An Indecent Proposal: How Congress Wants to Protect Your Internet Privacy
Impractical Legislation
In the weeks since it was announced, Rep. Markey’s bill has seen a flurry of criticism. While some online marketers are fearful about what the bill forecasts for the future of their industry, after careful review most predict that it would fall flatly ineffective if passed. The reason: the wording of the bill at its most crucial juncture, when it defines what data must be deleted and after what duration, is so elastically constructed that it will inevitably lead to loopholes.
According to the bill, what must be destroyed is “Any data containing personal information if the information is no longer necessary for the purpose for which it was collected or any other legitimate business purpose.” Sen. Markey surprisingly does not go on to define what a “legitimate business purpose” is. This exemption holds up a green light to any marketer looking to hold on to their valuable, massive stores of personal data. All they would have to do is set up some plan for eventually using it, and they would be clear of all illegality. Maybe they will enter your name and information into a contest to take place in the year 2050. Maybe they will enter you into a “mailing list” which conveniently never sends you anything. If I can come up with a couple of creative ways around this law just by brainstorming by myself, imagine what ingenuity marketers will pour into thinking up these types of loopholes.
Past, Present, and Future of Internet Privacy
Around eight years ago, when we began to learn about cookies and the various technological fingerprints we were leaving all over the Internet, there was widespread public alarm. We demanded answers: Were we being spied on? Yes, we learned, we were. But generally, it was not for malicious purposes. No one wanted to infiltrate our secret plans or sabotage our water supply or plan a kidnapping of our children. The spies were just smart online businesses, implementing cutting edge marketing technologies to effectively sell their product or service. Gradually, we got comfortable with this idea, and we began to willingly offer more and more information about ourselves to this public sphere.
Unfortunately, we too often forget to go back and ask the questions that caused our alarm in the first place: What information are businesses collecting from us? What specific purpose does this data serve their business? How long will they continue to use our information? If individuals and businesses fall asleep and forget to ask themselves these questions, they open the door for people who really do want personal data for malicious purposes.
While it raises a relevant issue for our time, “Eliminate Warehousing of Consumer Internet Data Act of 2006″ is completely ineffective at addressing the heart of the problem. As Markham Erickson, Director of Federal Policy and Associate General Counsel at NetCoalition told ADOTAS in a recent interview, “This bill tries to protect privacy by eliminating information. It’s not the information itself that’s the problem; it’s how the information is lost.” Instead of thinking up clever legislative attacks upon website operators (which, ahem, happen to be proposed during a relevant election year), we should be engineering more advanced encryption technology and developing more reliable ways to elucidate fraudsters and hackers for what they are.
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