As we rush headlong into a new but uncertain age of creativity and innovation, it is becoming increasingly clear that in our zeal to promote the marvels of the Internet, we may be seriously eroding the fundamental rights of the average citizen and consumer.
In early November, The New York Times reported that "privacy advocates are pushing" for rules "that would let Internet users tell websites to stop surreptitiously tracking their online habits and collecting clues about age, salary, health, location and leisure activities" and that, the "Stage (is) Set for (a) Showdown on Online Privacy."
At stake is much more than merely occasional abuses of our more traditional concept of privacy (i.e., the right to protect confidential personal information from disclosure). Rather our more fundamental, constitutional right to be left alone—the right to pursue life, liberty and happiness without unwarranted scrutiny, physical or electronic invasion, is being assaulted by the proliferation of surreptitious data gathering on the Internet.
The concept of the right to be left alone dates to a 1928 Supreme Court wiretapping decision called Olmstead vs. the United States in which the Supreme Court Justice Louis Brandeis said "the right to be let alone—(is) the most comprehensive of rights and the right most valued by civilized men."
As Justice Brandeis predicted, "ways may someday be developed by which the government without removing papers from secret drawers can reproduce them in court and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions."
Today, given the pervasive influence of the Internet, unscrupulous agents either of government or commerce, can tell where your mouse sits on your desktop, what sites you visit and for how long, and can track your movement from one website to another. As more and more of our daily activities for work, for play and everyday living involve the use of this new network of networks, every aspect of our lives is suddenly open to surveillance and the misappropriation and misuse of personal information, including our habits and by extension our innermost thoughts.
What is different now is that information of all kinds is becoming increasingly available to commercial enterprises in their relentless search for markets, and to governments to satisfy their thirst for personal information, all at the risk of undermining our fundamental rights.
Within the last few years, the Federal Trade Commission expressed its concern about a company called DoubleClick, now owned by Google. DoubleClick is one of several hot new Internet firms specializing in helping e-commerce companies determine who has been visiting their sites. DoubleClick is a specialist in the "cookie" business.
In computer parlance, a "cookie" represents a line of computer code that is placed on the files of hard drives of every Internet user visiting a particular site. Once placed, the cookies follow the user every time he or she visits the site and other sites. Most users accept cookies believing they are annoying but harmless and not in any way linked to their personal identities.
However, when DoubleClick bought another firm called "Abacus Direct," a database that compiles the names, addresses and buying habits of millions of individuals, the fear was that the viewing and buying habits of consumers would be combined, thus linking individual names and addresses with all their online and offline purchasing and viewing behaviors. Suddenly, Internet users lost their anonymity.
For example, if you seem to be getting an unusual number of electronic ads from weight loss firms, maybe you visited food.com once too often or just ordered a subscription to "Cooking Light." If you visit an "adult" talk or chat room, you may find yourself inundated with invitations to visit any number of more salacious porn sites.
But this is only the tip of the iceberg.
We have no legislation today to deal with the proliferation of health care or medical information, or credit or financial information available on the web. There are no standards of fair practice for use of the information collected. Consumers have no right to know who is collecting personal information about them, nor what information is collected or how it is being used.
President Barack Obama has indicated a comprehensive plan will be announced soon, but many fear a compromise with corporate America as the plan was put together by the Commerce Department. Let us see the president's plan of course.
But we should hold firm. We should insist that the Federal Trade Commission, which has the lead in the privacy area, adopt tough rules that, at minimum, provide:
- notification about the use of personal data;
- consumer choices about the use of such information;
- the right to review data about themselves;
- security measures to prevent unauthorized disclosure;
- and importantly, rules that let people opt out of online tracking similar to the "do not call" laws enacted a few years ago.
This fight will not be easy. But it is well past time we act. Protecting personal privacy in the age of the Internet has grown to Frankenstein proportions.
It would be ironic and sad if the same constitution which created a free press and a free enterprise system enabling the robust knowledge economy we now admire, was somehow responsible for the massive loss of personal privacy we are witnessing—and with it a demise of more fundamental freedoms of our democratic society.
Eger is the Van Deerlin Endowed Chair of Communications and Public Policy at San Diego State University and director of the Creative Economy Initiative.
This opinion piece was originally published in the Huffington Post on Nov. 24, 2010. Editorial disclaimer: The opinions and views expressed above do not necessarily reflect those of San Diego State University or SDSU NewsCenter.