| |
| META TOPICPARENT | name="FirstPaper" |
|---|
|
|
<
< | A "Bill of Rights" for the Complacent |
>
> | Self-help in the Privacy Arena |
| | -- By NelsonHua - 06 Mar 2015 |
|
<
< | On February 28, the Obama administration proposed the Consumer Privacy Bill of Rights Act. The proposed bill, supposedly in recognition of the extent to which “Americans cherish privacy as an element of their individual freedom,” creates a system of notice and control regarding firms’ collection of user data. However, the bill, if enacted as proposed, lacks the regulatory teeth to compel a meaningful response from the private sector. This inadequate policy response is reflective of the inadequate regard for privacy from all parties involved – the government, private firms, and the affected general public itself. |
>
> | On February 28, the Obama administration proposed the Consumer Privacy Bill of Rights Act. The proposed bill, supposedly in recognition of the extent to which “Americans cherish privacy as an element of their individual freedom,” creates a system of notice and control regarding firms’ collection of user data. However, the bill, if enacted as proposed, lacks the regulatory teeth to compel a meaningful response from the private sector. This toothlessness is illustrative of the American experience with (attempted)consumer privacy regulations: a fundamental tension with freedom of speech bars more comprehensive, European-style schemes. In light of such well-placed free speech protections, what is needed is not a congressional statement of the importance of privacy, but collective actions signalling a demand for more protection. |
| | The Bill |
| | The bill has also been criticized as one that “would effectively codify bad behavior. By placing the ultimate burden of drafting codes of conduct on industry members, and even upon review, offering broad latitude in doing so, the bill establishes weak final guidelines of practice. Furthermore, in pre-empting (sometimes stronger) state privacy laws, it could very well have a destructive effect. |
|
<
< | A More Pervasive Problem |
>
> | Where's the Teeth? |
| | |
|
<
< | The proposal represents nothing more than a very limited nominal recognition that some level of privacy protection in the digital age is important. Its terms are far from comprehensive and lack regulatory teeth. It is reflective of a society that is invested in the idea of privacy, but not actually concerned with violations in practice. |
>
> | The proposal represents nothing more than a very limited nominal recognition that some level of privacy protection in the digital age is important. Its terms are far from comprehensive and lack regulatory teeth. Such a light-handed approach is thematically consistent with the U.S. government's historical approach to consumer privacy protection. |
| | |
|
<
< | Enforcement is in the hands of the FTC. Effectively, the regulatory scheme places our privacy concerns in the hands of a few individual commissioners appointed by a government as a whole that does not itself respect the individual’s need for privacy. At its most basic level, the system is flawed. Privacy is not just deserving of some protection as something that American’s “cherish” – it is a basic Constitutional right. An appropriate amount of regard for such a right would not involve such a “flexible” system, but rather, strong protective substance and (near) absolute enforcement. |
>
> | Why is this the case, particularly when entities like the European Union have passed much more comprehensive consumer privacy protection laws? In the U.S. the drafters of any such bill must consider tensions with the First Amendment. Regulating the use of data obtained through a contract between private parties poses a threat of abridging freedom of speech. Even an interest in an implicit Constitutional right fails to outweigh a right so explicitly guaranteed as the freedom of speech. Likewise, other possible compelling interest exceptions in this case are ones that threatens to swallow the rule. Perhaps besides including a non-preemption clause, the proposed bill does about as much as it is able to. |
| | |
|
<
< | The introduction of the bill paints a narrative that the government has been historically protective of consumer privacy, and that it meets the need for some minor tweaking in light of “keep[ing] pace as technology and business practices evolve.” Of course, a policy response crafted to address such a minor problem is inadequate to address a problem that is increasingly revealed to be much more pervasive. |
>
> | A more comprehensive response is not only undesirable as a matter of policy but also politically impracticable. The question of whether this proposed bill would pass is still open, let alone a more protective one. The lobbying power of the firms collecting the data as well as constituent apathy in practice suggest that it would not. |
| | Towards a Solution |
|
<
< | The drafters of the bill should hardly shoulder the blame themselves for an inadequate response. Nor should even this nation’s legislators for letting the problem become what it has today. Much of the responsibility belongs to the general public for complacency. A significant part of the nation will stand and fight for the right to own firearms, but few will stand for the right to privacy. In a sense, this “Bill of Rights” is in direct proportion with what society demands. |
>
> | The problem isn't a deficient bill, but a populace that turns to Congress before contemplating its own contributions to the privacy dilemma. It is reflective of a society that is invested in the idea of privacy, but not actually concerned with violations in practice.
In a sense, this “Bill of Rights” is actually in direct proportion with what society demands. |
| | |
|
<
< | Ignorance is no excuse. The “new technologies” are hardly new anymore. Private parties and government agencies alike have been very publicly exposed for practices that show little to no regard for individual privacy. Yet, the public largely engages in willful blindness. Many shrug or even shake their heads at the work of individuals such as Edward Snowden, and consumers continue to use the very products that they know violate their privacy rights, in fact handing them information directly.
Alternatives exist. A surrender of one’s own self is a high price to pay for the marginal convenience familiar products afford. It would be imprudent to expect a government to safeguard rights that its constituents seemingly do not care about.
The benefits of a public reclamation of privacy are twofold: First, it would send a message about consumer preferences to the industry members through profit margins, which is what they understand the most; Second, it would compel a proportional legislative response.
This isn't really analysis yet, either of policy or politics. |
>
> | Individuals that "cherish privacy" should act accordingly and signal to service providers that they want contractual privacy protections. A surrender of one’s own self is a high price to pay for the marginal convenience familiar products afford. Consumers should practice self-help by protecting themselves through measures such as encryption and seek out alternative services that are either structured such that data isn't positioned for exploitation or those that offer privacy guarantees. Firms should be forced to choose between a thirst for data and the risk of alienating its consumers. |
| | |
|
<
< | For policy analysis, it would be wise to begin with an understanding
of what the WH is trying to achieve with the legislation. The
pattern, of voluntary adoption of policies to be policed by the FTC
through "prosecutorial" administrative action where companies fail
to meet their own voluntary commitments, is the existing mechanism
expanded. We have discussed the constitutional barriers to
European-style "data protection" approaches to privacy in the US,
which should help you to explain why the form in which legislation
is proposed tends in the direction of what you consider
"toothlessness": an absolute constitutional prohibition on abridging
freedom of speech pulls many legislative teeth, as it is supposed to
do. |
>
> | Advancing social norms that demonstrate a general respect for privacy is also important. This would include norms against private and governmental data collection (rather, surveillance). |
| | |
|
<
< | Political analysis would focus on what can pass and what voters want.
The route to the improvement of the draft is to make both policy and political analysis appear where only rhetoric is now.
|
>
> | Ignorance is no excuse. The “new technologies” are hardly new anymore. Private parties and government agencies alike have been very publicly exposed for practices that show little to no regard for individual privacy. Yet, the public largely engages in willful blindness. Many shrug or even shake their heads at the work of individuals such as Edward Snowden, and consumers continue to use the very products that they know violate their privacy rights, in fact handing them information directly. |
| |
\ No newline at end of file |