FTC: Consumer Privacy Comments Concerning Attorneys' Investigative Consultants--P974806

 

ATTORNEYS’ INVESTIGATIVE CONSULTANTS

Fax Transmission Addressee Only

Dear Mr. Secretary:

1. I am writing in response to the Commission’s request for additional input to the hearings held 06/10/97 and 06/11/97 in the matter dissemination of public and non-public records. I support the principal of self-regulation, in fact I have practiced it for my entire 33 year career as an investigator - first as Chief of the Criminal Operations Division, Air Force Office of Special Investigations, next as a Senior Investigator for the umbrella corporation of the late Howard R. Hughes and most recently as a licensed private investigator in Nevada.

1.1. I must clarify my position by saying that I am not unalterably opposed to legislation - just to the fact that all too often, legislation overkills the problem, and in its effort to be all things people, ends up destroying things that did not need to be destroyed. As an absurd example, it would be easy to write legislation that would stop airplane crashes. Just make it unlawful to fly airplanes.

1.2. The hope and expectation for self-regulation is that while it would impose controls, it would permit precise adjustment of those controls at a level that has the requisite time, expertise and flexibility to study and make changes as they are required. But, let us not confuse form with substance. Not all legislation is heavy handed or ill-conceived and not all self-regulation is well thought out and non-destructive.

2. Maintaining Focus - If we start with the premise that this is an area where we must exert positive control and that the information we seek to safeguard is worth protecting, it follows that regardless of whether we accomplish our objectives through legislation or self-regulation is secondary. The focus must stay on the methodology of effecting that control. We must have a system that works and which does not destroy everything in its path accomplishing that objective. To reach that goal we should set up and use two tried and true benchmarks.

2.1. Need to Know - People who receive the information must have a clear need to know.

2.1.1 The criterion, “need to know” has for decades been the cornerstone for safeguarding the most sensitive secrets of the United States of America. It is a good, common sense, test. In practice, it means that nobody, regardless of his or her position, gets access to sensitive information unless that person’s job requires him or her to have that access. No safeguard is more realistic, more easily understood or more effective.

2.2. A Position of Trust - People who receive the information must be trustworthy.

2.2.1. We in America place our trust in people, not in systems. We can set up controls to police a system, but in the final analysis, it is people who chose to either live by the rules or break them. Again, let me refer to our country’s time tested system for assessing a person's suitability for a position of trust. Here we use the background investigation.

2.2-1-1. There are many levels of background investigation. In general, the more sensitive the information, the more intense and expensive the investigation. It is a screening procedure - and an imperfect one, at that. But, it is far superior to the “old school tie” approach that has been at the root of the many breaches of trust that have plagued the British for almost a half century. The miserable failures of the British in this area are directly attributable to their policy of trusting a person merely because he or she is a member of a highly regarded group.

2.2.1.2. It cannot be overemphasized that when trust is the issue, our focus must be on individuals, not groups. The implication here is obvious. It is folly to trust all credit managers, all private investigators, all lawyers, or all employees of the FTC, unless and until the individual personally screened.

2.3. Control - Let us now take these two simple criteria and apply them to the situation at hand. We must have a screening at two levels.

2.3.1.First we must insure that those who would like access to this sensitive information, have a legitimate need to know. This is fairly easily addressed. In practice, it permits us to summarily eliminate from consideration, the vast majority of the population.

2.3.2. Those who can pass muster at the first level, should then be required to apply for a privileged license that would be granted based upon completion of a favorable background investigation. The government would conduct such an investigation, but it would be funded by the applicant. The privileged license would then be granted to those found to be suitable for a position of trust.

2.3.3.Is this a perfect systems? Obviously it is not but it makes more sense than the sledge hammer approach or the old school tie approach. Equally important, it is easily adaptably to incisive and effective remedial action. If a licensee breaches the trust, his or her license and access can be revoked or suspended.

3.It is not by coincidence that I now take note of the fact that Licensed Private Investigators, alone, among all who seek access to this sensitive information, stand before you today as a group of individuals who have a demonstrable need to know and who have as individuals successfully passed a full field background investigation, prior to being licensed by individual states. Each Licensed Private Investigator has been certified by the regulating body, as a person deemed to be suitable for a position of trust. And, it doen't end there. Each Licensed Private Investigator, is subject to suspension or revocation of his or her license if that trust is breached.

4.As a Licensed Private Investigator, I believe that I am already working within a system that affords reasonable and effective protection of sensitive information. I see Licensed Private Investigators as a group above and apart from credit bureau employees, information brokers, lawyers and others who have not been so thoroughly investigated. Nevertheless, I stand ready today to prove my need to know, and to fund a full field investigation by an appropriate government agency, into my background and into my suitability to occupy a position of trust.

5.Mr. Secretary, I urge you to offer this as a challenge to all who would wish to access sensitive personal information...... “If you or your employee requires access to such sensitive information, prove that they need to know and are individually suitable for a position of trust! Pay for a priviledged license and then bet that license that you won’t breach the trust placed in you!”

6.Thank you for your consideration.

Very truly yours,

Alan M. Kaplan

Alan M. Kaplan, Director