Trust, ethics, and privacy

Boston University Law Review

Volumn 81, Issue 2, 2001, Pages 407-421

  Goldberg, Ian ^a   Hill, Austin ^a   Shostack, Adam ^a  

^a NONE

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[No Author keywords available]

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EID: 0035608716     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (92)

1. See, e.g., A. Michael Froomkin, Cyberspace and Privacy: A New Legal Paradigm? The Death of Privacy? 52 STAN. L. REV. 1461, 1462 (2000) (quoting Scott McNealy, the CEO of Sun Microsystems as saying "You have zero privacy. Get over it."); see also DAVID BRIN, THE TRANSPARENT SOCIETY 5 (1998) (exemplifying the notion that technology infringing on privacy is "here to stay"); Edward C. Baig, Marcia Stepanek & Neil Gross, Privacy: The Internet Wants Your Personal Info. What's in It for You?, BUS. WK., Apr. 5, 1999, at 84 (discussing the prevalence of McNealy's "get over it" attitude).
2. See, e.g., A. Michael Froomkin, Cyberspace and Privacy: A New Legal Paradigm? The Death of Privacy? 52 STAN. L. REV. 1461, 1462 (2000) (quoting Scott McNealy, the CEO of Sun Microsystems as saying "You have zero privacy. Get over it."); see also DAVID BRIN, THE TRANSPARENT SOCIETY 5 (1998) (exemplifying the notion that technology infringing on privacy is "here to stay"); Edward C. Baig, Marcia Stepanek & Neil Gross, Privacy: The Internet Wants Your Personal Info. What's in It for You?, BUS. WK., Apr. 5, 1999, at 84 (discussing the prevalence of McNealy's "get over it" attitude).
3. See, e.g., A. Michael Froomkin, Cyberspace and Privacy: A New Legal Paradigm? The Death of Privacy? 52 STAN. L. REV. 1461, 1462 (2000) (quoting Scott McNealy, the CEO of Sun Microsystems as saying "You have zero privacy. Get over it."); see also DAVID BRIN, THE TRANSPARENT SOCIETY 5 (1998) (exemplifying the notion that technology infringing on privacy is "here to stay"); Edward C. Baig, Marcia Stepanek & Neil Gross, Privacy: The Internet Wants Your Personal Info. What's in It for You?, BUS. WK., Apr. 5, 1999, at 84 (discussing the prevalence of McNealy's "get over it" attitude).
4. See, e.g., Mark E. Budnitz, Privacy Protection For Consumer Transactions in Electronic Commerce: Why Self-Regulation Is Inadequate, 49 S.C. L. REV. 847, 848 (1998) (arguing that statutory protection is necessary to protect privacy); Froomkin, supra note 1, at 1542; Baig et al., supra note 1, at 84 (noting that privacy advocates have inspired politicians to introduce scores of privacy legislation at both the state and federal level, and that a few advocate tight governmental controls on personal information resembling Europe's safeguards promulgated in Fall of 1998); Naturally, e-businesses are concerned that government regulation will increase their operating costs, and have therefore begun to regulate themselves. See WILLIAM J. CLINTON & ALBERT GORE, JR., FRAMEWORK FOR GLOBAL ELECTRONIC COMMERCE 13 (1997) ("The Administration supports private sector efforts now underway to implement . . . self-regulatory privacy regimes."); Baig et al., supra note 1 at 84-85.
5. See, e.g., Mark E. Budnitz, Privacy Protection For Consumer Transactions in Electronic Commerce: Why Self-Regulation Is Inadequate, 49 S.C. L. REV. 847, 848 (1998) (arguing that statutory protection is necessary to protect privacy); Froomkin, supra note 1, at 1542; Baig et al., supra note 1, at 84 (noting that privacy advocates have inspired politicians to introduce scores of privacy legislation at both the state and federal level, and that a few advocate tight governmental controls on personal information resembling Europe's safeguards promulgated in Fall of 1998); Naturally, e-businesses are concerned that government regulation will increase their operating costs, and have therefore begun to regulate themselves. See WILLIAM J. CLINTON & ALBERT GORE, JR., FRAMEWORK FOR GLOBAL ELECTRONIC COMMERCE 13 (1997) ("The Administration supports private sector efforts now underway to implement . . . self-regulatory privacy regimes."); Baig et al., supra note 1 at 84-85.
6. See, e.g., Mark E. Budnitz, Privacy Protection For Consumer Transactions in Electronic Commerce: Why Self-Regulation Is Inadequate, 49 S.C. L. REV. 847, 848 (1998) (arguing that statutory protection is necessary to protect privacy); Froomkin, supra note 1, at 1542; Baig et al., supra note 1, at 84 (noting that privacy advocates have inspired politicians to introduce scores of privacy legislation at both the state and federal level, and that a few advocate tight governmental controls on personal information resembling Europe's safeguards promulgated in Fall of 1998); Naturally, e-businesses are concerned that government regulation will increase their operating costs, and have therefore begun to regulate themselves. See WILLIAM J. CLINTON & ALBERT GORE, JR., FRAMEWORK FOR GLOBAL ELECTRONIC COMMERCE 13 (1997) ("The Administration supports private sector efforts now underway to implement . . . self-regulatory privacy regimes."); Baig et al., supra note 1 at 84-85.
7. See, e.g., Mark E. Budnitz, Privacy Protection For Consumer Transactions in Electronic Commerce: Why Self-Regulation Is Inadequate, 49 S.C. L. REV. 847, 848 (1998) (arguing that statutory protection is necessary to protect privacy); Froomkin, supra note 1, at 1542; Baig et al., supra note 1, at 84 (noting that privacy advocates have inspired politicians to introduce scores of privacy legislation at both the state and federal level, and that a few advocate tight governmental controls on personal information resembling Europe's safeguards promulgated in Fall of 1998); Naturally, e-businesses are concerned that government regulation will increase their operating costs, and have therefore begun to regulate themselves. See WILLIAM J. CLINTON & ALBERT GORE, JR., FRAMEWORK FOR GLOBAL ELECTRONIC COMMERCE 13 (1997) ("The Administration supports private sector efforts now underway to implement . . . self-regulatory privacy regimes."); Baig et al., supra note 1 at 84-85.
8. See, e.g., Mark E. Budnitz, Privacy Protection For Consumer Transactions in Electronic Commerce: Why Self-Regulation Is Inadequate, 49 S.C. L. REV. 847, 848 (1998) (arguing that statutory protection is necessary to protect privacy); Froomkin, supra note 1, at 1542; Baig et al., supra note 1, at 84 (noting that privacy advocates have inspired politicians to introduce scores of privacy legislation at both the state and federal level, and that a few advocate tight governmental controls on personal information resembling Europe's safeguards promulgated in Fall of 1998); Naturally, e-businesses are concerned that government regulation will increase their operating costs, and have therefore begun to regulate themselves. See WILLIAM J. CLINTON & ALBERT GORE, JR., FRAMEWORK FOR GLOBAL ELECTRONIC COMMERCE 13 (1997) ("The Administration supports private sector efforts now underway to implement . . . self-regulatory privacy regimes."); Baig et al., supra note 1 at 84-85.
9. See Teachers Most Trusted in America, VIRGINIA JOURNAL OF EDUCATION (Jan. 1999) (listing members of the teaching profession as the most trusted people in America); RSA Security's homepage, (visited February 5, 2001) . Interestingly, when we searched "most trusted" on Google.com, a web search engine akin to Yahoo, Lycos or Alta Vista, most of the top twenty results were for gambling sites, escort services, and politicians. We leave the discussion of why this may be for another day, and wish only to note now the difficulty of receiving compensation for poor service from any of the three. We note also that Google is well regarded by the technical community for using clever tricks, such as returning websites containing the inputted search criteria like "most trusted" in order of the websites' overall popularity.
10. See Teachers Most Trusted in America, VIRGINIA JOURNAL OF EDUCATION (Jan. 1999) (listing members of the teaching profession as the most trusted people in America); RSA Security's homepage, (visited February 5, 2001) . Interestingly, when we searched "most trusted" on Google.com, a web search engine akin to Yahoo, Lycos or Alta Vista, most of the top twenty results were for gambling sites, escort services, and politicians. We leave the discussion of why this may be for another day, and wish only to note now the difficulty of receiving compensation for poor service from any of the three. We note also that Google is well regarded by the technical community for using clever tricks, such as returning websites containing the inputted search criteria like "most trusted" in order of the websites' overall popularity.
11. See Brands Need More Attention, ADVERTISING AGE, July 4, 1994, at 8 (noting truism to show how trustworthy the brand name IBM used to be).
12. Amazon.com Privacy Notice (visited January 30, 2001) .
13. An example of highly sensitive information might be HIV test results.
14. Reliance: 1. The act of relying; 2. The condition or attitude of one who relies: dependence, confidence; 3. Something or someone relied upon: mainstay. MERRIAM-WEBSTER'S 3RD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 1917 (3d ed. 1986).
15. See Thomas Schelling, Address at the Boston University Trust Relationships Conference (Sep. 23, 2000).
16. See Peter Steiner, Cartoon, NEW YORKER, July 5, 1993, at 61 (depicting an oft-quoted cartoon with the caption, "On the Internet, nobody knows you're a dog."); see also Helen Nissenbaum, Securing Trust Online: Wise Choice or Contradiction, in VIRTUAL PUBLICS: POLICY AND COMMUNITY IN AN ELECTRONIC AGE (Beth Kolko ed., 2000) (describing the difficulty of faking personal information "offline"); Cf. Oscar H. Gandy, Jr., Legitimate Business Interest: No End in Sight? An Inquiry into the Status of Privacy in Cyberspace, 1996 U. CHI. LEGAL F. 77, 78 (1996)
17. See Peter Steiner, Cartoon, NEW YORKER, July 5, 1993, at 61 (depicting an oft-quoted cartoon with the caption, "On the Internet, nobody knows you're a dog."); see also Helen Nissenbaum, Securing Trust Online: Wise Choice or Contradiction, in VIRTUAL PUBLICS: POLICY AND COMMUNITY IN AN ELECTRONIC AGE (Beth Kolko ed., 2000) (describing the difficulty of faking personal information "offline"); Cf. Oscar H. Gandy, Jr., Legitimate Business Interest: No End in Sight? An Inquiry into the Status of Privacy in Cyberspace, 1996 U. CHI. LEGAL F. 77, 78 (1996)
18. See Peter Steiner, Cartoon, NEW YORKER, July 5, 1993, at 61 (depicting an oft-quoted cartoon with the caption, "On the Internet, nobody knows you're a dog."); see also Helen Nissenbaum, Securing Trust Online: Wise Choice or Contradiction, in VIRTUAL PUBLICS: POLICY AND COMMUNITY IN AN ELECTRONIC AGE (Beth Kolko ed., 2000) (describing the difficulty of faking personal information "offline"); Cf. Oscar H. Gandy, Jr., Legitimate Business Interest: No End in Sight? An Inquiry into the Status of Privacy in Cyberspace, 1996 U. CHI. LEGAL F. 77, 78 (1996)
19. See Nissenbaum, supra note 9.
20. In fact, website privacy policies do not deserve much credibility, as relatively few websites are taking the steps advocated by the FTC since 1998. These steps are known as the "Fair Information Practice Principles." For the original code of Fair Information Practice Principles, see DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, RECORDS, COMPUTERS, AND THE RIGHTS OF CITIZENS: REPORT OF THE SECRETARY'S ADVISORY COMMITTEE ON AUTOMATED PERSONAL DATA SYSTEMS (1973); see also FEDERAL TRADE COMMISSION, PRIVACY ONLINE: FAIR INFORMATION PRACTICES IN THE ELECTRONIC MARKETPLACE II (2000) [hereinafter FTC REPORT] (finding that only twenty percent of surveyed websites collecting personal information employed, at least partially, all of the fair information practice principles set by the FTC); GEORGETOWN INTERNET PRIVACY POLICY SURVEY: REPORT TO THE FEDERAL TRADE COMMISSION 6 (1999) (hereinafter GIPP REPORT) (finding that only 13.6% of surveyed websites contained at least one of the elements of fair information guidelines set forth by the FTC).
21. See, e.g., CLINTON & GORE, supra note 2, at 12-13 (advocating disclosure through practices like privacy policies as essential practice to ensure privacy); NATIONAL TELECOMMUNICATIONS & INFORMATION ADMINISTRATION, ELEMENTS OF EFFECTIVE SELF-REGULATION FOR PROTECTION OF PRIVACY (1998) (Discussion Draft) (visited February 4, 2001) (outlining principles of fair information practices and specifying the use of privacy policies in implementing them). But see Froomkin, supra note 1, at 1542 (arguing that only a mix of self-regulation, law, and technological design principles will suffice to ensure privacy on the Internet); Joel R. Reidenberg, Restoring Americans' Privacy in Electronic Commerce, 14 BERKELEY TECH. L.J. 771, 771 (1999) ("[T]he theory of self-regulation has normative flaws and that public experience shows the failure of industry to implement fair information practices.").
22. See, e.g., CLINTON & GORE, supra note 2, at 12-13 (advocating disclosure through practices like privacy policies as essential practice to ensure privacy); NATIONAL TELECOMMUNICATIONS & INFORMATION ADMINISTRATION, ELEMENTS OF EFFECTIVE SELF-REGULATION FOR PROTECTION OF PRIVACY (1998) (Discussion Draft) (visited February 4, 2001) (outlining principles of fair information practices and specifying the use of privacy policies in implementing them). But see Froomkin, supra note 1, at 1542 (arguing that only a mix of self-regulation, law, and technological design principles will suffice to ensure privacy on the Internet); Joel R. Reidenberg, Restoring Americans' Privacy in Electronic Commerce, 14 BERKELEY TECH. L.J. 771, 771 (1999) ("[T]he theory of self-regulation has normative flaws and that public experience shows the failure of industry to implement fair information practices.").
23. See, e.g., CLINTON & GORE, supra note 2, at 12-13 (advocating disclosure through practices like privacy policies as essential practice to ensure privacy); NATIONAL TELECOMMUNICATIONS & INFORMATION ADMINISTRATION, ELEMENTS OF EFFECTIVE SELF-REGULATION FOR PROTECTION OF PRIVACY (1998) (Discussion Draft) (visited February 4, 2001) (outlining principles of fair information practices and specifying the use of privacy policies in implementing them). But see Froomkin, supra note 1, at 1542 (arguing that only a mix of self-regulation, law, and technological design principles will suffice to ensure privacy on the Internet); Joel R. Reidenberg, Restoring Americans' Privacy in Electronic Commerce, 14 BERKELEY TECH. L.J. 771, 771 (1999) ("[T]he theory of self-regulation has normative flaws and that public experience shows the failure of industry to implement fair information practices.").
24. See CLINTON & GORE, supra note 2, at 12-13.
25. See A. Michael Froomkin, The Essential Role of Trusted Third Parties in Electronic Commerce, 75 OR. L. REV. 49, 114 (1996) (arguing that trusted third parties in electronic transactions may become essential (but not sufficient) to creating trust online for most electronic commerce).
26. WEB SEALS: A REVIEW OF ONLINE PRIVACY PROGRAMS, 22D INT'L CONF. ON PRIVACY AND PERSONAL DATA PROTECTION i (2000).
27. The concept of regulatory capture was introduced in 1952 by Samuel Huntington. It refers to the tendency of regulators to show a preference for the desires of those regulated over the needs of the public. The term is widely used by those who study the effects of administrative agency regulation. See generally Samuel P. Huntington, The Marasmus of the ICC: The Commission, the Railroads, and the Public Interest, 61 YALE L.J. 467 (1952) (describing the effects of railroad lobbying on the Interstate Commerce Commission); George J. Stigler, The Theory of Economic Regulation, 2 BELL J. OF ECON. & MAN. SCI. 3 (1971) (setting forth the theory of regulatory capture); Sam Peltzman, Toward a More General Theory of Regulation, 19 J.L. & ECON. 211 (1976) (formalizing an economic theory of regulatory capture).
28. The concept of regulatory capture was introduced in 1952 by Samuel Huntington. It refers to the tendency of regulators to show a preference for the desires of those regulated over the needs of the public. The term is widely used by those who study the effects of administrative agency regulation. See generally Samuel P. Huntington, The Marasmus of the ICC: The Commission, the Railroads, and the Public Interest, 61 YALE L.J. 467 (1952) (describing the effects of railroad lobbying on the Interstate Commerce Commission); George J. Stigler, The Theory of Economic Regulation, 2 BELL J. OF ECON. & MAN. SCI. 3 (1971) (setting forth the theory of regulatory capture); Sam Peltzman, Toward a More General Theory of Regulation, 19 J.L. & ECON. 211 (1976) (formalizing an economic theory of regulatory capture).
29. The concept of regulatory capture was introduced in 1952 by Samuel Huntington. It refers to the tendency of regulators to show a preference for the desires of those regulated over the needs of the public. The term is widely used by those who study the effects of administrative agency regulation. See generally Samuel P. Huntington, The Marasmus of the ICC: The Commission, the Railroads, and the Public Interest, 61 YALE L.J. 467 (1952) (describing the effects of railroad lobbying on the Interstate Commerce Commission); George J. Stigler, The Theory of Economic Regulation, 2 BELL J. OF ECON. & MAN. SCI. 3 (1971) (setting forth the theory of regulatory capture); Sam Peltzman, Toward a More General Theory of Regulation, 19 J.L. & ECON. 211 (1976) (formalizing an economic theory of regulatory capture).
30. See FTC REPORT, supra note 11, at 6-7 ("Despite the fact that . . . [seal programs] have experienced continued growth, the impact of online privacy seal programs on the Web remains limited . . . ."); see also CHESKIN RESEARCH & STUDIO ARCHETYPE/SAPIENT, ECOMMERCE TRUST STUDY 16 (1999), available at:
31. See FTC REPORT, supra note 11, at 6-7 ("Despite the fact that . . . [seal programs] have experienced continued growth, the impact of online privacy seal programs on the Web remains limited . . . ."); see also CHESKIN RESEARCH & STUDIO ARCHETYPE/SAPIENT, ECOMMERCE TRUST STUDY 16 (1999), available at:
32. Lorrie Faith Cranor, Joseph Reagle, & Mark S. Ackerman, Beyond Concern: Understanding Net Users' Attitudes About Online Privacy, AT&T Labs-Research Technical Rep. TR 99.4.3 (1999) (visited 2001)
33. One survey reports that as of July 2000, there are more than 93 million unique Internet hosts. See Internet Software Consortium Internet Domain Survey (visited February 10, 2001) .
34. Unless, of course, there is a vested interest in making it easy for consumers to ignore privacy policies.
35. "One study estimates that privacy concerns may have resulted in as much as $2.8 billion in lost retail sales in 1999, while another suggests potential losses of up to $18 billion by 2002 (compared to a projected total of $40 billion in online sales), if nothing is done to allay consumer concerns." FTC REPORT, supra note 11, at 2.
36. Website defacements occur at a rate of more than 25 per day, and are now automatically archived and analyzed at sites such as Attrition.org. See Attrition Annual, Monthly Counts, Defacement Day Tables and Chart, 1995 to Present (visited February 2, 2001) .
37. See, e.g., Hacker Takes Credit-Card Numbers, WASH. POST, Jan. 11, 2000, at E02 (reporting hacker's misappropriation of up to 300,000 credit card numbers from CD Universe, and subsequent publication of up to 25,000 of them on a web site).
38. See, e.g., Sara Robinson, Microsoft Shuts Security Breach in E-Mail System, N.Y. TIMES, Aug. 31, 1999, at C1 (describing the hacker attack on Microsoft's free e-mail service. Hotmail, that exposed the e-mail accounts of tens of millions of subscribers).
39. See TAMAR FRANKEL, TRUSTING AND NON-TRUSTING: COMPARING BENEFITS, COST AND RISK, BOSTON UNIVERSITY SCHOOL OF LAW WORKING PAPER 99-12 14 (1999) (describing the costs of establishing personal trusting relationships).
40. In a simple prisoners' dilemma game where the game is played only once, both players rationally choose the least efficient equilibrium, because neither knows how the other prisoner will choose. See ROGER B. MYERSON, GAME THEORY: ANALYSIS OF CONFLICT 97-98 (1991). Standard iterated games are those in which there are an infinite (or what the players believe is probably infinite) number of iterations of the game, and the players always have "standard information" - they always have complete knowledge of the historical behavior of the other player. See id. at 308-31 (describing standard repeated games, including standard repeated prisoners' dilemmas).
41. A tit-for-tat strategy involves choosing the same move as the opponent chose in the previous iteration. Thus, if players employ a tit-for-tat strategy and begin with a cooperative move, they can avoid the result of the simple prisoners' dilemma and achieve optimal equilibrium. See id. at 325. For a good example of this strategy in trust terms, see Oliver E. Williamson, Calculativeness, Trust, and Economic Organization, 36 J.L. & ECON. 453, 466 (1993): Say for example, X tells Y, "I will begin by trusting you, hoping that you will honor that trust. Indeed, I will continue to trust you as long as you do not abuse that trust. But if ever you abuse that trust, I will never again trust you. If Y hears and believes that statement, and if the game is played repeatedly (with high probability) then the honor-trust arrangement is self-enforcing.
42. With an unknown number of iterations, a player must always consider the effect of his or her choice on the future moves of the other player. See MYERSON, supra note 25, at 308. Choosing a cooperative move in the beginning - the irrational choice in a simple prisoners' dilemma - would thus signal the desire to achieve optimal equilibrium in the subsequent iterations, but of course makes the player very vulnerable to defection by the other.
43. Repeated games in which the players know when the interaction will end are called finitely repeated games; in "striking contrast" to infinitely repeated games, the "unique equilibrium" of finitely repeated games, like the simple form, "is for both players to always play selfishly." See MYERSON, supra note 25, at 337.
44. Since there is no third party, there are only two options: go ahead and exchange, and hope for the best (which may or may not result in an optimally efficient game), or decide to walk away (which would definitely be inefficient, although, not the least efficient). A third party/authority provides a safeguard, because the third party would know if one of the players played selfishly. So a player has further incentive to choose cooperatively. See Williamson, supra note 26, at 467 ("Competition provides a safeguard.").
45. Of course, it can also create a situation in which both players "mutually punish" each other for the rest of the game; this is obviously suboptimal. See MYERSON, supra note 25, at 328. A modified tit-for-tat strategy, called "getting even," avoids this suboptimal spiral while maintaining the benefit of vulnerability by restricting retaliatory behavior to "justified responses." For example, if one player chooses a selfish move, the other player retaliates with a selfish move in the next game, but the first player should assume the response was justified and not respond with counter-retaliatory move. Thus, the game can eventually return to an optimal equilibrium. See id. at 326-27.
46. See Thomas W. Dunfee, Corporate Governance in a Market with Morality, 62 LAW & CONTEMP. PROBS. 129, 141 (1999) ("Firms such as the Body Shop, Tom's of Maine, and Ben & Jerry's target the moral desires of potential customers by engaging in social-cause marketing. Such firms seeks to identify with particular social causes, such as saving whales, as a means of attracting consumers who want to support those causes. Consumers may choose to do business with them solely on the basis of an assumed alignment of moral preferences.").
47. There are literally thousands of websites with those exact words, and thousands upon thousands more with a variation of them. See, e.g., InvesTools.com (visited February 4, 2001) ("It is our intent to build a long-term relationship with you based on trust, and as your trusted source for investment advice we cannot afford to break that bond with you at any time."); Funeralvalue.com (visited February 4, 2001) ; Webcommend.com (visited February 4, 2001) .
48. There are literally thousands of websites with those exact words, and thousands upon thousands more with a variation of them. See, e.g., InvesTools.com (visited February 4, 2001) ("It is our intent to build a long-term relationship with you based on trust, and as your trusted source for investment advice we cannot afford to break that bond with you at any time."); Funeralvalue.com (visited February 4, 2001) ; Webcommend.com (visited February 4, 2001) .
49. There are literally thousands of websites with those exact words, and thousands upon thousands more with a variation of them. See, e.g., InvesTools.com (visited February 4, 2001) ("It is our intent to build a long-term relationship with you based on trust, and as your trusted source for investment advice we cannot afford to break that bond with you at any time."); Funeralvalue.com (visited February 4, 2001) ; Webcommend.com (visited February 4, 2001) .
50. The Center for Democracy and Technology's Guide to Online Privacy advises consumers to scrutinize a site's privacy policies with specific questions about the collection and use of information about the visitor. See Center for Democracy and Technology, CDT's Guide to Online Privacy (visited February 4, 2001) ; see also FEDERAL TRADE COMMISSION, PRIVACY ONLINE: A REPORT TO CONGRESS 7-14 (1998) (outlining fair information practice guidelines designed to allow companies to address consumer concerns about privacy).
51. The Center for Democracy and Technology's Guide to Online Privacy advises consumers to scrutinize a site's privacy policies with specific questions about the collection and use of information about the visitor. See Center for Democracy and Technology, CDT's Guide to Online Privacy (visited February 4, 2001) ; see also FEDERAL TRADE COMMISSION, PRIVACY ONLINE: A REPORT TO CONGRESS 7-14 (1998) (outlining fair information practice guidelines designed to allow companies to address consumer concerns about privacy).
52. See Baig et al., supra note 1, at 87. It is also possible to invest in privacy in a way that is closer to malpractice insurance. This happens when information about privacy investment is not communicated to customers.
53. See, e.g., Tulin Erdem & Joffre Swait, Brand Equity As a Signaling Phenomenon, 7 J. CONSUMER PSYCHOL. 131 (1998) (showing that consumers will use brand name as a signal of a product's quality in asymmetrical information situations).
54. For a critical examination of various justifications in the business interest context, see Gandy, supra note 9, at 80-101.
55. See RECORDS, COMPUTERS, AND THE RIGHTS OF CITIZENS, supra note 11; (outlining fair information practice guidelines); see also discussion infra Section III.
56. See Tom Baker, On the Genealogy of Moral Hazard, 75 TEX. L. REV. 237, 239 (1996) ("In the economics literature and in the law and policy debate that draws upon this literature, 'moral hazard' refers to the tendency for insurance against loss to reduce incentives to prevent or minimize the cost of loss.").
57. "Every state requires health care providers to report selected identifiable patient information to state agencies. Reportable information may include communicable diseases, violent injuries (e.g., gunshot wounds), occupational diseases or injuries, epilepsy, congenital defects, and injuries from child abuse or neglect. In addition, an increasing number of states require the reporting of information relating to abortions, certain prescription drugs, cancer, and battered adults. The number of reportable medical conditions has increased in recent years." Robert M. Gellman, Prescribing Privacy: The Uncertain Role of the Physician in the Protection of Patient Privacy, 62 N.C. L. REV. 255, 274 (1984) (discussing the impact of availability of increasingly detailed medical records and the growing need for them).
58. See. e.g., N.Y. COMP. CODES R. & REGS. tit. 10, § 1.31 (2001). In all there are 39 states with cancer registries. See CENTERS FOR DISEASE CONTROL AND PREVENTION, CANCER REGISTRIES: THE FOUNDATION FOR COMPREHENSIVE CANCER CONTROL 1 (2000) (showing a map of states with cancer registries).
59. Doctors need trust, not reliance, because they need information in an unfiltered form. If there is no trust, the patient will filter the information that he gives to his doctor. This nominally rational behavior is only actually rational if the patient knows enough to judge which information is relevant to the case. For a discussion of trust in the context of the clinical medical research, see Frances H. Miller, Trusting Doctors: Tricky Business When it Comes to Clinical Research, 81 B.U. L. 421 (2001) (discussing physicians' financial and professional conflicts of interest in clinical trials of new drugs and devices).
60. A survey done by Princeton Survey Research Associates for the California HealthCare Foundation found that fifteen percent of patients nationally did something "out of the ordinary" to protect their medical privacy, and two percent refused to seek care altogether. See Princeton Survey Research Associates, Confidentiality of Medical Records: National Survey (1999) (visited February 3, 2001) . But see Nancy J. Moore, Limits to Attorney-Client Confidentiality: A "Philosophically Informed" and Comparative Approach to Legal and Medical Ethics, 36 CASE W. RES. L. REV. 177, ? (1986)
61. A survey done by Princeton Survey Research Associates for the California HealthCare Foundation found that fifteen percent of patients nationally did something "out of the ordinary" to protect their medical privacy, and two percent refused to seek care altogether. See Princeton Survey Research Associates, Confidentiality of Medical Records: National Survey (1999) (visited February 3, 2001) . But see Nancy J. Moore, Limits to Attorney-Client Confidentiality: A "Philosophically Informed" and Comparative Approach to Legal and Medical Ethics, 36 CASE W. RES. L. REV. 177, ? (1986)
62. See text accompanying note 24.
63. "Ethics: 1. The discipline dealing with what is good or bad or right and wrong or with moral duty and obligation; 2.a. A group of moral principles or set of values; b. a particular theory or system of moral value; c. the principles of conduct governing an individual or a profession: standards of behavior." MERRIAM-WEBSTER's 3RD INTERNATIONAL DICTIONARY, supra note 7, at 780 (3d ed. 1986).
64. See generally Moore, supra note 42 (comparing the ethical requirement of client confidentiality in the legal and medical professions); Seymour Moskowitz & Michael J. DeBoer, When Silence Resounds: Clergy and the Requirement to Report Elder Abuse and Neglect, 49 DEPAUL L. REV. 1 (1999) (discussing clergy-parishioner confidentiality). Note however that Moskowitz and DeBoer point out that the clergy does not have a strong privacy protection in their codes and that this privacy protection arises mostly from moral judgment. See id. at 5.
65. See generally Moore, supra note 42 (comparing the ethical requirement of client confidentiality in the legal and medical professions); Seymour Moskowitz & Michael J. DeBoer, When Silence Resounds: Clergy and the Requirement to Report Elder Abuse and Neglect, 49 DEPAUL L. REV. 1 (1999) (discussing clergy-parishioner confidentiality). Note however that Moskowitz and DeBoer point out that the clergy does not have a strong privacy protection in their codes and that this privacy protection arises mostly from moral judgment. See id. at 5.
66. One of the ACM's "general moral imperatives" is to "respect the privacy of others." See ACM Code of Ethics and Professional Conduct Rule 1.7 (1992) (last modified Jan. 16, 1998) . Many professional association ethics codes include privacy/confidentiality clauses. See, e.g., Center for Study of Ethics in the Professions, Codes of Ethics Online (visited February 3, 2001) (displaying the Illinois Institute of Technology's Center for Study of Ethics in the Professions' large, searchable collection of professional codes).
67. One of the ACM's "general moral imperatives" is to "respect the privacy of others." See ACM Code of Ethics and Professional Conduct Rule 1.7 (1992) (last modified Jan. 16, 1998) . Many professional association ethics codes include privacy/confidentiality clauses. See, e.g., Center for Study of Ethics in the Professions, Codes of Ethics Online (visited February 3, 2001) (displaying the Illinois Institute of Technology's Center for Study of Ethics in the Professions' large, searchable collection of professional codes).
68. See Joel R. Reidenberg, Resolving Conflicting International Data Privacy Rules in Cyberspace, 52 STAN. L. REV. 1315, 1326 (2000), citing Spiros Simitis, Reviewing Privacy in an Information Society, 135 U. PA. L. REV. 707, 734 (1987) (discussing the 1983 West German Federal Constitutional Court decision, the National Census Case, which claimed that "unrestricted access to personal data imperils virtually every constitutionally guaranteed right"). Reidenberg points out a slight difference between the German court's concept and the American formulation, which "accord[s] control over the disclosure of personal information." See Reidenberg, supra note 47, at 1318, citing ALAN F. WESTIN, PRIVACY AND FREEDOM xiii (1967) (discussing Westin's study for the Association of the Bar of the City of New York).
69. See Joel R. Reidenberg, Resolving Conflicting International Data Privacy Rules in Cyberspace, 52 STAN. L. REV. 1315, 1326 (2000), citing Spiros Simitis, Reviewing Privacy in an Information Society, 135 U. PA. L. REV. 707, 734 (1987) (discussing the 1983 West German Federal Constitutional Court decision, the National Census Case, which claimed that "unrestricted access to personal data imperils virtually every constitutionally guaranteed right"). Reidenberg points out a slight difference between the German court's concept and the American formulation, which "accord[s] control over the disclosure of personal information." See Reidenberg, supra note 47, at 1318, citing ALAN F. WESTIN, PRIVACY AND FREEDOM xiii (1967) (discussing Westin's study for the Association of the Bar of the City of New York).
70. See Joel R. Reidenberg, Resolving Conflicting International Data Privacy Rules in Cyberspace, 52 STAN. L. REV. 1315, 1326 (2000), citing Spiros Simitis, Reviewing Privacy in an Information Society, 135 U. PA. L. REV. 707, 734 (1987) (discussing the 1983 West German Federal Constitutional Court decision, the National Census Case, which claimed that "unrestricted access to personal data imperils virtually every constitutionally guaranteed right"). Reidenberg points out a slight difference between the German court's concept and the American formulation, which "accord[s] control over the disclosure of personal information." See Reidenberg, supra note 47, at 1318, citing ALAN F. WESTIN, PRIVACY AND FREEDOM xiii (1967) (discussing Westin's study for the Association of the Bar of the City of New York).
71. See Joel R. Reidenberg, Resolving Conflicting International Data Privacy Rules in Cyberspace, 52 STAN. L. REV. 1315, 1326 (2000), citing Spiros Simitis, Reviewing Privacy in an Information Society, 135 U. PA. L. REV. 707, 734 (1987) (discussing the 1983 West German Federal Constitutional Court decision, the National Census Case, which claimed that "unrestricted access to personal data imperils virtually every constitutionally guaranteed right"). Reidenberg points out a slight difference between the German court's concept and the American formulation, which "accord[s] control over the disclosure of personal information." See Reidenberg, supra note 47, at 1318, citing ALAN F. WESTIN, PRIVACY AND FREEDOM xiii (1967) (discussing Westin's study for the Association of the Bar of the City of New York).
72. The first Fair Information Practice principles were the Health, Education, and Welfare principles. See RECORDS, COMPUTERS AND THE RIGHTS OF CITIZEN, supra note 11. These principles motivated the Privacy Act of 1974. See The Privacy Act of 1974, 5 U.S.C. § 552 (2000). For more recent principles, see COUNCIL OF THE ORGANISATION FOR ECONOMIC COOPERATION AND DEVELOPMENT, GUIDELINES ON THE PROTECTION OF PRIVACY AND TRANSBORDER FLOWS OF PERSONAL DATA, (September 23, 1980); Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals With Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L281) 31; Personal Information Protection and Electronic Documents Act, 23 C. Gaz. 1, ch. 5 (2000) (Can.). Each principle was created in part as a response to earlier laws and policy proposals.
73. The first Fair Information Practice principles were the Health, Education, and Welfare principles. See RECORDS, COMPUTERS AND THE RIGHTS OF CITIZEN, supra note 11. These principles motivated the Privacy Act of 1974. See The Privacy Act of 1974, 5 U.S.C. § 552 (2000). For more recent principles, see COUNCIL OF THE ORGANISATION FOR ECONOMIC COOPERATION AND DEVELOPMENT, GUIDELINES ON THE PROTECTION OF PRIVACY AND TRANSBORDER FLOWS OF PERSONAL DATA, (September 23, 1980); Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals With Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L281) 31; Personal Information Protection and Electronic Documents Act, 23 C. Gaz. 1, ch. 5 (2000) (Can.). Each principle was created in part as a response to earlier laws and policy proposals.
74. The first Fair Information Practice principles were the Health, Education, and Welfare principles. See RECORDS, COMPUTERS AND THE RIGHTS OF CITIZEN, supra note 11. These principles motivated the Privacy Act of 1974. See The Privacy Act of 1974, 5 U.S.C. § 552 (2000). For more recent principles, see COUNCIL OF THE ORGANISATION FOR ECONOMIC COOPERATION AND DEVELOPMENT, GUIDELINES ON THE PROTECTION OF PRIVACY AND TRANSBORDER FLOWS OF PERSONAL DATA, (September 23, 1980); Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals With Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L281) 31; Personal Information Protection and Electronic Documents Act, 23 C. Gaz. 1, ch. 5 (2000) (Can.). Each principle was created in part as a response to earlier laws and policy proposals.
75. 5 U.S.C. § 552(a).
76. See Directive 95/46/EC of the European Parliament, supra note 48.
77. Later critiques of the Fair Information Practices pointed out that consent must be meaningful; give us your data or we won't serve you is not meaningful consent. For example, many US health insurers require you to consent to their complete data sharing practices as a condition of receiving care.
78. See, e.g., U.S. West v. FCC 182 F.3d 1224 (10th Cir. 1999) (holding that asserting a broad interest in privacy is not sufficient to justify a restriction on commercial speech); Eugene Volokh, Freedom of Speech and Information Pnvacy: The Troubling Implications of a Right to Stop People from Speaking About You, 52 STAN. L. REV 1049, 1051 (2000) (arguing that contractual privacy protection is constitutionally sound while broader information privacy rules are probably not and that creating free speech exceptions to accommodate such rules could have repercussions); Paul M. Schwartz, Free Speech vs. Information Privacy: Eugene Volokh's First Amendment Jurisprudence, 52 STAN. L. REV. 1559, 1560 (2000) (describing Volokh's article as "masterful").
79. See, e.g., U.S. West v. FCC 182 F.3d 1224 (10th Cir. 1999) (holding that asserting a broad interest in privacy is not sufficient to justify a restriction on commercial speech); Eugene Volokh, Freedom of Speech and Information Pnvacy: The Troubling Implications of a Right to Stop People from Speaking About You, 52 STAN. L. REV 1049, 1051 (2000) (arguing that contractual privacy protection is constitutionally sound while broader information privacy rules are probably not and that creating free speech exceptions to accommodate such rules could have repercussions); Paul M. Schwartz, Free Speech vs. Information Privacy: Eugene Volokh's First Amendment Jurisprudence, 52 STAN. L. REV. 1559, 1560 (2000) (describing Volokh's article as "masterful").
80. See, e.g., U.S. West v. FCC 182 F.3d 1224 (10th Cir. 1999) (holding that asserting a broad interest in privacy is not sufficient to justify a restriction on commercial speech); Eugene Volokh, Freedom of Speech and Information Pnvacy: The Troubling Implications of a Right to Stop People from Speaking About You, 52 STAN. L. REV 1049, 1051 (2000) (arguing that contractual privacy protection is constitutionally sound while broader information privacy rules are probably not and that creating free speech exceptions to accommodate such rules could have repercussions); Paul M. Schwartz, Free Speech vs. Information Privacy: Eugene Volokh's First Amendment Jurisprudence, 52 STAN. L. REV. 1559, 1560 (2000) (describing Volokh's article as "masterful").
81. See EZPass Homepage, (visited February 5, 2001) .
82. See EZPass FAQ Section, (visited February 5, 2001) .
83. See EZPass Homepage (visited February 5, 2001) .
84. See Shelby Gelje, Joining a Buying Club? Your Purchases Might Raise Flags, SEATTLE TIMES, Sept. 6, 1998 at L5 (describing Robert Ramirez' Rivera's suit against Vons and his claim that Vons representatives threatened to use electronic records of his alcohol purchases against him). Rivera's case was thrown out early in 1999. See Stuart Silverstein, Shopper's Suit Thrown Out, L.A. TIMES, Feb. 11, 1999, at C2.
85. See Shelby Gelje, Joining a Buying Club? Your Purchases Might Raise Flags, SEATTLE TIMES, Sept. 6, 1998 at L5 (describing Robert Ramirez' Rivera's suit against Vons and his claim that Vons representatives threatened to use electronic records of his alcohol purchases against him). Rivera's case was thrown out early in 1999. See Stuart Silverstein, Shopper's Suit Thrown Out, L.A. TIMES, Feb. 11, 1999, at C2.
86. Actually, its not clear if EZPass offers a free-rider benefit to those who don't have the system by causing back-ups to be shorter, if the (fewer) non-EZPass lanes end up with more delay, or if the system is neutral for its non-users.
87. See Ian Avrum Goldberg, A Pseudonymous Communications Infrastructure for the Internet (2000) (unpublished Ph.D. dissertation, University of California (Berkeley)) (on file with author).
88. See Valerie Lawton, Net Firms Must Assure Privacy, TORONTO STAR, April 3, 1998 at E2 ("[Ontario privacy commissioner Ann] Cavoukian notes one of the most successful Internet merchants - bookseller Amazon.com - has strong privacy policies, including a promise not to sell lists of what people are buying."); Ellen Messmer, New Wave of 'Net Marketing' Invades Consumer Privacy, NETWORK WORLD, Oct. 21, 1996 at 42 (noting, in 1996, that "some Websites, such as 'Net bookseller Amazon.com Books, do post privacy policies and provide a way to opt-out, but most still do not").
89. See Valerie Lawton, Net Firms Must Assure Privacy, TORONTO STAR, April 3, 1998 at E2 ("[Ontario privacy commissioner Ann] Cavoukian notes one of the most successful Internet merchants - bookseller Amazon.com - has strong privacy policies, including a promise not to sell lists of what people are buying."); Ellen Messmer, New Wave of 'Net Marketing' Invades Consumer Privacy, NETWORK WORLD, Oct. 21, 1996 at 42 (noting, in 1996, that "some Websites, such as 'Net bookseller Amazon.com Books, do post privacy policies and provide a way to opt-out, but most still do not").
90. "Amazon does not sell, trade, or rent your personal information to others." See Electronic Privacy Information Center, Old Amazon.com Privacy Notice (prior to September 2000).
91. "In the unlikely event that Amazon.com, Inc., or substantially all of its assets are acquired, customer information will of course be one of the transferred assets." Amazon.com Privacy Notice, supra note 5; see also Tamara Loomis, Amazon Revamps Its Policy on Sharing Data, N.Y.L.J. Sep. 21, 2000, at 5 (noting a change in the privacy policy from assurances of nondisclosure of customer data to a warning that data may be sold as an asset of company).
92. "In the unlikely event that Amazon.com, Inc., or substantially all of its assets are acquired, customer information will of course be one of the transferred assets." Amazon.com Privacy Notice, supra note 5; see also Tamara Loomis, Amazon Revamps Its Policy on Sharing Data, N.Y.L.J. Sep. 21, 2000, at 5 (noting a change in the privacy policy from assurances of nondisclosure of customer data to a warning that data may be sold as an asset of company).