Privacy & The Internet: An Overview of Key Issues

Adam ThiererSenior Research FellowMercatus Center at George Mason University

May 19, 2011

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Outline of Presentation

1) What do we mean by “privacy?2) Different approaches to defining / protecting

it3) Trade-offs associated with privacy regulation4) The challenge of information control5) Specific regulatory proposals6) An alternative vision / the “3-E Solution”

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What is Privacy?• Privacy is a remarkably vague concept• Means different things to different people• Varies by cultures • An ever-changing concept• Reacts to evolving social norms & technological

change• If it is a “right,” we must determine how it plays

alongside other, well-established rights (ex: freedom of speech & press freedoms)

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Privacy’s Fuzzy Concepts• “Harm”

– How do we define and measure “harm”? – Is “creepiness” a harm?– Should “emotional harms” (feelings) be actionable?

• “Ownership”– Who owns shared data?– What is personally identifying information?

• “Informed Consent”– Are strict contracts possible?

• “Sensitive Data” – Health, financial, what else?

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Alan Westin’s 3 Visions / Paradigms

1. “Privacy Fundamentalists”: Absolutists about privacy being a “right” & one that trumps most other values / considerations

2. “Privacy Pragmatists”: Values privacy to some extent but also sees benefits of information sharing

3. “Privacy Unconcerned”: Have little concern about who knows what about them

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How to Enforce / Protect Privacy?(U.S. vs. E.U. Visions)

United States• Privacy not viewed as a

fundamental right• Issue-specific / Sectoral approach• Bottom-up case law / torts• States have role; often more

stringent than fed law• More focus on “opt-out”• “Big Brother” generally = govt• = a reactive regime

European Union• Privacy viewed as a

fundamental “dignity” right• Broad-based approach• Top-down “directives”• More focus on “opt-in”• “Big Brother” = private

sector as much as govt• = a preemptive regime

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The U.S. Sectoral / Issue-Specific Approach to Privacy Law

• Privacy Act (1974) = govt data collection• FERPA (1974) = fed-funded education institutions• Cable Comm. Policy Act (1984) = cable data• Video Privacy Prot. Act (1988) = video rental records• Driver’s Privacy Prot. Act (1994) = DMV records• HIPPA (1996) = health records• Gramm-Leach-Bliley (1999) = financial records• COPPA (1998) = kids’ (under 13) online privacy• CAN-SPAM Act (1993)• Do Not Call registry (2003)

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The Battle over Online Privacy• Policy battle has been raging since late 1990s• FTC & Congress appeared poised to act

around 2000, but...– Industry self-regulation was given a chance – 9/11 preempted this debate to some extent

• Framework for past decade:– Focus on Notice / Choice / Access / Security– Rise of self-regulatory bodies & mechanisms– Targeted FTC & state enforcement

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New Fault Lines in the Online Privacy Wars (and the legislative response)

• New activity driven by: – Fears of “targeting” & “tracking” = “creepy” factor– General unease with ubiquity of data access & availability

Proposals:• “Baseline legislation” / FIPPS (Kerry-McCain, Rush, Stearns)• “Do Not Track” mechanism + regulation (Speier & Rockefeller bills)• “Do Not Track Kids” / COPPA expansion (Markey-Barton)• Internet “Eraser Button” (Markey-Barton)• Geolocation restrictions (Markey-Barton)• Data breach disclosure (Kerry-McCain)• Data minimization requirements (Kerry-McCain, Rush)• ECPA vs. Data retention laws

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Privacy Trade-Offs & Opportunity Costs• Internet feels like the ultimate “free lunch;” most sites,

services & content are free of charge.• But, in reality, there is no free lunch.• The implicit quid pro quo of online life: you gotta give a little

to get a little (or a lot!). And most people like this deal.• The Net is powered by advertising & data collection.

Information is lifeblood of Digital Economy.• Info may be collected to facilitate a better browsing

experience or to help the site or service remain viable. • In essence, information used in lieu of payment.• Regulation could break this system & have other unintended

consequences.

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The Problem of Information Control

Even if we agree privacy is important and worth protecting, it will be very hard.

• “Information wants to be free” - Stewart Brand – and that includes personal information

• “The Net interprets censorship as damage and routes around it.” - John Gilmore– and privacy regulation is, at root, a form of data flow

censorship

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10 Factors That Complicate Information Control Efforts

Drivers ResultsDigitization Convergence

Intangibility Decentralized, Distributed Networking

Moore’s Law Scale & ScopeFalling Storage Costs Volume

Ubiquitous High-Speed Networks

User-Generation of Content and Self-Revelation of Data

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Some Facts (or ‘Why Putting Genies Back in Bottles is So Hard’)

• Facebook: users submit @ 650,000 comments on the 100 million pieces of content served up every minute on its site.

• YouTube: over 35 hours of video uploaded every minute. • Twitter: 300 million users produce 140 million Tweets / day, =

a billion Tweets every 8 days. (@ 1,600 per second)• Apple: more than three billion apps have been downloaded

from its App Store by customers in over 77 countries.“Humankind shared 65 exabytes of information in 2007,

the equivalent of every person in the world sending out the contents of six newspapers every day.” - Hilbert and Lopez

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“The Privacy Paradox”• “People value their privacy, but then go out of

their way to give it up.” – Larry Downes, Laws of Disruption

• “We give away information about ourselves—voluntarily leave visible footprints of our daily lives—because we judge, perhaps without thinking about it very much, that the benefits outweigh the costs. To be sure, the benefits are many.” – Abelson, Ledeen & Lewis, Blown to Bits

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What We Must Learn to Accept• “Once information is out there, it is very hard to keep

track of who has it and what he has done with it.” --David Friedman, Future Imperfect

• Privacy is not “dead” as some have claimed, but it is different than it was in past– New realities of info dissemination, accessibility,

searchability

• Rushed, heavy-handed solutions will be costly and perhaps not effective anyway

Policy Responses(and their problems)

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“Do Not Track” – The Theory

• Could be voluntary, but might be mandated. • Would demand that websites honor a

machine-readable header indicating that the user did not want to be “tracked.”

• In theory, this will allow privacy-sensitive web surfers to signal to websites they would like to opt-out of any targeted advertising, or not have any information about them collected when visiting sites.

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“Do Not Track” – Potential Downsides• Costs: If law breaks the quid pro quo something must give…

– Paywalls and higher prices? – less relevant or more intrusive advertising?– Fewer services? Less media content?

• Int’l Competitiveness: Goldfarb & Tucker - “after the [EU’s] Privacy Directive was passed [in 2002], advertising effectiveness decreased on average by around 65 % in Europe.” Because regulation decreases ad effectiveness, “this may change the number and types of businesses sustained by the advertising-supporting Internet.”

• Practical? Does DNT scale? Apply internationally? To other devices?• Regulatory creep: Will it serve as a template for other forms of Net

regulation?

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COPPA Expansion – Background

• Special concerns about youth & online marketing

• COPPA (‘98) was first attempt to deal with it• Requires “verifiable parental consent” for sites

“directed at” children that collect info• FTC defines rules (safe harbors) and enforces• Never constitutionally challenged

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COPPA Expansion – Potential Problems

• What works for under 13 not likely to work for teens

• Would basically require mandatory age verification of all web surfers

• COPPA becomes COPA? = unconstitutional• Serious free speech issues• Irony = in name of protecting privacy, more info

about users would need to be collected!

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Internet “Eraser Button” Concept

• Goal: Make it easier for people (esp. kids) to delete posted comments or content they later regret

• Practical Problem: Where is this button? Who controls it? What if info is shared content? Back-door to fraud / abuse?

• Principled Problem: Conflicts mightily with freedom of speech & press freedoms

A Different Visionfor Privacy Protection

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The Conflict of Visions:Anticipatory Regulation vs. Resiliency

• Long-standing conflict of visions about how to best manage risks:

1. Anticipation – Prevention is prime value– Focus on the “Precautionary Principle”

2. Resiliency– Experimentation is prime value– Focus on Learning / Coping

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Anticipatory vs. Resiliency-Based Solutions

Anticipatory Reg Approach• Mandatory “Do Not Track” • Mandatory “Opt-In” for all

data collection• Bans on apps / functionality• Restrictions on sharing / all

defaults to private• “Eraser Button” mandates /

demands for data deletion

Resiliency Approach• Voluntary “Do Not Track”• Offer opt-outs (encourages

experimentation & innovation)• No preemptive bans on tech• No restrictions on sharing, but

education about downsides• Voluntary data “purges” &

“data hygiene”

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Constructive Alternatives to Regulation1. Be careful @ how “harm” & “market failure” defined.

(ex: Creepiness not a likely harm; data breech likely a harm)

2. Focus on a “3-E Solution” to problems: Education, Empowerment, & (Targeted) Enforcement

3. Encourage corporate and personal responsibility4. Think of privacy as an evolving set of norms,

interactions & experiments5. Don’t Panic! We can learn to cope with technological

change.

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The “3-E Solution”

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#1: Educational Solutions• Education at all levels• Awareness campaigns from privacy advocates,

govt, industry, educators, etc.• Encouraging better online “netiquette” and

“data hygiene” • Push for better transparency across the board

– Better notice & labeling – Need more watch-dogging of privacy promises

made by companies

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#2: Empowerment Solutions

• = Helping users help themselves• User “self-help” tools are multiplying

– AdBlockPlus, NoScript, other browser tools• Industry self-regulation

– More cross-industry collaboration on privacy programs – More education efforts (better notice)– Best practices & better defaults– More and better tools to respond to new

developments and needs

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#3: Enforcement Solutions

• Holding companies to the promises they make – stepped-up FTC Sec. 5 enforcement

• Demand better notice & transparency• Mandatory disclosure of data breaches• Targeted regulation of sensitive data, but with

flexibility

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Conclusion / Key Takeaways• “Privacy” is incredibly complicated & contentious• Privacy can conflict with other values / rights• All regulation entails costs & trade-offs• There is no free lunch• Information control is very, very hard• “Silver-bullet” solutions rarely work• The more education & transparency the better• Resiliency is generally a smarter strategy compared to

anticipatory, top-down regulation• And, once more… don’t panic! We’ll get through and adjust.

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Further Readings• Adam Thierer, Filing to Federal Trade Commission in ‘Do Not Track’ Proceeding

, February 18, 2011.• Adam Thierer, “Birth of the ‘Privacy Tax,’” Forbes, April 4, 2011.• Adam Thierer, “

Online Privacy Regulation: Likely More Complicated (And Costly) Than Imagined,” Mercatus on Policy, Mercatus Center at George Mason University, December 6, 2010 .

• Adam Thierer, “Erasing Our Past on the Internet,” Forbes, April 17, 2011.• Adam Thierer, “

Unappreciated Benefits of Advertising and Commercial Speech,” Mercatus on Point 86, Mercatus Center, January 2011.

• Berin Szoka and Adam Thierer, “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech,” Progress on Point 16, no.11, The Progress & Freedom Foundation, May 21, 2009.