Gramm-Leach: The Devil’s Rope

by Bill Roof

(Previosuly published in Insurance Journal)

All the recent talk about the Gramm-Leach-Bliley Act got me to thinking about privacy and particularly privacy on the Internet. That led me to The Devil’s Rope—the invention of Joseph Glidden, the Father of Barbed Wire. As we know, his invention changed forever the business of livestock management and our notions and laws regarding private property rights, especially in Texas. (Glidden, originally from Illinois, wound up owning, among other things, a 250,000 acre ranch in the Lone Star State.)

While it might seem pretty straight-forward, the invention and implementation of barbed wire was not a simple matter and likely neither will be the implementation of privacy rules under Gramm-Leach. Consider this: At the moment there are some 570 patents for barbed wire, over 2,000 variations of the stuff and more than 2,000 patented tools for dealing with barbed wire. And that’s a product not even a whisker as complex as is the data gathering-sorting-organizing-storing and forwarding world of the Internet.

The Internet is every bit as imposing a frontier as was the western rangeland and prairie of the U.S. in the late 1800s.Not unlike the western frontier where cattlemen wanted their livestock to stay on their own land—but by the same token wanted access to water and markets that perhaps were not on their land—most of us want our own information to be private, while many of us want to be able to freely find out about other folks.

Privacy rights management is an important issue, especially for the financial services sectors where the collection and use of personal medical information is also at stake. And accumulating such information via the Internet is quite easy. Hundreds if not thousands of software programs exist that are capable of capturing every keystroke or entry event. And many more programs exist that can sort and organize that data and then link it with even more of your personal information to deliver it in ways that would satisfy even the most demanding business relationship management strategies.

And who knows where it could go from there. Which, of course, is the heart of the matter.Title V of Gramm-Leach is a start toward resolving the tougher question of who owns someone’s private data. Perhaps the opt-out provision ought to be recast as an option for the owner of private data to sell or not sell that data.No doubt there will be range wars over this ownership issue—between those who want free access to information and those who want to control their own data—cyber barbed wire not withstanding.

And most of us will be on both sides of this fence as a new kind of property law develops and evolves. Perhaps the best course of action as compliance is pending is to work on developing not simply a privacy statement to send out, but a comprehensive privacy rights management strategy.

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