January 3, 2000

To The Secretary:

I am writing to submit my application for membership on the Advisory Committee on Online Access and Security. Attached you will find my biographical statement. I am available to attend all of the proposed meetings of the Committee.

As you will see from my biographical statement, I am Associate Director of the ACLU and coordinate the ACLU’s work in the area of information technologies. I chair both our Cyber-liberties and Privacy Task Forces. While on partial leave from the ACLU in 1998, I served as President of the Electronic Frontier Foundation (EFF). I have written and spoken widely on information privacy issues.

I also co-founded and serve as administrator for the Global Internet Liberty Campaign (GILC) -- the first international coalition of non-governmental organizations concerned with privacy and free expression on the global Internet. In that capacity, I have followed closely privacy developments outside the United States. The ACLU, for example, is one of the few non-governmental organizations to submit comments to the Commerce Department on the "Safe Harbor" principles designed to bring US companies into compliance with the European Privacy Directive.

I appreciate the fact that there are a number of well-qualified representatives of privacy organizations that could and should be appointed to the Advisory Committee. But I believe the ACLU brings a unique perspective to this issue, which looks not only to principles of personal privacy, but questions of free expression as well.

The ACLU believes very strongly that a base line of privacy protection for online users needs to be written into law. Attached you will find comments we submitted to the NTIA in July 1998 on the subject of protection of privacy online, which detail our concerns in this area.

At the same time, the ACLU, which is a well-known advocate for rights of free expression, recognizes that privacy protections have free speech implications for both data subjects and collectors. For example, the ACLU has been a vigorous defender of the free speech rights of persons to speak anonymously as a litigator and in the court of public opinion. The right to speak anonymously is a quintessential American concept, which is increasingly threatened by routine data collection and surreptitious identification of Internet users. The Pentium II serial processor identification number, on which we submitted a petition to the Commission, is an example of the latter phenomena. We have also vigorously defended the rights of persons to use techniques such as encryption and anonymous remailers to protect their identities.

Beyond those issues, we recognize that rules designed to protect privacy may interfere with rights of free speech. For example, as the Commission is aware, the ACLU has raised questions about whether the Children's Online Privacy Protection Act (COPPA) will interfere with the Constitutional rights of minors to access information. Similarly, we recognize that data collectors have rights of free speech. There are especially difficult issues raised by commercial speech which uses private information that has been voluntarily provided and the further publication by journalists and others of data which appears in public databases. We have sought to apply a nuanced perspective to these complex issues.

I hope you will agree that the perspective of a private, non-commercial organization, which looks both to privacy and free speech, would be a useful addition to the Committee.

I look forward to hearing from you.

Sincerely,

Barry Steinhardt
Associate Director

Enclosures as noted: