today we just got behind again, because there are 100,000 more
Web sites out there. We will never catch up with that. That is
reality.
As far as needing a law to get 100 percent, we have the
Fair Credit Reporting Act. We prosecute cases on a monthly
basis under that because we have not stopped it, and we will
never stop it. I just--I am a little mind-boggled at the idea
that we would think that we can pass a law and solve all of
these problems.
We at the Commission and the staff at the Commission do
remarkable work in trying to implement and enforce our laws,
but we will never get to everyone, all of them. So I can't buy
that point.
Mr. Markey. Mr. Swindle, we have laws against murder on the
books. We will never catch all of them, but we are not taking
the murder statutes off the books.
What statutes are you prosecuting people right now under
that you are claiming credit for. Obviously you need laws to--
--
Mr. Tauzin. The gentleman's time has expired. He has made
his point. We have to move on.
The gentleman from Georgia, Mr. Deal.
Mr. Deal. I will pass at this time.
Mr. Tauzin. Mr. Cox is recognized, from California.
Mr. Cox. Thank you. I would like to welcome our panel and
thank you especially for the report that you have provided to
us. I would note that Chairman Pitofsky and I spent some time
together a quarter of a century ago when you were my antitrust
teacher at Harvard Law School. That was when you were 29 and I
was 15, and I continue to be educated, and I appreciate it very
much.
We are going to hear from the Direct Marketing Association
a little later, and in the testimony that the Direct Marketing
Association has provided to us, they have said that as a
condition of membership of the DMA, they are going to require
that all companies, including those who market to consumers on
the Internet, provide notice to consumers if they transfer data
to others, and if they provide consumers the ability to opt out
of such transfers.
It seems to me that that provides the essential ingredient
for an enforcement system based on the licensure of personal,
private information as if it were a property right. That is to
say that in the same way that all of us accept a license when
we rip open a package of software or sign a license agreement
when we buy computer products of significance, that we would be
able to license the provision, the publication of our personal
information by others if we chose to do so, and we would have a
cause of action for conversion of our private property if we
chose not to do so. That would require only this in order to
make it work, and that is a legal system that protected private
property in that way.
Is that a reasonable approach? I would ask any of the panel
to address that.
Mr. Pitofsky. It is consistent with the way people feel
about this issue. They don't mind their personal information
being used. They don't mind getting catalogs or receiving
materials as a result of target marketing. What they mind is
that happening without their consent. And if we can get there
one way or another, by law or by self-regulation, so that
people have that option, have that choice, I think the approach
that you describe is one that we would be comfortable with.
Mr. Cox. Does any other commissioner wish to comment on
that?
Mr. Thompson. Sure. I think that notice and opt-out are
important elements, but they are not the only elements. I think
that giving consumers, depending on what industry it is, access
to correct information is also appropriate. I think security is
important. I also think enforcement is important. I am not
saying necessarily enforcement by the government, but providing
meaningful remedies for consumers who feel that the
representations that were made by a Web site about how
information was going to be used were not lived up to. That is
the kind of confidence people need. I think that it begins with
the industries themselves.
I think DMA should be saluted for taking a fairly tough
line with their members. But what is important is that it is
not just them, it is everyone, that that has to be an important
tenet how buyers and sellers deal with each other online. That
has to be a part of the climate.
So there is a question of how you deal with those who
choose not to participate at all. That is a very important
question. But I salute those parts of the industry who really
understand that it is in their best interests, as well as
consumers, all of our best interests, to see this part of the
economy grow, that they provide that kind of balance.
Mr. Cox. And therefore, the shortcoming in the DMA approach
is that not everyone is a member of DMA, for starters.
Mr. Thompson. I think that is one.
Mr. Cox. So what we would want is a regime that applies
across the board to good actors as well as bad actors.
Second, you point out that we need enforcement. I think Mr.
Swindle's point earlier when you have an increment of 100,000
new Web sites over what period of time?
Mr. Swindle. Very short. I am not sure. But it is growing.
Mr. Cox. We have, as we all know, these exponential rates
of growth in Internet usage and the addition of Web sites. The
notion that a government agency is going to be able to police
it fails facially, but what might work is, if consumers have
the tools that they need to enforce it, which is why I am
talking about this private property notion, if you have an
enforceable property right and you can go to court and you have
a cause of action, and let us pick out of the air $1,000
maximum statutory damages for an unintentional violation and
$10,000 for an intentional violation or some reasonable limit
so that we don't have the next $6 billion jury award in this
area, you might have a much broader base of enforcement and so-
called voluntary enforcement might get a lot closer to 100
percent.
Mr. Pitofsky. I think at the end there you put your finger
on the problem. A private right of action is something that
people ought to consider. It is a real possibility. On the
other hand, they also have to consider whether or not you want
some Web site that makes some mistake about opt-in or opt-out
being hit with a class action that will just blow them right
out of that sector of the economy.
So it is a fair question to raise; it is not one that we
have addressed.
Mr. Cox. I assure you that is not my plan. I am working in
the other direction.
Mr. Pitofsky. There are some reasons for thinking about a
private right of action, but you would want to be careful about
it.
Mr. Cox. I thank the chairman.
Mr. Tauzin. The gentleman's time has expired.
The gentlewoman from California, Ms. Eshoo is recognized.
Ms. Eshoo. Thank you, Mr. Chairman. And thanks, once again,
to our distinguished witnesses here today. Chairman Pitofsky,
during your opening statement, you mentioned that the
Commission is going to hold a workshop soon on online
profiling, which is the practice of collecting information
about consumers as their movements are tracked online. It
doesn't settle all that well with me. I have a sense of a
little online stalking. But it is the way--I mean in hearing
it, it is the way I--my sensibilities react that way.
But at any rate, would you discuss how this practice works?
In particular, do consumers generally have knowledge that their
movements are being tracked, and what kind of information is
able to be--is actually collected in this way?
Mr. Pitofsky. Well, one of the reasons for the workshop is
to try to find answers to the questions you raise.
Ms. Eshoo. But there must have been some indications to
you; therefore, the workshop?
Mr. Pitofsky. Yes. Profiling is it is not limited to just
online information. It is a combination of online and offline
information, which produces the kind of body of information
about people often available for sale that is very--that is
very troubling.
On the question of whether people know this is going on, I
don't think they do. I think it is being collected without
notice. This new medium has an incredible technological ability
to marshal, analyze, and present data about individuals.
How much of that is going on, how it is being handled,
whether the information is being marketed and sold, and
particularly whether it is being sold in personally
identifiable ways, as opposed to aggregate averages, which I
don't think anybody is terribly troubled about, that is what
the workshop will be about.
Ms. Eshoo. I think that this committee in particular would
very much like to have a report back from the Commission after
you have completed the workshop and what you have pulled out of
it. I think that we could make, hopefully, some positive use of
whatever information flows from that. Because the idea that it
is personally identifiable and tracked is a form, at least I
think could be thought of as a form of online stalking,
stalking.
Do you know of any agency that sells any private
information that comes through it?
Mr. Pitofsky. I do not. Anyone?
Mr. Swindle. Well, I don't know about Federal agencies, but
we know for a fact that State agencies, which are part of the
problem too, I guess, they sell information off of driver's
license registration and car registration. That is commonly
done in many States from what I understand, and I don't think
any consumers or citizens gave them the right to do that, but
they do it.
This phenomena, collection of information is mind-boggling.
We are going to be dealing with this for years to come. My
concerns are that we deal with it in a manner that is as
practical as possible without throwing impediments to
developing this, as the chairman described earlier, perhaps one
of the most phenomenal changes in the way we do commerce that
we have seen in our country's history. If we get overly
emotional about this and start running around trying to stop
it, we will very likely overstep our bounds and do more harm
than good.
Ms. Eshoo. Does the Commission have any ideas about how we
can educate people on how private information might be used?
Have you grappled with that?
Mr. Thompson. I think that----
Ms. Eshoo. Relative to commerce? You know, obviously within
the areas of your jurisdiction.
Mr. Thompson. I think the Bureau of Consumer Protection has
been very active in consumer education, but also has been
working with groups like the Direct Marketing Association and
other industry-based initiatives to talk to consumers about how
their information is being used and collected and what choices
they have for how that information is shared. I know that on
our Web site, FTC.gov., there is a privacy page that tells
consumers how to get their names off mailing lists and other
things.
Ms. Eshoo. What you are suggesting is that the Commission
puts out information on how this can be done technologically?
Mr. Thompson. We have brochures and other information
available to educate consumers. But what I think is going to be
important here though is what broader initiatives industry,
together with government and consumer groups create to deal
with specific problems and specific concerns to let the public
know a little bit more.
Ms. Eshoo. I have the sense that we are trying to get socks
on an octopus, and I think if we don't--I mean if we really
don't come out with something that has clarity for the American
people, that maybe the description I just gave will continue. I
don't know what these ratings really mean. I mean if we see the
Good Housekeeping Seal of Approval, that means something to us.
I guess I can't really describe it, but there is confidence in
that. And while we have some markers, I don't have a sense that
people know what that is, and I don't think that we can be
necessarily self-congratulatory that they are out there if, in
fact, the representation doesn't give people the kind of
confidence that they need.
I think the hearing is demonstrating that we have a ways to
go so far. I appreciate the work that you are doing. I don't
think I have made my mind up about which is the best way to go,
but we will keep at it. Thank you.
Mr. Tauzin. I thank the gentlewoman.
The Chair now recognizes the gentleman from Mississippi,
Mr. Pickering, for a round of questions.
Mr. Pickering. Thank you, Mr. Chairman. I appreciate you
holding this hearing on a very important issue.
Mr. Pitofsky, let me ask quickly, under section 5 of the
Federal Trade Commission act concerning unfair and deceptive
practices, do you feel like you have the current authority to,
if progress is not made, to take additional action, not only
under fraudulent cases, but to say require certain business
practices of notice and opt-out, do you have that authority, or
do you interpret your authority that broadly?
Mr. Pitofsky. We certainly have the authority, when people
are misled into providing information under false pretenses,
and we have brought cases, we have brought important cases in
that area.
The problem arises where the information gatherers say
nothing. They collect the information and they use it in
unexpected ways. We have not brought that case. We have put out
an advisory opinion saying that where that kind of information
is collected from young people, we believe we clearly have the
authority in that area. Where it is collected more generally
from adults, we have not brought that case, and I am not so
sure that we could win it. But certainly, if they put out a
privacy policy, as firms are doing, many firms are doing, and
then they don't abide by their own privacy policy, that is
actionable.
Mr. Pickering. This seems to be the crux of the problem. It
seems like there could be an incentive to have no privacy
policy, to put themselves at no liability or at risk of
violating, intentionally or unintentionally, their privacy
policy. And the question is what incentives can we give, short
of legislation, that would require all companies to adopt
certain practices and certain privacy policies.
Mr. Pitofsky. I think you are exactly right. I think an
incentive is there in the marketplace, and that grows from the
fact that 85 percent of the people who are not doing business
on the Internet say it is because they don't think it is a
secure medium, and the business community has to come around to
the view, as I believe many of them have done, many of the best
players, that it is in their interest to protect the privacy of
people who do business on the Internet.
The other--frankly, the other incentive is, if that
progress does not occur as it has been occurring in the past
year, then the FTC and this committee and the Congress will
take action. We are challenging these folks. We are saying to
them, if you don't want legislation, you better move along on
self-regulation. They have made some progress, I hope it will
continue.
Mr. Pickering. Any other comments from the panel as far as
incentives that we can ensure the progress of self-regulation
from the Internet community and the business community on a
going-forward basis?
Mr. Swindle. I would just like to add, I think one of the
main things we can do at the Federal Trade Commission is
continue to expand the educational efforts that we have already
undertaken. Our staff does an excellent job in putting out very
informative pieces of information. We have conferences, we
mentioned, I think it is mentioned in our report of conferences
to come. I think that process of consumer education will
coincide with industry's awareness that this is important. It
is in their own self interests to do it right.
The incentive is profit, and profit comes from satisfied
customers, and that takes you to the next level. The
marketplace will demand that we find some level of acceptable
private practice on the part of industry; otherwise, consumers
won't go there. Any consumer with one click can leave a Web
site if they aren't satisfied with it. And I share with the
chairman the concern, and I think we all share it, that in
these practices where the consumer has no idea that information
is being collected, and therefore, has no option of choice
because they don't know the problem exists.
But, I think that is where we are back to the education
cycle. The more we inform the public, the more we all become
informed as to how this medium is going to work. It is new, we
are learning every day. Industry is learning, consumers are
learning, and certainly we in the Federal Trade Commission are
learning, and I think it is that ongoing process that will make
this an economic engine that we will all sit back and marvel at
and we will be quite surprised with it. As I said, consumers
are not inching slowly to this form of commerce, it is tripling
every year, and I think that is an indication that they like
it.
Now, if they hear things that scare them, I hope not
unnecessarily so, they will back away from certain sites and
make reasonable choices.
Mr. Thompson. I agree with what has been said. Time is
really important here, that if 1 year in Internet time equals 3
years of other time, then we should be concerned about how
quickly industry progresses.
But what I will also say is it has to be a fabric, it has
to be not just government saying we are going to do X if you do
something bad, it is also industry acting in enlightened self-
interest. I think that we all have a stake in seeing that that
occurs.
Now, one of the things--the reason that at least I don't
think legislation is appropriate at this time is to measure
what is not being done, what industry resistance there is, is
it the tail, or is it the hub? That has to be an important
factor to know, because that will tell you what is the
appropriate way to address the problem.
The industry leaders do recognize the importance of
bringing the rest, finally, the rest of the market along. That
is not only based on consumer education, telling consumers what
they should be asking for, but also telling business what are
the necessary elements for doing business in this area. I think
that what they would find is that if they do a cost-benefit
analysis, the amount that they have to gain, even small- and
medium-sized businesses of doing a privacy policy is great. But
that information has to get out to them.
Mr. Pickering. Thank you, Mr. Chairman.
Mr. Tauzin. The gentleman's time has expired.
The gentlewoman from California commented about socks on an
octopus. That stirred my data banks, and I couldn't remember
where I had heard that phrase. It was Earl K. Long who used it,
I think. There is a wonderful book entitled Socks on a Rooster
about his life. He once said when they tried to put a tuxedo on
him at his first inaugural in Louisiana that putting a tuxedo
on Earl K. Long is like putting socks on a rooster, and he
refused to wear it. It is a good analogy.
The gentleman from Minnesota, Mr. Luther, is recognized.
Mr. Luther. Thank you, Mr. Chairman. This really is to any
member of the panel. It just seems that if we applied common
sense, it would tell us that we will, over time, achieve a
degree of voluntary compliance; that would be common sense, and
in the interest of businesses to do this.
But it seems like common sense would also tell us--and I
would like your thoughts on this--that if companies are
profiting from using, selling, and disseminating this
information, they would be very unlikely to be the ones who
would voluntarily comply. So in other words, as voluntary
compliance goes up, it seems to me that we still would not be
dealing with the real problem, which is those companies that
have a self-interest in not complying, or not either posting or
adhering to the policy. Isn't that the crux of the problem
here? How could we ever expect voluntary compliance from
companies when it is against their self-interests to
voluntarily comply? That simply is not going to occur, right?
There is nothing to motivate them. So I guess that is where I
am getting a little lost with some of the comments about
voluntary compliance. Even if it increases greatly, we are not
going to be dealing with the ones we want to deal with.
Mr. Pitofsky. Let me start. Mr. Luther, it is a fair
question, and it is something that we ought to explore. I am
not sure it doesn't work the opposite way. The big companies
who gather the kind of information that is valuable enough to
sell, they are the ones who are complying, the Disneys of the
world, the AOLs of the world, the Microsofts and so forth, they
are the ones who gather vast amounts of information that is
valuable to sell and they are the ones who are going along with
self-regulation.
The company that will probably never go along is some
individual who has a Web site and is selling chile beans, they
are not collecting the information, they couldn't sell the
information if they did collect it, it is not going anywhere at
all. I say that as a hypothesis. I don't know that that is
true.
I do know that many--most of the big companies that collect
the kind of information that others want have seen it in their
interests to go along with self-regulation.
Mr. Luther. Well, just to follow up, if I may, aren't there
a lot of examples between those two extremes. That would be my
response to that answer. And in fact, aren't some of the
examples in-between exactly what we are trying to deal with
here--the people that are truly profiteering today; there is
not one reason for them to comply with some voluntary
compliance system.
And I would add an additional point, and that is how fair
is it to the legitimate businesses--that are out there
competing on a fair basis--how fair is it to them to be
undercut, for example, by a business who is making their
profits by using that information for some other purpose? I
mean, legitimate businesses want fair rules that everyone lives
by; don't they? I would ask that question to anyone on the
panel.
Mr. Swindle. I am having a little difficulty imagining the
business that is undercutting another business, because that
business is gathering information to sell to somebody. They
might be undercutting another business that does that, but if
they are in the business of gathering and selling this
information, you know, wrongfully or without consent, who are
they competing against?
My concern is that if we choose to legislate, legislation
applies to the universe. The number of people who are in this
business that we don't like, the invasion of privacy, and
selling this information, by comparison to those who are
legitimate in every sense of the word, but may not know the
necessity to meet this law, we will burden the universe in
order to capture a few. I just don't think that is the way to
do it.
Now, the question then comes back, to the Congressman's
original question. How do we get at those few, and they are
relatively few, in my mind, how do we get those without
burdening the rest of the universe. That is the problem, and I
think that is something we have to consider and look toward
resolving. But, passing a law would apply to everybody. Then
we, all of a sudden, have to enforce that law against people
who, by no evil intent whatsoever are not complying, which, I
would suggest, the vast majority of Americans fit that
category. There are bad guys out there, we all recognize that.
But now, we have to enforce this law against all who violated
it, and now we have to penalize them. This doesn't make sense.
Mr. Thompson. I appreciate your question, because I think
it is exactly that kind of a question that we need to find out
a little bit more about. There are large companies who
presumably should know that this is in their enlightened self-
interests that the efforts are clearly not reaching. We need to
find out a little bit more about why in order to--if
legislation is appropriate, determine what kind of legislation.
But I would also be hesitant to talk about legislation if
it is an all-or-nothing proposition as well. Because in the
sense that I think when we came last July, we talked about any
legislative vehicle at all should at least provide some safe
harbors for companies who are doing the right thing; for
independent industries that are doing the right thing, because
we think that those industries should be rewarded and not be
subjected to a ``free riders,'' others who are not doing the
right thing benefits from the industry efforts. So we have to
get at that. We don't know. I think we need a little bit more
time to figure that out.
Mr. Luther. Thank you, Mr. Chairman.
Mr. Tauzin. The gentleman's time has expired.
The gentleman from California, Mr. Rogan, does he have any
questions?
Mr. Rogan. Mr. Chairman, if I may, just briefly.
Mr. Tauzin. The gentleman is recognized.
Mr. Rogan. Thank you. I will throw this out to the members
of the panel. I did have a chance to review the summary
materials on the Georgetown Internet Policy Privacy Survey, and
I am just wondering, do any of the members of the panel have an
opinion as to the validity of that survey?
It claimed that two-thirds of Web sites surveyed had
established a privacy policy, but when I looked at the universe
of sites that were examined, there were only 361. That seemed
like an awfully small sampling for what must be tens of
thousands, if not hundreds of thousands of Web sites that are
out there right now. Has anybody had a chance to review that in
depth, and does anybody have any opinion as to whether that is
an appropriate figure?
Mr. Pitofsky. We did spot check the survey. We didn't just
accept it without reservation, and so far as we could tell, it
was a reliable survey conducted in a very professional way.
The sample is the sample. I mean it seems to me, when you
get up to 361 or something like that, you get a fair picture of
what the industry is doing. It may not be perfect, it could be
off by 3 points either way. But the important thing is that the
industry moved from 14 percent notice to 60-something percent
notice in 1 year. And we are comfortable that that is a
reliable count.
Ms. Anthony. I was just going to comment that you have to
recall that these are the most well-traveled sites, not every
site. The sampling was the most well-traveled sites on the
Internet.
Mr. Rogan. Thank you, Ms. Anthony.
I have to assume when we look at the explosion on the
Internet over the last 8 or 9 years, I think I saw a figure
sometime ago that in 1990 almost nobody was on the Internet and
by 1999 we have millions and millions of people, and that
figure is being added to every day.
I have to assume that as each day goes by, and as more and
more people are going online, there has to be a lot of consumer
pressure also on businesses to adopt privacy regulations and
also to have their privacy rights enforced. Are you finding, as
you oversee these issues, that there is an awful lot of that
dynamic in play?
Mr. Pitofsky. Great consumer concern, and in my view, the
reason why you have so many of the leaders of the industry
moving to privacy policies is because they see that it is in
their interests to do so.
Mr. Rogan. Yes, Mr. Commissioner.
Mr. Thompson. I think just to take a look at who is really
leading the charge here, we are looking at companies who have
decided that it is in their best interests, because first of
all, it allows them to distinguish themselves in the market
versus other Web sites who might be selling something, or
technologically based sites that believe that this is an
important part for the technology industry to play a part in.
The real question is whether those industry leaders can
essentially have an influence on all of those who sell, to make
sure that they know that it is in their best interests to
concision the market generally, so that consumers feel that
confidence no matter where they go. That is the real challenge
for them. So while we have great respect for the industry
leaders here, the real question is, is there an industry to be
led?
Mr. Rogan. Thank you, Mr. Chairman, thank you, Mr.
Thompson.
Mr. Tauzin. The Chair now recognizes the gentleman from
Tennessee, Mr. Gordon.
Mr. Gordon. Thank you, Mr. Chairman.
Ms. Anthony, I think it is always healthy to have informed
and thoughtful dissent on the commission, and so I will--on any
issue, and I will give you a chance in a few minutes if I have
some time left if you want to expound on any more on what your
thoughts are on what type of regulation might be successful.
But first let me ask you, Mr. Chairman, in your testimony
you said that you thought considerable progress has been made
with industry, a long way to go, and there should be no
legislation at this time. You said a year from now there should
be another report and that you want to get to the goal line.
Let me ask you, what is the goal line? You know, when you
come here a year from now, what do you think should be the
various benchmarks, and what progress should be made with those
benchmarks so that you at that time would either say we need
legislation, here it is, or still making progress, and we
don't.
Mr. Pitofsky. Well, in one sense, if the industry makes as
much progress in the present year as they did last year, we are
going to be pretty close to universal coverage in terms of
notice, about putting a policy out there, and that would be
remarkable. I would like to get beyond simple notice. I want to
ask other questions about access, about security, about
monitoring, and about enforcement.
I don't think you are ever going to get 100 percent self-
regulation enforcement, any more than you do with the
advertising community or the funeral directors, two of the best
self-regulation programs that I am aware of. But if you got up
there in the 90 percent range, 90-plus percent, and if
consumers were aware of what their rights are, and consumers
who don't want to deal with the Internet Web site that doesn't
post a privacy policy can do so in an informed way, I think we
are pretty close to where we ought to be.
Mr. Gordon. I certainly agree that you are not going to get
100 percent compliance even with the most stringent of laws and
police forces out all the time.
So you are saying then that there should be 90 percent
compliance a year from now?
Mr. Pitofsky. I hesitate to draw an arbitrary line, but
certainly if you were there, you would have to say that great
progress has been made, and we are probably at the point where
consumers can protect their own interests.
Mr. Gordon. If you are at 90 percent?
Mr. Pitofsky. Yes.
Mr. Gordon. So what happens if we are at 70 percent next
year?
Mr. Pitofsky. We will file another report.
Mr. Gordon. That would be a failing grade, though?
Mr. Pitofsky. That would be very disappointing, since they
are at 66 percent now. If they get to 70, you would think that
not much has been accomplished. But now I want to go back to
the point I made in my testimony. Simply counting the notices
on Web sites is not enough. We want to give this committee more
information than that; we want to get behind that number.
Now, for example, there are probably some Web sites that
have notices that are so small and incomprehensible and
impossible to read that the notice is not worth a thing. I want
to get to that issue.
Mr. Gordon. I have one more question. What I would like to
do quickly is ask you if you could send to the committee or
send to me what the vehicle will be for whatever studies when
you come back in a year, and what are those areas that should
be studied, and what are those benchmarks. I am not looking for
a specific number, but what should be the range of compliance
there?
Mr. Pitofsky. I think we should do that, Mr. Gordon, and we
will.
Mr. Gordon. All right. Mr. Thompson, I have a--I guess it
is a cliche that all of these answers, or most of these answers
are wrong. You mentioned earlier in your testimony about
technology where you are going to have a workshop where the
consumer can protect himself. I mean how close are we and tell
us about this technology. Everything is sort of moot if that is
the case.
Mr. Thompson. I think that that is one of the things we
want to find out. That is one of the reasons why we want to
have a workshop, because we understand that there are some
companies who are working on various technological ideas that
will allow Web site users to capture their own information and
decide under what circumstances they give it up to someone
else. And I think that is going to be an important innovation.
I want to see how far they are along. I want to see if that is
something that is going to be effective.
I hope that you will let the committee know about that, and
Mr. Chairman, I think that----
Mr. Tauzin. Will the gentleman yield? We have a second
panel----
Mr. Thompson. You may hear about that today.
Mr. Tauzin. I think we will learn about it during the
second panel. Stick around.
I thank the gentleman.
Mr. Gordon. In closing, Ms. Anthony, where do you think we
should be a year from now--where will those benchmarks be, to
avoid legislation.
Ms. Anthony. Last year, when we brought our report to this
committee we set out a legislative framework we thought would
be useful in crafting a balanced, protective piece of
legislation. Some of the bills pending in the House and the
Senate have many of those suggestions in them now. I don't
propose to write legislation for the Congress, and sometimes it
is difficult for you to do it yourselves, but I do think that
the four fair information principles of notice, consent, access
and security remain, still, the focus and the thrust.
Mr. Gordon. Thank you. Thank you, Mr. Chairman.
Mr. Tauzin. I thank the gentleman.
The gentleman from Florida, Mr. Stearns, is recognized for
a round of questions.
Mr. Stearns. Thank you, Mr. Chairman. I thank you for
holding this hearing, and I welcome the witnesses.
I am trying to understand, and this might be appropriate
for the second panel, how much business--this is for Mr.
Pitofsky, the chairman, how much business is corporate-to-
corporate or business-to-business versus consumer to business?
Mr. Pitofsky. Most commerce on the Internet is now
business-to-business. The consumer segment is growing vastly,
and I understand in the present year, 1 percent of all consumer
purchases were on the Internet, and it is growing at an
incredible pace.
Mr. Stearns. So if the majority of the Internet business is
business-to-business, do these companies set up privacy within
their businesses?
Mr. Pitofsky. I don't know the answer to that. I rather
doubt that they do, but I don't know, and I could find out and
submit something to you.
Mr. Stearns. I think that is important, because these
companies set up their own privacy policies. We have already in
place what businesses are doing. We don't have to recreate the
wheel here. And if the market is doing it itself, the private
policy setup through business to business, it is most likely
that probably, when we move on a bigger generation of revenues
using the consumer to businesses, that same type of trade
policy or private policy will also come together.
Mr. Pitofsky. We are moving in that direction, but I am not
sure we are going to get there. I think we have to keep our eye
on this issue and make sure that progress continues.
Mr. Stearns. If we offer consumers a choice for privacy on
the Internet, do you think they would take that voluntarily?
The companies, when they say you are coming to my Web site, if
you click here you can have privacy, this kind of privacy, this
type of encryption, do you think that is a voluntary way to
circumvent the need for you folks or anyone else on my side of
the aisle promulgating legislation, Federal legislation?
Mr. Pitofsky. If there is a clear and conspicuous
disclosure so that people don't have to search around for it
from screen to screen, yes. I believe they would decide one way
or the other that they don't care that their information, their
private information, is used; or that they do and would opt
out.
Mr. Stearns. Any others that would like to comment on the
question?
Mr. Tauzin. If the gentleman would yield, I think it is
important that we keep our eye on how broad the problems are,
however.
I don't want to embarrass anybody over this, but there was
a story in the Boston Globe about a public television station
sharing its list of subscribers with one of the national
political parties. A young boy, Sam Black, is shown in the
article as receiving a mailing from that national party because
his name was given to them in exchange for other names by a
public broadcast station. The station owner is quoted as
saying, ``It is standard industry practice for nonprofits like
WGBH Boston to swap or rent lists of other groups in an effort
to expand membership.''
This is a problem even bigger than the Internet right now.
We are going to have to keep an eye on it and see whether or
not there are elements of it that at some point need
addressing. I thank the gentleman for yielding.
Mr. Stearns. Thank you, Mr. Chairman.
Just reclaiming my time, when I go to the restaurants and I
give them my credit card, I don't know the waiter or waitress
who takes my credit card. They go behind the back and they run
it through the machine and come back. I was trying to say, in
the private world there doesn't seem to be any outcry of this
privacy from the government to institute on the restaurant
level or on the Sears Roebuck level or even when I purchase
something from Lands End.
So I was trying to say, if I don't see it there, do I see
the need for this Federal legislation on the Internet? Because
obviously this person who is working at the restaurant could
make a copy of my credit card and make a facsimile or something
of it and use it, yet I don't see that happening.
I guess in your opinion, the analogy between the private
sector and the Internet, is it quite a bit different in your
opinion, or is it something similar?
Mr. Pitofsky. In my view, it is different and deserves more
attention. Collection of information on the internet is more
threatening to individual privacy. First of all, on the
Internet you could accumulate information in a way that is not
possible in a restaurant or a mall. You can marshal it, analyze
it, or sell it to people in a way that is valuable to them, but
is an intrusion to you.
Second, when you go into the restaurant and you think about
ordering the salmon, but then you order the steak, the only
reference that they have is what you actually bought. On the
Internet, the technology allows people to accumulate
information on what you thought about doing, your browsing
activities. That includes books, that includes music, that
includes all sorts of things that people are sensitive about.
So I do think that the Internet is different. I do think
that privacy is important. The only question that I have is
what is the best way to get there since it is a particularly
sensitive area.
Mr. Stearns. Mr. Chairman, I think my concluding comment
would be what I think a recent report talked about, that most
people in the Internet, the consumers, are not buying, they are
just browsing. But you point out that simply browsing offers an
avenue to sell what they are browsing to other people. In fact,
if you go on Hot Mail or Yahoo Mail, you can check off the
things that you are interested in and you will get information
sent to you every day. It just comes rolling in. So that whole
process is revealing your market tastes. So the consumers have
the right to decide, but they certainly don't want that
information sold.
But I think this hearing is very important for all of us to
understand. This is a first step. So I appreciate this time to
question you.
Thank you, Mr. Chairman.
Mr. Tauzin. I thank the gentleman.
The Chair now recognizes the gentleman from Virginia, Mr.
Boucher.
Mr. Boucher. Thank you very much, Mr. Chairman. I want to
commend you for organizing this discussion today on what is a
very timely and important subject and also for inviting this
distinguished panel of witnesses, the members of the Federal
Trade Commission, whom I would like to welcome. I want to
compliment each you for the excellent groundwork that you have
done in the area of online privacy protection.
Having complimented you for that, however, I will have to
express a measure of surprise at the conclusion that you have
generally reached that no new Federal legislation is necessary
at this time. In opposing the passage of legislation, Chairman
Pitofsky, you have cited the progress that has been made by the
industry in protecting online privacy due in significant part
to the participation by the industry and third-party seal
programs, the five or so programs in existence today. Yet it is
my information that only some 1,000 or perhaps less of the Web
sites currently are participating in third-party seal programs;
and we also--that, by the way, is among Web sites that may
number more than a million. I don't know how many there are--I
doubt if you do either--but I am told there are at least a
million, or perhaps 1.5 million or 2 million.
Then we also have the study from Georgetown that shows a
broader survey of Web sites that was taken, that only 10
percent of the Web sites surveyed have a practice that complies
with the four fair information practices that I think we all
agree are important. So you have determined that or it has been
determined that there are only about a thousand Web sites that
are a part of third-party seal programs, and only 10 percent of
all Web sites surveyed are complying with these four fair
practices.
Now, given that fact, I am frankly appalled by the
recommendation that we not act now. I believe that there are
things that we can do that would even enjoy industry support.
For example, I have introduced a bill, along with my Virginia
colleague, Bob Goodlatte, with whom I have the privilege of
chairing the House Internet Caucus, that would establish a
disclosure and opt-out policy, so that everyone who visits a
Web site would have the opportunity of knowing what information
that Web site collects from the visitor. That visitor would
also have the opportunity to know how the Web site uses that
information. If the Web site disseminates that information to
any third parties, the circumstances and the identity of the
distributees would also be noted. And then the Web site visitor
would have an opportunity to opt out, to not participate in a
fur-
ther visitation of that Web site and to do so with the
privilege of not having any personal information about him
collected.
Our bill also, by the way, gives the FTC full authority to
enforce those provisions under section 5 of the Federal Trade
Act. I can tell you that in constructing this provision, we had
extensive discussions with the industry and I think broadly the
industry would support an approach such as this. And so why
would it not be wise at this time to act before the situation
gets beyond our control before the other 90 percent of Web
sites that don't comply with these fair information practices
collect so much information that there is nothing that we can
do about it? Why don't we act now?
I know that I am asking you to support of repeat your
positions, but perhaps with this new orientation, you will
provide a different answer. I hope so.
Mr. Pitofsky.
Mr. Pitofsky. Mr. Boucher, I know of your bill and I
believe in many ways it is a constructive compromise between
people who would very heavily regulate the industry and those,
like us, who want to give self-regulation more of a chance.
Just two quick points: One, if the bill is limited to
disclosure and opt-out, the chances are that we will have
accomplished that in a year or so anyway. When we say that only
10 percent have all of the information, fair information
practices, most of those people don't have the access and the
security provisions that would not be covered by your bill.
Second, the seal profession. It is true that the seal
programs have hardly scratched the surface. But the Better
Business Bureau seal program only started about 6 months ago.
It is a little tough to criticize them because they have only
gotten a relatively few people to be members.
Then third, my concern is that if we settle for disclosure
and opt out as your bill provides, and not ask for more, that
is all that we are ever going to get. I think consumers are
entitled to more than that, and by keeping the pressure on with
respect to self-regulation, we may be able to get--we should be
able to get more than disclosure and opt-out.
Mr. Boucher. I agree that we can get more than disclosure
and opt-out. I would not propose that enacting our statutory
offering be an alternative for a continued industry self-
regulation.
I think there will be substantial pressure from Internet
users for a better set of privacy protections that go beyond
mere disclosure and opt-out, but enacting disclosure and opt-
out at this point in time would at least make sure that every
Internet user immediately would have the opportunity to know
what information about him is collected and how that
information is used. If he disagrees with that, he would have
the opportunity to opt out without having anything collected.
It seems to me that that is a fundamental assurance that we
ought to provide the American public. I agree, we ought to do
more, but we ought to do at least that much. I think that we
can do that much statutorily with industry support during the
course of this conference.
Let me ask you one other question. I know that you are
familiar with the discussions that are taking place between the
European Union and our U.S. Department of Commerce. The
European Union has a very extensive directive that confers upon
European citizens extensive privacy rights in the online
environment, going essentially to the four industry practices
that you would recommend here for self-regulation. But as a
matter of law, that would be provided in Europe. The directive
takes another step and says that data flows can be interrupted
with respect to Europeans accessing Web sites in any nation
that does not have a comparable level of privacy protection. We
are very concerned that unless there is an agreement in the
European Union that whatever we do offers that comparable level
of privacy protection, that there would be an interruption of
data flows when Europeans visit American Web sites.
Now, the discussions on creating the safe harbor and giving
Europeans an opportunity of saying that we have an equivalent
level of protection, aren't going very well. This very been
under way for more than a year. They have been recessed. There
is no conclusion in sight. I am wondering if we enacted at
least a disclosure and opt-out policy if we might not be able
then to give the Europeans a basis to say that a comparable
level of protection exists here.
Do you have any thoughts about that and would that change
your view of whether we ought to act now legislatively?
Mr. Pitofsky. I am going to ask Commissioner Thompson, who
has been our delegate to some of these meetings, to address
that.
I agree with you that it is a matter of great concern.
Negotiations have been conducted by the Department of Commerce
in this matter. Whether they are going to--whether we are going
to have a serious problem or not remains to be seen. From what
I understand, the issues that are outstanding--and I am not
close to the negotiations--would not be fully settled by a
disclosure and opt-out provision. There are other complicated
issues as well.
Let me turn to my colleague, Commissioner Thompson.
Mr. Thompson. I think the Chairman is right. There are a
variety of issues that have to be resolved on the European
side. But you are also right in noting that the concerns that
the Europeans have about how we treat data in the United States
is very important to us. It is not just notice and opt-out, but
also the other elements. I think that they support the four
elements that we have discussed and want to know what
meaningful remedies their consumers will have in the United
States.
Now, notwithstanding that, a legislative vehicle isn't
always the most effective way to get at those protections if
there is an effective framework for self-regulation. Now, there
are certain parts of the industry that are leading in that
charge and certain companies who we have talked about earlier
who will satisfy that pretty clearly. The real question is, how
can that be transferred into the broad base of companies that
we and the Europeans want to see here in the United States have
those protections. That has been the challenge and that is
going to be the challenge that Ambassador Aaron is going to
have to convince the Europeans of.
Mr. Boucher. Well, thank you very much. I appreciate that
comment, Commissioner Thompson, and I want to thank each of
these witnesses again for the work that you have done in this
important field and we all look forward to continuing our
discussions with you.
Thank you, Mr. Chairman.
Mr. Tauzin. I thank the gentleman. Before we dismiss this
very esteemed panel, I would like to give any member who wants
to make a final question or comment a chance to do so. We will
first start with the ranking member, Mr. Markey, for a final
thought or comment or question.
Mr. Markey. The point that I was--thank you, Mr. Chairman,
very much.
In the securities marketplace, the so-called ``crown jewel
of capitalism,'' the engine of the capital formation process,
we have self-regulatory organizations. They are called the New
York Stock Exchange, the National Association of Securities
Dealers, and the regional exchanges like the Boston Stock
Exchange.
In the futures market, we also have SROs, self-regulatory
organizations, the Chicago Mercantile Exchange, the Chicago
Board of Trade, and the New York Mercantile Exchange.
The securities self-regulatory organizations are subject to
supervision and oversight by the Securities and Exchange
Commission. And the futures self-regulatory organizations are
subject to the jurisdiction of the commodities futures trading
commission. The SEC and the CFTC must approve all of the SRO's
rules before they can take effect. They can direct them to
adopt, modify or eliminate their rules, and they can inspect
and examine their regulatory and enforcement programs to
ascertain their adequacy and protect the public interest,
assure the protection of investors and the maintenance of fair
and orderly markets. And they do all of this without
compromising the dynamism and the innovation in our Nation's
financial markets which are technology driven, fast-paced,
global and constantly changing.
So if we are talking about self-regulatory organizations
like the securities and futures self-regulatory organizations,
that is one thing. But if we are talking about SROs without
Federal oversight and enforcement over them, then there is no
accountability and no assurance that consumers will be
protected. That is not self-regulation; that is self-delusion.
We cannot operate in a world in which an industry which is so
potentially invasive of every family's life can go completely
on the honor system when there are so many powerful financial
interests that could drive some of them in the opposite
direction.
I might add I think at the end of the day that this whole
notion that ``dot com'' means that you have huge debts, no real
profits but maybe 5 or 10 years from now you might be able to
show some profit was undermined if you saw it last week by an
Internet site called C/Net. They were taking $800 million of
their own money and were going to invest it in an advertising
campaign. Their stock valuation dropped by about 15 percent
because no one had ever seen a mode like this where an Internet
company had actually made money, was investing it in a
traditional business sense, and as a result, people were
beginning to lose confidence. Maybe it is that people don't
want to go online, that is, middle-class America, largely
because they are not sure that their privacy is going to be
protected, that their security is going to be protected. Maybe,
at the end of the day, in the same way that the Federal Trade
Commission Act was originally put on the books says, the
Industrial Age had been moving so fast that it was necessary to
begin to catch up with it, that maybe the confidence that was
necessary to be instilled in this marketplace that these
companies can actually turn a profit would be related to their
sense as ordinary middle-class families, that they should trust
it, that they should believe in it. Right now, we see again
from these polls that that is not the case.
So my request to you would be that you look at these issues
again, you set a deadline in the near term for the industry and
for yourselves. But understand that the information you have
given us today heightens the likelihood that we need to
legislate, not undermine it. I think it should leave you with
the same result in terms of how you view your responsibilities
at the Federal Trade Commission.
Thank you, Mr. Chairman.
Mr. Tauzin. The gentleman's time has expired.
Mr. Pitofsky, do you want to respond quickly?
Mr. Pitofsky. Very briefly.
I could not agree more that the mix between law and self-
regulation addresses complicated issues. We want to be sure as
we proceed that we get it right. I know that that is what you
are asking us to do, to investigate carefully.
On the other hand, this is not an area where internet
sellers are completely unregulated, where there is no
oversight. We recommended legislation with respect to privacy
of kids and we bring cases under section 5 challenging
invasions of privacy all of the time. So it is not totally
unregulated. The question of where self-regulation is
appropriate and where law is appropriate is exactly what we
would like to try to address and we will continue to address
and provide our thoughts to the committee.
Mr. Tauzin. Does any other member wish to make--the
gentlelady from California.
Ms. Eshoo. Thank you, Mr. Chairman.
You just mentioned, Mr. Chairman, you touched on the issue
of children. You testified last year that legislative action
was appropriate for protecting the privacy of children, and we
passed the Children'S Online Privacy Protection Act. Your
agency has written rules to implement it, though I understand
they have yet to take effect.
Do you have any information on whether companies have
improved their online protections for children in anticipation
of these rules kicking in, and do you consider your actions in
this area to be a success? Would you grade companies higher,
give them a higher grade in the area of children's privacy than
in the area of adult protections?
Mr. Pitofsky. My reaction is an impression rather than a
careful study. I do believe that there has been some
improvement and some recognition on the part of companies,
partly because some of the suits that the FTC has brought.
Those suits that asked for the toughest remedies did involve
invasion of privacy, using kids to disclose family finances. So
we have cracked down there. There has been a lot of publicity.
My impression is, things have improved, but I really don't have
a statistical analysis available.
Ms. Eshoo. I think that what you could provide our
committee with could be instructive in this area because it
seems to me what has been interwoven in this hearing is, there
is a nexus between setting the standard and then compliance
with it. On the one hand, it is voluntary, and on the other, it
has been legislatively directed. Perhaps we could be able to
learn from the two. I don't know when you could bring something
like that forward, but I would certainly be interested in it.
Mr. Tauzin. I thank the gentlelady.
Mr. Pitofsky. The best regulation combines the two:
legislation in appropriate areas and self-regulation in
appropriate areas.
Ms. Eshoo. Could I just follow up very quickly? Is it your
sense overall, though, that the reason that you are saying that
you don't believe it is appropriate for legislative action now
is that it is too early or you just don't believe that there
should be any legislative action in the adult privacy
protection area?
Mr. Pitofsky. It is not the latter. It is too early and the
sector is too fast-moving. You want to measure the target
accurately before you try for legislation. I think at least at
this point things are moving in the right direction and it is
premature.
Ms. Eshoo. Thank you.
Mr. Tauzin. Anyone else?
Mr. Boucher.
Mr. Boucher. Mr. Pitofsky, I want to revisit with you
briefly the question of how long we do have to wait. In
answering that question, let me just point out with regard to
TRUSTe we have now waited 2 years. And TRUSTe now certifies a
total of 500 sites, 500 out of more than a million. With regard
to the CPA WebTrust, we have now waited for 2 years and the
WebTrust certifies 19 sites out of more than a million. And in
Internet time, 2 years is not a short period of time. We all
have waited substantially with regard to these two programs.
And then the Better Business Bureau, which admittedly is
somewhat newer, 3 months old, only has 42 sites out of a
million. Where are we going to be this time next year? When are
we going to know that we have achieved success, and how long
can we afford to wait?
Mr. Pitofsky. I will just repeat what I said before. If
there is as much progress this year as last year, then I think
that we are on the right track and we are going to get to a
place where all of us agree that we ought to be. If the
progress falls off, if we find they put on a good show this
year to head off legislation and nothing more happens, I will
be up here, speaking for myself and I hope my colleagues would
join me, in recommending that there be legislation, because the
problem is not being solved.
Mr. Boucher. Well, Mr. Pitofsky, I thank you. I would only
point out that I think there is some legislation that we can
pass this year that the industry would not head off--in fact,
would support--that would provide a certain set of guarantees
that the public does not have today. Thank you.
Mr. Tauzin. The Chair thanks the gentleman.
Let me wrap up by making a couple of comments. First of
all, we have learned a good deal at this hearing. We thank you
very much for your contributions. While this hearing was
entitled The Current Status of Privacy Protections for Online
Consumers, I think my friend from Massachusetts and others on
the committee will agree with me that privacy concerns are
broader than even the online privacy concerns.
I made the point about the public broadcast station
inappropriately trading or renting, selling something, its
list, inappropriately to political parties. But in that regard
it is clear from the testimony today that this thing is still
very much in flux.
I read somewhere that only 15 percent of the Web sites are
even identified on most search engines. There are a lot of Web
sites out there. Many of them obviously are not even available
to a lot of us through the search engines. I might mention to
members that if you have a Web site and you haven't posted your
own notice, today might be a good time to do it. I have
instructed my staff to put together a notice and hopefully one
that will be identified as an appropriate one with approach
safeguards for people that visit our site.
In that regard, the other thing that we learned, as Mr.
Stearns pointed out, is that most of the business today, most
of the e-commerce is still business to business, but that a
huge and growing sector is going to be direct consumer
interaction with businesses in e-commerce. While that is only 1
percent of our commerce today, that is obviously going to grow
very rapidly. So getting this right as we watch the industry
make its attempts at self-regulation is going to be important.
Finally, let me point out to all of my friends on this side
of the panel and the other side, that while it might be very
inappropriate for us to try to put socks on this octopus, that
it may be very appropriate at some point to make it very
uncomfortable to go barefooted on the Internet. And at some
point we may indeed wish to proceed with legislation to say to
those who would not agree to proper self-enforcement, self-
regulatory mechanisms that there is some fall-back, some safety
net, to protect online consumers in that world.
I think that is sort what have we have been talking about
today, at what point do we do that and at what time do we do
that. In large measure, we are going to continue to rely upon
the good work, Mr. Pitofsky, that you and your agency are doing
in gathering information and reporting to us. I would encourage
you to continue that good work and continue to report to us on
the progress that is being made or the lack thereof. I finally
would like to send a strong signal to the industry again that
this hearing was designed not simply to catch up on progress,
but also as a strong message to continue that progress in the
hopes that whenever we do get to the stage where we have to
decide whether to make it uncomfortable to go barefooted that
that is a minimal government approach rather than a larger one.
That is our hope and I think that is the purpose and intent of
this hearing.
I would again encourage the industry to continue its
efforts to try to find the mechanisms that work so that we have
less concern here at this level and certainly at your level,
Mr. Pitofsky. Thank you very much for your testimony today.
Again, as always, we deeply appreciate your service to the
country. Thank you very much.
Mr. Pitofsky. Thank you, Mr. Chairman.
Mr. Tauzin. We would now call up our second panel of
witnesses. And they will include Mr. Robert Lewin, Executive
Director of TRUSTe just mentioned a minute ago, of California.
Ms. Deirdre Mulligan, Staff Counsel for the Center for
Democracy and Technology; Ms. Solveig Singleton, Director of
Telecommunications and Technology Studies for the CATO
Institute; and Mr. Steve Lucas, Chief Information Officer and
Senior Vice President, PrivaSeek, one of those efforts at
software protections for consumers; and Mr. Jerry Cerasale,
Senior Vice President, Government Affairs, Direct Marketing
Association, Inc.
Ladies and gentlemen, if you would take your seats. What we
might want to do--why don't you move to the center and we will
get the staff to move the nameplates. If you move to the
center, I think we probably would have a more productive
session with you. I would ask staff to appropriately move the
nameplates, and we can get started as soon as our committee
settles down and we can ask our guests to take their seats.
Thank you very much. By unanimous consent, as you heard
earlier, your written statements will be made a part of the
record, so I would appreciate it if you did not read them to
us. We have them in front of us. I would very much appreciate
it if you would toss them aside right now and just kind of
dialog with us. Give us the high points of your written
testimony and any other comments that you want to make within a
general 5-minute rule, which is the time allotted for witnesses
and for members here at this hearing.
We will begin with Mr. Robert Lewin, Executive Director of
TRUSTe. Mr. Lewin.
STATEMENTS OF ROBERT LEWIN, EXECUTIVE DIRECTOR, TRUSTe; DEIRDRE
MULLIGAN, STAFF COUNSEL, CENTER FOR DEMOCRACY AND TECHNOLOGY;
SOLVEIG SINGLETON, DIRECTOR OF TELECOMMUNICATIONS AND
TECHNOLOGY STUDIES, CATO INSTITUTE; STEVEN LUCAS, CHIEF
INFORMATION OFFICER AND SENIOR VICE PRESIDENT, INDUSTRY
GOVERNMENT RELATIONS, PrivaSEEK; AND JERRY CERASALE, SENIOR
VICE PRESIDENT, GOVERNMENT AFFAIRS, DIRECT MARKETING
ASSOCIATION, INC.
Mr. Lewin. Thank you, Mr. Chairman. My name is Bob Lewin,
and I am the Executive Director of TRUSTe. I would like to
start of again by thanking the chairman and the members of the
committee for the opportunity to talk with you today.
As you know, TRUSTe is an Internet privacy seal program
,operating independent from government and industry. Our goal
from the beginning was to develop a program that was
understandable by consumers, but did have teeth to ensure
compliance. I will talk more about this.
We feel that in the TRUSTe's seal that we have done this.
When we developed the TRUSTe program in 1996, consumer privacy
concern was barely a blip on the industry radar. But at that
time several studies had pointed to the general distrust that
the medium, primarily stemming from the fact that participation
would compromise personal privacy, has raised the issue to the
level that it is now. However, it is a complex problem as has
already been pointed out.
How do you regulate business practices in a global medium
that is constantly changing where you have rapid growth? What
we tried to do with the TRUSTe privacy seal program is develop
a solution that brings together government pressure with the
discipline of self-regulation. That solution is what we call
self-governance. Self-governance is a three-dimensional
solution that applies and leverages various degrees of pressure
from consumers, from government, and from the industry to
implement the appropriate practices. Under that framework of
self-governance, industry doesn't act alone; rather, it acts in
concert with existing laws and mores.
With the TRUSTe program, if you draw the analogy with the
Good Housekeeping Seal of Approval, which I understand is
celebrating its 100th anniversary this year, just to keep it in
prospective, perhaps that characterization is perhaps a little
misleading. TRUSTe, we believe, is a more robust tool. There
are few reasons to illustrate this. First, by displaying the
seal, we go beyond just illustrating the commitment to the Web
publisher to disclose privacy practices. But we provide
consumers with an immediate and easy access to those policies
with a click of the mouse.
Second, we have continually raised the minimum requirements
for the program. When we started the program, all we had to do
was ask a licensee to post a privacy policy. Today we require
all new and renewing licensees to be in compliance with the
FTC's fair information practices, all of the points that were
talked about earlier.
Third, we work closely with respective licensees. We talk
about Internet time, but the implementation of these times
still involves people and the changes that are required within
the organization. That time sometimes does not operate at the
Internet speed that we all seem to have become accustomed to
when we talk about technology. By providing consumers with more
than a seal, by consistently raising the bar, and by being
proactive in our advice to the Web sites, we have--we feel that
we have become a leading facilitator of trusting relationships
online.
We talked about the Georgetown Internet privacy survey.
Suffice it to say that progress has been made. However, you
look at that information depending on what side of the argument
you are on, there has been some progress. Is it enough? Do we
need to do more? Absolutely. Nobody disputes that. But progress
has definitely been there.
Speaking for TRUSTe, in July 1997 we had 15 licensees.
Today we are well past 100--800, sorry--well past 800. The
acceleration in the number of licensees each month is
tremendous. We will be by the end of this year well past 1,500
if the trends continue as they have been.
Now, while again we say there is significant progress,
there is still a lot to do. First of all, since we have a solid
foundation, now we want to spend more time and we will be
focusing more time on consumer education. Last fall we did the
Privacy Partnership, which was a grass-roots advertising
program focused on educating online consumers on their privacy
rights. It was led by an unprecedented bringing together of the
large portal sites. That privacy partnership was the biggest
online advertising campaign ever. It had approximately 200
million banner ads that attracted 1 million people within a 3-
week period of time.
Second, widespread consumer education and ubiquity is a
priority, but our focus must be on guaranteeing the safety of
the most vulnerable Web user, children. Last fall we launched
the TRUSTe Children Privacy Seal Program in anticipation of the
FTC's and Congress' move in this area. We have now--that has a
higher level of privacy than is required for sites that are
directed toward children. We enforce those through our program.
Last, our goal was to create a globally recognized privacy
seal program. Now, with the rise of the European privacy
directive and the implications of U.S. Business, it is critical
to make our seal global, not just local, local being North
America. To that end, we have recently expanded our program and
appointed a European director, and we also have sites in Europe
with the TRUSTe seal. By focusing our attention on consumer
education, child protection and international expansion, we are
making progress in not only getting ubiquity of the TRUSTe
seal, but we are succeeding in creating a safer online
environment.
I would like to conclude by thanking the chairman and
members of the committee for giving us the opportunity to
update you on where we are, but more importantly, where we are
going. We are happy with the results from the FTC because it
does demonstrate that progress has been made. But we also
recognize that we have a lot more to do and we are committed to
making it happen. Thank you.
[The prepared statement of Robert Lewin follows:]
Prepared Statement of Robert Lewin, Executive Director, TRUSTe
Thank you, Mr. Chairman. My name is Bob Lewin. I am the executive
director of TRUSTe. I want to start off by thanking you, Mr. Chairman,
and the members of the Committee for the invitation to speak today.
As many of you know, TRUSTe is an Internet privacy seal program
operating independent from industry and government. For more than two
years, we have been working to address consumer privacy concerns by
providing Web businesses with the TRUSTe Privacy Seal, a symbol which
effectively communicates a site's privacy practices and provides
consumers with a powerful oversight mechanism. Our goal from the
beginning was to establish a program easy enough for a consumer to
understand, but with ``teeth'' to ensure compliance. With the TRUSTe
seal, that is exactly what we accomplished.
I would like to spend a little time today talking to you about the
TRUSTe program and where it is headed. I would also like to talk to you
about how our program fits into the overall self-governance model and
how that framework is proving to be the most effective way of ensuring
the healthy growth of this new medium.
When we began development of the TRUSTe program in 1996, consumer
privacy concern was barely a blip on the Industry's radar. But at the
time several studies pointed to a general distrust in the medium,
emanating largely from the fear that participation would compromise
personal privacy. We understood, though, that this was only the tip of
the iceberg and that the lack of trust would have staggering
implications to the success of Internet commerce. Simply put, just as
trust is critical to the healthy growth of communities, the absence of
trust can cripple economic growth.
However, we were confounded by a complex problem: how do you
regulate business practices on a global medium that is constantly
changing and fast growing? It was clear to us that the answer was not
in what many called self-regulation, defined by most as industry being
given free-rein to act on its own accord. Similarly, we believed that
government oversight in the form of laws and statutes wouldn't work
within the global and evolving framework of the Internet.
What we created with the TRUSTe privacy seal program was a solution
that melds the weight of government pressure with the discipline of
self-regulation. That solution is called self-governance. Self-
governance is three-dimensional system that leverages a variety of
pressure points (from consumers to government to industry) to implement
appropriate practice. Under the framework of self-governance, industry
doesn't act alone; rather, it acts in concert with existing laws and
mores. [Some would say that this is the Internet's version of Checks
and Balances].
Perhaps the brightest sign that the self-governance framework is
working is the success of privacy seal programs, such as TRUSTe. I'd
like to take a few minutes to describe our program, give you an
overview of how the program is doing, and tell you where TRUSTe is
headed.
In many ways, the TRUSTe program is the online privacy version of
the Good Housekeeping Seal of Approval. Although even that
characterization is a little misleading. TRUSTe is, in fact, a far more
robust tool. There are a few reasons that best illustrate this.
First, displaying the TRUSTe seal goes beyond illustrating the
commitment of the Web publisher to disclose privacy practices. TRUSTe
provides consumers with immediate and easy access to the actual privacy
policies by just the click of a mouse.
Second, the TRUSTe seal itself has raised its minimum standards of
privacy practices disclosure. When we started the program we required
only that TRUSTe licensee sites post privacy policies. Today, we
require all of our new and renewing licensees to be in accordance with
the Federal Trade Commission's standards for fair information
practices.
Third, TRUSTe works closely with prospective licensees on the front
end to ensure that their privacy practices are in-line with consumer
demand. We invest a lot of our own resources to provide counsel to Web
sites on how they can better develop trusted relationships online.
By providing consumers with more than just a seal, by consistently
raising the bar of entry, and by pro-active counsel to prospective
licensees, the TRUSTe privacy seal program has become a leading
facilitator of trusted relationships online.
By every metric available, the self-governance model is working.
According to the Georgetown Internet Privacy Policy survey, nearly two-
thirds of all commercial Web sites are posting some kind of privacy
disclosure. When you take that into context with previous benchmarks,
the figure is staggering. While direct comparisons with the results of
last year's FTC study cannot be made, the fact that 67 percent of sites
now post privacy disclosures suggests significant progress has been
made. And while we recognize that not all of these disclosures are as
comprehensive as they could be, the TRUSTe program gives businesses the
tools and the help they need to develop their privacy policies so that
they are in line with fair information practices.
Progress can most clearly be seen in the success of the TRUSTe
program.
To give you an idea of TRUSTe's growth, in July 1997 we had a total
of 15 licensees. Today, that number has risen to more than 800. In
fact, more than 90 percent of Web users are on TRUSTe approved sites
each month. Looking to the future, our internal projections show that
we will have more than 1500 licensees by the end of the year.
Privacy seal programs illustrate a self-governance model that
allows an industry to impose rules on itself while, at the same time,
exposing itself to outside scrutiny. If a TRUSTe licensee is found to
have violated its agreement with us, not only can we sue them for
contract violation, but the Federal Trade Commission can take action as
well. Beyond that, sites found in violation of the licensing agreement
are likely to suffer reputation stains that can jeopardize their market
position.
But while a significant amount of progress has been made, there are
still (to quote the poet) miles to go before we sleep.
First, now that we have built a solid foundation, our efforts
moving forward will be focused on consumer education. In fact, we are
already off to a good start. Last Fall TRUSTe formed the Privacy
Partnership, a grassroots advertising campaign aimed at educating
online consumers about their privacy rights. Led by an unprecedented
union of all of the Internet portal sites, the Privacy Partnership has
become the biggest online advertising campaign, ever.
Second, while widespread consumer education and ubiquity is a
priority, our focus must be on guaranteeing the safety of the most
vulnerable Web users: children. Last fall we launched the TRUSTe
children's privacy seal, a special symbol that holds higher privacy
standards for Web sites that target kids. In the next year, we will be
placing emphasis on promoting this new seal to child-oriented sites.
Lastly, our goal from the outset was to create a globally
recognized privacy seal that was suitable for the global Internet
medium. With the rise of the European Privacy Directive and its
implications to U.S. business, it is critical to make the TRUSTe seal
applicable globally, not just locally. To that end, TRUSTe recently
expanded its program by appointing an interim European director. We
will continue to build that program out, as well as look to other
regions for growth.
By focusing our efforts on consumer education, children's privacy
and international expansion, we are making progress in not only gaining
ubiquity for the TRUSTe privacy seal, but we are succeeding in creating
a safer online environment for everyone.
I want to conclude by thanking you, Mr. Chairman, for inviting me
here today. Online self-governance has become a distinct characteristic
of the Internet. Privacy seal programs and the quick mobilization by
the online community to address consumer privacy concerns indicate that
the self-governance model is working. But we need to realize that self-
governance, like the medium itself, is in its nascent stages.
The vision of self-governance is a result of the democratic quality
of the Internet, where the law is defined largely by the engagement and
participation of each community member. That requires the participation
of all members of the Web community, from the media to businesses to
advocacy groups, in educating consumers about their privacy rights
online and what road signs to for on the Web. It also requires the
engagement of public policy decision-makers in scrutinizing the
activity of the online world. But, at the same time, it is critical now
more than ever to not pass unnecessary regulations that will stand in
the way of the healthy growth of this medium.
Based on the initial success of the TRUSTe program, the rise in
popularity of e.commerce and the validating benchmarks of specific Web
studies, we are well on our way to creating a safer and consumer
empowering environment on the Web.
I would now be happy to answer any of your questions. Thank you.
Mr. Tauzin. Thank you very much, Mr. Lewin.
Now, Ms. Deirdre Mulligan, Staff Counsel for the Center for
Democracy and Technology.
STATEMENT OF DEIRDRE MULLIGAN
Ms. Mulligan. Thank you again for the opportunity to be
here there. There is a little bit of a Groundhog Day feeling,
having been here last year at this time, and I hope that my
comments are substantially different, although I think that we
are looking in many ways at a similar dilemma as in ``Are we
there yet?'' and how best do we get there.
I would just like to emphasize three points before
diverging from my written remarks. One, the Internet is
incredibly unique and offers us unique opportunities.
Literally, as you pointed out, as Mr. Cox pointed out, it
offers some unique challenges to protecting privacy. Nowhere
can individuals be traced and monitored like this anywhere in
the off-line world. And I think that is probably the most
important thing that the FTC has continued to bring to this
discussion.
In their efforts, which I think have focused really on
fairness when we talk about privacy, what do companies do with
information, how much control do individuals have over
information and now they are starting, having read through some
of their reports, to diverge into some of the more tricky
issues in the online arena. Unique identifiers, the issues
posed by something like the Pentium III PSN; are we all going
to have a digital dog tag as we wander around the Internet--
online profiling, how much information is out there, what is
being used, how it is being used. Is law enforcement, for
example, gaining access to this data?
A report that the FTC delivered to you last year, 2 years
ago now, in the individual reference services group identified
that, in fact, private sector data is in fact very often used
by law enforcement agencies. So talking about the flow of data
back and forth between the public and private sectors is an
important place that we need to look at.
The second is that privacy is a very complex value, and
what the FTC has focused on over the past 4 years now has been
the fairness component. There are other issues as the committee
has pointed out earlier today. Individual expectations of
privacy don't exist just vis-a-vis the private sector. They
also are very alive and well, as we know, from things like the
rejection of the know-your-customer rules, reactions to unique
health identifiers vis-a-vis the government. In fact, we have
been looking at what the government is doing about privacy
protections and privacy protections on the World Wide Web. Two
months ago, we actually did a survey of government privacy
policies, what are they saying at Web sites, and found that
about a third of them were not posting policies. There has
since been some direction from OMB to actually step up.
I think the appointment by the White House of someone to
look at privacy issues is another very positive step. We see
privacy emerging as a much more important piece of both the
administration and of the FTC's agenda as a consumer protection
issue.
However, I want to step back and say, imagine if tomorrow
when you woke up and you got out of bed and you walked down the
street that you found out that cash had disappeared. When you
went to buy your cup of coffee and your newspaper, when you
went to buy your half-smoked or grilled cheese or whatever it
might be at lunch, and perhaps the antacid and the Rogaine,
everything that you purchased you were buying with your credit
card. And that you also found out that every business that you
went into, that 90 percent of them, perhaps more, before you
even made a purchase, they were actually asking you for
information before you actually made a purchase.
And in addition, a large majority of them when you walked
into the store asked you, as a condition of shopping, to place
this teeny-tiny newfangled camera called a ``cookie'' on your
shoulder, because they want to get a sense of what you are
doing. For good purposes, they want to improve how they are
stocking their shelves, et cetera, but basically they want to
monitor what it is that you are doing. Perhaps they don't know
who you are, but they certainly care a lot about your
preferences. Do you want the salmon or the filet mignon? How
long did it take you to make up your mind?
In addition, you found out that later on in those
practices, that information that was being stored in the
private sector did become fodder for a Kenneth Starr, who is
interested in what books you purchased; or the Drug Enforcement
Agency, recently interested in what people are buying at the
grocery store, how many little plastic bags are you purchasing,
that this private information that is being collected within
the private sector is bleeding back into our government
actions.
I think that many of us would feel like the American public
has said they do. The figures of 87 percent of the people being
concerned in the online environment is exactly because this is
the kind of environment that I think people feel like they
face.
Now, I think the Internet is a wonderful place. I think
technology has an enormous opportunity to help consumers
protect their privacy, strong encryption, which this committee
has been very powerful in working toward, their basic
practices--TRUSTe, the Better Business Bureau OnLine, all of
them are moving in the right direction. There is certainly a
candle that is burning and some of the bugs are flocking to the
candle and some of them run away.
I think the question is always, how do we get to the bad
actors? Unfortunately, I think that I feel as though we are in
a similar position as we were last year. There has been much
more progress. There are many more companies that are beginning
to say things about privacy, and the leaders have taken some
very bold steps, saying that we are not going to spend
advertising dollars at Web sites that don't put in privacy
policies; that is a very clear market incentive and it's the
kind of thing that we need from leaders. However, when I look
at a figure of 10 percent, and I look at 66 percent and I say,
how do we get that 10 percent to be 100 percent, I have to say
that I think we need the government also to play a role.
I think that working together through a combination of
technology, self-regulation, and legislation that we can
provide the comprehensive privacy protections that we need. But
I think there is a lot of discussion that needs to happen, as
the rulemaking going on in the Children's Online Protection Act
right now highlights. Very difficult issues: When is data
identifiable; access to information, how do we do it; when is
information identifiable; when do people need to get access to
it.
So this is not--I am very pleased that the FTC is going to
continue to work on these hard issues. I certainly would
welcome your future efforts to look at these hard issues, but I
certainly think that the government has a role to play in this
area.
[The prepared statement of Deirdre Mulligan follows:]
Prepared Statement of Deirdre Mulligan, Staff Counsel, Center for
Democracy and Technology
i. overview
The Center for Democracy and Technology (CDT) is pleased to have
this opportunity to testify about privacy in the online environment.
CDT is a non-profit, public interest organization dedicated to
developing and implementing public policies to protect and advance
civil liberties and democratic values on the Internet. One of our core
goals is to enhance privacy protections for individuals in the
development and use of new communications technologies. We thank the
chairman and Representatives Markey and Boucher for holding this
hearing and for their commitment to seeking policies that support both
civil liberties and a vibrant Internet.
CDT wishes to emphasize three points this morning:
<bullet> The Internet presents new challenges and opportunities for the
protection of privacy. Our policies must be grounded in an
understanding of the medium's unique attributes and its unique
potential to promote democratic values.
<bullet> Privacy is a complex value. In the context of this discussion,
we believe Congress should focus on ensuring that individuals'
long-held expectations of autonomy, fairness, and
confidentiality are respected as daily activities move online.
These expectations exist vis-a-vis both the public and the
private sectors.
By autonomy, we mean the individual's ability to browse, seek
out information, and engage in a range of activities
without being monitored and identified.
Fairness requires policies that provide individuals with
control over information that they provide to the
government and the private sector. The concept of fairness
is embodied in the Code of Fair Information Practices
<SUP>1</SUP>--long-accepted principles specifying that
individuals should be able to ``determine for themselves
when, how, and to what extent information about them is
shared.'' <SUP>2</SUP> The Code also requires that those
who collect and use personal information do so in a manner
that respects individuals' privacy interests. Self-
regulatory efforts designed for the online environment are
gradually moving closer to the standards for privacy
protection set out in the Code of Fair Information
Practices. However, legislation, as well as robust self-
regulation, is both inevitable and necessary to ensure
privacy protection is the rule rather than the exception on
the Internet.
---------------------------------------------------------------------------
\1\ The Code of Fair Information Practices as stated in the
Secretary's Advisory Comm. on Automated Personal Data Systems, Records,
Computers, and the Rights of Citizens, U.S. Dept. of Health, Education
and Welfare, July 1973:
There must be no personal data record-keeping systems whose very
existence is secret.
There must be a way for an individual to find out what information
about him is in a record and how it is used.
There must be a way for an individual to prevent information about
him that was obtained for one purpose from being used or made available
for other purposes without his consent.
There must be a way for the individual to correct or amend a record
of identifiable information about him.
Any organization creating, maintaining, using, or disseminating
records of identifiable personal data must assure the reliability of
the data for their intended use and must take precautions to prevent
misuse of the data. Id. at xx
The Code of Fair Information Practices as stated in the OECD
guidelines on the Protection of Privacy and Transborder Flows of
Personal Data http://www.oecd.org/dsti/sti/ii/secur/prod/PRIV--EN.HTM
1. Collection Limitation Principle: There should be limits to the
collection of personal data and any such data should be obtained by
lawful and fair means and, where appropriate, with the knowledge or
consent of the data subject.
2. Data quality: Personal data should be relevant to the purposes
for which they are to be used, and, to the extent necessary for those
purposes, should be accurate, complete and kept up-to-date.
3. Purpose specification: The purposes for which personal data are
collected should be specified not later than at the time of data
collection and the subsequent use limited to the fulfillment of those
purposes or such others as are not incompatible with those purposes and
as are specified on each occasion of change of purpose.
4. Use limitation: Personal data should not be disclosed, made
available or otherwise used for purposes other than those specified in
accordance with the ``purpose specification'' except: (a) with the
consent of the data subject; or (b) by the authority of law.
5. Security safeguards: Personal data should be protected by
reasonable security safeguards against such risks as loss or
unauthorized access, destruction, use, modification or disclosure of
data.
6. Openness: There should be a general policy of openness about
developments, practices and policies with respect to personal data.
Means should be readily available of establishing the existence and
nature of personal data, and the main purposes of their use, as well as
the identity and usual residence of the data controller.
7. Individual participation: An individual should have the right:
(a) to obtain from a data controller, or otherwise, confirmation of
whether or not the data controller has data relating to him; (b) to
have communicated to him, data relating to him: within a reasonable
time; at a charge, if any, that is not excessive; in a reasonable
manner; and, in a form that is readily intelligible to him; (c) to be
given reasons if a request made under subparagraphs (a) and (b) is
denied, and to be able to challenge such denial; and, (d) to challenge
data relating to him and, if the challenge is successful to have the
data erased, rectified completed or amended.
8. Accountability: A data controller should be accountable for
complying with measures which give effect to the principles stated
above.
\2\ Alan Westin. Privacy and Freedom (New York: Atheneum, 1967), 7.
---------------------------------------------------------------------------
In terms of confidentiality, we need a strong Fourth Amendment
in cyberspace. But confidentiality protections--both
technical and legal--are growing increasingly porous as
technology changes and more information resides outside of
the home on networks. It is time to update and strengthen
the Electronic Communications Privacy Act. Further, our
laws protecting privacy will have limited impact in the
global environment. For that reason, to ensure that
citizens and businesses have the ability to protect their
sensitive information and communications, the government
must change its policy course on encryption.
<bullet> Preserving these core elements of privacy on the Internet
requires a thoughtful, multi-faceted approach combining self-
regulatory, technological, and legislative components.
ii. what makes the internet different?
CDT focuses much of its work on the Internet because we believe
that it, more than any other medium, has characteristics--
architectural, economic, and social--that are uniquely supportive of
democratic values. Because of its decentralized, open, and interactive
nature, the Internet is the first electronic medium to allow every user
to ``publish'' and engage in commerce. Users can reach and create com-
munities of interest despite geographic, social, and political
barriers. As the World Wide Web grows to fully support voice, data, and
video, it will become in many respects a virtual ``face-to-face''
social and political milieu.
But while the First Amendment potential of the Internet is clear,
and recognized by the Supreme Court, the impact of the Internet on
individual privacy is less certain. Will the online environment erode
individual privacy--building in national identifiers, tracking devices,
and limits on autonomy? Or will it breathe new life into privacy--
providing protections for individuals' long held expectations of
privacy?
The Internet poses both challenges and opportunities to protecting
privacy. The Internet accelerates the trend toward increased
information collection that is already evident in our offline world.
The trail of transactional data left behind as individuals use the
Internet is a rich source of information about their habits of
association, speech, and commerce. When aggregated, these digital
fingerprints reveal a great deal about an individual's life. The global
flow of personal communications and information coupled with the
Internet's distributed architecture presents challenges for the
protection of privacy. However, Anonymizers, anonymous remailers, and
other privacy-enhancing tools allow individuals to create zones of
privacy--limiting who knows what about them and protecting their
sensitive communications from prying eyes. Computer code and products
are becoming increasingly critical to the protection of privacy in this
distributed environment. With privacy-enhancing tools users will be
empowered to control their personal information in new ways.
As we move swiftly toward a world of electronic democracy,
electronic commerce and indeed electronic living, it is critical to
construct a framework of privacy protection that fits with the unique
opportunities and risks posed by the Internet. But as Congress has
discovered in its attempts to regulate speech, this medium deserves its
own analysis. Laws developed to protect interests in other media should
not be blindly imported. To create rules that map onto the Internet, we
must fully understand the characteristics of the Internet and their
implications for privacy protection. We must also have a shared
understanding of what we mean by privacy. Finally we must assess how to
best use the various tools we have for implementing policy--law,
computer code, industry practices, and public education--to achieve the
protections we seek.
iii. the erosion of privacy and the path towards its restoration
There are several core ``privacy expectations'' that individuals
have long held vis-a-vis both the government and the private sector,
the protection of which should carry over to interactions on the
Internet. Surveys of Internet users, and would-be Internet users,
reveal a high level of concern with threats to privacy online. Surveys
suggest that concern over privacy is keeping individuals off the
Internet <SUP>3</SUP>, retarding the growth of e-commerce <SUP>4</SUP>,
and leading individuals to engage in privacy-protective behaviors such
as providing false information.<SUP>5</SUP> A recent survey of Internet
users found that 87% are concerned about threats to their personal
privacy.<SUP>6</SUP>
---------------------------------------------------------------------------
\3\ A 1998 Business Week Survey found that privacy was the number
one reason individuals are choosing to stay off the Internet, coming in
well ahead of cost, concerns with complicated technology, and concerns
with unsolicited commercial email. Business Week, March 16, 1998.
\4\ A TRUSTe and Boston Consulting Group survey conducted in 1997
found that privacy concerns were leading users to limit their
engagement in electronic commerce.
\5\ Id. and see footnote 6.
\6\ Beyond Concern: Understanding Net Users Attitudes About Online
Privacy, AT&T, 1999.
---------------------------------------------------------------------------
The remainder of our testimony will discuss the three critical
privacy expectations of autonomy, fairness, and confidentiality,
explore the changes in technology and policies that threaten them, and
finally outline a plan for their restoration.
A. The Expectation of Autonomy
1. Why is it at risk? Imagine walking through a mall where every
store, unbeknownst to you, placed a sign on your back. The signs tell
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.
When individuals surf the World Wide Web, they have a general
expectation of anonymity, more so than in the physical world where an
individual may be observed by others. As documented in several surveys,
individuals value their anonymity and will take steps, such as
providing false information and refusing to register, to protect
it.<SUP>7</SUP> Online, individuals often believe that if they have not
affirmatively disclosed information about themselves, then no one knows
who they are or what they are doing. But, contrary to this belief, the
Internet generates an elaborate trail of data detailing every stop a
person makes. The individual's employer may capture this data trail if
she logs on at work, and it is captured by the Web sites the individual
visits. This transactional or click stream data can provide a
``profile'' of an individual's online life.
---------------------------------------------------------------------------
\7\ The 8th annual poll of the Grahpics, Visualization, and
Usability Center at the Georgia Institue of Technology found that in
order to protect their privacy, significant numbers of people falsify
information online. Particularly, users report regularly falsifying
registration information. The most common reason for not registering is
the lack of a statement about how the information will be used. In
addition, the GVU study showed that users would rather not access a
site than reveal information. (1998)
The survey Beyond Concern: Understanding Net Users Attitudes About
Online Privacy found that individuals were reluctant to provide
identifying information such as credit card numbers but were more
willing to provide information that did not identify them. AT&T (1999)
---------------------------------------------------------------------------
Two recent examples highlight the manner in which individuals'
expectation of autonomy is increasingly challenged in the online
environment. (1) The introduction of the Pentium III processor equipped
with a unique identifier (Processor Serial Number) threatens to greatly
expand the ability of Web sites to surreptitiously track and monitor
online behavior. The PSN could become something akin to the Social
Security Number of the online world--a number tied inextricably to the
individual and used to validate one's identity throughout a range of
interactions with the government and the private sector. (2) The Child
Online Protection Act (COPA), passed in October, requires Web sites to
prohibit minors' access to material considered ``harmful to minors.''
Today, when an individual walks into a convenience store to purchase an
adult magazine, they may be asked to show some identification to prove
their age. Under the COPA, an individual will be asked not only to show
their identification, but also to leave a record of it and their
purchase with the online store. Such systems will create records of
individuals' First Amendment activities, thereby conditioning adult
access to constitutionally protected speech on a disclosure of
identity. This poses a Faustian choice to individuals seeking access to
information--protect privacy and lose access or exercise First
Amendment freedoms and forego privacy.
2. The Path to Individual Autonomy Online
While the global, distributed environment of the Internet raises
challenges to our traditional methods of implementing policy, the
specifications, standards, and technical protocols that support the
operation of the Internet offer a new way to implement policy
decisions. In the area of autonomy, focusing on standards and
applications is crucial. By building systems that respect individuals
varied needs for identification, pseudonymity, and anonymity--building
a digital wallet with cash, credit cards, a metro fare card, and a
driver's license--will help build an online environment that promotes
autonomy. By building privacy into the architecture of the Internet, we
have the opportunity to advance public policies in a manner that scales
with the global and decentralized character of the network. As Larry
Lessig repeatedly reminds us, ``(computer) code is law.''
Accordingly, we must promote specifications, standards and products
that protect privacy. A privacy-enhancing architecture must
incorporate, in its design and function, individuals' expectations of
privacy. For example, a privacy-friendly architecture would provide
individuals the ability to ``walk'' through the digital world, browse,
and even purchase without disclosing information about their identity,
thereby preserving their autonomy. Of course, it would also provide
individuals the opportunity to create relationships that are
identifiable--or at least authenticated--for engaging in activities
such as banking. This would be coupled with policies that allow
individuals to control when, how, and to whom personal data collected
during interactions is used or disclosed.
While there is much work to be done in designing a privacy-
enhancing architecture, some substantial steps toward privacy
protection have occurred. Positive steps to leverage the power of
technology to protect privacy can be witnessed in tools like the
Anonymizer, Crowds, and Onion Routing, which shield individuals'
identity during online interactions, and encryption tools such as
Pretty Good Privacy that allow individuals to protect their private
communications during transit. Coupled with rules such as those found
in the Government Paperwork Elimination Act of 1998, which established
privacy protections governing personal information collected when the
public uses electronic signature systems,<SUP>8</SUP> technology may
evolve in ways that support individuals' interest in autonomy.
---------------------------------------------------------------------------
\8\ Many such systems gather sensitive information in the course of
providing and guaranteeing an electronic signature.
---------------------------------------------------------------------------
The law prohibits companies that collect such information from
using or disclosing it without the permission of the person involved.
Authored by Senators Leahy and Abraham, this marks the first attempt to
craft a legislative approach to dealing with the potential erosion of
privacy created by electronic signature use.
B. The Expectation of Fairness and Control Over Personal Information
1. Who controls the data? When individuals provide information to a
doctor, a merchant, or a bank, they expect that those professionals/
companies will collect only information necessary to perform the
service and use it only for that purpose. The doctor will use it to
tend to their health, the merchant will use it to process the bill and
ship the product, and the bank will use it to manage their account--end
of story. Unfortunately, current practices, both offline and online,
foil this expectation of privacy. Much of the concern with privacy in
electronic commerce stems from a lack of privacy rules in various
sectors of the economy, such as financial and health, that handle a
treasure trove of sensitive information on individuals.
Whether it is medical information, or a record of a book purchased
at the bookstore, or information left behind during a Web site visit,
information is routinely collected without the individual's knowledge
and used for a variety of other purposes without the individual's
knowledge--let alone consent.
Focusing on the online environment, we now have information from
two studies assessing the state of privacy notices on the World Wide
Web. Last June, the Federal Trade Commission's ``Privacy Online: A
Report to Congress'' found that despite increased pressure, businesses
operating online continued to collect personal information without
providing even a minimum of consumer protection. The report looked only
at whether Web sites provided users with notice about how their data
was to be used; there was no discussion of whether the stated privacy
policies provided adequate protection. The survey found that, while 92%
of the sites surveyed were collecting personally identifiable
information, only 14% had some kind of disclosure of what they were
doing with personal data.
The newly released Georgetown Internet Privacy Policy Survey
provides new data. The Survey was designed to provide an update on the
state of privacy policies on the World Wide Web. The study shows that
definite progress has been made in making many more Web sites privacy-
sensitive, but substantive privacy protections are still far from
ubiquitous on the World Wide Web. While more Web sites are mentioning
privacy, only 9.5% provide the types of notices required by the Online
Privacy Alliance, the Better Business Bureau and TRUSTe. Indeed, fair
information practices on the Web appear to remain the exception, not
the rule.
The Georgetown Survey shows that, spurred by surveys documenting
consumer concern and anxiety, and the work of individual companies
<SUP>9</SUP> and industry self-regulatory entities such as TrustE, the
Online Privacy Alliance, and the Better Business Bureau, an increased
number of Web sites are providing consumers with some information about
what personal information is collected (44%), and how that information
will be used (52%). Companies posting fuller information about their
data handling <SUP>10</SUP> are more likely to make them accessible to
consumers. Many have a link to such statements from the home page
(79.7%).<SUP>11</SUP>
---------------------------------------------------------------------------
\9\ For example, IBM recently stated that it would limit its
advertising to Web sites that post privacy notices.
\10\ The report calls these ``privacy policies'' as compared to
``information practice statements.'' ``Privacy policies'' are a more
comprehensive description of a site's practices that are located in a
single place and accessible through an icon or hyperlink. A site may
have a ``privacy policy'' by this definition but still not have a
privacy policy that meets the elements set out by the FTC or various
industry self-regulatory initiatives for an adequate privacy policy.
\11\ In response to the question, ``Is a Privacy Policy Notice easy
to find?'' surfers in the 1998 survey answered yes for approximately
1.2% of Web sites. FTC Report, Appendix C Q19.
---------------------------------------------------------------------------
However, on important issues such as access to personal information
and the ability to correct inaccurate information, the Georgetown
Survey shows that only 22% and 18% respectively of these highly
trafficked Web sites provide consumers with notice. On the important
issue of providing individuals with the capacity to control the use and
disclosure of personal information, the survey finds that 39.5% of
these busy Web sites say that consumers can make some decision about
whether they are re-contacted for marketing purposes--most likely an
``opt-out''--and fewer still, 25%, say they provide consumers with some
control over the disclosure of data to third parties.<SUP>12</SUP>
---------------------------------------------------------------------------
\12\ This number is generated using the data from Q32 (number of
sites that say they give consumers choice about having collected
information disclosed to outside third parties)--64--and dividing it by
256 (the total survey sample (364) minus the number of sites that
affirmatively state they do not disclose data to third-parties (Q29A)
(69) and the number of sites that affirmatively state that data is only
disclosed in the aggregate (Q30) (39)).
---------------------------------------------------------------------------
Overall, the Georgetown survey reveals that, at over 90% of the
most frequently trafficked Web sites,<SUP>13</SUP> consumers are not
being adequately informed about how their personal information is
handled.<SUP>14</SUP> At the same time the survey found that over 90%
of these same busy consumer-oriented Web sites are collecting personal
information.<SUP>15</SUP> In fact, the survey revealed an increase in
the number of Web sites collecting sensitive information such as credit
card numbers (up 20%), names (up 13.3%), and even Social Security
Numbers (up 1.7%).
---------------------------------------------------------------------------
\13\ Only 9.5% of the most frequently visited Web sites and 14.7%
of those that collect information had privacy policies containing
critical information called for by the FTC, the Administration, and
required by the Online Privacy Alliance, TrutstE and the BBB Online,
about notice; choice; access; security; and contact information.
\14\ Last years survey found approximately 2% or Web sites that
collected data, and less than 1% of all Web sites, had adequate
notices.
\15\ 92.9% are collecting some type of personal information.
---------------------------------------------------------------------------
Thus, while many companies appear to be making an effort to address
some privacy concerns, the results from the consumer perspective appear
to be a quilt of complex and inconsistent statements. The number of
sites that provide consumers with the types of notices required by the
Online Privacy Alliance, the Better Business Bureau and TrustE, and
called for by the Federal Trade Commission and the Administration, is
still relatively small (9.5%).
The posting of privacy notices is not just a private sector issue.
In a recent CDT study of federal agency Web sites, we found that just
over one-third of federal agencies had a ``privacy notice'' link from
the agency's home page. Eight other sites had privacy policies that
could be found after following a link or two and on 22 of the sites
surveyed we could not find a privacy policy at all.
The lack of widespread adherence to Fair Information Practices is
undermining consumer confidence. A recent survey by the National
Consumers League found that the majority of online users are not
comfortable providing credit card (73%), financial (73%), or personal
information (70%) to businesses online.<SUP>16</SUP> Due to privacy
concerns 42% of those who use the Internet are using it solely to
gather information, while a smaller 24% actually venture to purchase
goods online.<SUP>17</SUP> A second study found that 58% of consumers
do not consider financial transactions online to be safe, and 77% do
not believe it is safe to provide a credit card number through a
computer.<SUP>18</SUP> Privacy has been rightly identified by the
Federal Trade Commission, Congress, the business community, and
advocacy organizations as a critical consumer protection issue in e-
commerce.
---------------------------------------------------------------------------
\16\ Consumers and the 21st Century, National Consumers League
(1999).
\17\ Id.
\18\ National Technology Readiness Survey, conducted by Rockridge
Associates (1999).
---------------------------------------------------------------------------
2. Establish Rules That Give Individuals Control Over Personal
Information During Commercial Interactions. We must adopt enforceable
standards, both self-regulatory and legislative, to ensure that
information provided for one purpose is not used or redisclosed for
other purposes without the individual's consent. All such efforts
should focus on the Code of Fair Information Practices developed by the
Department of Health, Education and Welfare in 1973. The challenge of
implementing privacy practices on the Internet is ensuring that they
build upon the medium's real-time and interactive nature to foster
privacy and that they do not unintentionally impede other beneficial
aspects of the medium. Implementing privacy protections on the global
and decentralized Internet is a complex task that will require new
thinking and innovative approaches.
The Georgetown Survey supports our belief hat a combination of
means--self-regulation, technology, and legislation--are required to
provide privacy protections on the Internet. The study, as discussed
above, shows that some progress has been made in making many more Web
sites privacy sensitive, but substantive privacy protections are still
far from ubiquitous on the World Wide Web. Because many Web sites need
baseline policy guidance and because self-enforcement mechanisms, while
emerging, may not always provide a viable remedy, we believe that
legislation is both inevitable and necessary to ensure consumers'
privacy on the Internet.
To achieve real privacy on the Internet, we will need more than
better numbers, redoubled efforts by industry, or a legislative mantra.
We will need a good-faith concerted effort by industry, consumer and
privacy advocates, and policymakers to develop real and substantive
answers to a number of difficult policy issues involving the scope of
identifiable information, the workings of consent and access
mechanisms, and the structure of effective remedies that protect
privacy without adversely affecting the openness and vitality of the
Internet.
As the Federal Trade Commission's rulemaking under the Children's
Online Privacy Protection Act and industry's various efforts at self-
regulation show, these issues are not easy. But armed with the findings
of the Georgetown Internet Privacy Policy Survey, we believe interested
parties are in a position to move forward on a three pronged approach--
expanded self-regulation, work to develop and deploy privacy-enhancing
technologies such as P3P, and legislation--all require a serious
dialogue on policy and practice options for resolving difficult issues
in this promising medium.
In its testimony last July, the Federal Trade Commission stated
that, ``. . . unless industry can demonstrate that it has developed and
implemented broad-based and effective self-regulatory programs by the
end of this year, additional governmental authority in this area would
be appropriate and necessary.'' <SUP>19</SUP> Despite the considerable
effort of Congress, the Federal Trade Commission, the Administration
and industry to encourage and facilitate an effective self-regulatory
system to protect consumer privacy, based on the survey results we do
not believe that one has yet emerged. Like Commissioner Anthony, we
believe that industry leadership and self-regulatory programs are a
critical component of a privacy framework for the Internet but that
legislation is also necessary to establish a baseline and ensure
consumers are protected from bad actors.
---------------------------------------------------------------------------
\19\ Last years survey found approximately 2% or Web sites that
collected data, and less than 1% of all Web sites, had adequate
notices. Privacy Online: A Report to Congress, Federal Trade
Commission, June 1998.
---------------------------------------------------------------------------
Last year, the Federal Trade Commission offered a legislative
outline that embodied a framework, similar to the one we suggest,
building upon the strengths of both the self-regulatory and regulatory
processes. This year several bills have been introduced on a wide range
of privacy issues. Senators Burns and Wyden,<SUP>20</SUP> and Leahy
<SUP>21</SUP> have introduced proposals as have Representatives
Goodlatte and Boucher,<SUP>22</SUP> and Vento.<SUP>23</SUP> We
anticipate additional proposals from Senators Kohl, Torricelli, Dewine,
and Hatch, and Representative Markey. Historically, for privacy
legislation to be successful, it must garner the support of at least a
section of the industry. To do so, it generally must build upon the
work of some industry members--typically binding bad actors to the
rules being followed by industry leaders--or be critically tied to the
viability of a business service or product as with the Video Privacy
Protection Act and the Electronic Communications Privacy Act.
---------------------------------------------------------------------------
\20\ The Online Privacy Protection Act of 1999 (S. 809), introduced
on April 15, 1999, by Senators Burns (R-MT) and Wyden (D-OR).
\21\ Electronic Rights for the Twenty-First Century Act of 1999 (E-
RIGHTS) (S. 854), introduced on April 21, 1999 by Senator Leahy (D-VT).
\22\ Internet Growth and Development Act of 1999 (H.R. 1685),
introduced on May 5, 1999 by Representatives Boucher (D-VA) and
Goodlatte (R-VA).
\23\ Consumer Internet Privacy Protection Act of 1999 (H.R. 313),
introduced on January 6, 1999, by Representative Vento (DFL-MN).
---------------------------------------------------------------------------
Several companies have staked out leadership positions on the issue
of online privacy and several self-regulatory programs have formed to
drive industry best practices online. Numerous surveys have documented
that consumers are concerned about their privacy in e-commerce. In
addition, work is underway to develop the tools necessary to implement
fair information practices on the World Wide Web. The World Wide Web
Consortium's Platform for Privacy Preferences (``P3P'') is a promising
development. The P3P specification will allow individuals to query Web
sites for their policies on handling personal information and to allow
Web sites to easily respond. While P3P does not drive the specific
practices, it is a standard designed to promote openness about
information practices, to encourage Web sites to post privacy policies
and to provide individuals with a simple, automated method to make
informed decisions. Through settings on their Web browsers, or through
other software programs, users will be able to exercise greater control
over the use of their personal information. Regardless of how policies
are established, an Internet-centric method of communicating about
privacy is part of the solution.
As Congress moves forward this year, we look forward to working
with you and all interested parties to ensure that fair information
practices are incorporated into business practices on the World Wide
Web. Both legislation and self-regulation are only as good as the
substantive policies they embody. As we said at the start, crafting
meaningful privacy protections that map onto the Internet requires us
to resolve several critical issues. While consensus exists around at
least four general principles (a subset of the Code of Fair Information
Practices)--notice of data practices; individual control over the
secondary use of data; access to personal information; and, security
for data--the specifics of their implementation and the remedies for
their violation must be explored. We must wrestle with difficult
questions: When is information identifiable? How is it accessed? How do
we create meaningful and proportionate remedies that address the
disclosure of sensitive medical information as well as the disclosure
of inaccurate marketing data? For the policy process to successfully
move forward these hard issues must be more fully resolved. We look
for-
ward to working with the Committee to explore these issues and develop
a framework for privacy protection in the online environment. The
leadership of Internet-savvy members of this Committee and others will
be critical as we seek to provide workable and effective privacy
protections for the Internet.
C. The Expectation of Confidentiality
1. Who has access to records in cyberspace? When individuals send
email they expect that only the intended recipient will read it. In
passing the Electronic Communications Privacy Act in 1986, Congress
reaffirmed this expectation. Unfortunately, it is once again in danger.
While United States law provides email the same legal protection as
a first class letter, the technology leaves unencrypted email as
vulnerable as a postcard. Compared to a letter, an email message is
handled by many independent entities and travels in a relatively
unpredictable and unregulated environment. To further complicate
matters, the email message may be routed, depending upon traffic
patterns, overseas and back, even if it is a purely domestic
communication. While the message may effortlessly flow from nation to
nation, the privacy protections are likely to stop at the border.
Email is just one example. Today our diaries, medical records, and
confidential documents are more likely to be out in the network than
stored in our homes. As our wallets become ``e-wallets'' housed
somewhere out on the Internet rather than in our back-pockets, the
confidentiality of our personal information is at risk. The advent of
online datebooks, and products such as Novell's ``Digital Me'', and
sites such as Wellmed.com <SUP>24</SUP> which invite individuals to
take advantage of the convenience of the Internet to manage their
lives, financial information, and even medical records raise
increasingly complex privacy questions. While the real ``me'' has
Fourth and Fifth Amendment protections from the government, the
``Digital Me'' is increasingly naked in cyberspace.
---------------------------------------------------------------------------
\24\ WellMed.com is a proprietary Online Health Management System
which works by collecting personal health information from individuals,
analyzing that information to develop unique health profiles which are
used for a variety of purposes. One service is HealthNow!--``an online
personal health record enabling secure, confidential, and private
storage, management, and maintenance of health information by
individuals and their families. HealthNow affords easy access of
medical records from one central location anytime and anywhere the need
arises.''
---------------------------------------------------------------------------
2. Protecting the Privacy of Communications and Information.
Increasingly, our most important records are not ``papers'' in our
``houses'' but ``bytes'' stored electronically at distant ``virtual''
locations for indefinite periods of time and held by third parties. The
Internet, and digital technology generally, accelerate the collection
of information about individuals' actions and communications. Our
communications, rather than disappearing, are captured and stored on
servers controlled by third parties. Daily interactions such as our
choice of articles at a news Web site, our search and purchase of an
airline ticket, and our use of an online date book, such as Yahoo's
calendar, leave detailed information in the hands of third-parties.
With the rise of networking and the reduction of physical boundaries
for privacy, we must ensure that privacy protections apply regardless
of where information is stored.
Under our existing law, there are now essentially four legal
regimes for access to electronic data: 1) the traditional Fourth
Amendment standard for records stored on an individual's hard drive or
floppy disks; 2) the Title III-Electronic Communications Privacy Act
standard for records in transmission; 3) the standard for business
records held by third parties, available on a mere subpoena to the
third party with no notice to the individual subject of the record; and
4) a statutory standard allowing subpoena access and delayed notice for
records stored on a remote server, such as the diary of a student
stored on a university server, or personal correspondence stored on a
corporate server.
As the third and fourth categories of records expand because the
wealth of transactional data collected in the private sector grows and
people find it more convenient to store records remotely, the legal
ambiguity and lack of strong protection grows more significant and
poses grave threats to privacy in the digital environment.
Congress took the first small step towards recognizing the changing
nature of transactional data with amendments to the Electronic
Communications Privacy Act enacted as part of the Communications
Assistance for Law Enforcement Act of 1994 (``CALEA''). But the ongoing
and accelerating increase in transactional data and the detail it
reveals about individuals' lives suggests that these changes are
insufficient to protect privacy.
Moreover, the Electronic Communications Privacy Act must be updated
to provide a consistent level of protection to communications and
information regardless of where they are stored and how long they have
been kept. Senator Leahy's recently introduced legislation is an effort
to restore 4th Amendment protections to our personal papers.
Technologies that invite us to live online will quickly create a pool
of personal data with the capacity to reveal an individual's travels,
thoughts, purchases, associations, and communications. We must raise
the legal protections afforded to this growing body of detailed data
regardless of where it resides on the network.
iv. conclusion
No doubt, privacy on the Internet is in a fragile state. It is
clear that our policy framework did not envision the Internet as we
know it today, nor did it foresee the pervasive role information
technology would play in our daily lives. Our legal framework for
protecting individual privacy in electronic communications, while built
upon constitutional principles buttressed by statutory protections,
reflects the technical and social ``givens'' of specific moments in
history. Crafting privacy protections in the electronic realm has
always been a complex endeavor. Reestablishing protections for
individuals' privacy in this new environment requires us to focus on
both the technical aspects of the Internet and on the practices and
policies of those who operate in the online environment.
However, there is new hope for its restoration. Providing a web of
privacy protection to data and communications as they flow along
networks requires a unique combination of tools--legal, policy,
technical, and self-regulatory. We believe that legislation is an
essential element of the online privacy framework. Whether it is
setting limits on government access to personal information, ensuring
that a new technology protects privacy, or developing legislation--none
will happen without discussion, debate, and deliberation. Providing
protections for individual privacy is essential for a flourishing and
vibrant online community and marketplace. We thank the Committee for
the opportunity to share our views and look forward to working with the
members and staff and other interested parties to foster privacy
protections for the Digital Age.
Mr. Tauzin. Thank you, Ms. Mulligan.
Next will be Ms. Solveig Singleton, Director of
Telecommunications and Technology Studies for CATO.
Ms. Singleton.
STATEMENT OF SOLVEIG SINGLETON
Ms. Singleton. Thank you, Mr. Chairman. My name is Solveig
Singleton. I am a lawyer at the CATO Institute.
What I would like to do today is raise some key questions
about the interest in Federal standards for privacy. And
essentially, as some of you may know, my answers to those
questions are very controversial, but I hope that we can all
agree that the questions themselves are important and that the
sheer number of these questions should give Federal regulators
pause before they move toward Federal privacy standards.
The first point that I would like to make is that
essentially there has never been a serious philosophical debate
about whether privacy in this sense that we are talking about
today is a right or whether it is a complex mix of preferences
and questions of business ethics. That is to say, it is pretty
clear that Americans have a right of privacy against the
government; that is guaranteed by the fourth amendment to the
United States Constitution. But the default rule in the private
sector has generally been that people and businesses feel free
to communicate information about real people and real events to
other businesses. There are exceptions to that rule, but I
think that even in the case of a new technology like the
Internet, it is very important to have this philosophical
debate about the free flow of information versus controls on
that information before we move ahead.
Another point is that I think one of the unarticulated
assumptions behind the interest in Federal standards for
privacy has been that targeted marketing, which consumers tend
to be very suspicious of is, in fact, an activity that they
should be suspicious of and there is harm that they need to be
protected from, so if it is a casualty of Federal privacy
standards, we don't need to worry very much.
But I think there is actually a lot of empirical research
that has been done on the role that advertising plays in
enhancing competition, in giving consumers more choices and
essentially in getting them information that they wouldn't get
otherwise. While that information may seem to be biased, it is
better to get biased information from 12 different companies
than to get no information at all or just a trickle of
information.
Let me think. What is another one?
I would also like to underscore that based on survey data,
the approach to the privacy problem has started at the FTC with
the strong view that something needs to be done about this in
order for consumers to have trust in electronic commerce and,
in addition, that there is reason to believe that businesses
will not respond to this consumer demand on their own.
But I think that there has been very little discussion sort
of at an economics level of exactly why it is that there would
be consumer demand that somehow businesses would not respond
to. If you look at the high-tech marketplace, you see an awful
lot of businesses offering and catering to very many strange
and diverse consumer tastes. It is possible that they are going
to be stubborn about privacy if consumers really demand it, but
it seems unlikely.
So I guess looking at the electronic privacy marketplace,
if you see not everyone is coming on board with a privacy
standard right away, maybe that is just they are being perverse
and stubborn in some way; but maybe also it is because, in
fact, that in their real-world experience, the consumer demand
for privacy, while it might be something that they strongly
express in surveys, simply does not materialize in their real-
world experience. So it is important to question the
assumptions that we are making as we go forward with this
debate, just in case those assumptions were not in fact very
accurate.
In following up with this point, I will make the quick
point that if we were talking about a question like cable rate
deregulation, the committee wouldn't sort of even begin to
consider going forward if what the FTC had to offer them was a
survey of consumers saying that consumers wanted lower cable
rates, which I am sure they do. But clearly the question is a
lot more complicated than that. So I think that surveys can
only be a very small part of this picture. There are a lot of
holes in our understanding of what is going on with electronic
commerce. I have laid out some alternative studies in my
written testimony, including evidence about the cost savings to
consumers, the impact on competition and so on.
I can see that I should wrap up pretty quickly. I will just
say finally that another important question relates to bad
actors. I think it is very important that when you look at the
enormous experimentation that is going on out there in the
business world, you don't automatically put somebody in the
category of a bad actor simply because he has not posted a
privacy policy.
I will now conclude. Thank you.
[The prepared statement of Solveig Singleton follows:]
Prepared Statement of Solveig Singleton, Director of Information
Studies, The Cato Institute
Mr. Chairman, my name is Solveig Singleton and I am a lawyer at the
Cato Institute. In keeping with the truth in testimony rules, I note
that the Cato Institute does not receive any money at all from the
federal government, nor has it in the past.
Today I will raise some key questions about the push for more
federal standards on privacy, and propose some answers. In a sense, the
most valuable thing I have to offer will be the questions--it's hard to
do the answers justice in a short period of time. But I hope we can all
agree that the questions I raise are serious ones. The persistence and
nature of these questions in itself should give Congress pause before
it regulates.
Essentially, I'll make these points:
<bullet> Strange assumptions about business ethics and markets underlie
the push for federal standards.
<bullet> Huge holes remain in our understanding of the economics of e-
commerce and of the economic benefits of the free flow of
information.
<bullet> The standards by which self-regulation has been judged have
often been quite unreasonable.
privacy premises about morality
One key assumption behind the privacy movement is that we know that
customers ought to have notice and consent about how information about
them arising from a transaction should be used, as a matter of right.
But does this really make sense? Ordinarily, we are free to make
all kinds of observations about other people without their consent
(this is how journalists make their living). If two people interact in
a transaction, why should one party have a right to exclude the other
from using the information arising from it? If I buy a lawnmower from
Sears, there's two entities involved in the transaction--me, and Sears.
Why should I have a sole claim on the information relating to that
event? In a country that takes the free flow of information seriously,
why should I have the right to veto Sear's decision if it's managers
choose to tell another business about that transaction--communicating
information about real people and real events?
In the context of e-commerce, especially with sensitive
information, some businesses will give notice or experiment with more
sophisticated privacy options to retain customer loyalty--just as it
has been vital for doctors to respect their patients' confidentiality.
But this is a complex matter of business ethics--the one-size-fits-all
approach won't work. Privacy is a preference that will vary from person
to person, place to place, and over time. In some contexts it will
matter to consumers and business. In others, it will not.
In this country, with its long tradition of respect for business
and for the free flow of information, the assumption that the secondary
use of information collected from web sites ought to be sending us into
a frenzy of moral outrage is very peculiar. To illustrate this point, a
story ran in the New York Times about Vice President Al Gore's ``Write
to the Vice President'' web site. Somebody noticed that this site
collected the names, addresses, grades, schools, and ages of children
without requiring parental consent. Since then, its been changed. My
point is about Al Gore's web master. I'm sure when his web master was
designing that web page it did not even occur to him that asking for
this information without getting consent was anything other than a
normal, natural thing to do. This illustrates just how new this is, how
odd the tone of moral outrage that marks the movement towards federal
standards on privacy. It is removed from centuries of normal human
experience.
The debate about privacy is not just a debate of right versus
economics. It is a debate about the free flow of information versus
controls on that information. Furthermore, the default rules for how
human beings exchange information about one another favor the freedom
of information--with privacy being by special arrangement. Generally,
human beings are free to make observations about other human beings,
and record and report these--so long as they do not violate a
confidentiality agreement, hack into someone's web site, or break into
their house. Usually our pri-
vacy rights have been bounded by property right and contract
obligations, with a handful of narrow privacy torts available at common
law.
privacy premises about markets
A key unarticulated assumption behind the push for federal privacy
standards is that is that marketing exploits consumers and is not
useful to them--so we don't need to worry much if our regulation
strangles targeted marketing. This is the old-fashioned view. But
empirical research has established that marketing play a crucial role
in getting information into the hands of consumers. Some of the
information conveyed through advertising is biased (that's the point,
and everyone knows it), but biased information from a variety of
sources is far better than none. Advertising plays a key role in
heightening competition, lowering prices, and improving choice and
quality; more targeting simply means it can play that role at a lower
cost. Consumers do not need to be protected from these things.
There's another peculiar assumption here, and that is the idea that
somehow broad privacy protections (as opposed to just good security
practices) are vital to the growth of electronic commerce, but somehow
e-commerce companies are so silly that they won't move forward and give
consumers what they want on their own. Now if you start with that
assumption and look at the world--yes, you see a lot of movement
towards privacy seal programs--but not everyone is there yet. And a lot
of people then think, oh, there must be some kind of market failure.
But what if the initial assumption isn't true? What if the data we have
on what consumers want, which we get from prompting them in a survey,
is not that reliable?
These are the questions we should be asking, especially when we
look out at the world and see electronic commerce taking off.
Especially when there seems to be no reason in principle, looking at
the economics of the matter, for entrepreneurs to perversely ignore any
aspect of consumer demand. Given the benefits that consumers have
gotten from high-tech businesses in the last decade, the vast
diversification of markets in response to a million variations on
customer tastes, the view that business would not respond to privacy
preferences is an extraordinarily bizarre view. If they are not
responding across the board, maybe its because demand isn't strong
across the board.
privacy: reviewing empirical evidence on privacy
We ought to look more closely at the type of evidence being
collected and considered in the privacy debate. Frankly, the empirical
work done so far has been dazzlingly shallow.
A good bit of that information comes from self-reported data on
surveys, from asking consumers ``do you care about privacy?'' Now, who
would say ``no'' in answer to this question? Is the respondent
distinguishing privacy from security issues? From spam? Even if they
are, talk is cheap. Real preferences are revealed by consumer's
actions, when they must consider the time and cost of actually
obtaining what the survey offers them for free. Self-reporting is
simply not that reliable--try wandering around among some of the
tourists assembled in the mall for the Fourth of July and ask them if
their kids are smarter or dumber than average. As Chet Thompson of
Prodigy once noted, ``Market surveys told Prodigy that people wanted to
do their grocery shopping by computer. They didn't.''
Here are some other studies that ought to be performed in order to
better judge the impact on consumers of federal privacy standards:
<bullet> A study of whether businesses that have not posted privacy
policies have experienced similar rates of growth to those who
have.
<bullet> A study of the impact on small business and startups of top-
down privacy regulation.
<bullet> A study of how businesses, especially startups, use
information to enter new markets & to develop new products.
<bullet> A study of the cost saving obtained by doing targeted rather
than direct marketing.
<bullet> A study, not of the number of sites that post privacy policies
in absolute terms--but of the number of sites that post such
polices as compared to the number that posted such policies a
year ago, a year and a half ago, 2 years ago. What is the rate
of increase?
What all these studies have in common is that they all reflect
actual behaviors and costs, not hypothetical preferences. (One caveat;
in emphasizing these holes in our understanding I do not mean to imply
that an empirical finding, for example, that consumers really do want
privacy, would justify regulation--the conflict in principle between
privacy and the free flow of information is still inescapable, as is
the need for evidence of market failure).
Imagine if Congress to address the question of cable rate
deregulation simply by directing the FCC to ask consumers if they would
prefer lower cable prices. Clearly, that would be disastrous. Yet we
see some policymakers cheerfully considering privacy regulation for
electronic commerce largely on the basis of survey data, as if
regulating the Internet is a casual thing, like tossing off a Christmas
mailing.
judging self-regulation
I will leave it to other presenters to present figures about how
the use of privacy seal programs has grown, and to describe those
programs. I am going to talk about how to assess these programs. It's
important to start with realistic expectations.
What should the goals of self-regulation be?
The goals of a system of self-regulation should be evolve over time
in the marketplace. One characteristic of demands made on e-commerce
merchants respecting privacy ``self-regulation'' has been that the
goals of the regulation are assumed to be known. Regulators have
insisted that a system of self-regulation must ensure that customers
have notice of how their data is being used, that they have a choice
about whether it is not be collected or not, and so on.
In the real world, however, no one really knows what state of
affairs ``ought'' to obtain with respect to privacy. The question of
when human beings will need to reveal information to gain trust, will
be willing to offer trust without information, and will need to respect
confidentiality to gain trust is a bafflingly complex question.
The goals of systems of self-regulation will evolve and change over
time, and will vary widely across the e-commerce marketplace.
Entrepreneurs will make informed guesses about privacy policies to
allay their customer's fears (if any) of doing business online. Some
entrepreneurs will get it wrong, and lose ground; others will get it
right, succeed, and be imitated by late-comers. But entrepreneurs must
be permitted to take their cues from the results of engaging in the
marketplace, not from top-down commands.
How long should self-regulation take?
What is a market? A market is a device for processing information.
The economist Bastiat once commented that it is a miracle that Paris
got fed every morning. For that to happen, Parisians' diverse tastes in
breakfast foods must somehow become known to myriad bakers, cafe's,
butchers, and grocers. Parisian consumers must obtain the knowledge
that bread is available at the bakery, not at the tailors. The local
needs of bakers and grocers must somehow become known to farmers and
middlemen scattered around the countryside. Through the price system
and other mechanisms, markets harness local knowledge and subjective
tastes, setting in motion a process that results in the populace of
Paris' being fed--all without any central planning or direction. This
is extraordinary. Indeed, as we learn from our experience with
communist economies (as economists Ludwig Von Mises and F.A. Hayek
predicted decades ago), central planning cannot begin to coordinate the
distribution of resources as effectively as the chaotic, decentralized
market.
Understanding that a market is a bottom-up learning process helps
us to expect that establishing systems of self-regulation will longer
than a year, two years, or three years. The embryonic privacy seals
programs we see now will ultimately be supplemented by gated ``safe''
communities online (such as AOL and E-bay), and intelligent ``bots''
and infomediaries to guide consumers through, and other technological
and business innovations. The process will never really end.
What if not everyone participates?
FTC Commissioner Orson Swindle pointed out recently that the
goalposts for privacy regulation are moving. A year ago, the concern
was we would not have thriving e-commerce if we don't solve the privacy
problem. Well, electronic commerce took off, and there's a lot of
progress with the privacy problem. So the wording has changed. Now, we
can hear that e-commerce will never rise to it's full potential,
because the market hasn't moved fast enough. Maybe the idea is that if
the trained seal balances the ball on his nose the first time, we'll
just keep adding balls and sooner or later they'll fall off and then
we'll call that a market failure.
Given the vast numbers of start-ups, wild experiments, and small
businesses that will be the next generation of pioneers in e-commerce,
it would be unlikely that all of them will automatically concede the
importance of having a privacy seal on their sites, unless and until
they see significant indication of customer demand for it. Perhaps some
sites that participate will have some sinister purpose in mind, but
most of them will simply be ordinary businesses who simply don't share
the vision of a privacy imperative. A lot of them will be
noncommercial, amateur sites, or sites that are borderline commercial
or noncommercial.
It would be a grave mistake to assume that because a business
doesn't have a seal or post a notice, it ought to become a target of
regulation. Lacking a privacy policy simply isn't even close to being
evidence that that site poses a danger to consumers, in any real sense.
Treating these sites as legitimate enforcement targets would be wrong,
and deeply insulting to hundreds of honest entrepreneurs. And it
creates some serious practical problems, too. Enforcement efforts will
be far, far more effective if they can be targeted against actual
perpetrators of identity theft, fraud, and so on. Requiring enforcers
to disperse their focus to hundreds of sites simply because those sites
don't have a seal would be an incredible waste of time.
What about bad actors? Sites that actually do perpetrate fraud or
scams of some sort? There are many laws already against fraud and
deceptive practices.
Self-regulation that arises as a natural outgrowth of consumer
demand is truly voluntary and decentralized. Kosher food labels are a
good example, offering consumers a choice of many different standards--
or none at all. But for many quality and customer service issues, no
third party standards or oversight at all are necessary for ``self-
regulation.'' That is, true market-based self-regulation blurs into no
regulation at all, with each company ``regulating'' itself according to
internal standards of customer or client service and no third party
oversight. Bad service is checked by competition.
Ultimately, we might see nearly as many different privacy policies
as there are e-commerce companies. A system of privacy ``self-
regulation'' imposed uniformly on the market might well tend to
collapse over time (rather as the Comics Code has) in any sector where
there is little consumer demand for confidentiality. In some cases, no
third-party rating systems would be able to capture the extraordinary
variety of patterns of customer preferences that emerge.
conclusion: what is minimal regulation?
Given the flurry of concern about privacy, even legislators and
businesses worried about the impact on electronic commerce are almost
ready to concede the need for ``minimal regulation''--just requiring
sites to post their policies, that's all. But from my standpoint that's
too radical a step, both unnecessary and not well informed. What kind
of enforcement mechanism would we create? Do we really want to penalize
the honest owner of a 50 year-old hardware store in Peoria because he
put up his web site without a privacy notice? Why should enforcement
resources be devoted to this? For once, the Cato Institute's position
isn't the radical one. Things are working fine as they are; leave the
Internet alone.
Mr. Tauzin. Thank you, Ms. Singleton.
Next will be Mr. Steve Lucas, Chief Information Officer for
PrivaSeek.
Steve.
STATEMENT OF STEVEN LUCAS
Mr. Lucas. Thank you, Chairman Tauzin and members of the
subcommittee. I would like to thank you for inviting me here
today to share my views on the issue of online privacy. Again,
my name is Dr. Steven Lucas. I am the Senior Vice President of
PrivaSeek. We are a Colorado-based Internet company that was
founded in late 1998. As you know, the issues of consumer
privacy both online and off-line have received a tremendous
amount of attention. We commend Congress, and the subcommittee
in particular, for directing attention to this issue.
In the 1890's, Supreme Court Justice Louis Brandeis defined
privacy as the right to be left alone. A century later and a
new millennium upon us has brought us fully into a new digital
economy that is driven by information as one of the principal
means of the creation of wealth. What now seriously addresses
the concept of privacy is the right to control personal
information as an inherent property right of the person. This
argument and the resulting actions to recognize this right are
critical to individual prosperity in a democratic society.
About a year ago, I think that no one would deny that the
state of online privacy practices was, at best, marginal. I
think that few would deny that since that time industry has
made substantial progress in terms of its efforts to improve
the state of consumer privacy protection. Privacy organizations
like TRUSTe have successfully recruited online companies. They
have participated in seal programs. They have launched Web-
based consumer education programs aimed at providing consumer
education about privacy rights and also the data collection
practices of the sites that they visit. So trade associations,
as mentioned, have also announced codes of fair information
practices.
Recent survey results also bear out the fact that a growing
proportion of the online industry are posting privacy
practices. We were proud to be a sponsor of the Georgetown
Privacy Policy Survey. This survey did demonstrate, although
the results were not what we would hope, that there has been
some improvement in this area. I think the proliferation of Web
site privacy statements over the past year signifies that
online companies are realizing the need for, as well as the
initial benefits derived from ensuring that consumer privacy
information is protected in the online environment.
While this is all great progress, I think what we really
need to do is ask ourselves the question of where do we go from
here. I think it is critical that further action be taken by
industry to ensure that privacy policies are comprehensive,
that they meet all of the fair information requirements. The
focus of my testimony today is going to be on a nonregulatory
solution to promoting privacy protection for online consumers.
Currently, many companies, including PrivaSeek, are
developing new technologies that are capable of ensuring
privacy protection for online information. Like PrivaSeek,
these companies believe that technological solutions provide
the most effective, efficient, and safest means of protecting
intensive online data without unnecessarily hindering the
growth of the electronic marketplace or the ability of
consumers to control and gain value from their privacy
practices.
PrivaSeek is the first ``consumer infomediary'' dedicated
to establishing a new global consumer-centric marketplace that
is based on principles that consumers establish the rules for
the collection and use of their information. As PrivaSeek's
first major initiative in March of this year, we announced our
``Persona'' technology. After several months of testing, I am
pleased to announce that yesterday we released the first
commercial version of our Persona product called Persona Valet.
Persona acts as a negotiator of information between the
consumer and the marketplace. It is based on the fundamental
notion that individuals own their personal information and
should be in control of it online. This includes the ability to
track the use of their information and to control under what
circumstances information is shared with sites that request it.
When consumers visit PrivaSeek's site, no information is
collected from them. If they choose to be a PrivaSeek member,
they can then create an online Persona which includes
information like their name, their address and a preferred way
that PrivaSeek can contact them.
They can then decide to provide additional information such
as e-mail address, phone numbers, interests and hobbies,
electronic commerce information such as credit card information
and shipping addresses.
Then consumers are asked to define their personal use
preferences for all of the information that they provide us. By
setting their own preferences, they control the information
that is provided and under what circumstances the information
can be shared with PrivaSeek-approved partners. Consumer
information is never disclosed to anyone without prior consent.
Additionally, consumers can change their personalized set of
privacy preferences at any time by accessing their account and
changing the conditions that govern how PrivaSeek will manage
their data. At the end of the day, though, it is the consumer
who chooses how personal information is utilized.
We also provide consumers with a tool that allows them to
automatically complete forms that may be necessary to complete
e-commerce transactions or to complete forms that may be
required for services and registration on the Web.
Since we were also created to assist consumers in keeping
their personal information secure, security is naturally one of
the company's primary concerns. We rely on state-of-the-art
technology at all points of information collection,
transmission, and storage to ensure that the security and the
integrity of the consumer's data is never compromised.
Additionally, the information is stored in what we call the
``Persona WebVault'' which is maintained in a facility with a
long history of being able to manage sensitive information with
audited data and physical security practices available.
Privacy partners go through a very rigorous approval
process that includes a comprehensive privacy policy
assessment. If an organization is approved, it has to sign a
contract with PrivaSeek requiring the organization to abide by
the information controls established by the consumer in their
Persona. Under this contract, the company agrees to follow the
consumer's specific instructions with regard to the
information. For example, if the consumer doesn't want the
information to be used for internal marketing purposes, that
information is never transferred nor can the site use it.
In the event that the organization violates that contract
in any way, we will immediately remove them as a PrivaSeek
certified partner and we will immediately take legal action
against the company.
The Persona technology enables the consumer to
automatically safeguard their personal information and their
identity on the Web. It also allows them to gain value from it.
It allows consumers to access their data and privacy
preferences from any device that is connect to the Web.
In light of the emergence of viable and innovative
technological solutions, as well as the increasing adherence of
Web sites to self-regulatory programs, we believe that a
legislative mandate governing privacy protection would be
premature at this time. Considerable time and effort and
resources have been devoted to the development of new
technologies designed to safeguard consumer data in terms of
privacy and products, as well as tools like the certificates
and certification technology.
Just as Congress and the FTC have provided a grace period
for online companies to demonstrate their commitment to widely
accepted information practices, so too should these
technologies be provided with an opportunity for the
deployment, recognition and trust of both consumers and the
online marketplace, the technologies that go a long way to
building an environment conducive to the recognition of the
right to privacy.
We believe that the work by PrivaSeek and organizations
like the World Wide Web consortium and their P3P effort are
also important. However, it is also our view that a new system
of laws and governance may be needed to help the transition by
building a legal framework that recognizes these rights.
We consider ourselves a new intermediary, but at the same
time we also have to consider that the government may have to
assume the role as the ultimate consumer intermediary through
its use of regulatory authority and by working with industry to
create an environment that is based on the critical vision of
our future society.
Again, we thank you for the opportunity to appear today and
we look forward to working with you and members of the
committee in the future.
[The prepared statement of Steven Lucas follows:]
Prepared Statement of Dr. Steven Lucas, Senior Vice President, Industry
Government Relations & Chief Information Officer, PrivaSeek, Inc.
Chairman Tauzin and Members of the Subcommittee, I would like to
thank you for inviting me here today to share my views on the issue of
online privacy. My name is Steve Lucas, and I am the Chief Information
Officer and Senior Vice President of Industry Government Relations at
PrivaSeek. Headquartered just outside of Denver, Colorado, PrivaSeek is
an Internet start-up founded in late 1998.
As you know, the issue of consumer privacy--both online and
offline--has received a tremendous amount of attention over the past
year. PrivaSeek commends Congress, and this Subcommittee in particular,
for directing its attention to this increasingly important issue.
One year ago, the state of online privacy practices was by most
accounts marginal. The Federal Trade Commission's (``FTC'') 1998
``March Sweeps'' of 1,400 Web sites revealed that only 14% of sites had
privacy policies posted on the site that contained information
concerning what information was collected and how it was used.
Proponents of government regulation of online privacy practices saw the
results as clear evidence of the need for comprehensive legislation,
while critics argued that the survey results were inaccurate and/or
inconclusive at best. Regardless of the particular pundit's
perspective, the net effect was an overwhelming impression that
industry was doing a less than acceptable job of protecting online
consumer data.
I think that few would deny that, since that time, industry has
made significant strides in terms of its efforts to improve the state
of consumer privacy protection online. Privacy organizations such as
TRUSTe have not only successfully recruited online companies to
participate in their rigorous and resource-intensive online ``seal''
programs, but also have launched Web-based consumer education programs
aimed at heightening Internet users' awareness of their own privacy
rights, as well as appropriate data collection practices of Web sites
that they visit. Also, several trade associations have instituted codes
of conduct governing fair information practices, and, at the same time,
many individual Web sites are voluntarily posting privacy statements.
Recent survey results also bear out the fact that a growing portion
of the online industry recognizes the importance of embracing
responsible privacy practices. Privaseek was proud to be one of the
sponsors of the Georgetown University Internet Privacy Policy Survey
that was conducted at the request of the FTC. This survey was released
in June of this year and revealed a dramatic rise in the number of Web
sites posting comprehensive privacy statements. Specifically, of the
sample drawn from the 7,500 most popular sites, more than 65% had
posted privacy poli-
cies. Additionally, of the 100 most popular sites surveyed, 94%
contained privacy disclosures. The proliferation of Web site privacy
statements over the past year signifies that online companies are
realizing both the need for, as well as the mutual benefits derived
from, ensuring that consumer privacy information is protected in the
online environment.
While all of this is in fact great progress, the question before us
today is where do we go from here? It is critical that further action
be taken by industry to ensure that privacy policies are comprehensive,
meeting all of the tenets of fair information practices. There are six
key elements to this action. First, sites should provide notice of
their information practices, including what information they collect
from consumers and how they use it. Second, they should also offer
consumers choices as to how the information is used, and seek consent
for the intended uses. Third, sites should not disclose personally
identifiable information about consumers to third parties without
consumers' consent. Fourth, sites should offer consumers access to the
information collected about them and an opportunity to correct
inaccuracies. Fifth and sixth, sites should contain information about
their security measures and consumer recourse options. All of this
information should be easy to find and easy for the consumer to
understand.
As was demonstrated last summer in the GeoCities case,<SUP>1</SUP>
as well as more recently in the Liberty Financial matter,<SUP>2</SUP>
the FTC currently has the tools necessary to take action against
companies that may violate consumers' online privacy. Thus, widely
adopted self-regulatory programs, operating in conjunction with the
FTC's existing Section 5 enforcement authority, provide effective
mechanisms to ensure the protection of personal data online. And, they
ultimately deliver benefits for both businesses and consumers in the
evolving digital economy.
---------------------------------------------------------------------------
\1\ In the Matter of Geocities, FTC. File No. 9823015.
\2\ In the Matter of Liberty Financial Companies, FTC File No.
9823522.
---------------------------------------------------------------------------
The focus of my testimony today is on another non-regulatory option
for promoting privacy protection for online consumers. Currently, many
companies, including PrivaSeek, are developing new technologies that
are capable of ensuring privacy protection for online information. Like
PrivaSeek, these companies believe that technological solutions provide
the most effective, efficient, and safest means of protecting sensitive
online data without unnecessarily hindering either the growth of the
electronic marketplace or the ability of consumers to control and gain
value from their privacy preferences.
PrivaSeek is the first ``consumer infomediary'' dedicated to
establishing a new global consumer-centric marketplace based on
principles where consumers establish the rules for the collection and
use of their information. As PrivaSeek's first major initiative, in
March of this year, we announced our ``Persona'' technology. After
several months of testing, we are pleased to announce that yesterday,
we released the first commercial version of the Persona product, called
Persona Valet.
Persona acts as a negotiator of information between the individual
consumer and the marketer's Web site. Persona is premised on the
fundamental notion that individual consumers own their personal
information and should be in control of it online. This includes the
ability to track the use of their information and to control under what
circumstances information is shared with sites that request it.
When consumers visit the PrivaSeek Web site, no information is
collected from them. If they choose to become a PrivaSeek member, they
then create an online ``Persona'' which includes information such as
their name, address, and the preferred method for PrivaSeek to contact
them. This limited information is used to create the user's Persona
Account.
The consumer may decide to provide additional information such as
email address, phone numbers, interests and hobbies, and electronic
commerce information such as credit card numbers and shipping
addresses.
Consumers are also asked to establish their personalized set of
usages for their information. By setting their own preferences, they
control what information is provided and under what circumstances the
information may be shared with PrivaSeek-approved partners. A
consumer's information is never disclosed to anyone without prior
consent. Additionally, consumers can change their personalized set of
privacy preferences at any time by accessing their account and making
changes to the conditions that govern how PrivaSeek will manage their
data. At the end of the day, it is the consumer who chooses how
personal information is utilized.
Persona Valet provides consumers with a useful tool for
accomplishing routine tasks like shopping online and managing personal
information on the Internet. When consumers surf or shop the Web, Valet
automatically saves them time and effort by automatically completing
forms that may be required to register for a service or make a
purchase.
Since PrivaSeek was created to assist consumers in keeping their
personal information private, security is naturally one of the
company's primary concerns. PrivaSeek relies on state-of-the-art
technology at all points of information collection, transmission, and
storage to ensure that the security and integrity of consumers'
information is not compromised. By virtue of a digitally encrypted
secret password and network firewalls that prevent unauthorized access
to a consumer's individual profile, the consumer has exclusive access
to information in their Persona. Additionally, the information is
stored in the ``Persona WebVault,'' which is maintained at a facility
with a long history of safeguarding sensitive information with audited
data and physical security practices.
PrivaSeek partners, including online merchants and content vendors,
go through a rigorous approval process that includes a comprehensive
privacy assessment by a team of third party privacy experts. If an
organization is approved, it must sign a contract with PrivaSeek
requiring the organization to abide by the information controls
specified in the consumer's Persona. Under this contract, the company
agrees to follow the consumer's specific instructions with regard to
this information. If a consumer does not wish to have the information
used for internal marketing purposes, the merchant may not use that
information without violating the contract. If the organization in any
way violates its contract with PrivaSeek, it will be dropped
immediately as a PrivaSeek-approved partner, and PrivaSeek will take
legal action against the company.
Thus, the Persona technology not only enables consumers to
automatically safeguard their personal information and identity on the
Web, but to actually gain value from it. It also saves consumers
precious time and effort by keeping track of passwords and purchases
and by automatically entering a consumer's personal information in
online forms. The Persona technology provides a secure method of
storing data that can easily be audited by a third party. It also
allows consumers to access their data and privacy preferences from any
device that is connected to the Web.
In light of the emergence of viable and innovative technological
solutions, as well as the increasing adherence by Web sites to self-
regulatory programs, PrivaSeek believes that a legislative mandate
governing online privacy protection would be premature at this time.
Considerable time, effort, and resources have been devoted to the
development of new technologies designed to safeguard consumer data,
both in terms of privacy enhancing products, as well as certification
tools such as digital authentication technology. Just as Congress and
the FTC have provided a grace period for online companies to
demonstrate their commitment to widely accepted fair information
practices, so, too, should these promising technologies be afforded an
adequate opportunity for deployment, recognition, trust, and use both
by consumers and the online marketplace.
Again, thank you for the opportunity to appear before you today. We
look forward to working with you in the future and serving as a
resource to Members and staff of this Subcommittee, as well as to all
members of the House of Representatives.
Mr. Tauzin. Thank you, Mr. Lucas.
Finally, Mr. Jerry Cerasale, Senior VP for Government
Affairs, Direct marketing association here in Washington, DC.
Jerry.
STATEMENT OF JERRY CERASALE
Mr. Cerasale. Thank you, Mr. Chairman. It is a pleasure to
be back here again.
Specifically, I would like to direct you and your staff to
page 8 of my testimony and you can find the Web address of the
DMA's privacy policy generator, you can answer a few questions,
and you can get a privacy policy all printed out for you and
put it on your Web site.
Mr. Tauzin. I may just call upon you.
Mr. Cerasale. As you know, the DMA represents over 4,500
companies in the United States and in 54 foreign countries. So
these companies have a vital interest in commerce over the
Internet both in the United States and globally.
I would like to just quote one thing from my testimony. It
is the DMA's privacy principles and guidance for marketing
online. ``All marketers operating online sites, whether or not
they collect personal information from individuals, should make
available their information practices to consumers in a
prominent place. Marketers sharing personal information that is
collected online should furnish individuals with an opportunity
to prohibit the disclosure of such information.''
I think that is where the DMA is right at the moment in
moving forward. We are pleased with the results of the
Georgetown study. We are not ecstatic, but it is a lot better
than it was a year ago. I can have a little bit bigger smile on
my face this year than last year.
We still have a long way to go, but in response to Mr.
Boucher's statements about his idea of notice and opt-out, and
how pervasive it is and where it hits, the Georgetown study of
the top 100 sites showed that 94 percent had notice and 83
percent had notice and personal choice. Those 400 sites
represent 94 percent of all the hits on the Internet. So if
you--if you multiply 94 percent times 83 percent you get 80
percent of their hits on the Internet were at sites that gave
notice of what they do with information and some personal
choice to the individual. That is not 100 percent, but it is a
long ways toward going there from the 14 percent that we had a
year ago.
We think at the DMA that the keys are notice and choice for
the individuals. Security, one of the major items in the
principles that the FTC has stated, is an important factor for
all businesses that are working online. As we see from these
viruses that come floating through, it is important for
businesses to have significant security in their systems to try
to protect their own business systems. So that is an important
factor. It is true that any business site that is doing any
sales on the Internet must collect personal information. You
either have to--if you are selling information that you can
distribute online, you have to have an e-mail address. There
has to be some means for getting payment or you have to have
some physical address from which to send the product.
So it is important for all marketers to have a policy up
and give some personal choice. That is what we are working
toward, which is why at the beginning of this month we started
a Privacy Promise in which all members of the DMA must give
notice of what they do and the opportunity to opt out no matter
what medium that is used for marketing or else they will be
losing their membership in the DMA. Staff is now working to
examine that and preparing cases for a board meeting in October
of this year as we move forward, and we will make that public.
I again appreciate the opportunity to be here. I will
answer any questions. Thank you very much.
[The prepared statement of Jerry Cerasale follows:]
Prepared Statement of Jerry Cerasale on Behalf of the Direct Marketing
Association, Inc.
i. introduction
Good morning, Mr. Chairman, and thank you for the opportunity to
appear before your subcommittee as it examines online privacy. I am
Jerry Cerasale, Senior Vice President of Government Affairs for The
Direct Marketing Association, Inc. (``The DMA''). The DMA's vast
membership includes the leaders of the current economic explosion of
the Internet and electronic commerce. For this reason, The DMA has been
working diligently to encourage development of a global medium that
continues to flourish and provides our customers with the best possible
experience in their Internet transactions.
Last year I testified before this subcommittee and urged that
Congress continue to create space to allow time for self-regulation
develop. I am pleased to report that this self-regulatory framework has
developed significantly since that hearing. Mr. Chairman, based on our
extensive experience in this area, The DMA is convinced that self-
regulation and technological innovations are the most effective methods
for establishing privacy protection in the borderless world of the
Internet, and must continue to be the cornerstone of any domestic or
global approach for ensuring privacy online.
As demonstrated by the May Georgetown Internet Privacy Policy
Survey (``Georgetown study''), significant progress has been made since
the survey the Federal Trade Commission conducted on online privacy
last year. This progress is particularly encouraging given the
multitude of new self-regulatory programs that continue to be developed
and implemented. Industry self-regulatory principles, consumer choice
technologies, and an extensive educational campaign are creating a
privacy regime that is both flexible and effective--requirements for
the Information Age.
There are three main topics I wish to focus on in my testimony
today that I believe will put into perspective the state of online
privacy today. First, I will discuss in more detail the results of the
Georgetown study. Second, I will briefly describe the principles that
The DMA believes are essential to protecting privacy online. Finally, I
will describe several of the ongoing efforts that the DMA is engaged in
to empower consumers.
ii. progress from industry self-regulatory efforts is significant and
contributes to the growth of electronic commerce
A. The Growth of Electronic Commerce is Extraordinary
One of the reasons often cited for the importance of protecting
privacy on the Internet is that unless individuals are protected on the
Internet, they will be hesitant to embrace electronic commerce. All
evidence continues to indicate that consumers are comfortable engaging
in transactions on the Internet, as electronic commerce continues to
grow at an unprecedented rate. The personalization and interactivity
unique to the Internet provide an attractive forum for individuals to
engage in commercial transactions.
For DMA members, the main use of information collected over the
Internet is for marketing purposes. For example, a site may remember
that I purchased a particular product there previously and direct me to
the same section of its online store. This type of personalization is
one of the unique attributes of the Internet. Any ``harm'' associated
with the collection and use of information in such contexts is minimal,
and outweighed by the beneficial uses of the information, such as
improving the visitor's experience at the site through personalization.
The DMA believes that the Congress should be particularly hesitant to
enact laws that may disrupt the exponential growth of the Internet.
The Department of Commerce's The Emerging Digital Economy II
released in June states that from 1998 to 1999 the number of web users
world-wide increased by 55 percent. In early 1998 it was estimated that
Internet retailing might reach $7 billion by 2000. Actual estimates for
1998 alone range from $7 billion and $15 billion, far exceeding all
expectations, with forecasts now projected to be $40 billion to $80
billion by 2002. We anticipate that these numbers will continue to
grow.
B. The Georgetown Internet Privacy Policy Survey indicates that vast
improvement in the privacy practices of Internet companies is
occurring.
The Georgetown study indicates that privacy self-regulation on the
Internet is working. No longer are the discussions surrounding Internet
privacy focused on whether self-regulation provides an appropriate
framework for protecting privacy online, rather the discussions are now
focusing on the details of the policies, such as the breadth and
content of the notices.
The significant improvement shown in the Georgetown study is a
result of the hard work of The DMA, the Online Privacy Alliance (of
which The DMA is a member), BBBOnLine, TRUSTe and others. The study
shows that 94 percent of the top 100 web sites have posted a privacy
policy notice or an information practices statement. When considered in
light of the fact that 98 percent of all Internet users visit the more
popular sites, it is clear that meaningful and effective privacy
practices do already exist online for consumers. Moreover, there has
been a significant increase in the number of policies posted in the
past year. In fact, close to 66 percent of all sites now post privacy
policies, up from 14 percent in last year's Federal Trade Commission
survey.
To be certain, this is just the beginning. Although the Georgetown
study indicates significant progress in the number of privacy policies
on web sites, there is still room for improvement. The study showed
that most of the sites surveyed do not yet include all of the elements
set out in the Online Privacy Alliance principles. This is
understandable because some of the seal programs are just recently,
after much development, beginning to accept applicants to their
programs. We expect that as companies participate in and implement
these seal programs, the quality and content of the notices will
improve.
iii. the dma's privacy principles and guidance for marketing online
A. Privacy Principles and Guidance for Marketing Online
While The DMA recognizes that that there is still work to be done
to educate companies as to the principles that should be included in
privacy policies, we are very encouraged by the result in the
Georgetown study indicating that 93.5 percent of the top 100 sites that
collect information and post a privacy disclosure provide notice, with
83 percent of these sites providing privacy choices for consumers. The
DMA believes that notice and choice are the most significant principles
for online privacy protection as together they empower consumers to
determine the uses of their information.
The DMA has developed Privacy Principles and Guidance for Marketing
Online in order to explain and highlight the issues unique to online
and Internet marketing. The primary feature of these guidelines is
notice and opt-out.
``All marketers operating online sites, whether or not they
collect personal information from individuals, should make
available their information practices to consumers in a
prominent place. Marketers sharing personal information that is
collected online should furnish individuals with an opportunity
to prohibit the disclosure of such information.''
On July 1, The DMA's Privacy Promise went into effect. It requires
all members, as a condition of membership, to provide their customers
with notice and the ability to opt out of the use of customer
information for marketing purposes. The Privacy Promise includes the
provision of notice and opt-out on the Internet set out in the
Marketing Online Principles to which I just referred.
I also would like to mention that last fall The DMA supported the
passage of the Children's Online Privacy Protection Act. The DMA
supported this legislation because we believe that young children
present a special case. Unlike adults, children may not fully
understand choices regarding privacy. Based in part on existing
guidelines developed and followed by The DMA, this legislation contains
strong protections for children, prohibiting the collection or
distribution of personally identifiable information from children under
13 without prior parental consent or direct parental notification. The
DMA is currently working with the Federal Trade Commission as it
develops regulations to implement this Act.
B. Enforcement of Online Privacy Protections
The DMA has been at the forefront of enforcing effective,
responsible self-regulatory codes governing the uses and transfer of
information by the direct marketing industry for many years, long
before the growth of the Internet. As a result of its extensive
membership, The DMA has enjoyed great success obtaining broad
compliance with its various codes and guidelines. The cornerstone of
the industry's self-regulatory codes is The DMA's Guidelines for
Ethical Business Practice. These guidelines apply to marketing in all
media including the Internet.
Through its Committee on Ethical Business Practice, a peer-review
program, The DMA responds to cases of alleged Guideline violations
brought to its attention by an array of sources--business, consumers,
public officials, and the media. This peer-review process is effective.
Most cases are resolved through cooperation with the Committee and its
recommendations. Members that do not resolve complaints cooperatively
are also subject to review by The DMA Ethics Policy Committee with the
potential for suspension, expulsion, or censure.
The DMA has initiated a process which reveals all cases and their
resolution. Furthermore, where the subject company has not committed to
follow guidelines after review, its name is publicly disclosed. In
instances where violations of law are also found, the Committee refers
matters to the appropriate law enforcement agencies.
Moreover, privacy principles adopted by individual companies and
held out to the public also are subject to enforcement by the FTC and
state attorneys general. By publicly posting policies as required by
the Privacy Promise and consistent with criteria set out in the OPA
guidelines, companies become subject to deceptive practices enforcement
actions under existing federal and state consumer protection law if
they do not comply with their stated policies. Thus, this self-
regulatory framework is far more than a system of voluntary compliance.
iv. the dma and others continue to develop and implement self-
regulatory regimes that empower consumers regarding online privacy
A. The E-mail Preference Service
The DMA will soon launch an e-mail preference service that will
allow individuals to remove their e-mail addresses from marketing lists
in a manner similar to The DMA's long standing telephone and mail
preference services. This ambitious undertaking is aimed at empowering
consumers to control unsolicited commercial e-mail, while creating room
for the many societal benefits of legitimate marketing in the
interactive economy. Once this e-mail preference service is up and
running, participation in it also will be a requirement of DMA
membership.
B. Public Education
The DMA has a vital interest in educating its members and the
general public about the responsibilities of people who collect and use
data, as well as educating consumers about the process. Through
education, individuals will better understand the potential benefits of
interactivity, as well as the choices they have to control information
that they submit. Therefore, The DMA has developed a Web page devoted
to privacy and launched its Privacy Action Now initiative.
The DMA has made a special effort to empower children, parents,
educators and librarians by establishing its http://www.cybersavvy.org
Web page for them and providing them with tools, information, and
resources to ensure safe Web surfing. Additionally, we have produced a
``hard copy'' version of the Web site, Get CyberSavvy. Get CyberSavvy
has the distinction of being awarded first place honors for excellence
in consumer education by the National Association of Consumer Affairs
Administrators.
C. Technology Solutions
In light of the unique characteristics of the Internet, technology
will play an important role in helping users determine and enforce the
ways that information about them is used and collected. The DMA and
marketers have been, and continue to be, instrumental in the
development of this important technology by encouraging, supporting,
indeed helping to develop and promote, such software. Under this
approach, it will be the individual users, rather than industry or the
government, who will determine the uses of their personal information.
Over the past two years, The DMA has been involved in an initiative
that supports this concept, the Platform for Privacy Principles or P3P.
This initiative, undertaken by the World Wide Web Consortium, is
developing a ``negotiation'' approach for protecting privacy. A broad
coalition of information providers, advertising and marketing
specialists, software developers, credit services, telecommunications
companies, and consumer and online advocates are working together on
P3P to achieve a technological solution that will protect privacy
without hindering the development of the Internet as a civic and
commercial channel. P3P allows a user to agree to or modify the privacy
practices of a web site, and be fully informed of the site's practices
before interacting with or disclosing information to a site. There also
have been several announcements by companies in the last few months of
other commercial products that will empower consumers with respect to
privacy online. As technology continues to improve, so will consumer
empowerment tools.
The DMA also has created and made available from its Web site a
technical tool that allows companies to create and post effective
privacy policies. This Privacy Policy Generator (http://www.the-
dma.org/policy.html) enables companies to develop customized privacy
policies for posting on their web sites based on the companies'
policies regarding the collection, use, and sharing of personal
information. The utility of this tool, and the ease with which it is
used, is demonstrated by the hundreds of companies that have used it
and have sent policies to The DMA for review.
v. conclusion
The DMA believes that self-regulation is the most effective means
of protecting privacy on the Internet. The Georgetown study indicates
that significant progress has been made and the self-regulatory
framework is working. The DMA realizes that this is only the beginning.
We continue to explore and develop innovative approaches to protecting
privacy on this extraordinary medium. The approach that we are taking
is allowing electronic commerce to flourish, while at the same time
enabling the development of a privacy regime that is flexible for the
information age. We congratulate the Chairman for his continued
interest in the exploration of these issues, and look forward to
working with the Subcommittee.
Mr. Tauzin. Thank you very much. The Chair recognizes
himself for a round of questions.
First, let me point out that the issues that are raised in
the Information Age on the one hand have some parallel in the
Brick and Mortar Age. You sort of made the case, Ms. Mulligan.
Today when we go to grocery stores and banks, the camera is
monitoring us. Those cameras can watch us browsing through the
store. And I assume someone sitting back in the back room with
a monitor can keep records, if they want to, on what shelves we
stop at and what activities we engage in in those stores. There
are no notices on the bank doors or the store doors saying, you
will be monitored while you are inside. There is no notice on
the walls of these halls in the Rayburn Building that there are
cameras all over the place. I assume somewhere in the Capitol
Police offices there are monitors where Capitol Police can
monitor your movements in this building and perhaps even
microphones that can pick up conversations. I am not sure. It
would be interesting to find out.
When you fill out a mail order form you are sending all
kinds of information into the mail order world. When you fill
out--how many questionnaires have you filled out this year? I
have filled out a bunch already. I will fill out a lot more
before the year is over.
How many reports do we file every year, Mr. Markey,
detailing personal information? One of the witnesses on the
last panel is married to a former Member of the Congress. I
assume a lot of that information she is concerned about being
in the public domain was obtained from public records because
her husband had to file it as a Member of Congress.
In the real world, there is a lot of information going out,
a lot of monitoring and a lot of things happening without
notice to consumers, without the right to opt out. So the
questions that are posed online have a parallel in the real
world.
What is interesting is the difference here. The difference
is the enormous power of the Internet to gather that
information. I think Chairman Pitofsky put his finger on it
when he said that the Internet has the power now to detail what
we are thinking about doing, not just what we are doing, in
much larger ways and to create a profile of behavior, our
thoughts, even now. Not just our preference, but what we might
consider preferring. Quite a different ball game for consumers
to have to walk into. You put your finger on it again, Ms.
Mulligan. If you and I had to, every time we used cash, to fill
out a questionnaire about our preferences, talk about what we
looked at buying or thought about buying before we paid cash,
and somebody had a big information portfolio on our family and
our purchasing history, we would be less likely to go shopping
at a store that required all of that.
Do any of you know what percentage of transactions,
financial transactions, in America are done with cash today?
Ms. Mulligan. There are some statistics. I think Alan
Greenspan----
Mr. Tauzin. The number I had was 2 percent.
Ms. Mulligan. It is 2 percent of the value, but actually
many of the actual transactions--meaning large purchases, of
course, tend to be made with credit cards. But the actual
number of transactions, a quarter into the telephone, the 35
cents into the telephone, the quarter into the newspaper
vending machine----
Mr. Tauzin. The number of transactions is a lot higher. But
in value, I think it is about 2 percent when you consider all
of the mortgages, the checks, the credit cards, all of the
forms of secured transactions we engage in. Two percent is
cash. That is a lot that is being done in a recorded way
somewhere, some kind of transaction. The point I am making is
there are parallels and yet there are big differences in the
Information Age.
The second point a number of you made--Ms. Singleton, you
pointed it out and, Mr. Cerasale, you made it, too--this is an
Information Age. The basis of the argument is the capacity of
the Information Age to function. Be careful how we balance the
so-called private rights to information and the private
property right and the capacity of an Information Age to
function with our information. We all jealously guard our
private information, so it is a delicate cut. How can we set it
up in a commercial world where it works to the consumer's
satisfaction and yet still works? It is a good one.
Ms. Singleton, you raised the question. Do we look at
actual experience and learn from it or just assume? And there
are some good things here.
I wanted to ask you--before I do that, Mr. Lucas, you gave
us a good example of a technology your company is developing
that I can use, as a consumer going online, to protect my
personal information. You are not the only one. There are other
company doing that, right?
Mr. Lucas. That is correct.
Mr. Tauzin. Doesn't Novell have a similar software product?
And I assume other companies do, too, that I can't think of
right now.
Mr. Lucas. There are other companies that have started----
Mr. Tauzin. Your point is, lots of companies are building
software products that I can eventually purchase and use in
connection with seals and partnerships to know that I am in
control of my information online; is that correct?
Mr. Lucas. There are several companies----
Mr. Tauzin. And your point is, they ought to be given a
chance to see whether consumers like them or want them; or in a
real world, Ms. Singleton, I believe they are important enough
to invest in and to use on the Internet, right?
Mr. Lucas. That is correct.
Mr. Tauzin. Mr. Lewin, you testified that your numbers are
growing in TRUSTe in terms of companies signing up. You said
about 1,500. What percent of transactions, how much traffic is
involved in the companies that you are engaged in?
Mr. Lewin. Right. By using a survey conducted by Media
Metrics, which is a recognized industry to ``keep track of the
number of hits,'' if you will, at each of the sites, it is
estimated that during the course of a month that the sites that
carry the TRUSTe seal, about 90 percent of the users hit a
TRUSTe-sealed site each month.
Mr. Tauzin. So it is significant. You have got your seal
program going, you have got your marketing enforcement. Are you
going to be part of our direct marketing group? You have got to
obey these rules; if you don't, I will kick you out. I assume
that you kick people out or sue them in court on your contracts
if they violate, right?
Mr. Lewin. We have those options. Fortunately, to date,
everybody has recognized the value and we have not had to do
that.
Mr. Tauzin. The Better Business Bureau has its own seal. I
saw a whole list of other seals in the commission's report.
Here is my question. How do I know which one of these seals
and which one of these operations I can trust? TRUSTe sounds
like I can trust it, but how do I know? The Better Business
Bureau has a reputation; I assume I can rely on that to some
degree. But how do I know which one of these is going to be not
only a good seal organization, but one that is monitoring the
operations of its members to ensure that they are following the
policy they agreed to, and two, they are taking the trouble of
bringing suits or investigating and kicking them out of the
organization if they fail to follow the policy?
How will I know that as a consumer, Mr. Lewin?
Mr. Lewin. I will speak from our point of view.
The best way we have of demonstrating that is to do just as
we demonstrate it. We have a watchdog process whereby any
consumer that has a complaint against one of our licensed sites
conveys that complaint to us. The first thing that we do is to
ensure that the site itself has had an opportunity to respond
to that. If they have not, we investigate it.
If indeed we find that there is a violation of the privacy
policy, we contact that Web site and make sure it is remedied.
If they do not remedy that situation, which again has not
occurred, we will throw them out of the program and if
necessary, based on the contract that we have with that site,
we will take legal action or turn them over to the State, local
agencies, whatever is appropriate.
Mr. Tauzin. How do consumers know that you are going to do
all of that?
Mr. Lewin. Again, that is a good question. With the Privacy
Partnership program, we had some very great success in
increasing awareness. We need to continue doing that. That is
one the key points that I mentioned in my prepared article, my
statement.
Mr. Tauzin. Mr. Cerasale, let me wrap it up with you.
How do I know that the Direct Marketing Association is
going to properly monitor its members and make sure they are
following the new policy that you just put out on privacy? How
do I feel comfortable in dealing with one of your member firms
that you are watching them and you are going to kick them out
if they misbehave or misuse my information?
Mr. Cerasale. Two things. One, of course, is to actually do
something, get the information out, public.
The second thing is the DMA's privacy policy says you have
to give them notice and you have to give them an opportunity to
opt out. Those are two things that have to appear on the Web
site. As we said before, once you are on the Web site and you
say, here is what I do and here is what I promise to do and you
don't do it; we also have FTC jurisdiction through section 5
violation coming so that it is not just a seal on a DMA member
and I follow the Privacy Promise, but you also have to have a
notice and give choice to the consumer and then once you do
that, you have to follow it in that means.
Mr. Tauzin. Which is at least more than you got in the
hallways of the Rayburn Building.
The gentleman from Massachusetts, Mr. Markey.
Mr. Markey. Thank you, Mr. Chairman.
Mr. Lewin, when a Web site has violated your privacy policy
and you say you boot them out, you then say that--and then we
notify the State or other jurisdictions that could take action
against them.
Mr. Lewin. If applicable, yes.
Mr. Markey. What if I was in a State that had no laws?
Mr. Lewin. Again, if the violation was to our license
agreement that we had with the site, then we would pursue that.
My comment was----
Mr. Markey. What does the consumer get? You could sue them
because they violated your trust, but what about the consumer?
What right do they have to any restitution because their
privacy was violated under your program?
Mr. Lewin. That is a good point. During this entire
watchdog process, as we call it, we keep the consumer informed
of what is going on, what the problem was, et cetera, et
cetera, et cetera. If there is something that caused enough
harm to the consumer that it required some type of legal
action, justified by that individual, then obviously they can
accomplish that.
Mr. Markey. What if the State had no laws on the books, Mr.
Lewin, and the consumer is out $100,000, they believed that
their privacy has been compromised and their reputation is
ruined? Where do they go if the State has no laws? What can you
do for this individual?
Mr. Markey. What can you do for this individual?
Mr. Lewin. In your hypothetical situation, we just bring
the, No. 1, the remedy, so that it does not occur again. If it
is against a----
Mr. Markey. But that is corporate. I am talking about the
individual. Where does a--where does an ordinary person go? Do
they go to you, Mr. Lewin, do you help them get their privacy
process back?
Mr. Lewin. No.
Mr. Markey. Do they go to you to get money back, will you
bring the suit?
Mr. Lewin. No.
Mr. Markey. You say go to the States, if applicable. Should
there be laws at the State level for people to go to gain
remedies because their privacy, their families' secrets have
been compromised in a way that harmed the family?
Mr. Lewin. From what I have observed in the press so on and
so forth, there seem to be enough or sufficient and local and
State laws dealing with the kinds of situations that may create
what you are kind of postulating.
Mr. Markey. Do you think every State in the union has
sufficient laws on the books so that the people can gain----
Mr. Lewin. I don't know that for a certain.
Mr. Markey. They do not, Mr. Lewin, let me tell you they
do--that is why we are here at the Federal level because they
do not. So notwithstanding with your good efforts, and they are
good ef-
forts, I want to congratulate you and companies like yours for
your programs. But at the end of the day, you can't get them
back their reputation, you can't get them back what the family
lost. And the States can't get them back what they lost because
they don't have laws either.
And the question is, where do you go, which office do you
go to. Who do you--what rights do you rely upon, Mr. Lewin? And
what we are hearing today is that we don't have any place to
go. Although your program is a very good step, and I think
people should avail themselves of it. But at the end of the
day, there is a certain kind of--to me the way I view this
whole revolution is that it empowers individuals, it gives
every one of us the ability to be able to act, that is to
greatness of the system.
And here at the end of the day, while all of this power,
theoretically comes to me, I don't have any privacy rights. I
don't have any security rights. I don't have any place to go to
enforce them. I am told that it is a one-way street, you know,
that there are no laws which are passed or which are going be
to passed. And that is what really--what troubles me, Mr.
Lewin, although you are the best that is in--that has been
inserted to substitute for that, but even with that, as you
say, there would be no place for anyone to go to get the relief
their family needs.
Thank you, Mr. Chairman.
Mr. Tauzin. Thank you very much. With the gentleman's
indulgence, I was looking for this while I was doing my round,
but I wanted to point it out to you. The Discover magazine
awards new technology winners each year, one of their awards
winners this year is called Video in a Chip. Look at these
cameras out here, you can tell when they are watching you, they
are pretty big devices.
You guys have got to lug them in and out of here. New
developments, today's video cameras generate pictures from
charge couple devices from CCDs which provide greater picture
but require a pile of support circuitry, they cannot sit on the
same chip. But guess what, the one-chip camera has been
developed, Lucent Technologies, using the same CMOS materials
in the personal computer, Mark Leonities and his colleagues at
Lucent agree that every secret agent's dream contraption, a
video camera the size of a cigarette lighter, a lot easier to
carry guys, but also a lot more intrusive in the lives of
Americans.It is not just online privacy. It is some big issues
here.
The gentleman from Illinois, Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. Mr. Lewin, I just
want to follow-up on some of my colleagues questions from the
Commonwealth of Massachusetts. Do you have any--I mean these
were postulated as hypotheticals. Do you have any real world
stories of--based upon people who are involved in your entity
with the business relationship with you that have had problems
and have had to go through some of the hurdles that the
gentleman mentioned.
Mr. Lewin. Not as they relate to the issues of privacy that
we are talking about here. We have been made aware because
people visiting a Web site that have had some difficulties and
see our trustmark has sent us some complaints outside of the
preview of the area that we are talking about in privacy, but
that is the only----
Mr. Shimkus. That has only been external requests, you
don't have anybody that is dealing with your product who have
complained about loss of information?
Mr. Lewin. No. If there had been a complaint, cases that
were valid, and approximately 80 percent of the cases that we
get--come to watchdog process deal with some misunderstanding
that the particular consumer with the Web site, something
wasn't clear, so on and so forth. In those cases that were
valid, of which there were--when you boil it down, there are
only about four cases, it was in two of those cases, there was
just simply a bug in what the Web site thought was happening,
but indeed something else was happening, and once it was called
to their attention, they fixed it, recognized their problem and
proceeded.
In one case, it was known, but it was a misunderstanding
and it was fixed. And in the last case, that was also a similar
situation.
Mr. Shimkus. Let me just throw out a question for the panel
as a whole. As I hear this, and I heard the information on cash
transaction, is it impossible in this day and age to be
anonymous?
Ms. Mulligan. I will take a first stab at that. I think
many of us enjoy a whole lot of ``anonymity,'' that we don't
really appreciate. When you walk down the street, you may pass
a lot of people and they may observe you, but very few of them
are taking a picture, recording, following. And so the
experience of the individual is a whole lot of--I actually
think probably a more powerful term and something I think many
Americans really resonate is autonomy, a lot of us experience a
lot of autonomy in freedom to do a lot of things without the
fear that everything we are doing is recorded and monitored.
And if you think about the Privacy Act which governs what
information the government can collect about us, one of the
things that puts limits on was their collection of their
information about our First Amendment activities because there
was this notion that in order for us to, as a society, debate,
explore issues, have a robust participatory dialog about what
appropriate policies were, we needed to have some protection
from government surveillance, and so that there is a--you know,
there is a real recognition of the importance of autonomy,
anonymity, and I think many of us experience it in lots of
different ways during the day, but there is a growing sense,
and I think things like the piece that was pointed to in the
Washington Post about the government has your number, the kind
of growing lookup services industry that provides a wealth of
data about individuals, not for marketing purposes but many
other purposes, there is a sense that many of the footprints
that we leave both in the online and offline world don't become
permanent; they don't disappear.
Mr. Shimkus. Mr. Lucas, would you like to comment?
Mr. Lucas. I would like to comment about the technology
that is available for anonymity. I would just like to caution
the committee when people present the fact that they are
anonymous to be careful. There is a different between anonymity
and what is called factual anonymity.
Anonymity for example when someone--when a technology
claims that they have an application on a PC that talks to a
Web site, but things like IP addresses are transferred, that is
not anony-
mous. I would also remind that there is a recent project at MIT
where they took the personal identifiable information from the
students and the faculty there and just kept people's date of
birth and zip code. Having that information alone and combining
that with offline data sources, they were able to identify--
remember you were talking about medical information--they were
able to successfully correlate back over 80 percent of the
people to a personal identifiable record.
When you talk about anonymity, I think consumers nowadays--
40 percent of the data that is submitted to the Web is
falsified. And I think that the reason that consumers do that
is they feel that this presents a layer of anonymity between
them and the site and it truly isn't anonymous. So from a
technology perspective, there are technologies out there that
provide what you would consider to be factual anonymity, but
not all that claim they are anonymous do that.
Mr. Shimkus. Did you want to add?
Mr. Cerasale. Well, I never sought a Social Security number
for my children until I couldn't claim them as an exemption on
my taxes without doing it. So my children received Social
Security numbers then. It is very difficult in this world today
to survive without health insurance and you can't really be
anonymous in health insurance. So I think that the thing of
what you think of total anonymity is virtually impossible in
the United States today, but that doesn't mean that there are
things that what--parts of your life that you do think you can
be anonymous.
Mr. Shimkus. I agree. Because when I was hearing the debate
on cash transactions we just went through the hurdles earlier
of this Congress on know your customer law that was being
portrayed in the banking industry. And even if you want to
operate under full cash transaction type basis, the desire to
have access to that information by the government on cash
transactions also hurts your ability to be somewhat anonymous.
And that is--I think that is the reason why we are struggling
with this issue, this technology is just amazing.
And I think more than just information, it is the easy
access of the information that makes it much more of concern to
both spectrums, from those who are the most liberal to those
who are most conservative, there seems to be a tremendous
consensus of trying to protect our freedom of our own
information.
With that, I yield back the balance of my time.
Mr. Tauzin. I thank the gentleman. I point out that there
is great conflict though, the fact that only 2 percent of the
total volume of financial activity is in cash also is important
to know that inside that 2 percent is most of the illegal
activity. People don't go around using credit cards to do
illegal sorts of things. And, you know, so you have got that
conflict between government's ability to deal with the illegal
activities and your right to keep information private, trying
to be anonymous sometimes. Pretty tough balancing act we are
going to have to do here.
The gentlelady from California, Ms. Eshoo.
Ms. Eshoo. Thank you, Mr. Chairman. I guess the illegal
cash activities are still not attracted by the mileage that is
offered by using a credit card. I often think that is one of
the main attractions for using it for everything. My mother is
still appalled that I would use a credit card to buy groceries;
she just can't believe that.
Mr. Tauzin. Do you remember the story about Jerry Springer?
Ms. Eshoo. The cash transaction.
Mr. Tauzin. If the gentlelady remembers the story about
Jerry Springer. What did he did, used a check, I think, in a
house of illegal prostitution. This kind of thing is rare, but
it happens.
Ms. Eshoo. I am glad it was you that brought up Jerry
Springer, I am talking about my mother, you are talking about
Jerry Springer. At any rate, this has really been an
instructive panel. And I once again want to welcome my
constituent, Mr. Lewin, and each one of you that has
contributed to this.
I have a thousand questions really swimming around in my
mind on this. One of the things that comes to mind is that
without good consumer education, I think that the seal on a Web
site is really going to get lost in the increasing barrage of
banter ads and logos and all the advertising. I mean you look
at these sites and, you know, your eye is just drawn--or it is
a challenge to your eyes, because you are drawn to so many
things that are blinking and waving and trying to get your
attention.
So I really don't know what kind of further efforts are
being made and maybe Mr. Lewin can tell us something about
that.
And I am also curious, has anyone ever ripped off your
seal; and if they have, how do you find out, and once you find
out what do you do?
And what do people pay for these services? Is it the same
nationally or is there competition between you and the Better
Business Bureau. And how do you advertise; how do you get the
word out?
Mr. Lewin. Okay.
Ms. Eshoo. Does the FTC get anything out of it?
Mr. Lewin. Wait a minute.
Ms. Eshoo. I told you I have a thousand questions.
Mr. Lewin. It was an overload to my mind there. Let me try
to address my questions. If I miss one, please remind me. First
of all, regarding how the site pays TRUSTe for the use of the
seal, that is based solely on the company's revenue. In the--it
starts at $299 for the year, and then it goes up to $4,999.
Ms. Eshoo. And others do approximately the same?
Mr. Lewin. Yes, they are approximately the same, that is
correct. I should point out that 85 percent of our sites are
$10 million or less. So the word is getting out to the small
sites, okay, it is not just a big site phenomena. People that
are getting into the activity of establishing their servers and
so forth want to do the right thing, and I want to emphasize
that, they want to do the right thing. And when people do
something wrong. I am talking about the Web site now, on the
Web site, it is typically out of ignorance, they just don't
know, or they didn't have the information and so they come to
us and seek advice.
To address your question about have people tried to rip our
seal off, yes. We know of now 7 cases and 4 of the cases
happened prior to last month and 3 just recently happened.
Ms. Eshoo. How did you know?
Mr. Lewin. How we find out is through a couple of
mechanisms. We are beta testing some technology that goes out
and searches the Web looking for graphics. And it comes back
with the identification of the Web site, what is called the
URL, we match that against our authorizing licensee list and if
we don't have a match, a-ha, our attorneys have an opportunity
to write a letter, which indicates that----
Ms. Eshoo. You don't need an attorney to do that.
Mr. Lewin. It looks more impressive if you have all the
names on the top of the paper.
Ms. Eshoo. I know; I am just teasing.
Mr. Lewin. In all four cases, it stopped. They took the
seal off. To be fair, in three of those cases because they sent
us a signed agreement, they thought that they can put the seal
up. That is not the case, that is the beginning of the process,
because they have to talk to one of our account executives, as
they are called, that guides them through the actual creation
of the privacy statement, and only after they bless it are they
authorized to put the seal on, if it says everything that
should be said.
And the one case was just somebody who they thought they
could get away with it. The other three cases, the letters have
already been written, and we anticipate that they will be
resolved. But if somebody--if somebody ignored our letters or
didn't take action, we would pursue it to the fullest extent,
because what we offer is credibility. If we lose credibility,
we lose everything. And so we pursue that vigorously.
And as to your other question.
Mr. Tauzin. She asked what the FTC have to do with your----
Mr. Lewin. Oh, thank you. We stay involved with what goes
on with the FTC, and I guess the model I would like to use is
with the Children's Privacy Seal that we put together, once
we--in our discussions with the FTC saw what was going on and
we attend their workshops and so on and so forth, we try to
anticipate what is going to happen, so we alert our licensees
that are--that have Web sites that are focused on children 13
years or under to start making these changes, to start looking
at this, to give them the lead time necessary and to make them
ready when indeed that is enacted.
The other thing that we do is we respond to their requests
for information. In cases that have been drawn to their
attention if there is any information that we have that they
feel might be appropriate, then we will work with the
appropriate parties at the FTC.
Ms. Eshoo. I think in so many of the things that have been
expressed by the panelists, and including the previous panel is
that we have made some progress, we have made some progress and
the progress that has been made, the innards of it have some
weight to them. But it seems to be that overall in this area of
online privacy protection, et cetera, et cetera, that right now
it is really more the exception than it is the rule.
And it is startling to me, because everything else is in
direct contrast to that on the Internet. I mean it is the speed
of lightening; it is incredible. If you just keep layering on
the statistics of the usage and its importance, I mean one can
just go on and on.
And I am so struck with the fact that this remains a
premature baby that doesn't--is not gaining weight the way it
should. I mean this is really in the incubator. So I don't know
if it would be prudent for the Congress to say by such and such
a date, this is the progress that needs to be made.
I mean we are dealing with that in terms of medical
privacy; if we don't act by a certain date, then the Secretary
of HHS will then write the regulation or the language for it.
But it seems to me that it is an area that either the private
sector is going to make grow and grow rapidly or we need a
Federal nudge here.
I don't know. Does anyone want to add anything to that?
Ms. Singleton. Let me add something quickly. I think
actually the contrast between sort of what has been called for
in privacy and what is actually developed. On the one hand, if
you continue to operate from the same assumptions that you
started with, then it looks like okay the Federal Government
has to start doing something.
Ms. Eshoo. And what I really didn't understand in your
opening testimony though what your assumptions were. I think
you were questioning the assumptions on which----
Ms. Singleton. Yes, exactly. I mean it is very difficult
for me to lay out my thinking about privacy in a concise
manner, but I do think that it is really important to go back
when things are not working the way you expected them to work
and say maybe this isn't quite as simple a question as we
thought. Maybe there are costs to consumers as well as
benefits.
Ms. Eshoo. This is not just a philosophic debate and
discussion about assumptions. We know that there are areas that
are already protected, and we are trying to be delicate and
prudent and maybe even bring some wisdom as to how we shift
that architecture that is already in place to this new medium.
Ms. Mulligan, did you want to add something?
Ms. Singleton. I am sorry I hadn't quite finished.
Ms. Eshoo. But you are on my time though.
Ms. Singleton. I am sorry.
Ms. Mulligan. I think it is an important question and, you
know, the analysis that the FTC provided is okay we have some
progress here access, much less progress; security, less
progress; the whole pie, do you want the whole thing? We are
talking still 10 percent, how do we get from here to there. I
have to tell you the TRUSTe program, the DMA line, the
standards in those programs are becoming much more like the
fair information practices that are embodied in the Privacy Act
or the OECD guidelines which are kind of the international
discussion, and I think there is an enormous amount of buy-in
on what the principles are, and the real question is, how do
you get ubiquity.
And I believe that ubiquity is going to come through
increased focus by the FTC, increased self-regulatory efforts,
but also a focus on how to get the people who aren't paying the
attention in the room, and I think that Congress has
traditionally played that role of how do you get the bad
actors, how do you get the free riders, the people who are
making a dollar off of information and really aren't interested
in putting themselves under the FTC's, you know, spotlight by
saying anything, because if they don't say anything, chances
are nobody is going to come after them.
Ms. Eshoo. Thank you very much. Thank you, Mr. Chairman.
Mr. Tauzin. Thank the gentlelady.
The gentleman from Ohio, Mr. Sawyer, is recognized.
Mr. Sawyer. Thank you, Mr. Chairman. I was just struck by
the notion of the Federal nudge. I was wondering whether that
may be filed in technical terms between a resolution and an
unfunded mandate.
Mr. Tauzin. Does it get an H.R. Or an HS? I am not sure.
Mr. Sawyer. I assume that many moons ago you passed the
point at which we were offered the opportunity to submit our
statements for the record.
Mr. Tauzin. Yes. That has been by unanimous consent.
Mr. Sawyer. I welcome the opportunity to undertake that.
Mr. Lewin, you have talked a lot about the kinds of things
that the people whose sites you provide certification to their
obligations and responsibility, do you face a particular
liability having certified a site and then having found it to
be not in compliance with the standards which you certify?
Mr. Lewin. The--well, in our agreements we indemnify in
terms of, you know, our trustmark and what we do and so on and
so forth. If I understand your question correctly, and please
tell me if I don't, are we liable if the Web site does
something dastardly to a consumer and we should have caught it;
is that the question?
Mr. Sawyer. That is essentially it, yes.
Mr. Lewin. No.
Mr. Sawyer. I assume you prefer not to be?
Mr. Lewin. Right, right. And I think that the issues are
pretty clear. There could be changes that occur on a daily
basis. What have you. Although we do monitor sites on a
quarterly basis. And we do what we call seeding, which we track
information as if we were a consumer of that Web site. And,
therefore, if we get information from a--to one of our seeding
addresses, we know where it came from and then we, you know,
should that have happened, yes or no. And it is a very
iterative process.
Mr. Sawyer. You have talked about looking for failures. Do
you monitor Web sites----
Mr. Lewin. Yes.
Mr. Sawyer. [continuing] that are actively in play? How do
you go about that?
Mr. Lewin. Yes. Currently that is done on--by our account
executives and it is actually looking at the Web site in, No. 1
ensuring that there are no changes or if there were changes,
are they similar to their business operating practices and so
forth. We are also exploring technology now, as Dr. Lucas has
already pointed out, that we are exploring to do some of that
in a more automated fashion so we can do it on a more regular
basis, and that is something that I am confident between now
and the end of the year that you will see substantial progress
in.
We also, by the way, provide what we call wizards which
are--privacy wizards which allow an organization to quickly set
up a privacy seal if they take certain defaults so on and so
forth. And if they want--the more tailoring they do, the longer
it takes. But we try to automate as much as possible the
knowledge that we have gained by doing these licensees over and
over again in various industries.
Mr. Sawyer. You had mentioned that most of the failures to
comply were inadvertent; were they errors?
Mr. Lewin. Yes.
Mr. Sawyer. Have you encountered those that were willful?
Mr. Lewin. There was one case where the organization
thought it was okay to do what they were doing. We disagreed,
and as part of our escalation process, we called an outside
auditor and in our program, Price Waterhouse, Coopers and KPMG
to conduct the survey to verify our findings, and that was done
at the licensee's expense which is part of our agreement, which
was not a trivial expense. Once it was verified that indeed
that was a problem the licensee recognized that they were at
fault, and they changed their practice.
Mr. Sawyer. Mr. Cerasale, will you soon be offering an
opportunity for consumers to remove their names from E-mail
lists?
Mr. Cerasale. Yes, we will, similar to our telephone and
mail or physical mail preference.
Mr. Sawyer. I assume that that is far from being a more
onerous task, considering it is actually probably made easier
by the medium that you are dealing in----
Mr. Cerasale. Well----
Mr. Sawyer. [continuing] by comparison to paper?
Mr. Cerasale. Actually trying to get it done electronically
very quickly has proved to be some problem with making
everything mesh computer to computer which is what has been
slower. It will--it should be easier for a consumer to be able
to mesh and get through to get on that E-mail preference list.
Mr. Sawyer. Do other organizations similar to yours
undertake the same kind of thing?
Mr. Cerasale. I don't believe so. I think from our review,
our history with the telephone preference service and the mail
preference service, we look like we are the only ones working
on that E-mail preference service.
Mr. Sawyer. Do you see that as a comparative advantage to
the DMA or should, in terms of the gentlelady from California,
others be given a Federal nudge to follow your example?
Mr. Cerasale. Well, they can actually--you would not have
to be a DMA member to get that--to get that list, to use the
list. We have a fee that we charge companies to use it to help
cover our costs, but you don't have to be a DMA member to do
it.
Mr. Sawyer. Thank you very much. Mr. Chairman, Ms.
Singleton, did you want to finish up a thought that you were
unable to complete on the gentlelady's California time?
Ms. Singleton. I think I would just like to reiterate that
there are still an enormous number of open questions in this
debate. A lot of information that has not been collected about
the way information is used in the economy and how that
benefits consumers in particular. And I think that particularly
when things aren't going as expected, it is really important to
question whether there is really a simple issue at all.
Mr. Sawyer. I think that is precisely the point that the
chairman was making. Thank you, Mr. Chairman.
Mr. Tauzin. Thank the gentleman. The gentleman from
California, Mr. Cox, is recognized.
Mr. Cox. Thank you. I have essentially two questions. One
is the degree to which we can have agreement on the kinds of
information that would be especially harmful to restrict the
collection of, and when we are talking about people's medical
information, for example, we get to sort of the core what we
think we ought to have a privacy interest in protecting.
But there are other things about what we do that presumably
the marketplace as a whole and we as individual consumers have
an interest in making sure there is commerce in so that stores
have what we want when we go visit them and so on.
So my first question really is what is it that we would be
very well advised not to put on a list of things along with
personal medical information that would we sort of presume we
ought to keep private?
And the second thing is the extent to which, and I
particularly want to address this question to Ms. Singleton, to
which we ought to look to sort of 19th century legal traditions
of private property rights to help us. To what extent can
property rights take care of this debate as against move
overarching government regulation which I think has sort of
going after people one at a time on a case-by-case basis with
ever more detailed regulations to try and fix problems
specifically rather than generally.
And I leave it to any member of the panel to address the
first question. Is there some information that we really should
not think about restricting because it will subvert the
marketplace?
Ms. Mulligan. I would like to actually link the two of them
together. Generally when we talk about privacy, it is not
necessarily about restricting specific pieces of informations,
it is about giving the individuals to make decisions when they
disclose information how it is used beyond the use of they
disclosed it for. So, of course, medical information, most
individuals are going to want that to flow freely between them
and their doctor. And they are going to want it to kind of stay
in that confined environment.
So the question is how do you ensure that? You can
certainly ensure it through a property right. But I think what
generally has been put in place since the 1970's in a variety
of sectors of the economy whether it is government information,
video rental records, the Fair Credit Reporting Act, is the
notion of the way in which we protect a piece of property that
I have willingly given to you for a specific purpose is to say
that you have some obligations now about how you handle that
data, and if you want to disclose it to the chairman, you get
my permission or you allow me to opt out depending on how
sensitive the data is, you take on some obligations to protect
it, to make sure it doesn't get corrupted.
Mr. Cox. So a license basically----
Ms. Mulligan. Yeah, the notion of a property right is
really, it is the core that underlies what we call the code of
fair information practices, they are not intentioned at all,
and it is just kind of a bundle of rights and how do we best
preserve those. And I think you can certainly do it through a
case-by-case litigation giving individuals property interests.
I think there hasn't been a very thorough review of
different statutes on the books and different common law models
to figure out which actually best drive practices in the
marketplace. We don't know that, and which actually provide the
most suitable remedies to consumers and which actually provide
the best enforcement mechanisms. So the FTC must be an
excellent place for ensuring general compliance; but as
Representative Markey said, when an individual is harmed, am I
going to get a specific redress from the FTC? Well, no, I might
get that under a private right of action, but as far as
ensuring compliance, if it is my name that has been resold,
there may not be a whole lot of, you know, interests in my
going to court.
There is a lot of barriers to nationally pursuing that
action. So in thinking about how you structure a means----
Mr. Cox. Although if we gave people access to even small
claims court, anybody that was trafficking in that kind of
information would be hit by a thousand bee stings, they would
probably want to correct the behavior.
Ms. Mulligan. Absolutely, I think there is a whole host of
ways you can go about looking at this. And I think one of the
things that people call for legislation, we are not calling--
there is a need to think about, which--I certainly listened to
what Ms. Singleton is saying. There are questions you need to
answer.
Mr. Cox. Ms. Singleton, do you want to address that?
Ms. Singleton. Yes, I will take each question sort of point
by point. I guess my first question is that there certainly is
going to be areas where people are a lot more sensitive about
the information than others. In some of those areas might be,
for example, including religious preferences, sexual
preferences and so on.
On the other hand, even in those areas, I think we have to
act very carefully, because if you were to decide, for example,
that religious information was something that would be
sensitive, does that necessarily mean that we need regulation?
And I think there it would be not necessarily and, in
particular, it would be really important to look at if you got
a new kosher foods company starting up and you want to enter
that marketplace, and you are looking to identify your first
customers; if that information is not available to you, you may
never get off the ground.
So even once we have identified a sensitive sector, that is
not necessarily going to sort of help decide whether or not
there should be a Federal standard. I think on the property
rights context, there is two parts to my answer, one is to say
that if you look at the common law often, and back at the 19th
century cases, often you will find a right to privacy tied in
very close to a violation of physical property rights.
And, for example, in the 19th century, invasion of privacy
was often sort of bundled into a nuisance suit if somebody had
built a building too close together.
Mr. Cox. Referring to the 19th century, what I really mean
is 19th century property rights what we consider to be property
in the 19th century, intellectual property wasn't a big deal
back then, if you take those notions even physical property as
they were bequeathed to us in the 19th and 18th centuries, and
you use that as the model in the 21st century, my question is,
is that promising?
Ms. Singleton. Okay, got it. I think there the closest
analogies we can look to would be what other property rights
and information exist, and these would include copyright,
patent, and, to some extent, defamation. And I think that those
suggest that there can be property rights of information, but
even in those areas the Internet has raised some really
important new issues. And traditionally also those property
rights and information have been relatively narrow, I mean,
that is to say, particularly in patent law, for example, you
know, it is time limited, it is limited to certain relatively
technical information that is not generally in the public
domain. So I think that sort of having a default rule that
suddenly a large category of information that relates to people
is a property right that wasn't before is potentially going to
cause some problems.
Mr. Cox. Well, Mr. Chairman, I thank you. I would just also
mention that I got a chance to meet with the bankers from GOSS
bank, which was a big Soviet bank, I probably talked to some of
them, probably 1990, before the collapse of the Soviet empire,
and we were having a conversation through an interpreter, and I
speak some Russian, and I got involved with the interpreter and
we have quickly figured out they it didn't have a word for
mortgage, you know, the big bankers in the Soviet Union, and
what I was trying to say was the No. 1 sort of startup capital
for small business in America was the mortgage, and they needed
to have land title registry and all the things we never think
about in this country in order to get small business started up
there, and what was then the Soviet Union, what quickly became
Russia.
I think we need to remember that without a basis in law
that free market actors cannot contract privately with one
another properly, so we need to pay some attention whether or
not we are importing these concepts from our forebearers in the
21st century. And I thank you for being generous with the time.
Mr. Tauzin. Interesting. My visit to St. Petersburg
confirmed that, a wonderful free market and little booths on
the streets where they are selling products, right behind them
are all the buildings owned by the public which are empty. I
wondered what had gone on there, that is the people's building.
Nobody can conduct commerce in there. It is really strange. No
word for mortgage.
Mr. Cox. I am sure they have one now.
Mr. Tauzin. I am sure they have got one now.
Final comments. Mr. Markey.
Mr. Markey. Thank you, Mr. Chairman, very much. I am very
intrigued by this whole notion of private right of action. And
I think we need a lot of discussion about it, not just in this
context, but also in the financial service industry context. I
think if an individual had the ability to go to court in order
to vindicate their privacy rights with no class action
possible, the limitation on damages which could be received, I
think that would go a long way toward helping to make sure that
there was a cleansing of the industry.
And I hope that in the financial services industry context
perhaps we can talk about that, it was part of my underlying
amendment a couple of weeks ago that I finally paired down to
its essential elements, but I think a private right of action
is something that we might be able to agree with on a
bipartisan basis.
Can I ask, Ms. Mulligan, in conclusion, if I could, are we
asking the wrong question, when we focus so much of our
discussion on mere disclosure requiring consumers to find, to
click on, and then read a privacy notice on each Web site when
they surf? It is a very cumbersome thing. In the era of the
World Wide Web, you can just keep moving. And just define
privacy policy and read it could be a half a day.
It seems like an analog answer to a digital question, you
know, how do we--how do we deal with these issues in this new
era? You know, are we thinking in terms that reflect the new
technology on the speed with which people can move from site to
site; and as a result, we have to think outside of the old
traditional boxes?
Ms. Mulligan. I think both yes and no. I think we have to
import the old principles, and I think, as you said, no notice
isn't enough and very clearly if you look at industry
standards, BBBOnLine, TRUSTe, the Federal Trade Commission's
proposals, your proposals and the financial services----
Mr. Markey. How can P3P help?
Ms. Mulligan. Absolutely. I think there is a role for
technology to automate the disclosure. You know, we don't have
a Schumer box for the information age, the hope is.
Mr. Markey. A what box?
Ms. Mulligan. We don't need a disclosure box for the
information age, what we need is a technology that helps
individuals, a Markey box.
Mr. Markey. I am afraid to pursue it. This is live in the
Senate as well.
Ms. Mulligan. I am sorry. What we need is a technology
piece that is going to enable consumers to talk about privacy,
whether it is self-regulation or it is legislation, it is a
wild Web, there is many Web sites. We have jurisdiction issues
left and right, and the technology is going to be a critical
piece, whether it is providing individuals with anonymity or
factual anonymity or giving them the ability through something
like the platform for privacy preferences being developed at
the World Wide Web consortium to figure out what a privacy
statement says and whether or not it abides by what they think
they want their information to be handled.
Mr. Markey. Without a minimal standard, Ms. Mulligan, how
can we expect the marketplace to ever know what it is that is
expected of it? How do we reach that point absent any
legislation passing that can then be pointed to as the
expectation that each industry, each company would have to
reach?
Ms. Mulligan. Well, I think, like you, I believe that there
is the need for some baseline legislation, and so I am not
saying that we don't need that, I think we clearly do. But in
the absence of that, I think that consumers can be empowered
through technology to do some self-policing about where they
disclose information, how they disclose information to avail
themselves of technology, and to look for businesses who have
put themselves out in front to say that we are doing the right
thing.
But I do think that self-regulatory efforts and technology
that are grounded upon a shared baseline of policy is going to
be the most successful in the end.
Mr. Markey. I want to thank you, Ms. Mulligan, and all of
you. This was an excellent panel. I want to thank you, Mr.
Chairman, I really enjoyed today's hearing, and I think you
really helped put a spotlight on a lot of the nuances of this
issue which we are going to need to understand if we are going
to move forward.
I, of course, hope that we do move forward. But this
hearing is indispensable in our understanding, and I hope that
we can begin to work together toward crafting some bipartisan
legislation that can deal with these issues.
Thank you, Mr. Chairman.
Mr. Tauzin. Thank my friend. Any other further comments.
Mr. Sawyer. Thank you, Mr. Chairman. Let me just go back to
a point Ms. Mulligan made and it has nothing to do with the
Schumer box. Ms. Mulligan in your testimony, you made a
compelling analogy to walking through a mall, and the notion
that either a mall or each of the shops within it could stick
an identifier on your back as you walk through.
How does personal discipline with regard to giving out
information apply to that capacity to profile based simply on
places that you have perhaps not even walked into, but simply
looked in the window as you can in traversing global
communication systems that exist today?
Ms. Mulligan. I think as Chairman Pitofsky said earlier,
there are really unique ways in which digital technology can
collect and analyze information. We don't have a lot of real
world analogies, while the camera, you know, in the Rayburn
halls may get glimpses of us as we walk by, it is not actually
monitoring everything that we do, it is not our own personal
camera.
And I think that, you know, consumer education is certainly
part of it, because some of the information that is collected
is collected through very useful purposes, when you go to a Web
site where you have been, can be very helpful.
Mr. Sawyer. Helping to whom?
Ms. Mulligan. It can be useful to you as a consumer at
times.
Mr. Sawyer. It might be. But I can make great use out of
advertising, advertising that comes in and is available to
everyone and comes from one direction and is one way. But when,
in fact, I am providing the information that allows me to be
targeted in ways that I am unaware of, even ways that may not
particularly identify me but make me vulnerable to a
diminishment of my autonomy and anonymity, that does affect me
in ways that I can't possibly effect or affect by virtue of
personal discipline.
Ms. Mulligan. Yeah, I think that is part of the reason that
it is important that the FTC is going to continue to look at
issues like profiling and identifiers. There are areas that may
not specifically hit on individual privacy as in information
that is identifiable, but that still give Representative Eshoo
and you this uneasy feeling that someone is monitoring my
activities and making decisions about me, even though they
don't know it is me, and that is another component of privacy.
And I think it is one that we have just begun to touch on.
Mr. Sawyer. And the cross-referencing of information may,
in fact, make it possible to identify you or a very small
fraction of a universe out of perhaps a worldwide population.
It is virtually the way that law enforcement has worked for the
last 200 years by cross-referencing information until specific
individual or small number of individuals can be identified in
ways that are inescapably demonstrable, that holds up in court,
it will certainly hold up in commerce.
Thank you, Mr. Chairman.
Mr. Tauzin. Thank you. We were just musing that we got a
cross-referencing you can almost figure out who voted for you
and who didn't vote for you.
Let me ask finally, is there anything wrong legally,
morally with my posting a Web site that says upfront, come
visit with me here, share information with me, I will not
protect your privacy? Anything legally, morally wrong with me,
if people want to come and visit with me and use my Web site
share my Web site with me?
Mr. Cerasale. As long as you don't hide it. You don't have
to make sure you can display it, and know it is fair.
Mr. Tauzin. Ms. Singleton, you raised the issue, it is the
right of privacy in the private sector as opposed to other
personals in our society as sacred as it was constitutionally
against government? Is it such that I can surrender it by
agreeing you to take any information you want about me as long
as I am told up front that you are going to do that; is that
okay? Mr. Lewin?
Mr. Lewin. Well, you have given notice, you have given them
the choice, you have stated it very explicitly, the issue may
become how clear is it. I mean how clear in your language are
you making it to that individual, to that average consumer
coming to your site, this is indeed what you are going to do
and that is where the key issue is.
Mr. Tauzin. In other words, is it a right we need to define
and is it waiverable and under what circumstances? It is kind
of what it boils down to; is that right?
Mr. Cox. I want you to yield on that, because it is
technologically impossible now, and there is a race in software
to see who is ahead of whom in terms of getting there first.
But is it possible right now for somebody to collect
information on you before you even get around to reading their
privacy notice?
Mr. Tauzin. Yes.
Mr. Cox. What we want to make sure of is that we don't hang
a lot on this issue of opt-in or opt-out, that it is basically
the opting that matters, we don't want silence to be consent.
We want people to know what they are doing and there has got to
be some evidence that there is an agreement.
Mr. Tauzin. Mr. Lucas, would your technology do that?
Mr. Lucas. The technology--we believe that it is kind of
ironic on the Web page that we talk a lot about relationships
that we are trying to establish, relationships with consumers.
I may be a little old fashioned, but I believe you have to ask
permission from a person in order to have a relationship with
them. I think the laws that prohibit it any other way.
I think it is also ironic that we can spend millions and
millions of dollars as an industry to determine information
about a consumer, but when companies are asked to step up to
providing access to information that they have about a consumer
that becomes either too expensive or too complicated or there
is some excuse. I think that one of the biggest issues that we
need to provide to the consumers is the issue of access and the
issue of being able to control whether a site can do profiling
on them. You are absolutely right.
Mr. Tauzin. The right to correct bad information; we have
got to get to that sooner or later.
Mr. Lucas. Absolutely. If we are talking about the European
Union directive that was mentioned earlier, one of the basic
problems that we had in the negotiations is over the issue of
access, and it has never been over the real issue of access,
and that is it is really a technology issue it is
authentication. I can't think of a worst privacy violation than
someone coming to a site and saying they are an individual and
not being able to authenticate. But that really hasn't been the
strongest issue. It has been a reluctance, it has been a
liability, it has been all different kinds of issues. So I
think, yes, we have to provide access, we have to provide
consumers to opt-out of profiling.
Mr. Tauzin. Last night, I got into a marvelous book, The
Rising Tide, which I have been meaning to read, I finally got
into it last night. It details a marvelous conflict between two
enormously powerful people, one, the head of Bureau of
Engineers and the other a great engineer himself, over whether
to--how--or how, rather, to open up the mouth of the
Mississippi River for the whole country to commerce.
The fight was over whether to dredge one of the passes, the
southwest pass, a little at a time with dredges that kept
breaking down, or the incredible idea, the other gentleman had
I think his name was Eades, the other guy was Humphreys, I
think, his idea was to put jetties out to channel the flow of
the river out--off the continental shelf so that rush of the
river itself would open up and clean up the river itself to
commerce.
This was right after the great war of northern aggression
against the south, the river was all blocked up at that time.
They built the jetties, immediately commerce, the port of New
Orleans, it just skyrocketed second only to the port of New
York, eventually it eclipsed New York in tonnage.
The question is sort of parallel here. We don't know the
answer yet, is the rush of consumers to electronic commerce
being inhibited because we haven't addressed all of these
questions? Do we need to address them in front of that rush, in
order to open it up? Or, as in the case of those jetties, to
get it all flowing, set some policy down that everybody knows
and feels comfortable with, or is it as the Commission seems to
believe, or some of the Commission at least, that indeed
consumers are rushing to electronic commerce options and making
their own decisions about how much commerce they want to do on
it?
In short, can we know how much electronic commerce would be
occurring if we had adopted policies upfront on privacy and
security as opposed to letting the marketplace work themselves,
can we know and how do we know? Mr. Lucas.
Mr. Lucas. I don't think we can--I don't think there has
been a number that is been assigned to it, but I can tell you
if you refer to some of the surveys that have been by people
like Dr. Alan Westin, it is clear that over 80 percent of the
consumers who are asked what is the No. 1 reason they don't
participate in electronic commerce is the lack of control
over--and if you talk to consumers, my experience has been it
is not the initial collection of information, because as was
mentioned before, there are millions of con-
sumers that went to a site and gave out the most detailed
information for the chance of winning a PC valued under $500.
What consumers have told us over and over again, it is the
secondary use of information.
If they go to an e-commerce site and buy a widget, they
don't want that information sold or transferred to anyone else
without their permission.
Mr. Tauzin. Ms. Singleton raises the issue, and I will give
everybody a chance to come back if you like to, but raises a
question as to whether or not those statistics, those surveys
are really replicated in the real world, and the virtual world
in this case, in effect, consumers knowing now that they have--
can go to a seal organization, knowing that they can use the
technology very simply, knowing that there are in place more
and more notice of privacy rights, more and more protections
for them.
Are they in fact still not choosing to engage in electronic
commerce? What are they waiting for, if they now know all of
these things are coming into place so rapidly as the Commission
seem to imply to us today, any one of you? Mr. Cerasale.
Mr. Cerasale. I think there are some parallels we can go
back to look at. Today, outside of electronic commerce, looking
at remote sales, that means you don't go in a face-to-face
purchase, 40 percent of Americans do not--have never purchased
remotely before the Internet. So you have a situation where
only 60 percent of Americans feel that they either want to or
have a credit card to be able to do it or a checking account to
be able to purchase remotely and not deal with cash.
So that is--we are not certain exactly why and we are
trying to look out, trying to find out why is it that 40
percent don't participate, so that you are never going to get
all of the consumers even on the Net as you get online.
The second item is, that 15 years ago, even though they had
telephone payment of credit cards to L.L. Bean, 15 years ago,
95 percent of all of their sales were through the mail, a check
coming into the mail, the people were not confident to give
L.L. Bean their credit card number. Now, it is 97, 98 percent
credit cards, and that is not looking at what is happening with
their significant growth in their online commerce.
So that it took time, even with a trusted name, for the
Americans to feel comfortable to give out a credit card number.
So I think that part of what is happening today in the slowness
in the Internet is that people haven't used it, people are a
little bit worried, they are going to wait to hear that their
friend used it, had no problem with it, and so forth.
I can tell you the first time that I ever used the
Internet, to press the button to send the Boston Red Sox my
Discover card number, I sat there for 10 minutes before I hit
the enter button. I got the tickets, it was a great game they
actually won, and----
Mr. Tauzin. Was it doubts about the security or the Red
Sox?
Mr. Cerasale. It was the doubt--it was before August, so it
was okay. So those things, I think those things are in place. I
do--that doesn't diminish what Professor Westin has found and
so forth, but I think there is a reluctance in something new
for Americans to sit back and wait and listen to the grapevine
and see what it is.
Mr. Tauzin. Let's wrap it up, Mr. Lewin.
Mr. Lewin. Just a quick note, and to emphasize the points
already made, one of the key issues facing a lot of
organizations that are now Web enabling some of their
activities, their commerce activity, is the issue that we are
going--there has been some progress made in the online world
that is taking this date and blending it with information that
they have collected through other mechanisms, registration
cards and what have you, and what is the offline world. And now
dealing with the issue of how do I take the rules that I
established here and the decisions made by people and apply
them to all of the legacy information that they have lying
around is really a key issue for a lot of these organizations.
And how to reconcile those, and what to do with it is something
that is very much on their minds right now. And it is something
that has to be paid attention to.
Mr. Tauzin. Interesting. Anyone left with a question? Do we
build the policy jetties now and open up the river, or do we
let the industry dredge it out one dredge at a time?
Ms. Mulligan. Just on statistics of the causal effect, how
do we know is it because people are anxious because of privacy,
and the National Consumers League Survey, which is actually
mentioned in my testimony, found that 42 percent of individuals
who are using the Internet were only using it to surf for
information, were not making purchases, with a much smaller 24
percent actually making purchases and citing privacy concerns.
And I think, you know, you can't completely extrapolate
there, but that is 50 percent of the people who could
potentially be engaged in online commerce are picking up the
phone or perhaps sending in a check.
Mr. Tauzin. So there is some evidence out there of
reluctance still.
Ms. Singleton.
Ms. Singleton. I think one thing, I noted this in my
written testimony also, there is a couple holes in the
empirical information here. One would be what the rate of
growth are of companies who have posted a privacy policy as
compared to the rate of growth of similarly situated companies
that have not. Now, it is important to compare similarly
situated companies so you are not comparing AT&T to Joe's
Hardware Store in Peoria, but I think that is one area.
Another thing to do is to look at the rate of growth of in
commerce through--say, communities like America Online that has
got sort of the whole regulatory fabric in there as a private
community and to look at that and to compare it to rates of
growth to e-commerce generally.
Mr. Tauzin. Thank you very much. Any final, final thoughts?
Mr. Markey. To Mr. Cerasale, Red Sox tickets, $24; Popcorn,
$2; parking, $10; e-commerce, $1 trillion; privacy protections,
priceless. That is where we are, Mr. Cerasale, trying to put a
price on it.
Mr. Tauzin. I thought you said Red Sox tickets----
Mr. Markey. Half an hour before the game, outside of
Fenway, they will all be priceless. There are some very wealthy
people paying a lot of money.
Mr. Tauzin. Did you see McGwuire last night? Wasn't that
amazing?
Mr. Cox. We have one little baseball thread hanging here
and that is the distinction between the privacy policies of the
Boston Red Sox on the one hand and the notion, fanciful or
otherwise, of consumers that something might go on in
cyberspace between their computer and the Boston Red Sox
terminal.
The development of secure connections is very important. I
think that everybody is willing to trust the Boston Red Sox,
not everybody, but most----
Mr. Markey. Our fondest and deepest----
Mr. Cox. [continuing] right at the window if you are there
picking up your ticket at will-call, but it is this sort of
cyberspace issue that maybe as I send my credit card number to
the Red Sox over the telephone lines it is being routed
somewhere that I don't know about and pirates are going to take
that information.
Mr. Markey. More likely the Yankees.
Mr. Cox. It is impossible to avoid these metaphors. Before
we switch back from baseball to the Mississippi Delta, I think
I had better yield back.
Mr. Tauzin. I thank you all. This has been very
enlightening, and we appreciate your testimony and your
contributions. The hearing stands adjourned.
[Whereupon, at 2:14 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
Prepared Statement of Peter J. Gray, Chairman, Internet Consumers
Organization
The Internet Consumers Organization (ICO) is pleased to submit this
statement on privacy for the hearing record. ICO provides policymakers
and other interested parties with fair and balanced policy positions on
issues of importance to both Internet consumers and providers of online
products and services. Our objective is to help shape a progressive
environment for the Internet, and to conduct research and education
programs to enhance consumer confidence in using the Internet for e-
commerce and other purposes. ICO is incorporated in the District of
Columbia as a non-profit organization.
In the privacy arena, the rationale for public policy appears to be
based on a series of assumptions that rely heavily on public attitude
polls, media exposure of abuses, potential threats to personal privacy,
laws and regulations of other countries, and misinterpretation of
statistical data and anecdotal information. To get a better reading on
privacy issues, and to help make informed decisions about privacy
protection, it is useful to examine the following key assumptions and
compare them to the reality of the consumer marketplace:
Assumption: Consumers are universally concerned about the privacy
of their personal information.
Reality: Some people are more privacy-sensitive than others; some
care most about protecting sensitive information, like medical records;
others don't seem to care, and are willing to trade-off their privacy
for free or lower-cost products or services, or other benefits.
Assumption: Consumers who say they are concerned about their
privacy will refrain from using the Internet.
Reality: People often behave or act differently from what they say
or believe. This is a form of cognitive dissonance that may explain the
discrepancy between the Louis Harris polls, where 81% of Net consumers
expressed concerns about privacy, and the explosive growth in Internet
usage. What's really happening? The Pew Research Center found that
Americans' daily Internet usage rose from 4% in 1995 to 25% in 1998.
Media Metrix reported a 15% increase in monthly Internet users, from
about 54 million in May 1997 to 62 million in May 1998. Forrester
Research found that over \3/4\ of online households now surf the Web.
Assumption: Privacy concerns are keeping consumers who use the
Internet away from using e-commerce to purchase goods and services.
Reality: The facts don't bear this out. The Department of Commerce
reports that online sales grew from about $3 billion in 1997 to $9
billion in 1998. Forrester Research estimates that 26% of online users
made regular purchases on the Web in 1998. Jupiter Communications found
that the number of people buying something on the Net grew from 10
million in 1997 to 17 million last year, and it projects U.S. online
sales to be about $12 billion in 1999. The Institute for the Future
forecasts e-commerce sales to consumers will exceed $1 trillion by
2010. Polls show that women are more concerned about privacy than men,
yet they buy more online than men do, according to a recent survey by
CommerceNet and Nielsen.
Assumption: Most consumers are worried about unauthorized access to
their e-mail messages.
Reality: Forrester Research shows that over 80% of online users
regularly send e-mail messages, still the most frequent use of the
Internet. Most of these users are not worried about the privacy of
their e-mails, since they don't attempt to encrypt their messages or
use anonymous identities.
Assumption: Consumers consider Internet privacy as more important
to them than convenience, security, reliability, cost, value, choices,
customer service, speed of access and other benefits.
Reality: Some may value privacy more highly than other factors, but
others may not. Individuals have a hierarchy of needs and preferences,
which may change over time. Someone shopping for the lowest cost
airfare available may be willing to divulge a degree of personal
information in order to get the ticket. Someone else who pays bills
online may value security and reliability of the service more highly
than privacy. Researchers surfing the Web may be primarily interested
in speed of access to resource information. System intrusions, computer
viruses and worms, unauthorized access to personal files and fraud, may
lower consumer confidence and become more important deterrents to e-
commerce than privacy.
Assumption: Consumers will not do business with companies that
don't have privacy policies or privacy seals posted on their websites.
Reality: Most people want to deal with companies that they trust
and have confidence in. Good privacy policies and practices are an
important element of trust. But, good customer service, fair and prompt
dispute resolution, excellent product quality and other factors are
also important elements of trust. BizRate.com found that the level and
quality of customer service, on-time delivery, product representation,
and shipping and handling were rated higher than privacy in determining
consumers' likelihood of repeat purchases from an online merchant.
Assumption: Consumers trust governments over businesses to protect
their privacy.
Reality: There have been notable privacy lapses by both federal and
state government organizations, such as the IRS, Social Security
Administration, state motor vehicle bureaus, health care and other
agencies that created public distrust and outrage. Federal, state and
local governments should be required to disclose and enforce their
privacy policies to protect the confidentiality of citizens'
information.
Assumption: Self-regulation by industry will prevent enactment of
online privacy legislation.
Reality: Industry self-regulation demonstrates the willingness and
ability of responsible companies to earn the public's trust. But, self-
regulatory initiatives tend to postpone or dampen, rather than prevent
the enactment of privacy laws, because some companies fail to self-
regulate. Still, new laws are not the panacea for assuring general
online privacy protection. Targeted legislation may be desirable in
some specific instances (e.g. to protect sensitive medical records from
unauthorized access without the consumer's knowledge or consent).
Assumption: People have no control over their personal privacy in
cyberspace, and they are powerless to protect themselves from privacy
intrusions.
Reality: Informed consumers have the ability to control their
online privacy by using technological means to protect their personal
information. They can seek out companies that have good privacy
policies, disable cookies and refuse to provide certain information
about themselves. A partnership between the private sector, government
agencies, and non-profit consumer organizations should be formed to
educate and inform consumers on how best to protect their privacy.
Assumption: People object to company practices that involve the
collection and use of personal information about them.
Reality: A recent Vanderbilt University study found that over 72%
of Web users would provide personal information to companies that
disclose how the information would be used. If a company with a good
privacy policy discloses it to the public, and uses information it
collects to provide consumers with benefits, consumers are more likely
to allow such information to be used to suggest products or services
based on their personal preferences. A good example of a responsible
privacy policy that engenders consumer trust is that of Amazon.com.
In conclusion, there is a need to critically examine the
assumptions that drive and shape privacy policy in the U.S. Legislation
and regulations are not the panacea for comprehensive online privacy
protection. Instead, a combination of legislation targeted to address
specific abuses, enforcement of existing laws and regulations, industry
self-regulation with oversight, consumer education, application of
technological solutions and consumer actions to protect themselves,
will help to protect online privacy.
<all-mark>