StratVantage Consulting, LLC — Mike’s Take on the News 09/04/01

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StratVantage Consulting, LLC — Mike’s Take on the News 09/04/01

Clipped from:

The News – 09/10/01

In this Issue:

The Right to Privacy?

Recently, in a discussion group I participate in, someone asked, “What happened to our right to privacy?” He was appalled at a recent judicial decision that, he claimed, stated “that phone calls you place and take in your own home cannot be considered private.

While I certainly agree with the sentiment, I must point out that there’s nothing in the Constitution that guarantees privacy. The 4th Amendment guarantees citizens’ security of “persons, houses, papers, and effects, against unreasonable searches and seizures,” but doesn’t guarantee privacy. In fact, the word doesn’t appear anywhere in the Constitution or the amendments.

There are some laws on the books regarding privacy, however, but most only concern the federal government. In 1998 the White House issued a memorandum on Privacy and Personal Information in Federal Records, saying: “Privacy is a cherished American value, closely linked to our concepts of personal freedom and well-being. At the same time, fundamental principles such as those underlying the First Amendment, perhaps the most important hallmark of American democracy, protect the free flow of information in our society.” The memorandum directs Federal agency heads to “assure that their use of new information technologies sustain, and do not erode, the protections provided in all statutes relating to agency use, collection, and disclosure of personal information,” and that they follow the Privacy Act of 1974. One wonders why it was necessary to direct government agencies to obey the law!

There is one bill, the Gramm-Leach-Bliley Act , enacted in late 1999 with a compliance date of July of this year, that does regulate what financial institutions can do with non-public information about you. It’s because of this law that you’ve been receiving the privacy policies of the various financial institutions in your life. These institutions must, “Provide an opt-out notice, with the initial notice or separately, prior to a financial institution sharing nonpublic personal information with nonaffiliated third parties.” So now’s your chance to opt out.

Also this year, the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 became effective, with a compliance date of April 14, 2003. The original 1996 law gave Congress until August 21, 1999, to pass comprehensive health privacy legislation. When Congress did not enact such legislation after three years, the law required the Department of Health and Human Services (HHS) to craft such protections by regulation. The regulations basically protect your health information from being disclosed without your consent. However, since medical establishments share information all the time in the process of caring for you, this gets a bit sticky. The rules are expected to cost $17.6 billion over 10 years to implement, while generating significant offsetting savings.

Despite some recent advances, and despite the cherished nature of privacy, there are few rules is binding on non-financial or non-health institutions. Private citizens really have no right to privacy in other arenas. Sure there’s a lot of talk about privacy, and about the EU privacy rules, but, as you can see from Congress’ HIPAA foot dragging, our government really has little interest in proactively enacting laws to protect our privacy from non-governmental entities. The FTC has created the elements of fair information practices (notice, choice, access, security, and contact), but there’s no enforcement mechanism. There’s a lot of interest in trading in online information (failed dot-coms trying to sell client lists), but these challenges tend to stand on the concept of the contractual nature of a site’s voluntary privacy policy.

Sun CEO Scott McNealy said a couple of years ago, “You have no privacy. Get over it.” Is this our fate? Must we stand by while private companies amass tremendous databases of information (don’t get me started on Microsoft’s Passport!) on us? Or should we make our elected representatives aware that we’d just as soon keep our private matters private? Will it take being turned down for a job because you have a genetic predisposition to cancer to bring the point home? And while we’re at it, as marketers, what is our responsibility to refrain from infringing on privacy? We need answers to these questions soon, IMHO. I’m interested in your thoughts on these matters. Send them in and I’ll publish them in a future SNS.

Privacy Backgrounder

Briefly Noted

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