The Debate Between Harm and Rights

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Marketers and privacy advocates have many differences when it comes to privacy, but none more fundamental than their starting points. Each side has an approach that the other finds almost alien. Today, I want to explore these two perspectives.


The marketer's question is simple: What's the harm? I hear this repeatedly from marketers. Is anyone hurt in any substantive way by receiving a little more or a little less unsolicited mail? That's the only thing at stake with the collecting of personal data and the buying and selling of names and addresses. What is so terrible?


The advocate's question also is simple: What are my rights? How can anyone take information about a consumer - often obtained without adequate notice or consent - and reuse or sell it? Unless someone is a hermit, it is impossible to live without leaving a trail of transaction information. The consumer has an interest in information about himself, no matter who has the data or how they got it.


Both sides have a point, but the wide difference in the basic viewpoints makes dialogue difficult. There is plenty of room in the middle.


Marketers feel fundamentally threatened by privacy advocates talking about rights. Any privacy demand is viewed by some as an attempt to put marketers out of business. That's an overreaction. On the other side, some privacy advocates demand total dominion over personal data, including the ability to make others pay to use it. That, too, is an overreaction, but it is fueled in part when advocates see that industry is unwilling to concede that consumers have any real interest at all.


The marketer's presumption, developed during years of old-fashioned list selling, seems to be that anything goes unless there are dead bodies in the street. If that attitude was once justified, it isn't anymore. First, there are some actual dead bodies in evidence, including Rebecca Schaefer and Amy Boyer.


Second, plain vanilla lists are out of date. Today, the industry really maintains and sells consumer profiles. A list of magazine subscribers by ZIP code may be just a list. A database that allows selecting by age, income, family size, length of residence and number of credit cards offers profiles. Profiles are more valuable. Profiles are dangerous.


A list is likely to result in nothing more than traditional junk mail. A profile, however, is more likely to result in a judgment. Customs agents use profiles to identify terrorists. Police use profiles to find drug dealers. Once you have built a profile, someone will use it for a higher-order decision. Profiles that can be sold to and used by government are troublesome or worse.


As more personal information is collected and maintained in profiles, it is not unreasonable for a consumer to have more concerns about how the profiles are used. Marketers and other information companies can concede this point without being forced out of business.


Let's turn to the advocate's question: What are my rights? The implication is that the record subject has rights and that the record keeper has none. That is not realistic, either. People on both sides of a transaction are in legitimate possession of the specifics. Both have an interest in the information. It is possible for privacy advocates to recognize the interest on the other side without conceding the store. If each side would look toward - and take a step toward - the middle of the road in this debate, more dialogue and less hostility would result.


Finally, I want to add a new answer to the question of harm. A colleague of mine retired and moved overseas. The local post office in his country of residence is not terribly efficient, so he uses a mail-forwarding service in Florida. He pays a fixed price per ounce for all mail that goes to his Florida address. That means he has to pay for every unsolicited letter and catalog that he receives. He has used every means at his disposal to get his name off lists, including writing to the Mail Preference Service and to individual companies, but with limited success.


What's the harm? About 40 cents an ounce in his case. A pile of catalogs costs him a fair amount of money. The example illustrates that it isn't always easy to determine consequences for someone else. People can be affected in ways that may not be obvious to the mailer.


Many people object to telemarketing calls. Others object as well to junk mail and spam. They often do so without a clear understanding of the extent to which personal information is collected, sifted and sorted. Some who do understand are upset by it. Marketers can do better at identifying and responding to specific consumer concerns. Not every consumer expression of concern is an attempt to end direct marketing. If consumer complaints and concerns were addressed in a fair way, the privacy pressure might be reduced.


Marketers do a great job in selling products and services. Why can't they do a better job of marketing themselves, describing their activities and explaining the benefits to consumers of marketing activities? It might be easier and cheaper than fighting losing privacy battles at agencies, legislatures and in the courts.


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