|April 15, 1997
Dear Sir or Madam:
RE: DATA BASE STUDY -- Comment P974806
The Reporters Committee for Freedom of the Press, the American Society of Newspaper Editors and the Newpaper Association of America submit these comments in response to the Federal Trade Commission's request for comments prior to a public workshop on consumer information privacy.
The news media groups would greatly appreciate the FTC's consideration of our views.
By separate letter we have also asked to participate in the workshop.
Jane E. Kirtley, Esq.
Richard Schmidt, Esq.
David S.J. Brown, Esq.
BEFORE THE FEDERAL TRADE COMMISSION
In the matter of
April 15, 1997
The Reporters Committee for Freedom of the Press, the American Society of Newspaper Editors and the Newspaper Association of America submit these views to the Federal Trade Commission in response to its March 6, 1997, notice in the Federal Register soliciting comments prior to a Public Workshop on Consumer Information Privacy. By separate letter we have also requested an invitation to participate in that workshop.
The Reporters Committee is a voluntary, unincorporated association established in 1970 by news editors and reporters to defend the First Amendment and freedom of information interests of the print and broadcast media.
The American Society of Newspaper Editors is a nationwide, professional organization of more than 800 persons who hold positions as directing editors of daily newspapers throughout the United States and Canada. The purposes of the Society, which was founded over fifty years ago, include the ongoing responsibility to improve the manner in which the journalism profession carries out its responsibilities in providing an unfettered press in the service of the American people. ASNE is committed to the proposition that, pursuant to the First Amendment, the press has an obligation to provide the citizenry of this country with complete and accurate reports of the affairs of government -- be they executive, legislative, or judicial.
The Newspaper Association of America is a nonprofit organization representing over l,600 newspapers in the United States and Canada. A majority of NAA members are daily newspapers who account for approximately 87 percent of the U.S. daily circulation. More than 70 percent of NAA members are newspapers with less than 25,000 circulation.
As organizations that represent many of the news media, we are very concerned that the Federal Trade Commission will use this study to consider regulating the flow of information as a means of controlling consumer practices it finds objectionable, that the agency would seek out categories of truthful information and label them "sensitive," prohibiting transmission of that information because it could be "misused."
Government regulation of access to and dissemination of information about individuals is no solution to society's ills. Instead, an informed public, one which can fully examine the problems which beset it, will demand and effect changes when changes are needed.
In that vein, we question the premises of this study which asks how so-called "sensitive" information on individuals should be regulated. We urge the FTC to study instead the question of whether regulation is appropriate at all.
The news media today make widespread use of data base information for myriad purposes in gathering and reporting the news. Data base information has increased the depth and breadth of news coverage and has allowed reporters to achieve greater accuracy in reporting the public's news.
Larger news media have not only employed the use of private, commercial data bases, they have created their own. They have demonstrated the ability to report a news item and to refer the reader or viewer with especial interest or expertise to a web page or data base with more and more detailed information.
The news media of the future will be able to use technological advances to make information and news more useful and usable and the citizenry will be better informed as a result. We have a strong interest in the unfettered disclosure of information both to the journalist and to the public and we urge the FTC to avoid any actions that might dam the free flow of information.
We have elected to present some of our views on this matter in response to the following questions posed by the FTC.
1.9 What are the uses of the information in the data bases? Are there beneficial uses of the information in these data bases?
Reporters routinely use look-up services to verify identity, to gain background information researching their stories and to answer questions that arise in the course of their reporting.
Kansas City Star reporter Joe Stephens used a government data base from the Federal Election Commission and private look-up services to identify and track down presidential campaign contributors whose contributions were solicited under illegal "bundling" schemes. His disclosures triggered the largest fines ever levied against a political campaign.
Paul D'Ambrosia of the Asbury Park (N.J.) Press used data bases from the Securities and Exchange Commission and of the U.S. Census as well as private commercial databases that showed the location of banks and the characteristics of census tracts. He
learned that African Americans were discriminated against in the award of home loan mortgages by New Jersey banks.
Reporters have used private data base resources in identifying ways that politicians have secured low property assessments for their own home areas, where restaurant health-code violations have occurred, to study patterns of crime, areas where school test performance is high or low, and for countless other uses.
1.16 Are there means to address any privacy or other legal interests implicated by the collection, compilation, sale and use of information from these data bases?
Invasion of privacy is a common law tort that allows punishment for publication of truthful information, but only in strictly limited circumstances, such as when the publication reveals highly sensitive information, the disclosure of which would be offensive to a reasonable person, and when the publication is not deemed to be newsworthy.
Lawsuits may also be brought based on claims of libel arising from the publication of false and defamatory statements. But under our legal system, such actions can lie only when there is injury to an individual's reputation. Truth is an absolute defense to libel in most cases, and many other defenses apply as well, including the constitutional requirement that public officials and public figures must demonstrate that news organizations published the false statements with "actual malice" -- knowledge of falsity, or reckless disregard for the truth.
There are also acts committed against individuals which are characterized by some as "privacy intrusions" simply because the perpetrators first had to learn something unique and identifiable about the victim, such as his address or telephone number.
Lawmakers should address this conduct, not by enacting laws or regulations that make whole data bases secret, but by providing better protection for persons who are vulnerable to injury caused by these acts and by providing meaningful remedies such as harsher, more effective penalties for offenders.
1.17 How should the benefits of the collection, compilation, sale and use of information from these data bases be balanced against privacy or other legal interests implicated by such practices?
The First Amendment provides strong protection for truthful speech and allows its regulation only in the very narrowest of circumstances. Whatever rules the government adopts for dispersing information contained in records it maintains, it cannot prohibit the exchange of routine, non-stigmatizing, factual information among private parties.
The First Amendment, a cornerstone of our democracy, simply does not contemplate a "balancing test" to weigh the relative merits of allowing or barring truthful speech.
1.24 Is the collection, compilation, sale and use of this information subject to any federal laws or regulations?
The First Amendment protects the exchange of truthful information except in the most compelling of circumstances. The constitutional protection does not allow the government to regulate the exchange of routine, nonstigmatizing, factual information by persons outside the government, simply because that information is accumulated in data bases.
1.26 Should the collection, compilation sale and use of information from these data bases be subject to additional regulations or laws?
We also would hope that the government will not define information housed in a private electronic data base as "sensitive," thereby making it somehow different from other information and subject to regulatory or legislative controls simply because it is retrievable electronically.
In the past several years the government has increased restrictions on access to information it gathers on individuals, usually stating that it is protecting the privacy of individuals named in its records. The government's decisions on how to collect, disperse or keep secret information in its own files to minimize government intrusion into individual lives are a very different matter from the discussion the FTC poses here concerning government legislating secrecy for the private sector.
The fact that private individuals or entities can gather and use information efficiently should not redefine the nature of that information.
We greatly appreciate the FTC's consideration of these views.