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For Arizona’s top law enforcement officer, protecting consumer privacy online is currently as difficult as combating machine gunfire with a lance-wielding knight on horseback. States have fraud-protection laws they could use to pursue egregious offenders, but little for run-of-the-mill Web sites. Attorney General Janet Napolitano thinks having an Internet-specific privacy law would offer consumers basic protections and make prosecutions easier. Other attorneys general echoed Napolitano’s frustrations this past week at a National Association of Attorneys General meeting devoted to online legal trends in Cambridge, Mass. Their chief complaint: The law simply cannot catch up with technology. “It’s this unsettling feeling that the ground is shifting (from) under our feet too fast for us to understand what’s happening,” said William Sorrell, Vermont’s attorney general. What to do remains open to debate. How strong should any protections be? Should states move ahead of Congress? Should states retain the right to later pass tougher laws than whatever Washington ultimately decides? Sorrell and his counterparts in other states acknowledged the economic risks of Congress or state legislatures moving too quickly. Restrictions, he said, could slow the development of technology and industries that generate jobs. “That’s part of the unsettling feeling,” Sorrell said. “We want to reap the benefits but protect people at the same time.” State attorneys general have historically assumed missions of consumer protection, and they have extended those duties to the Net in recent years. Many have prosecuted Web site operators and Internet scam artists for identity theft, cigarette sales to minors and other offline crimes that draw new victims online. Several have established Internet bureaus or units to specialize in investigations of online crime. A few states have gone after Web sites for surreptitiously collecting or distributing personal information. Threatening lawsuits under existing laws, Michigan got eGames Inc. and other sites to change their practices and disclose to consumers any information they collect. A health site that covered pregnancies and sexually transmitted diseases settled after Arizona accused it of selling personal data to four advertisers even though its own policies stated otherwise. The site agreed to amend its policies to disclose cookie files that track online habits. But Noreen Matts, an assistant attorney general for Arizona, said the state generally cannot go after sites simply for failing to give notice that they collect personal information about consumers. “Our statutes aren’t going to reach a lot of these types of things,” she said. “The fact that they don’t give notice is not a violation. Our law requires deception.” And even as government investigators win one battle, new technologies bring new threats. One emerging technology would link wireless devices such as cell phones with satellites that can pinpoint a person’s location. If companies have the technology to track a person’s whereabouts, do they have the legal right to do so? Or what of the potential for companies to tap the excess storage space on individual computers — the way Napster uses millions of hard drives to share and distribute music files. Who’s responsible for protecting any financial, medical or other data stored there? New York Attorney General Eliot Spitzer said that by the time policymakers figure out whether to require Web sites to ask consumers before collecting information about them online, technology may change and “it may be irrelevant.” Spitzer advocates state privacy laws to pressure Congress to act. But for the most part, according to the National Conference of State Legislatures, state action has been limited to studies or laws applying only to government agencies. Law enforcement officers from several states ultimately want a federal law requiring, at minimum, that sites disclose any information they collect and offer customers the chance to decline such tracking. They also want states to have the authority to prosecute cases under such a federal law, although they are in less agreement over whether legislatures should be able to pass stronger measures for their states. Businesses prefer one national standard. A few attorneys general oppose laws entirely, saying they should give businesses time to develop technologies for protecting privacy. Unnecessary laws, they say, could increase costs for consumers. “The problem with government stepping in is that acts to harm consumers more rather than the other way around,” Utah Attorney General Mark Shurtleff said. Even some supporters of a federal law urge caution. Thomas Miller, Iowa’s attorney general, said reaching consensus on the right balance takes time. “Law responds to conditions in society,” Miller said. “There has to be a basic consciousness that the law not act too soon.” Mallory Duncan, general counsel for the National Retail Federation, said technology has always moved ahead of the law. The advent of photography a century ago, for instance, raised new legal questions about whether photographers have a right to capture images without consent. “Once technology raises new privacy concerns, the solution has always involved a combination of social change and the law,” he said. “My fear is (lawmakers) will jump in and pass a law before the social consciousness is formed.” But Michigan Attorney General Jennifer Granholm said computers and the Internet tug on legal boundaries like nothing before. “Law is always slower than the pace of creativity, but in this situation, it’s nanoseconds and we have a new iteration,” she said. “The law is so dinosauric. … In the meantime, consumers are clearly not adequately protected.” Copyright 2001 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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