Attempting to protect consumers' personal data through legislation will not result in free speech violations, says privacy law expert.

Feb. 2, 2005 -- Streams of junk mail full of personalized offers for anything from credit cards and mortgage refinancing to hobby supplies and vacation deals are unending. While annoying, these solicitations also raise significant privacy concerns leaving many consumers wondering how these companies know so much about their lives.

Instead of creating strong laws to protect the privacy of Americans' personal information, many legislators and legal experts believe that such rules would violate the First Amendment. That assumption is false, according to Neil M. Richards, noted privacy law expert and associate professor of law at Washington University in St. Louis."The simple logic of privacy legislation being equivalent to speech regulation is incorrect. In reality, few data privacy rules actually involve speech, and the assumption that data privacy rules are unconstitutional significantly overstates the breadth of the protection offered by the First Amendment," Richards says.

"If we do not reject this theory, not only will we be unable to enact laws protecting privacy, but we will even be unable to discuss the merits of various privacy proposals, since deliberation often ceases once the spectre of a First Amendment violation enters the room."

Corporations are eager to acquire a variety of data about consumers, including information about their lifestyles, tastes, and even psychological profiles. With the rapid growth of the Internet and recent technological advances, companies are able to easily disseminate this information and create larger, more detailed records about individuals.

In his article, "Reconciling Data Privacy and the First Ammendment" in the current issue of the UCLA Law Review, Richards describes the data privacy concerns raised by customer profiles:

• Databases can be used to process sensitive information potentially embarrassing or highly personal information that most people would be horrified were it to float freely from database to database.

• "Uber-databases" can be created, filled with non-sensitive information in such enormous quantities that the database completes a highly detailed dossier of a person's entire life.

• The information contained in consumer profiles can be quite inaccurate.

• There are no legal requirements that personal information in consumer profiles be kept securely.

"If this information is used improperly, the sheer level of detail contained in consumer profiles can facilitate crimes such as identity theft, stalking, or harassment," Richards says.

Neil Richards

This privacy threat highlights the need for constructive discussions about strengthened privacy legislation.

"This is not the time for frivolous debates about the First Amendment and privacy law," Richards says.

"Regulating how two parties handle information during a commercial transaction no more offends the Constitution than government regulation of other aspects of the commercial relationship. Our law is replete with instances where confidential information is protected against disclosure under a whole host of public and private law rules, few of which have ever been thought to involve restrictions on speech."

Recent telemarketing regulation, including the Do Not Call list, provides a prime example of legitimate and necessary privacy legislation.

"The enormous public outcry and prompt Congressional action surrounding the judicial invalidation of the Do Not Call list suggests that there is little tolerance today for constitutionalizing data policy," Richards says. "Indeed, while such regulation certainly implicates the commercial speech rights of the telemarketers, the First Amendment nevertheless permits significant regulation of telemarketing activity."

Richards finds that the real danger presented by the tension between privacy and the First Amendment is not that we must choose one over the other, but that we must instead avoid constitutionalizing important public law issues.

"The First Amendment is tremendously important to our society, but it's got very little to do with the sorts of basic privacy laws that regulate the trade in personal data," he says. "Letting go of the notion that protecting privacy damages free speech opens the door for a real discussion about how to protect personal information in our increasingly digital society."