Assault on privacy continues relentlessly

This fight to preserve privacy gets more discouraging day by day. I've already decided that I'm not going to just "get used to it," as some readers have suggested. And I know that a constitutional amendment is a long shot, but I'd still like to see a national discussion of privacy.

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There's still a lot of confusion out there about just what privacy is and how we keep it or lose it. I continue to resist the notion that because I venture out in public, I somehow cede all my rights to privacy. We just don't believe that in other spheres. Why should we believe it in this one?

There was a story recently on the news wires about a woman who fell asleep on a long flight in the United States and awoke to find that the man sitting next to her, a stranger to her, had his hand inside her clothing. Who would be willing to buy the argument that because she went out in public and had fallen asleep, she had somehow surrendered her right not to be groped? I wouldn't buy it and I don't think anyone else would either.

But the woman's right to not be groped and our right to have our personal privacy respected spring from the same basic foundation. Going out in public does not diminish those rights. To touch someone without their permission -- no matter how gently -- can constitute assault and battery. And the fact that the person "invited" it by going out in public -- or falling asleep -- is no defense. To acquire or traffic in information about me, without my express permission, is also a violation.

Since I wrote last week's column suggesting -- half seriously, half in jest -- that we need a constitutional amendment, several things have occurred that cast a new light on the situation. The first involves Yahoo, which took it upon itself recently to change user preferences to indicate that the users wanted to receive spam. This would be sent to the e-mail account, which users entered when setting up their Yahoo account.

Yahoo said the changes won't take place for a few weeks, but some people say they have already been seeing a marked increase in spam at other addresses. Yahoo also added telephone spam and snail mail spam to the mix, putting users' phone numbers and addresses in their profile (if they provided them when signing up) and forcing the users to go to their preferences page to undo the damage. People are upset about this -- and rightly so.

Yahoo will most likely hide behind its so-called right to change the terms of service at any time. So perhaps my constitutional amendment should include a section that says terms of service cannot be changed unless users opt in to the change -- and not opt out after the change is made.

National security cards reared their heads on two fronts. First, the Electronic Privacy Information Center (EPIC) -- www.epic.org -- says it plans to file suit against the Office of Homeland Security to end the secrecy around plans to develop a national ID card. According to EPIC, the group had filed Freedom of Information Act (FOIA) requests, and those requests had been ignored by Homeland Security, leading to the suit to force the administration to turn over the documents.

EPIC's position is that national IDs present such a threat to privacy that any decisions about them ought to be made in the open. That seems to make sense, and why the administration is stonewalling on this is perplexing.

How such a system presents a danger came to light in a late March article in The New York Times , which described how bar owners are harvesting personal data from driver's licenses to assemble databases of their customers. The story talks about a device the bars can use to scan the license, determine whether it's valid, and whether the patron is older than the legal drinking age.

So far, no problem. But the device can also collect the owner's name, address, date of birth, height, weight, eye color, and sometimes Social Security number from the magnetic stripe on the license. According to the article, about 40 states now include variations on this information on their licenses.

The bar owners know they've found a treasure trove, allowing them to mine the data to see how many 25-year-olds from the suburbs come in on a particular night or what the ratio of male to female is. But some are going beyond aggregate data and are already planning to use the data to build mailing lists to market themselves to certain groups.

The main problem is that those people who cheerily hand over their licenses most likely think it is only to determine whether they can enter. Perhaps few realize that they are turning over data that could be assembled and sold to outside businesses -- perhaps to alcoholic beverage manufacturers -- for more aggressive marketing. Who drinks where, when, and how often is valuable information.

The devices are spreading beyond the bars, according to The Times , and are popping up in convenience stores as well as a variety of other operations. More places are expressing interest. We may soon find that our most benign actions are being plugged into larger and larger databases.

And just when you thought it was safe to leave the fax machine on again, a judge in Missouri has ruled that a federal law banning unsolicited faxes is unconstitutional. Although the ruling applies only to eastern Missouri, the move is ominous. The judge ruled that junk faxes can be banned only if the faxes cause harm to the recipients. He has suggested an opt-out list that would require people to put themselves on a do-not-fax list. And so we're back to having no privacy as the default and requiring us to plug the dike at every turn.

Just more ammunition for the constitutional amendment idea.

If you have a better idea, write to me at ethics_matters@infoworld.com or join in our Ethics Matters forum at www.infoworld.com/forums/ethics .