From: Spencer M. Marsden <smm2126@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Thu, 13 Apr 2006 15:39:08 -0400

Paper 2: The Battle for Privacy: The New Weapons

The Battle for Privacy:  The New Weapons

Part I was an introduction to the privacy battle that discussed the
potential failure of using the Constitution as a means to limit the
federal government’s invasion of privacy.  This essay seeks to
discuss weapon that I perceive as being more useful in the battle-
the State Attorney General.

When reformers look to initiate change, frequently they focus on
national politicians and the federal judiciary.  They see these
institutions as being big enough and powerful enough to actually
carry out the change.  However, in the privacy battle there is a
moral hazard problem with pursuing this approach.  National
politicians and the federal judiciary, too some extent, are part of
the problem.  Limiting the Government’s power to infiltrate our
lives limits their own power.  However, another powerful group
exists that could balance the power and have the authority to do
so.

State Attorneys General are the chief legal officers of their
respective state. According to Professor Jim Tierney there are
three ways in which Attorneys General can shape law.  First, is
through litigation.  The second way is through submitting and
lobbying for legislative change.  Finally, the third way is through
information dissemination.  If you don’t think this is enough power,
then consider that through a national organization National
Association of Attorneys General, all 50 State Attorneys General
get together and join in litigating huge cases, lobbying Congress
and disseminating information to all 50 states.  They are a
powerful force as proven by their victory against Tobacco.    All
three arenas in which the State Attorney General functions can be
useful to the war on privacy.

Litigation:

Attorneys General have broad jurisdiction under the doctrine of
parens patriae (parent of the state) which enables them in the
broadest form to sue if the people of the state have suffered any
harm and in the narrowest form gives the State Attorney General
standing to sue on behalf of the State on consumer fraud issues and
fiduciary duty issues.  Moreover, both Federal statutes and state
statutes grant the Attorney General broad standing (e.g. Children’s
Privacy Act of 1998).

Under the litigation prong, State Attorneys General can be used in
the war on privacy to stop or limit private data collection without
consumer consent. It is important to stop the data mining by private
organizations such as Google (searches) and more traditional data
mining sources like ChoicePoint (personal information) from
collecting this information, because the government can access such
information simply by subpoenaing the information without satisfying
the Constitutional requirement of the Fourth Amendment.  Moreover
“[w]hen we worry about who might be spying on our private lives, we
usually think about the Feds. But the private sector outdoes the
government every time. It’s Linda Tripp, not the FBI, who’s facing
charges under Maryland’s laws against secret telephone taping. It’s
our banks, not the IRS, that passed our private financial data to
telemarketing firms.”  (Jane Bryant Quinn, The Spies in Your
Pocket, NEWSWEEK, Aug. 16, 1999, at 43).  The market is saturated
with private companies who attempt to compile comprehensive
databases on us, in 1998 there were over a 1000.  (Robert O’Harrow,
Jr., Data Firms Getting Too Personal?, WASH. POST, Mar. 8, 1998, at
AO1).

So State Attorneys General in most states can make sure the
companies are not taking this information without the consent of
the user.  The litigation would take place under state consumer
fraud and deceptive practices or even under the general parens
patriea doctrine if no explicit statute exits.  Elliot Sptizer
recently took this approach and sued Datran Media Corp.  This suit
was settled and hopefully will deter the selling and collecting of
personal information without the consent of the consumer.

Legislative:

Attorney Generals are usually very active in submitting legislation
and lobbying for it in their respective states.  In Rhode Island
for instance the State Attorney General was involved in 1/3 of all
bills submitted last term (Interview with Attorney General Lynch
04/13/06).

On a national level State Attorneys General collaborate are powerful
public policy advocated.  On clear example which had considerable
impact was the end-of-life initiative adopted by NAAG.

I have discussed with several State Attorneys General and those who
advise them, the idea of proposing legislation that regulates
preservation of internet searches that is similar to video rentals.
 As you will recall, legislation was passed that prohibited video
rental stores from keeping a history list for more than a
reasonable time period.  This was in reaction to the release of
Robert Bork’s video history rental. (Note: the video history did
not play a pivotal in the Bork confirmation process as one
commentator put it the most salacious video was the Sound of
Music.)

Needless to say State Attorneys General are not afraid to propose,
lobby and stand up against the Federal Government.  It is their
duty to protect the states and their respective citizens.  The
privacy war needs to enlist them!

Educating the Public:

Aside from litigating and lobbying for pro-privacy legislation,
State Attorneys General can aid in the war on privacy by using
their position in the public eye to inform and aid citizens in the
defense of their privacy.  There are several ways that Attorneys
General do this.  Rhode Island speaks to at least one school a week
on various issues.  When addressing a High School he usually speaks
about internet privacy or drugs.  A lot of State Attorneys General
have portions of their website dedicated to issues of privacy.  See
http://www.michigan.gov/ag/0,1607,7-164-17334 17364---,00.html,
http://www.atg.wa.gov/consumer/idprivacy/,
http://www.ag.state.mn.us/consumer/privacy/default.htm.   Finally,
State Attorneys General are usually asked to address various civic
and business groups at their events.  State Attorneys Generals
could use these events as a platform for the privacy war.

In conclusion, the potential of the State Attorney General to use as
a weapon in the privacy battle is potent.  We need to enlist them
and there is a great likelihood that we can as they feel it their
duty to act under parens patriae as the protector of their
residents.

Spencer Marsden

Word Count: 996




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