In Privacy War, Consumers Are the Hostages

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“Big data” has made its way into the popular lexicon. We have seen the global fallout when massive databases are hacked or compromised, and recently witnessed the government’s authority to compel Internet companies to share or surrender their consumer data. Yet, even as new revelations unfold on the fragility and security of data, most Americans are lost in the clouds when it comes to their online personal privacy.

There is a raging war for the private data of the average consumer. On the one side are Internet companies, data aggregators, retailers and advertisers, who want unfettered access to as much personal information as possible. On the other side are a loose confederation of privacy purists, consumer activists and think tanks that want to limit or disallow commercial access to personal information altogether.

In the middle are consumers, who mostly want to keep getting as much free online stuff as possible, but who are clueless about the cost of compromised privacy. At stake are billions of dollars in advertising revenue and profits from the sale of very rich consumer data.

We live now in a world where security reigns supreme. In the 12 years since Sept. 11, 2001, most Americans have embraced the government’s right and responsibility to thwart terrorism through advanced surveillance. We also have accepted — albeit grudgingly — government’s right to collect private information on anyone, including a national registry of suspicious citizens, organizations and events. With limited constitutional restraint, the courts have balanced this power by presuming such data collection inures to the greater good.

Today, though, when it comes to the issue of privacy, the default concern should not be government intrusion. We should be less concerned with the state, and more troubled, instead, by the compilation of private information by a few big companies — “Big Brother” by another name.

The challenge for policymakers and regulators is to develop a set of rules that balance the consumer’s right to privacy against the marketer’s constitutionally protected right to commercial speech, and to determine whether corporations, like government, should have an unencumbered right to collect and store our individual personal data. When consumers blithely consent to let Google, Facebook and others collect their personally identifiable information as a condition of free and continued use, a social contract is formed and the veneer of privacy fades. There is little evidence that most Americans know the true cost or character of the private information they relinquish in an ostensibly fair exchange of data for service.

Today, privacy has moved from the notebooks of shrill consumer activists to the top of the public policy agenda. Internet companies are trying to reassure consumers that privacy is paramount, perhaps in vain. The advertising industry has launched an inchoate self-regulatory regimen to govern online behavioral advertising practices, and consumers are now empowered to search the web anonymously. For its part, Microsoft has made consumer privacy protection the default position for its search engine — a move eschewed by some of its competitors.

As a society, we have evolved to a point where erstwhile concerns of the government as Big Brother seem almost quaint. Government collection of information has been legitimized by real world terror. Thus, the true enemy to personal privacy well may be within, cloaked in the digital garb of free apps, services, email and unlimited user accounts. There, for the price of a digital check-off and a few innocuous questions, the spoils of war are gained. In the battle to preserve personal privacy, consumers remain the ultimate hostages.

Georgetown University professor Adonis Hoffman is a former congressional and Federal Communciations Commission lawyer and past senior vice president and general counsel at the American Association of Advertising Agencies.

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