Magazine article Information Today

The Online Privacy Debate: How to Get to 'No'

Magazine article Information Today

The Online Privacy Debate: How to Get to 'No'

Article excerpt

As with many legal, political, and social issues of our time, questions concerning consumers' rights to online privacy evade clear-cut resolution. Within Congress, within the administrative agencies that oversee privacy laws, within the industry, and even within the minds of consumers, there are far more questions than answers, and the struggles continue to determine how and even if online privacy rights can be protected.

The debate is not new, and the contrasting positions are fairly well-defined. On the side of privacy rights, the position seems to advocate strong consumer choice about whether people would want their information to be tracked or gathered, which is an opt-in standard that requires consumer approval before information could be tracked or gathered, control over how personal information can be used once it is obtained, and the ability to correct or delete information that has been gathered.

Privacy Versus Marketing

The other side of the issue involves marketing rights, which is the position advocating that consumer information is a commodity with value, that information can be sold and transferred as any commodity to others who can effectively use it, that consumers benefit from targeted marketing resulting from the gathering and tracking of information, that consumers can choose to opt out of having their information tracked if they wish, and that new restrictions and regulations would stifle internet innovation and services that are often dependent on marketing and advertising.

Underlying this debate are technologies used to gather and track this information. These constantly evolving technologies have increased the amount of information gathered and tracked and have the ability to make it more challenging for consumers; they need to determine what information about them is being gathered and to take steps to restrict information-gathering activities. A recent study by the Bureau of National Affairs (BNA) identified several technologies, including Flash cookies, cache cookies, and HTML5 local storage as the current technologies of choice for information gathering. The study noted that all three of these technologies were "more persistent" than the more widely recognized HTTP cookies, either by being well-hidden in the user's computer system or by being able to "respawn" after being deleted.

Laws That Attempt to Regulate

Also underlying this debate are laws that attempt to regulate the gathering and use of consumer information. Most of these laws seem to fall into two types. The first of these laws include broader and more general statutes such as the Electronic Communications Privacy Act (ECPA) and the Computer Fraud and Abuse Act. General statutes often struggle to target specific and rapidly changing technologies that impact online privacy. For example, the ECPA was originally oriented around phone wiretapping and later expanded to online communications, mainly email.

The second type of laws are statutes that target a particular type of information, such as the Video Privacy Protection Act, the Children's Online Privacy Protection Act (COPPA), and the Gramm-Leach-Bliley Act (financial data). These acts can be effective in their limited niches, but they can't be used to target activities outside their parameters.

Congress and the Federal Trade Commission (FTC), the agency usually charged with enforcing consumer privacy laws, have been debating how (and even whether) to address these developments through creating new statutes or regulations or modifying existing statutes or regulations. …

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