An obsolete privacy law

Scott Cleland Contributor
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Who controls you? Should you be in control of your privacy or should those who take your private information without your permission? That’s the central consumer privacy question facing Congress this session.

Both Judiciary Committee Chairmen from the Senate and the House understand the importance of modernizing privacy legislation, because they recently have agreed to work on a complete overhaul of the Electronic Communications Privacy Act (ECPA).

Chairmen Leahy and Goodlatte know that existing Federal privacy laws (that pre-date the Internet era) assume an individual’s right to privacy, and to substantial control over how his/her private information is used. They also assume that government needs probable cause and a warrant before intruding upon Americans’ right to privacy.

The Constitution and common law have long recognized that individuals have a natural right, an expected zone of privacy and personal space that is like property or a property boundary, which others cannot reasonably intrude, disturb or take from them without their clear permission or due process.

Protecting a person’s privacy is also as critical to one’s safety, dignity and identity as is protecting a person’s property. With no privacy, one is de-humanized like an animal in a zoo and much more susceptible to the control of others.

The natural rights to privacy and property undergird the Declaration of Independence’s “unalienable Rights” of “Life, Liberty and the pursuit of Happiness” and are also a critical defense from the potential for Government tyranny.

The Judiciary Chairman also appreciate that digital and Internet technologies have unilaterally torn down traditional privacy boundaries because of the exceptional ease, efficiency, stealth and negligible cost inherent in Internet tracking, surveillance, profiling and targeting.

In this instance, technological innovation has not improved upon privacy protections but largely obliterated them. Thus, the accustomed freedom to be secure in one’s home and personal space from the permission-less intrusion or takings of others, has been replaced by the “Internet freedom” to do to others what one doesn’t want done to oneself.

U.S. privacy law is so obsolete that there is not even a requirement that online entities — which collect your private information and movements without your knowledge or permission — have a public privacy policy. For privacy the Internet is still the Wild West, with no baseline principles or expectations of privacy. Thus, bad actors can get away with worst privacy practices with impunity.

U.S. privacy law is also obsolete because the technologies and technology applications it originally was based upon are obsolete. What’s needed is a consumer-driven, technology/competition-neutral privacy framework, not the Internet’s current default ‘Finders Keepers Losers Weepers,’ no-privacy framework. Predictably, any technology-dependent privacy policy will become obsolete along with the technology.

In sum, America’s obsolete privacy law over-empowers government and Internet businesses and under-empowers consumers. This is the result of consumer privacy interests being politically diffuse, disorganized, and in the dark, and Big Internet’s online advertising interests being politically powerful, well organized, and in the know.

Right now online consumers are neither empowered nor in control of their own privacy or private information. Online for all intents and purposes they are treated like serfs with no natural rights to privacy or private property. Sadly, “Internet freedom” has too often become taking from others without their permission.

How will we know if new privacy legislation is good for consumers? Simply, the fox will no longer be guarding the chicken coop.

Scott Cleland is President of Precursor LLC, a consultancy serving Fortune 500 clients, some of which are Google competitors; and he is Chairman of Netcompetition.org, a pro-competition e-forum supported by broadband interests.