Government Legislation Is Gonna Break the Internet!

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And here I thought passing an online privacy bill would be a cinch for the U.S. Congress — an easy win during a difficult legislative period. But Talking Points Memo reports that the hearings of the Senate Commerce Committee’s Consumer Protection, Product Safety, and Insurance subcommittee on the seemingly infinite number of online privacy proposals was pretty contentious.

In particular, Senator Pat Toomey (R-Penn.), ranking member of the subcommittee, commented that the current proposals are “solution[s] in search of a problem” and that cracking down on tracking companies might “break the Internet.” If former senator Ted Stevens were alive, he’d scream, “Don’t clog the tubes!

Somebody in the industry must have lined Toomey’s pockets pretty sweetly, although this hard line sticks with the typical Republican laissez faire business policy. However, it seemed that because online behavioral advertising companies don’t have the lobbyist clout of other bigger industries and their business makes a lot of voters paranoid, every elected government official was trying to get a piece of the popular online privacy legislation pie.

Then again Toomey is no big fish — the junior senator and former congressman from Pennsylvania beat out Joe Sestak for the seat in 2010, who himself topped party-switching incumbent Arlen Specter for the Democratic nomination. Toomey has been a senator for less than half a year — still, his bold talk grabbed him headlines, and further illuminated that few people serving in office down in DC know what the hell they’re talking about.

Senator John Kerry (D-Mass.), who is sponsoring one of the data privacy proposals, and Federal Trade Commissioner Julie Brill vehemently disagreed with Toomey, with Brill adding that such legislation’s main purpose was to ensure transparency in the online targeting process and offer consumers a means to control the sharing of their data.

This is the same Brill who said the FTC would not recommend legislation or added regulation around behavioral targeting in favor of industry self-regulation before the agency’s report came out and the “Do Not Track” option caught the media’s attention. Brill has rightly said since that DNT was only one of many suggestions.

Any online privacy legislation should be about creating baseline rules and procedures for collecting and using online consumer data, something many behavioral advertising companies can get behind — just look at all the tech companies serving Forward I icons.

The question is who enforces the law — who punishes targeting companies caught non-complying and how? Consider the  FTC’s recent crackdown on flogs and farticles — i.e., fake news articles that designed to hock stuff. AdAge recently reported to no one’s surprise that ads for flogs and farticles are still everywhere, still appearing on major publications, still running on major networks. Industry compliance efforts sound less harsh than a slap on the wrist.

So once again, we’re left with a lot of tough talk and no bite. But isn’t that SOP for Washington anyway?

Of course, we could flip the current opt-out status quo for behavioral advertising on its head and incorporate an opt-in method, as Internet mainstay Esther Dyson and others keep suggesting. Such a method would encourage transparency, enable consumer data management and allow consumers to profit from sharing their data. You’d still need someone to regulate, however — shall we assemble the data leakage police?

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