Congress Should Reject Privacy-Killing Do Not Track Mandate

by on March 16, 2011 · 3 comments

Today, the U.S. Senate Commerce Committee held a hearing on “The State of Online Consumer Privacy.”

The push for online privacy regulation has real momentum, as proposed privacy legislation from numerous lawmakers, a Department of Commerce report proposing a compulsory Do Not Track mechanism to regulate business marketing practices, and the Obama Administration’s proposed “Privacy Bill of Rights” all indicate.

However, Congress should be very wary of such proposals. A politically defined Do Not Track regime risks undermining targeted advertising, impeding business transactions that occur between strangers, and stifling mobile ecosystems that are barely out of the cradle. Rattling consumers needlessly by encouraging them to opt-out of largely beneficial information collection is an especially unwise idea in our uncertain economic climate – especially when major industry participants are developing such mechanisms on their own.

The opportunity to undermine online marketing – wrongly called “surveillance” – appeals to some, but such privacy purists have no right to call the shots for anyone but themselves and those who agree with them. The right to use information acquired through voluntary transactions is no less important than the right to decide whether to disclose information in the first place.

Competitive pressures to secure our personal information include rivals who promise more security, capital markets and business partners (like upstream suppliers and downstream customers who demand information security as a condition of doing business). Like all other technologies, privacy-enhancing services – from consulting to liability insurance to network monitoring – benefit from competition. Contracts to surf anonymously while paying a nominal fee to an ISP, a notion noted recently in a Wall Street Journal piece, are merely one example of such market innovations.

In light of such pressures, the term “self-regulation”—heard often in hearings such as today’s—is a misnomer: no business has that luxury in free enterprise.

Market participants will make mistakes, but these pale in comparison to the mistakes made by government. Privacy regulation will grow so entrenched that it will preclude superior alternatives as it distorts the evolution of the digital marketplace. Attempts by politicians to define privacy are a dangerous business.

In this era of TSA body imaging, mass surveillance, the push for National ID, and ill-defined protections from governmental access to our mobile devices and cloud-stored data, what we really need isn’t for Washington to try and protect our privacy—we need Washington to allow it.

Rather than Do Not Track, a “Do Not Regulate” stance remains appropriate, for the sake of improved privacy.

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