Date: Fri, Apr 28, 2000 11:31 PM
Subject: Fw: comments on Access section

I am the Director of the DataBank at the Joint Center for Political and Economic Studies, and have been attending the sessions of the Advisory Committee as an observer at the invitation of Commissioner Mozelle Thompson.

I am sending these comments to follow up on several cogent suggestions by Committee members in today's session that might help considerably in more clearly defining and distinguishing the 3 "approaches" or "options" the current draft presents, and in making the issues and choices more understandable to the general public.

The "Default Rule" approach is the most clearly presented of the options in the current draft, in part because its key principles have already been outlined and implemented in the BBBOnLine seal program. The key principles are that an individual should have

1) "reasonable" access to [any? all?]
2) personnally identifiable information (and prospect information]
3) that the business has collected (but not derived]
4) from that individual online or has merged with information collected elsewhere
5) and that is retrievable in the ordinary course of business

The alternative approaches, and the policy choices that they pose, might be most clearly presented and understood if can be outlined as variations on these principles or some other manageable set(s) of principles. For example, the "Case-by-Case" approach, which some members felt was not yet sufficiently developed in this draft to understand what criteria or procedures would be used to provide or deny access, might be outlined as recommending that access should be provided

6) only to enable individuals to correct erroneous information that might adversely affect decisions or outcomes based on that information.

In the present draft, it is not clear if the Case-By-Case is proposed to allow conditions or criteria besides this to be used in determining access should be provided (e.g. to permit "weighing" of whether the possible harm to the individual in some uses is too small to justify the costs of providing access). Other conditions or criteria should be more explicitly stated.

The discussion of the "Total Access" approach today made its possible differences with the "Default Rule" more clear. It would also provide access to information

3) that the business collected or derived
4) from the individual online or through other means
5) and that is retrievable or could be retrieved with reasonable effort in the normal course of business.

The most expansive reading of the "Total Access" option would invoke all three principles, including the controversial requirement that businesses "categorize" or manipulate the data in ways that they do not currently, but could presumedly do with (modest?) effort using software etc. that they already do use.

A clear outline of the options as variations on a relative small number of principles such as those above could help greatly in streamlining the presentation of these complex issues for the general public. For example, the discussion of fees falls under questions of how one defines "reasonable" access in any of the three approaches and is really independent of them.

Even though "Total Access" might imply low or no fees, and the Case by Case approach argues for higher fees for access to some types of data, one could seriously entertain a wide range of fee structures within each option.

Explicit principles also might help answer some complex problems. For example, might not the principle that the information be retrievable in the normal course of business help in determining when businesses should and should not be responsible for providing access to data from their subsidiaries? One might say "yes" if they normally retrieve such data from the subsidiary in the normal course of business, "no" if they don't. In any event, it might be useful to go as far as possible using this and other basic principles to address the question, and then note aspects of a problem that go beyond the principles outlined in the options. The more that complex issues can be presented and discussed as variations on a manageable number of principles, the more clear and parsimonious the report will be for the general public.