It is easy to argue that consumers make bad choices when it comes to privacy. But is that reason to strip them of authority over their privacy? A recent privacy panel suggested that the answer, for some, is yes. Considering the values at stake in privacy debates, I think it would be inadvisable to hand privacy protection to politicians and regulators.
For some 50 years, the privacy debate in the regulatory arena has been dominated by the concept of “fair information practices,” or FIPs. Inspired in the early 1970s by fair labor practices, various renditions of FIPs include giving people notice of collection and use of personal information (i.e. privacy policies), ensuring that data are accurate enough for the purposes to which they will be put, limiting retention of data, and so on.
FIPs vacillate between embracing consumer choice on the one hand and prescription on the other. Publication of privacy policies, for example, is meant to position consumers to decide whether to proceed with a transaction or relationship. The minimal collection and limited retention FIPs say data controllers should collect as little data as possible, then keep it as briefly as needed. That would prevent a consumer from making an open-ended grant of personal information should they be indifferent, generous, or interested in what innovative and beneficial uses businesses or governments may make of personal information. (There are a lot of such folks. We just don’t hear much from them because they’re indifferent.)
A move away from consumer choice may be afoot so that privacy and related values are protected —and necessarily, I think, defined — through government regulation. Last week, the advocacy group Public Knowledge held an event titled “How Do We Move Beyond Consent Models in Privacy Legislation?” In the program, Sen. Sherrod Brown (D-OH) discussed his proposal for federal privacy legislation, and a panel assessed the many interesting issues raised by the idea that consumer interests should be discovered and pursued substantially through political and regulatory processes.
“We need to lay out a vision for the kind of society we want to live in,” said Brown, “before Mark Zuckerberg and other CEOs that no one elected makes that decision for us.”
I think Sen. Brown mischaracterizes the power dynamics that exist when a company becomes large. I would be CEO of a large and beneficent multibillion dollar company myself, but I failed to knit together a product that satisfied any recognizable consumer interest. (That link resolving to nothing is the joke.)
But I think I understand the constraints that some consumers and many advocates feel when it comes to network products and services such as social media. In serving the largest segment of the public that they can, such companies come up with products that serve most people’s apparent wants. Privacy policies and practices do what ordinary people want, not what digital sophisticates, advocates, and tech policymakers want. The latter see this as power in the hands of the corporations, adamantly refusing to serve them. It is really power in the hands of the great unwashed, whose tastes and preferences are —as they must be in the numbers game of social networks — distinctly average.
Would it be preferable to replace the privacy practices
arrived at through the “coercion” of winner-take-all networks with privacy
practices installed by true coercion? The proponents of this approach believe —
sincerely, no doubt — that political choice will reach “truer” outcomes. But I
don’t think that’s correct.
President Donald Trump powerfully illustrates the break between the theory of good democratic outcomes and the actual practice of democracy. Public choice economics suggests that political and regulatory processes won’t promote what consumers “truly” want as much as the wants of concentrated interests such as corporations and law enforcement. The best source of information on consumer welfare is consumer choice.
Consumers often trade privacy for other goods. You have to believe in disempowering them to believe in protecting them from their choices. Contra Sen. Brown, I don’t see giving decisions on how our society unfolds over to government bodies that, sincere as the people within them are, don’t know any better than the rest of us how this is all supposed to come out.