Today I filed roughly 30 pages worth of comments with the Federal Trade Commission (FTC) in its proceeding on “Protecting Consumer Privacy in an Era of Rapid Change: a Proposed Framework for Businesses and Policy Makers.” [Other comments filed in the proceeding can be found here.] Down below, I’ve attached the Table of Contents from my filing so you can see the major themes I’ve addressed, and I’ve also attached the entire document in a Scribd reader. In coming days and weeks, I’ll be expanding upon some of these themes in follow-up essays.
In my filing, I argue that while it remains impossible to predict with precision the impact a new privacy regulatory regime will have the Internet economy and digital consumers, regulation will have consequences; of that much we can be certain. As the FTC and other policy makers move forward with proposals to expand regulation in this regard, it is vital that the surreal “something-for-nothing” quality of current privacy debate cease. Those who criticize data collection or online advertising and call for expanded regulation should be required to provide a strict cost-benefit analysis of the restrictions they would impose upon America’s vibrant digital marketplace.
In particular, it should be clear that the debate over Do Not Track and online advertising regulation is fundamentally tied up with the future of online content, culture, and services. Thus, regulatory advocates must explain how the content and services supported currently by advertising and marketing will be sustained if current online data collection and ad targeting techniques are restricted.
The possibility of regulation also retarding vigorous marketplace competition—especially new innovations and entry—is also very real. Consequently, the Commission bears the heavy burden of explaining how such results would be consistent with its long-standing mission to protect consumer welfare and promote competition. Importantly, the “harm” that critics claim online advertising or data collection efforts gives rise to must be shown to be concrete, not merely conjectural. Too much is at stake to allow otherwise.
Finally, as it pertains to solutions for those who remain sensitive about their privacy online, education and empowerment should trump regulation. Regulation would potentially destroy innovation in this space by substituting a government-approved, “one-size-fits-all” standard for the “let-a-thousand-flowers-bloom” approach, which offers diverse tools for a diverse citizenry. Consumers can and will adapt to changing privacy norms and expectations, but the Commission should not seek to plan that evolutionary process from above.
Download my comments here or just scroll down and read them below.
II. No Showing of Harm or Market Failure Has Been Made
- How Do We Conduct Cost-Benefit Analysis When “Creepiness” Is the Alleged Harm?
- Privacy Regulation & the Precautionary Principle.
- On “Informed Consent” & Information as Currency
- On “Commonly Accepted Practices”
- The Mythical Harm of Consumer “Walk Aways”
III. Privacy Regulation Is an Information Control Regime That Faces Formidable Enforcement Challenges
- Media & Technological Convergence
- Decentralized, Distributed Networking
- Unprecedented Scale of Networked Communications
- Explosion of the Overall Volume of Information
- Unprecedented Individual Information Sharing Through User-Generation of Content and Self-Revelation of Data
IV. The Commission’s Proposed “Do Not Track” Regime Creates Potential Risks to Consumers, Culture, Competition, and Global Competitiveness
- Potential Direct Cost to Consumers
- Potential Indirect Costs / Impact on Content & Culture
- Competition & Market Structure
- International Competitiveness
- “Silver-Bullet” Solutions Rarely Adapt or Scale Well
- Implications of This New Regime in Other Contexts
V. Privacy Regulation Raises Serious Free Speech & Press Freedom Issues
VI. Better, Less-Restrictive Solutions Exist to Privacy-Related Concerns
- Education, Empowerment & Self-Regulation
- Simplified” Privacy Policies, Enhanced Notice & “Privacy by Design”
- Increased Sec. 5 Enforcement, Targeted Statutes & the Common Law