Former Florida Bar president Stephen Zack should know better than to propose a patently unconstitutional amendment to our state Constitution. As a member of the Constitution Revision Commission, he has suggested adding a clause to the state Constitution that would prohibit the sale of personal information contained in a data base without the written consent of the subject.
Zack is looking for a way to limit the distribution of data bases to businesses that use them to market a product. He is annoyed, as we all are, by telemarketing firms and direct mail houses that constantly hawk their wares by calling us at dinner time or stuffing our mailboxes with their come-ons. But there is no way to limit access to our personal information for those bothersome companies without damaging access for those who use it for more substantial purposes.
Private investigators looking for deadbeat dads, or for dads who kidnapped their children. Spouses looking for the hidden assets of the other during a divorce proceeding. There is really no end to the myriad of purposes public records and privately collected information data bases serve. In addition to those pesky marketing firms, such resources are used regularly by reporters and police.
But what is most troubling about Zack's proposal is that it violates the First Amendment.
Just because information is in bits and bytes instead of type doesn't mean it isn't protected by free speech guarantees. A data base that has been developed by a private person or company is intellectual property. It may be sold as a book, magazine or newspaper is sold. Imagine the burden on freedom of speech and the press if newspapers had to get written permission from the subject of every story.
Moreover, personal information data bases are not always used for product sales. Political parties use privately gathered information data bases to determine who is most likely to vote their way. A poll is really just a data base of information on individuals and their opinions that has been analyzed. Clearly any restriction on the sale of such information, as long as it was legally obtained, would violate the federal Constitution.
It is true that product sales are increasingly driven by target marketing, which relies on demographic and past purchase analyses of individuals and families. But consumers can keep their names from showing up in these huge marketing data bases by not volunteering personal information.
Understand, when consumers make a purchase at a store and provide the clerk details about their private life, whether that be merely their name and address or something more, such as the size of their family and income level, there's a good chance that that information will be sold in the future. They are giving something away that has become very valuable: their personal buyer profile.
The best way to stay out of those sorts of data bases is to refuse to give the information requested.
Government lists are different. There the citizen often has no choice but to provide the information requested. Voter registration records will contain your name and address. Real estate recordings will disclose the value of the property you own. But keeping such records public and available to scrutiny is the best way to prevent fraud and corruption.
We can all understand what prompted a member of the revision commission to suggest that people's personal information should be protected from sale without their consent, but policing abusive business practices is the job of the Legislature and doesn't belong in the state Constitution. Zack's broad brush approach would have serious unintended consequences, hampering access to information to those who have a legitimate need for it, and would damage freedom of speech and the press. It should be roundly rejected by his commission colleagues.