Comments from anyone are welcome and appreciated.

I. INTRODUCTION

II. EXEMPLARY PRIVACY OPTIONS FOR GOVERNING USE OF INFORMATION

III. IMPLEMENTATION OF THE “OPT-IN” SYSTEM

IV. CONCLUSION

A Proposal for the Regulation of Internet Data Mining by Private Entities

-- By BrettJohnson - 11 Nov 2009

I. INTRODUCTION

Internet data mining (referring to internet information that is not publicly available) touches on all three components of privacy discussed in class: (1) secrecy, (2) anonymity, and (3) autonomy. Secrecy is affected because many people mistakenly believe that when they, for example, place an order online for a sexual oriented product, that communication is secret to those other than the vender and the purchaser. For the same reason anonymity is affected because people believe that the vender will not personally know them (and will not disclose the information to people who may personally know them). In fact, people apparently purchase sensitive items via the internet because they believe that such method of purchase protects their anonymity better than does physically walking into a store and making the purchase. In the context of internet searches and browsing of websites many people mistakenly believe they have complete anonymity. Finally, because data can be used unknowingly to the searcher/purchaser’s disadvantage autonomy is affected.

All three components of privacy and in particular autonomy are intertwined with personal freedom. http://www.philosophyetc.net/2005/03/freedom-and-autonomy.html. I begin with what seems axionomic that freedom and autonomy is desirable. From that I follow with a proposal that true freedom requires meaningful choice: “Freedom means having control of your own life.” See Richard Stallman, Wikisource:Speeches, http://en.wikisource.org/wiki/Free_Software_and_Beyond:_Human_Rights_in_the_Use_of_Software. The challenge and desire then is to determine which legal system actually provides people with the best meaningful choice and freedom with respect to their privacy and autonomy.

II. EXEMPLARY PRIVACY OPTIONS FOR GOVERNING USE OF INFORMATION

Each privacy option, e.g., absolutely prohibiting data mining, unlimited and unregulated data mining, opt-in, nakedness, and opt out systems, seem to have some difficulties either in theory and/or in practical administration. Initially, I reject the current unlimited internet data mining. That type of unknown and unregulated monitoring of human activity violates fundamental human rights. See generally Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791, 2486 (U.S. 1992) (“Throughout this century, this Court also has held that the fundamental right of privacy protects citizens against governmental intrusion [into certain areas].”).

I also reject a per se outright ban on all data mining. This is a more difficult issue than the former, but again, with the ideal that true freedom means individual choice, one must recognize that people should be free to allow monitoring and use of information if after being fully informed they subjectively perceive that such monitoring benefits them more than it costs them. For example, at least one person in this class articulated in TWiki that he feels that he benefits from monitoring because of the convenience afforded him by such (although I do not believe he reached an ultimate conclusion whether the benefit outweighs the cost).

I further reject an “opt-out” system for the basic reason that people must be allowed to make a meaningful choice. People today are simply provided with too many complex (often probably intentionally so) adhesion form-contracts to be expected to carefully read and understand such, resulting in effectively no choice and nearly unlimited data mining in such a system.

I finally reject nakedness as negating personal choice to maintain privacy (although I understand it would reduce incentives to gather the information).

Consequently, I believe that an opt-in system provides the best chance for meaningful choice, freedom, and autonomy. As discussed in class, effectively conveying information sufficient for meaningful choice in a society that never forgets is a challenge of an opt-in system.

III. IMPLEMENTATION OF THE “OPT-IN” SYSTEM

I would propose legislation wherein the default rule provides that without consent in the form of “opting-in,” information gathered about a person over the internet may only be used as necessary to provide the service requested. The information gathered could not be disclosed or sold and it would need to be deleted within a reasonable amount of time. For example, if a person placed an order from Wal-Mart.com all information about the purchaser, including her personal information such as name, address, etc. and the product purchased, web pages visited, etc. would need to be deleted from Wal-Mart’s database within a reasonable time after the product is received by the customer. See http://www.nytimes.com/2004/11/14/business/yourmoney/14wal.html?_r=1 (discussing Wal-Mart’s current use of personal information). Other entities, such as the Google search engine would not be able to store or disclose the information. See http://www.webmonkey.com/blog/Firefox_s_Private_Browsing__AKA__Porn_Mode__Arrives (private browsing available from Firefox). In the context of banking, information such as expenditures would need to be retained for record-keeping purposes but kept confidential and not used for purposes other than record-keeping and such information could not be shared with other entities or other departments within the same institution (such as where investment banks are allowed to merge with commercial depository banks after repeal of the Glass-Steagall Act). See http://en.wikipedia.org/wiki/Glass%E2%80%93Steagall_Act.

The legislation would, however, allow those private entities to mine data (purchase the ability to store, use, and sell the information) if after being fully informed a person believed that it was in her best interest to sell that information and opted-in. As previously mentioned, some people may desire to have special offers sent to them for future purchases of similar products. Other people may be persuaded by discounted prices or even cash payments for the information. The opt-in choice would perhaps require that to opt-in the person would be redirected to a federally maintained website that provided in understandable and brutally descriptive terms (drafted as part of the legislation) what the information could be collected, used for, by whom, and potential consequences thereof. Each entity that sought to mine data would need to obtain a consent from each person for which it gathered the information, based upon the user’s IP address. There would also be an option, each time referred to the “opt-in” website to register a single time to preclude all companies from making future offers to mine data from that IP address. See generally http://www.nytimes.com/library/tech/00/02/cyber/commerce/07commerce.html.

IV. CONCLUSION

While not free of concerns, an opt-in system provides the best choice, freedom, and overall autonomy for individuals in society.

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