Congress is now on the hook to modernize privacy legislation.
The World Wide Web Consortium’s (WC3) two-year effort to broker a privacy compromise on whether or not a user can opt out of being tracked on the Internet has collapsed. It is now up to Congress to restore Americans’ rightful privacy ownership.
We own our privacy.
Privacy is personal. Your privacy is your private property. Taking it without your knowledge or reasonable permission is privacy theft.
Your privacy is integral to your personal liberty, opportunity, identity, dignity, and security.
With privacy you have some personal control over your life. Without privacy you can’t protect yourself; you are at the mercy of those who have taken it without your permission.
In the not too distant past, people enjoyed substantial privacy because practically it was inefficient, difficult, and expensive to collect, store, and disseminate private information. In stark contrast, Internet technology now makes it hyper-efficient, easy and near-free incrementally to collect, store, and disseminate private information.
As we have learned, Internet technology can serve as a universal tracking and recording device, copy machine, and surveillance system for those who want it to serve those functions.
Over time many have used new technologies to practically obliterate the line between what information is private or public in our society. And in the absence of modern privacy laws, many have thumbed their noses at societal expectations of privacy or individuals’ need for privacy to protect themselves and their loved ones from harm.
Many have declared privacy dead and urged people to just get over it. They preach “innovation without permission,” and technological determinism, which means that if a technology can do something beneficial, it should be done, regardless of its costs or risks to others.
To date, those that benefit from taking people’s private information without permission have prevailed over those who suffer from the cost of it being taken.
In the realm of online privacy, the balance of America’s social contract has crumbled; Government no longer adequately protects its citizens online. In its ruins, the few increasingly are imposing a form of anarchy and law of the jungle on the many — which no free people can tolerate for long, if they want to remain free.
Through benign neglect, Congress has abandoned Americans’ right to privacy online.
Congress needs to restore Americans’ rightful privacy ownership by modernizing privacy protections for the 21st century, to provide Americans some reasonable control over their private information, regardless of what technology they are using.
Americans’ privacy ownership offline is long established. The Fourth Amendment of the U.S. Constitution presumes privacy ownership: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
And for decades, federal laws have specifically protected Americans’ medical, financial, educational, and communications privacy from being taken by others without permission.
Obviously information is not all private or all public. There must be a reasonable balance between the two extremes. Under our Constitution, it is our elected representatives who must strike that balance via passage of legislation, not government agencies or private actors with anti-privacy interests.
Congress needs to draw the reasonable line between what is private and public information for the 21st century. Congress balances competing rights, priorities, and goals all the time in legislation.
In time, Congress will restore Americans’ rightful privacy ownership and put Americans more in charge of how their private information is protected or used in the future.
The no-expectation-of-privacy status quo will not stand long term, because it is wrong on multiple levels.
First, Americans have a constitutional right to privacy.
Second, most every poll shows that the vast majority of Americans want their privacy protected online, and that they do not want to be tracked.
Third, a lack of privacy prevents people from protecting themselves and their loved ones from danger and harm.
Finally, our Founding Fathers taught us that no-expectation-of-privacy is a recipe for tyranny.
In sum, Americans own their privacy and it has been surreptitiously taken from them without their reasonable consent.
Americans want their privacy back.
Congress needs to end its benign neglect of privacy protections and legislate to restore Americans’ rightful privacy ownership.
Scott Cleland is President of Precursor LLC, a research consultancy for Fortune 500 companies and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration.