Mr. Eric Fredell
Task Force on Electronic Commerce
International Trade Administration
Department of Commerce
14th and Constitution Avenue, N.W.
Washington, DC 20230

Dear Mr. Fredell,

This message provides comments to the April 19 and April 30, 1999, letters of David L. Aaron, and the associated documents posted, regarding the proposal of Safe Harbor Principles. (http://www.ita.doc.gov/ecom/) The comments are provided in text format within this message.

First, I would like to iterate my previous comments on the the same subject, dated November 18, 1998. As it appears from the posted documents, the substitution of "consent" with "choice" is still the standard of the current ndraft of the principles, and should still be chenged. Please include my Nov 18 letter attached below in this round of comments as well.

In addition, the following change to the last sentence of Principle #2 -

Choice - is recommended:

"For sensitive information, such as [several examples], OR FOR INFORMATION
USED FOR PURPOSE OF TRADE, they must be given affirmative or explicit (opt
in) choice." (addition in caps)

The rationale for this addition is that current US law prevents the use of name, likeness and other identifying information for purpose of trade without explicit written permission. (see summary of law at http://www.named.org/law.html) Stating this requirement in the safe harbor principles will alert companies to this restriction and prevent them from breaking the law.

Please also note that there should be no written exceptions to the opt-in requirements. Such exceptions should develop in time, based on specific cases, rather than be pre-determined.

Thank you for accepting these comments. I would be happy to provide more information or opinion on this issue as needed.

Sincerely,

Ram Avrahami
Director, The NAMED, Inc.
http://www.named.org/
avrahami@named.org

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November 18, 1998

Mr. Eric Fredell
Task Force on Electronic Commerce
International Trade Administration
Department of Commerce
14th and Constitution Avenue, N.W.
Washington, DC 20230

Dear Mr. Fredell,

This message provides comments to the November 4, 1998, letter of David L. Aaron, regarding the proposal of Safe Harbor Principles. (http://www.ita.doc.gov/ecom/com.htm)

This letter correctly states that the US relies largely on self regulatory (though not effective) approach to privacy. The letter also correctly implies that the European Directive on Data Protection, having become effective on October 25, can pose problems for US companies that do not meet the standards set by the Directive. Unfortunately, the letter continues on the false track that the US government should attempt to protect American companies that fail the threshold of privacy set by the Directive by providing an alternative and lower set of standards. The US government could have provided a more constructive role had it urged American companies and self-regulatory bodies to raise their standards to the level recommended by
the EU.

I would like to highlight one specific deficiency in the proposal. It is the redefinition of Consent (Article 7 of the Directive) with Choice (Principle 2 of the proposal). This redefinition converts a basic right of the individual to a right of the organization to have free hand with the information, as long as they provide an opt-out mechanism. This conversion of rights can not be justified by any reasonable reading of the Directive and would likely be rejected by the EU. Further, it misleads American companies to believe that they can continue with their current actions rather than attempt to improve them. Finally, such redefinition harms American citizens who overwhelmingly object to unauthorized use in their information and want their government to mandate actions consistent with Article 7. For example, a 6/96 survey by Direct, a direct marketing magazine, found that 83% of them want the government to pass a law that requires opt-in procedures for names to be included on mailing lists. Other surveys show same or higher desire by the public for preventing unauthorized sale or disclosure of personal information.

The American public would be better served if the US government focused on improving the privacy standard of American companies, rather than redefining it for an assumed short term benefit of commerce with Europe.

I urge the Commerce Department to rethink its proposal for Safe Harbor Principles.

Sincerely,

Ram Avrahami
Director, The NAMED, Inc.
http://www.named.org/
avrahami@named.org