The Final Report of the Federal Trade Commission Advisory Committee on Online Access and Security

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The Final Report of the Federal Trade Commission Advisory Committee on Online Access and Security

Recently the FTC concluded its study and issued its final report and administrative ruling on Online Access and Security (OAS report). Much has been said about the report’s recommendations and conclusions, which may be considered administrative law within the FTC fiefdom. We have seen claims by those on both sides of the issue that greatly exaggerate the scope of its impact.

The supporters of the OAS report claim that it will finally be the “law of all laws” and will save us from nasty people of the world by protecting all our personal information that is gathered in the process of a commercial transaction. The OAS report would require that we as citizens be given an opportunity to opt out of the further sale or use of our personal or business information. The reality of the matter is that the “opt-out” option — when it is in fact provided — is usually presented in such a way that even the fastidious reader (like myself) has difficulty finding and using it. Thus fewer than 4% actually “opt out,” and so most of our information is still out there for the rest of the world to use.

The detractors of the OAS report paint a world of doom and gloom.

The information gathered by credit-reporting agencies and others is a matter of public record — or at least it’s no longer a private record — since it has been shared and disclosed. This information has always been available for a modest amount of effort or money. As specialists in financial investigations, we have used this information to help clients avoid hiring convicted murderers, to help clients avoid accepting an investment of over $5 million derived from a money-laundering scheme, and to help clients recover tens of millions of dollars from fraudsters. All of this using public records. All of this is good.

But what happens if the records are now sequestered away from the public (the public in this case being commercial clients)? The public will have less information to make well-informed decisions.

The people most likely to opt out are the fraudsters, as well as some small number of people who want to keep private matters private and will go to the effort of figuring out how to do so.

At the point that most information moves from being private to, in essence, secret, it doesn’t matter if you engage in a business deal with fraudsters, or even if you refuse to do so because of information you have discovered: In either case they win. If you do a business deal with them, they win. If you refuse to do a business deal with them, they win again, because they are going to sue you because you somehow got your hands on restricted information. While they may not actually win, the cost of any litigation is enough to give the sensible person cause for alarm.

Why has the FTC has taken action?

There are abuses. Every position in every profession and trade has been abused. The office of President of the United States has been abused by several different presidents. Have corporate officers abused their position? Yes! Secrecy allowed the problem to occur. Would secrecy help prevent the process. No! Secrecy is what facilitated the occurrence of the problems, although what allowed — even encouraged — them to occur is the governmental, corporate, and citizen mentality that not only accepts winning at all costs, but demands it.

Public records are public records and should be easily available to all through some controllable mechanism. By this we mean that for every privilege there is a responsibility. Most of us accept this, which is why most of us never appear in the headlines for doing stupid or illegal acts. Nonetheless, the right to access privileged records such as credit headers, drivers licenses, and similar records should be limited to licensed and bonded investigators, over whom there is some level of public oversight and public accountability. Why licensed and bonded investigators, rather than just everyone? This allows society to provide civil and criminal sanctions if the privilege is misused.

What are we entitled to in terms of privacy in the United States? There is an expectation of reasonable privacy for us in our homes, our places of business, and where we play. That expectation comes both out of law and out of the way we as a society conduct ourselves. We don’t ask how much people make and we don’t ask their religion and we don’t ask if they are … well, you get the point.

None of our U.S. federal or state constitutions has a “right to privacy” article per se, although the constitutions of some states provide a broader expectation of privacy than the federal constitution.

The only thing we have on a federal level in the U.S. is the Fourth Amendment to the U.S. Constitution, and that refers to “unreasonable searches and seizures” by agents or officers of the federal government, later extended to agents or officers of state governments by the Fourteenth Amendment.

But privacy legislation is not going to stop criminals any more than a speed limit stops speeders. Those that have access to the records must be professionals that are licensed and bonded. Those that can’t qualify need to go away.

The full report may be viewed or downloaded at:

http://www.ftc.gov/acoas/papers/finalreport.htm

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