Shostack + Friends Blog Archive


Government Issued Data and Privacy Law

drivers-license.jpgI’d like to say more about the issue of privacy law, and clarify a bit of jargon I often use. (Alex Hutton pointed out it was jargon in a comment on “There Outta be a Law“.)

As background, some people have objected to privacy laws as being at odds with the First Amendment guarantees of free speech. How can you pass a law that forbids people from talking about other people? One might respond, how can you pass a law that forbids libel suits against commercial entities that encourage reliance on their speech, while disclaiming liability for it? That response, however, seems to fall on deaf ears, and so I’d like to suggest another basis for privacy law which would be in harmony with free speech.

Absent government action, building an industrialized gossip business is hard. English common law long recognized the right to use any name you wanted, so long as the purpose wasn’t fraud. How to distinguish between all the Tim Mays in the database? Well, the government issues social security numbers. They tell people that your number is unique. They used to tell people it wasn’t for identification purposes.

When I go to a grocery store, I can get a discount card in any name I want. That works for a discount card, but not a cheque cashing card. For the cheque cashing card, where a loan is being issued against trivially forged paper, the business wants something more. So they rely not on my home-printed ID, but on government issued ID. To forge that government issued ID, I’m committing a crime. That increases the level of reliance which is reasonable.

That creates an imbalance in business relationships. All of a sudden, there’s lots of businesses that demand ID. (Tried sending a FedEx with cash lately? The words “legal tender” aren’t even worth the paper they’re printed on.)

So the government is now in the business of issuing numbers and authenticating the data that “are you.” The benefits of that, such as easy credit, are shared. The privacy costs, however, fall squarely on the citizen, not the business. And so, I advocate for privacy law that kicks in when someone is asking for and storing such data.

If I want to subscribe my iguana to your catalog, then you don’t care about the name, and there should be no privacy law. If you look at my driver’s license, you are using it to authenticate the name I’ve given you. I can no longer give you another name easily. There should be law controlling what you can do with that data.

Is that a more clear explanation of what I mean by “government issued or authenticated data?”