In a post here last month on “Two Paradoxes of Privacy Regulation,” I discussed some of the interesting — and to me, troubling — similarities between rising calls for online privacy regulation and ongoing attempts to enact various types of controls on online speech or expression. In that essay, I argued that while most privacy advocates are First Amendment supporters as it pertains to content regulation, they abandon their free speech values and corresponding constitutional tests when it comes to privacy regulation. When the topic of debate shifts from concerns about potentially objectionable content to the free movement of personal information, personal responsibility and self-regulation become the last option, not the first. Privacy advocates typically ignore, downplay, or denigrate user-empowerment tools, even though many of those same advocates endorse “self-help” efforts as the superior method of dealing with objectionable speech or media content. In essence, therefore, they are claiming self-help is the right answer in one context, but not the other. Ironically, therefore, privacy advocates and moral conservatives actually share much in common in that they are using the same playbook to advance their goals: They are rejecting personal responsibility and user-empowerment tools and techniques in favor or government control for their respective issues.
Keeping that insight in mind, I want to take this comparison a step further and suggest that what really unites these two movements is a general conservatism about how our online lives and online business should be governed. For the moral conservatives, that instinct is well-understood. They want hold the line against what they believe is a decaying moral order by restricting access to potentially objectionable speech or content — dirty words, violent video games, online porn, or whatever else. The conservatism of the modern privacy movement is less obvious at first blush. I suspect that many privacy conservatives would not consider themselves “conservative” at all, and they might even be highly offended at being grouped in with moral conservatives who seek to wield government power to control online speech and expression. Nonetheless, the two groups share a common trait — an innate hostility to the impact of technological / social change within the realm of “rights” or values they care about. In their respective arenas, they both rejected the evolutionary dynamism of the free marketplace and they long for a return to a simpler and supposedly better time.
For the privacy conservatives, we see this instinct on display in discussions about “targeted advertising” and “behavioral marketing.” Most privacy regulation advocates want to slow or stop the advancement of online advertising techniques for a variety of reasons. Some say privacy — however they define it — is an inalienable human right and that data collection and targeted marketing betrays “human dignity.” Others just despise commercialism and advertising in all its forms and hope to take steps to stop its spread or evolution. Still others say they want regulation to help give users more control over their personal information. Or, some combination of all of the above factors motivates their desire to see advertising and marketing practices curtailed.
On Defining Harm
Privacy conservatives and moral conservatives share another common trait: The struggle to identify or prove a tangible harm exists that justifies government regulation that would foreclose the evolution or markets and/or speech. “Privacy” has long been a controversial, ambiguous term, much like the terms “obscenity” or “indecency” in the speech context. My response in both cases is not that “harm” never exists, but rather that:
- “harm” is extremely user-specific;
- such “harms” should not necessarily be elevated to actionable legal / regulatory matters; especially when..
- the better approach is user-empowerment and personal responsibility instead of collectivized political responsibility for such matters.
Stated differently, precisely because of the eye-of-the-beholder problem we face in both speech and privacy contexts, I believe the better approach is to rely on “household standards” (user-level controls + personal responsibility) instead of “community standards” (government regulation for the entire universe of consumers / users). Thus, in light of the diverse nature of the citizenry and the importance of the evolution of online markets and speech, freedom should generally trump control.
Journalism provides a good case study for why that should be the general rule. When it comes to the concerns about what should or should not be aired or reported by journalists, most of us would come down in favor of press freedoms and greater freedom of speech. We don’t allow concerns about violent media images or salty language to trump the rights of journalists to report on wars, for example. In a similar sense, we don’t allow privacy rights to trump freedom of speech as it relates to the collection of private facts about individuals by journalists. Think about it; the job of a good journalist is to be a nosy son-of-a-bitch. They pry into every corner of the private lives of individuals. They not only get paid to do, but they win awards for doing it well! The First Amendment generally protects their ability to gather and reveal all this information about individuals and organizations. Again, speech rights trump privacy rights. That isn’t always the case, of course, but it is 9 times out of 10. So, for purposes of our discussion here, the interesting question is: How far would privacy conservatives be willing to go to undermine speech rights since — if enforced aggressively — a privacy “right” would essentially become “a right to stop people from speaking about you” (to borrow the memorable subtitle of a 2000 Eugene Volokh law review article)?
The Case for Transparency, and the Futility of It
Like moral conservatives, privacy conservatives are on their strongest footing in advocating greater transparency. Before jumping to direct government regulation of speech or content, some moral conservatives are willing to give greater transparency a shot. For example, they push for content creators to reveal more details about the nature of their products using labels or ratings so that consumers can better understand what they will see or hear. Similarly, before advocating comprehensive Internet regulation, some privacy conservatives at least give lip service to the idea of industry self-regulation and they encourage sites and services to be more transparent about the information they collect about users for advertising / marketing purposes.
Such transparency generally doesn’t restrict innovation and progress. In fact, in some ways, it can help create a more vibrant market if consumers act upon the information they are given. However, whether we are talking about objectionable media content or privacy-related matters, it doesn’t seem like many consumers are willing to do much to change their behavior once supplied with better product or service information — at least not in the way the regulatory advocates desire. In both cases, moral conservatives and privacy conservatives can’t seem to come to grips with the fact that the world isn’t made of people who share their hostile knee-jerk reaction to these things.
For example, there are some outstanding rating and labeling systems out there for movies and games, and those content descriptors really do give people (especially parents) a good idea of what they can expect to see, hear or play. But the existence of those ratings and labels doesn’t deter millions upon millions of people from rushing to watch or buy a controversial new movie or video game that many moral conservatives probably find offensive. Same goes for language. We can warn people nasty talk is coming, or even channel it to later hours of the day, but a lot of people will still consume it anyway. Many people probably recoiled upon first hearing a George Carlin monologue back in the 70s. But while the moral conservatives couldn’t get over it — and still enforce regulations based on one particularly famous Carlin monologue — the rest of the world moved on. In fact, in 2008, Carlin was awarded the Mark Twain Prize for American Humor as one of our country’s most revered satarists. Society evolved not just to accept, but embrace, Carlin’s wicked wit and even much of his billingsgate.
Similarly, privacy conservatives — who tend to think the multitudes share their general aversion to almost any form of data collection or commercial advertising — often seem mystified that the masses aren’t in open revolt against the likes of Facebook, Google, or online advertising networks. To hear many privacy regulatory advocates talk, you’d think online advertising innovation should have been frozen in the pop-up ad era. Some of them still can’t get over the fact that cookies weren’t regulated out of existence a decade ago. Yet, despite their fundamentalist views about privacy rights and supposed violations of those rights, progress has marched on. Privacy expectations — much like cultural / speech expectations — have evolved. New baselines have emerged. And while there’s an occasional flashpoint over something particularly inflammatory — for speech, think of the Janet Jackson incident or the Grand Theft Auto “Hot Coffee” incident; and for privacy, think Facebook Beacon and Google Buzz — the reality is that most people have adapted to technological and social change. Stated differently, regardless of what any poll or survey might suggest, citizens have generally rejected the fundamental conservatism of both the moral conservatives on content issues and the privacy conservatives on advertising / marketing issues.
Strange Bedfellow Alliances?
Are formal alliances between privacy conservatives and moral conservatives likely? I think they are possible, but highly unlikely. On occasion, some moral conservatives will reach across the aisle and work with Left-leaning groups when it works to their advantage. A prime example came back in 2003-04 during the media ownership reform debates, when social conservatives like Brent Bozell aligned the Parents Television Council with the radical regulatory group Free Press and its neo-Marxist founder Robert McChesney. Bozell’s contempt for entertainment companies was so extreme that he was willing to make peace with extremists like Free Press, who are always happy to string up the capitalists in the content community.
But that’s an unusual example. It’s unlikely we’ll see the extreme poles of moral and privacy conservatism making many alliances because they generally don’t play well together. That is, most moral conservatives don’t necessarily have a big beef with online advertisers, and few privacy conservatives care about free speech issues (and, to the extent they do care, they probably favor greater First Amendment freedoms).
However, whether they broker formal alliances or not, what should be clear is that moral conservatives and privacy conservatives are unwittingly working together as they both strive to bring greater government control to cyberspace and end evolutionary dynamism in their respective arenas.