Fear of Privacy Regulation Building

Voices raised against federal Do Not Track rules are getting louder. This wouldn't be happening if Do Not Track were a dead issue in Congress. In fact, legislators of all stripes seem to find it easy to endorse some action in favor of privacy. One data point: The Senate Judiciary Committee just formed a new subcommittee on Privacy, Technology, and the Law.

The venerable online publication, ClickZ, published an opinion piece on why Do Not Track deserves to be derailed. It is, to put it kindly, confused.

"Debate over behavioral targeting detracts attention from a far more serious threat: cyber crime." Huh? Sure, cyber-crime is important, but why does debate about any other subject detract from it? "Government cannot keep pace with technology." True, but does that mean that government should never regulate?

The piece ends with a call for more companies to appoint chief privacy officers. Fine idea, but if it's intended to foster more transparency about industry practices, it may be coming a little late in the game.

Blogger and journalism professor Jeff Jarvis recently attended back-to-back privacy conferences in New York and Victoria, British Columbia. He was alarmed to witness "scare, then sell" tactics used against social media in general, not just against the collection of behavioral data for ad targeting.

Jarvis marshals some coherent arguments in favor of "publicness." He believes that privacy already has plenty of defenders, including the more rabid fringe he saw in action, but too few speaking up for the public good of putting information about oneself out in public. Jarvis is working on a new book, Public Parts, which he says he is now "furiously editing" and "trying hard not to pit privacy and publicness against each other as they are not binary; one depends upon the other in a continuum of choices we all make."

Jarvis fears that a self-perpetuating "privacy regulatory/industrial complex" could push legislators into over-regulation, with unintended consequences including, but not limited to, a decline in advertising revenues. One way to avoid over-regulating, he believes, is to make rules about what can be done with data but not about what data can be collected: "It's illogical, indeed impossible, to tell people what they may not know; it's logical and feasible to tell them what they may not do with what they know." Whether Congress and the FTC can appreciate such nuance is an open question.

ClickZ sent the FTC some feedback last week as the public comment period on the agency's Do Not Track proposal came to a close (here is the document they submitted). The document contains a few contradictions -- unsurprisingly, as it is based on "the observations of 17 readers, contributors, and experts." For example, after warning of dire consequences to the fragile and still-developing relationship between Web users and advertisers, ClickZ's experts opine that probably not many users would avail themselves of a Do Not Track option if it were presented.

This last point echoes my own belief, which I've written about here, that Do Not Track regulation would not deal a death-blow to online advertising, depending critically on the details of such regulation -- and details, of course, are where the devil dwells.

— Keith Dawson is Senior Editor, The CMO Site.

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