I. INTRODUCTION

II. EXEMPLARY PRIVACY OPTIONS FOR GOVERNING USE OF INFORMATION

III. IMPLEMENTATION OF THE “OPT-IN” SYSTEM

IV. CONCLUSION

A Proposal for the Regulation of the Gathering and Use of Internet Activity Information by Private Entities

-- By BrettJohnson - 11 Nov 2009

I. INTRODUCTION

The use of personal information gathered from the internet (referring only to internet information that is not publicly available—publicly posted non-anonymous information is not private and is free for the taking as is public information in any other context) for marketing and sales purposes touches on all three components of privacy discussed in class: (1) secrecy, (2) anonymity, and (3) autonomy. Secrecy is affected because many people mistakenly believe that when they, for example, place an order online for sexual oriented products, that communication is secret to those other than the vender and the purchaser. For the same reason anonymity is affected because people believe that the vender will not personally know them (and will not share or sell the information to people who may personally know them). In fact, people apparently purchase sensitive items via the internet because they believe that such method of purchase protects their anonymity better than does physically walking into a store and making the purchase. In the context of internet searches and browsing of websites many people mistakenly believe they have complete anonymity. Finally, because the gathered information can be used unknowingly to the searcher/purchaser’s disadvantage autonomy is affected.

All three components of privacy and in particular autonomy are intertwined with personal freedom. See http://www.philosophyetc.net/2005/03/freedom-and-autonomy.html. I begin with what seems axionomic that freedom and autonomy is desirable. From that I follow with a proposal that true freedom requires meaningful choice: “Freedom means having control of your own life.” Richard Stallman, Wikisource:Speeches, http://en.wikisource.org/wiki/Free_Software_and_Beyond:_Human_Rights_in_the_Use_of_Software. The challenge and desire then is to determine which legal system actually provides people with the best meaningful choice and freedom with respect to their privacy and autonomy.

II. EXEMPLARY PRIVACY OPTIONS FOR GOVERNING USE OF INFORMATION

Each privacy option, e.g., absolutely prohibiting monitoring or use of information, unlimited storing and use, opt-in, and opt out systems, seem to have some difficulties either in theory and/or in practical administration. Initially, I reject the current unlimited monitoring and use of information gathered from internet activity. That type of unknown and unregulated monitoring of human activity violates fundamental human rights. See generally Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791, 2486 (U.S. 1992) (“Throughout this century, this Court also has held that the fundamental right of privacy protects citizens against governmental intrusion [into certain areas].”).

I also reject a per se outright ban on all monitoring and use of internet activity. This is a more difficult issue than the former, but again, with the ideal that true freedom means individual choice, one must recognize that people should be free to allow monitoring and use of information if after being fully informed they subjectively perceive that such monitoring benefits them more than it costs them. For example, at least one person in this class articulated in TWiki that he feels that he benefits from monitoring because of the convenience afforded him by such (although I do not believe he reached an ultimate conclusion whether the benefit outweighs the cost).

I further reject an “opt-out” system for the basic reason that people must be allowed to make a meaningful choice. People today are simply provided with too many complex (often probably intentionally so) adhesion form-contracts to be expected to carefully read and understand such, resulting in effectively no choice and nearly unlimited monitoring in such a system.

Consequently, I believe that an opt-in system provides the best chance for meaningful choice, freedom, and autonomy. As discussed in class, one of the difficulties of this system is the effective administration of such. Many people do not understand that a choice he makes now could haunt him for the rest of his life in a society that never forgets. Effectively conveying this information is thus the primary challenge of an opt-in system.

III. IMPLEMENTATION OF THE “OPT-IN” SYSTEM

I would propose legislation wherein the default rule provides that without consent in the form of “opting-in,” information gathered about a person over the internet may only be used as necessary to provide the service requested. The information gathered could not be disclosed or sold and it would need to be deleted within a reasonable amount of time. For example, if a person placed an order from WalMart? .com all information about the purchasers, including her personal information such as name, address, etc. and the product purchased, web pages visited, etc. would need to be deleted from WalMart? ’s database within a reasonable time after the product is received by the customer. See http://www.nytimes.com/2004/11/14/business/yourmoney/14wal.html?_r=1 (discussing Wal-Mart’s current use of personal information). Other entities, such as the Google search engine would not be able to store or disclose the information. See http://www.webmonkey.com/blog/Firefox_s_Private_Browsing__AKA__Porn_Mode__Arrives (indicating that private browsing is an available feature from Firefox).

The legislation would, however, allow those private entities to purchase the ability to store, use, and sell the information if after being fully informed a person believed that it was in her best interest to sell that information and opted-in. As previously mentioned, some people may desire to have special offers sent to them for future purchases of similar products. Other people may be persuaded by discounted prices or even cash payments for the information. The opt-in choice would perhaps require that to opt-in the person be redirected to a federally maintained website that provided in understandable terms (drafted as part of the legislation) exactly what the information could be collected, used for, whom by, and potential consequences thereof. Each entity that sought to initially gather information would need to obtain a consent from each person for which it gathered the information, based upon the user’s IP address. There would also be an option to register a single time on a federally maintained register each IP address, which would preclude all companies from making future offers to buy and use personal information from that IP address. See generally http://www.nytimes.com/library/tech/00/02/cyber/commerce/07commerce.html.

IV. CONCLUSION

While not free of concerns, an opt-in system provides the best choice, freedom, and overall autonomy for individuals in society.

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