Federal Trade Commission
Room H 159
600 Pennsylvania Avenue, NW,
Washington, DC 20580 January 3, 1999
Re: Advisory Committee on Online Access and Security P004807.
CyberBrief, PLC, a law firm devoted exclusively to technology and Internet-
related legal matters, respectfully nominates Eric C. Grimm for membership on the Advisory
Committee on Online Access and Security.
The Federal Trade Commission has been involved for roughly five years in initiatives to
address online privacy. At least some critics and privacy advocates claim that little has been
accomplished in that time.
Industry, on the other hand, trumpets what direct marketers consider to be the
success of so-called "self-regulation" initiatives. The press, regulators, and the public are, to put
it mildly, somewhat less sanguine about whether industry successfully has regulated or can
The bottom line is that online privacy issues are difficult, involve new technology
and new fields of law, and require novel perspectives in order to develop constructive
approaches that adequately address the needs of all concerned. We believe that Mr. Grimm can
help move this dialog in constructive new directions that benefit both consumers and industry.
Frankly, from what we are able to determine, the debate (within the FTC and in
Washington generally) has become mired in a false dichotomy that assumes the only options are
"government regulation vs. industry self-regulation." In our view, this false dichotomy
completely overlooks the role of the most important party in any (public or private) scheme to
protect privacy the individual citizens whose private information needs to be protected.
We respectfully argue (and Mr. Grimm is prepared to advocate as a member of
the Advisory Committee) that, instead of empowering any government agency (e.g., the Federal
Trade Commission) to police the online privacy of consumers, what modern society really needs
is an approach that empowers the consumers themselves to police privacy.
Empowering consumers in the manner we propose is not "bad for business" but
good for business. Notably, in Canada, online marketing interests took the lead in championing
national consumer protection legislation. Canadian online businesses (unlike some of their
American counterparts) understand that the long-term success of online commerce lies in the
ability to develop secure relationships of trust and confidence between vendors and customers.
In contrast, the more extreme American commercial model (which involves seeking to protect at
all costs as much ability as possible to harvest without charge, and thereafter to exploit for any
purpose, private consumer information) is simply a recipe for long-term disaster in the electronic
marketplace, as consumers learn more and more about how American companies are seeking to
exploit them online. The most successful businesses in this new digital age will be the ones that
can deliver the most value to customers, and thereby establish long-term relationships with
customers that are based on genuine trust. The methodologies employed by many online
businesses today are completely counterproductive from the standpoint of developing genuine
trust with consumers based on a framework of open disclosure of how private information is
Consumer information will still be available to industry (at least to businesses that
customers value) under a regime of responsibility and genuine trust, but it will be available on
terms that customers understand, appreciate, and deem acceptable. Private information should
be available according to terms that have been freely negotiated with customers, based on full,
open and honest disclosure (as opposed to being imposed on them on a "take-it-or-leave-it"
basis, following disclosure in the form of misleading or deceptive website "privacy
For over three years, in several online fora (including a forum maintained by
Harvard's Berkman Center on the Internet and Society), Mr. Grimm has argued that, with the
proper legal framework in place, we can easily reach the objective of empowering individual
consumers to protect their own privacy. Moreover, we can accomplish this task just as easily
through private marketplace methods and private contracts (namely, the development of a robust
insurance market) as we can through top-down legislation or regulation. Arguably, in making
sure that the marketplace appropriately values the private information of customers, adequately
protects it, and appropriately compensates consumers for the acquisition of such information
from them, an approach that rests on an insurance marketplace and empowerment of individual
customers will be much more effective over the long run than any conceivable form of
government agency (i.e., FTC) regulation.
Attached to this letter (the paper version) are several printouts of discussions (in
the public domain) about privacy issues and Mr. Grimm's views on how to empower individual
Mr. Grimm is an honors graduate of the University of Michigan Law School, and
served as a law clerk for a federal judge in Texas, as well as for the Texas Supreme Court
(serving under a justice who has subsequently been elected Attorney General of Texas). He was
in private practice in Washington, D.C. for three years (principally with the firm of Steptoe &
Johnson, where he worked with former National Security Administration General Counsel
Stewart Baker on "cyberlaw" and encryption matters), before taking a position with the U.S.
Attorney's Office for the Western District of Michigan.
He now runs a private law firm in Ann Arbor, Michigan, and travels around the
country (and abroad) conducting courtroom litigation in specialized cases involving Internet,
communication and technology issues. He is a member of and has actively
participated in several American Bar Association and Michigan Bar Association sections relevant to online
privacy and technology law generally.
CyberBrief, PLC believes that Mr. Grimm meets all criteria for appointment to
this distinguished Advisory Committee for the following reasons:
- 1. The individual's participation would promote a balance of points of views represented and functions to be performed by the Advisory Committee.
Mr. Grimm will help present a balanced viewpoint that combines an appreciation
of the views and interests of the marketing and technology industries, with deep and broad
experience representing the casualty and surety insurance industry (whose views and interests on
the subject of privacy are distinct from those of marketers) for many years. Mr. Grimm is
perhaps unique among technology lawyers today in the depth of his background related to
insurance law and public policy.
Most importantly, Mr. Grimm is committed to protecting the rights of consumers
and empowering them to police their own rights. Foremost among the constituencies on whose
behalf he is prepared to advocate is the vast constituency of individuals whose right to keep their
private information private has been and continues to be abused (without fair compensation) on a
daily basis by the legions of marketing professionals driving policy at today's largest online
2. The individual has expertise in or knowledge of the issues that are the
focus of the Advisory Committee's work.
Mr. Grimm has written about and practiced Internet law in one form or another
(including First Amendment issues, intellectual property issues, contracts, insurance issues,
online commerce and digital signatures, and other related issues) since 1992. He first testified
on the subject of online privacy to a legislative body in 1995. Since then, Mr. Grimm has
continued to study and reflect upon the dilemma of online privacy and how best to cut the
"Gordian knot" of current Washington debate (which is mired within the framework of
"government regulation vs. industry self-regulation"). He has broad experience in this field and
is eager to champion novel ideas that can help cut this "Gordian knot."
3. The individual adequately reflects the views of the relevant affected
- The attached materials make clear enough what Mr. Grimm's views are on these
subjects, and how his views reflect and promote both (1) the interests and needs of individual
consumers, and (2) the interests and needs of the commercial sector generally, including not only
the needs of marketing organizations, but also the financial interests of the casualty and surety
insurance industry. The Federal Trade Commission can decide for itself whether he can fairly
and adequately represent these views on the Advisory Council.
For the reasons set forth above, we respectfully nominate Eric C. Grimm for
membership on the Advisory Committee on Online Access and Security.
Eric C. Grimm
cc: Elizabeth Echols, White House
John Graubert, Deputy Counsel, Federal Trade Commission