Privacy is one of the most crucial and most controversial contemporary American legal issues. Privacy is at the root of cases like Roe v. Wade. The privacy of personal, financial, medical, and other records over the Internet has become a current focus of legal and political debate. In the past few months, privacy rights as against government needs to stop terrorist activity in the United States and around the world have been the subject of numerous newspaper and magazine articles and vigorous debate in Congress. But there is another aspect of privacy which is, to my mind, also important and is not yet a "hot" topic in the media.
Most economists would now classify our economy as being based on the value of information as much as, if not more than, on the value of manufacturing. Increasingly, American business is based upon the gathering and manipulation of information. Indeed, information has come to play a far broader role in our society. Certainly, politics today is very much an information game. Pollsters are constantly at work advising politicians of what the public wants and believes and use this information to devise legislative and governmental strategies in a way never before seen.
In such an economy and society, information has value. Information can give the possessor power. Information can make someone wealthy or get someone elected to high office. Thus, when someone wants information they should be prepared to pay for it.
I remember years ago that some companies that were just beginning to do marketing surveys by mail would enclose a dollar bill (and later, a dime) with the survey to "thank" the person being surveyed for answering the questions. In fact, this was an exchange of information for value. Today, we are bombarded by businesses seeking to gain information from us but not wanting to pay for it.
The best example, of course, are the annoying telephone surveys (which usually are timed to interrupt dinner) when someone asks over the telephone whether they might simply "ask a few questions." So negative has the reaction to this been that many states have passed laws permitting individuals to have themselves put on a prohibited list so that they won't be called. Stores now sell electronic devices that automatically hang up on such telephone calls.
In the past several years, the corporate quest for free information from all of us has increased in our own home town. The newest technique is to seek such information at the "point of sale," i.e. in retail shops when one makes a purchase. This began in a serious way locally with one food store which introduced discount cards with magnetic strips.
Many people reacted quite negatively to this, believing that these cards would allow the store to accumulate purchasing data about them. I can sympathize with this reaction, but I must also say in defense of this store that at least the shopper receives something in return for allowing the store to have such information since the card does provide substantial discounts on a variety of items.
More recently, however, a few local shops owned by national chains have introduced another technique. When you go to the checkout with your book or CD at one of these shops you are asked quite politely what your ZIP code is. You are not asked whether you would like to participate in a marketing survey. The clerk does not volunteer why the store wants this information. Instead, the clerk simply asks for your ZIP code as a matter of routine.
After this had happened to me several times, I became rather more resistant to the request and decided to ask the clerk why this was wanted. I was told that the store was conducting a market survey. I refused to give my ZIP code and I continue to do so. I must say I've had no real problem when I do this other than occasional awkward moments at the check-out. I suppose that the clerks simply think I'm a bit odd.
There is currently no law at either the state or local level prohibiting such surveys by stores, and I doubt that there will ever be any. But, frankly, I have no desire to give away for free more information to any retail merchant than I have to. I certainly don't feel that I need to make a gift of such information to merchants.
In fact, I feel that asking for such information when I am purchasing something from the merchant at full price is really a bit annoying. This provides no service to me that I can think of. It does take up a bit of my time and puts me in the awkward position of having to refuse the request. I have thought about simply offering to give my ZIP code in exchange for a dollar discount on my purchase, but I suspect that would simply confuse the clerk and waste more time.
I could, of course, simply stop shopping at stores which did this, but I don't see why I should have to do that. So, I suppose, until the Congress or our state legislature decides to act to protect consumers against the annoying demands of retail merchants for free information, I will continue to shop where I want and continue to refuse politely to provide such information. I also rather hope that some of you who read this column and who feel the same way as I do, might do so, too.
Increasingly, I have come to realize that the United States has some of the weakest laws to protect privacy. For a variety of reasons, our lawmakers simply do not want to put legal curbs on the now almost-incessant demands for information that are made of each of us every day. Thus, the only solution to curbing such demands must be a market-based one. But that, as law and economics scholars will tell you, is fine and may, indeed, even be more efficient in the long run.
After all, ours is a capitalist society and the greatest economy the world has known. Why shouldn't we consumers recognize that we, too, should profit from the information we possess and business wants? Such businesses spend a great deal of money each year on advertising and marketing. Why shouldn't each of us decide to become information entrepreneurs? If we have something of value, then we should profit from it.
So next time you're asked for your ZIP code, either offer it for a price or do as a former first lady suggested in another context: "just say no." Let's see what happens then.
Mike Hoeflich is a professor in the Kansas University School of Law.
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