Is the ACLU Inconsistent on Regulation of Speech and Privacy?

Adam Thierer of the libertarian Mercatus Center posted a thoughtful critique of my recent piece on online tracking and consumer “choice.” I wrote about a new paper on behavioral advertising and how it “demonstrates the absurdity of the position that individuals who desire privacy must attempt to win a technological arms race with the multi-billion dollar internet-advertising industry.”

In a post entitled “The ACLU vs. Itself on User Empowerment for Online Safety & Privacy,” Thierer asks why the ACLU supported “user empowerment” as an alternative to government regulation when we were battling against internet censorship, yet deride it as an alternative to government regulation in the area of privacy. In particular, Thierer points to our successful court battles against unconstitutionally broad online censorship laws passed by Congress in the 1990s, the Communications Decency Act (CDA) and the Child Online Protection Act (COPA). In those battles, he points out, one of our arguments was that the laws were not the “least restrictive means” of accomplishing Congress’s goals because various end-user filtering technologies were available to block out “indecent” material. Why, he wonders, do we not embrace similar end-user tools as an alternative to regulation when it comes to privacy?

When it comes to the excesses of the national security state, we have not had stronger or more principled allies than libertarians. But it’s on issues like this that we don’t always see eye to eye. I would respond to Thierer’s critique with several points.

To begin with, the lawyers here at the ACLU would probably point out that there are powerful constitutional principles and doctrines at play that clearly distinguish between regulation of speech and regulation of online tracking. For one thing, the laws we challenged in the 1990s were criminal laws that would have sent people to prison for engaging in protected speech. In that context, the law is clear that the government must consider every available “less restrictive” means of achieving its goals short of punishing speech. When we identified filtering technologies as “less restrictive,” we were not endorsing them; we were simply pointing to their availability as evidence that the government had not met its constitutional burden. (A strong, cross-ideological majority of the Supreme Court agreed.) In other contexts, we have argued against the mandatory use of filtering tools for adult users. By contrast, the regulations at issue in the internet privacy debate would impose a much less serious burden on corporate entities, and would in no way restrict their right to communicate with the public.

Speaking not as a constitutional lawyer but as a policy analyst interested in the practical and normative dimensions, I would answer Thierer’s critique in different terms.

First, as an empirical matter, “user empowerment” may simply be more effective with regards to speech than with privacy. When material you want to avoid fills your monitor, you know your filter has failed, but internet tracking and privacy invasions are largely silent and invisible. When the advertising industry ups the ante in the arms race with a new technique for tracking you (or a new way of hiding that tracking), you don’t necessarily find out about it. True, as Thierer points out, a variety of privacy-protecting tools are available, but they tend to be geeky and obscure, unlike internet filtering tools which are much more prevalent—more broadly marketed, integrated into search results and software, and actually mandated by law in many schools and libraries. I don’t know why that is the case—it may have to do with the very fact that privacy invasions are less visible than unwanted smut, or with privacy tools being more inconvenient—but it’s certainly not because people care less about their privacy; the evidence is pretty clear on that.

More broadly, I think most people mostly feel in control of what they view online. As the internet and users alike have evolved, I would wager that users are not as likely to accidentally stumble into unwanted material as they might have been in the 1990s when whitehouse.com was famous as a porn site that web surfers tended to visit accidentally. With privacy, on the other hand, anyone who feels in control of their online footprint is either an uber-geek, or has no idea what’s going on out there.

Second, I would take issue with Thierer’s broad use of the term “internet regulation.” He lumps together 1) censorship, 2) incursions on the right to anonymity (as with COPA’s requirement that one identify oneself to view any of a broad swath of content deemed “harmful to minors”), and 3) any regulation of companies operating on the internet such as advertising networks. Libertarians also use the term to include network neutrality regulations imposed on the natural utilities that run the internet’s data pipes.

But these examples of “regulation” are much different things. Regulation of speech impinges on a core principle of a free society that is vital for a wide variety of practical and humanistic reasons, and one that is important to strictly maintain because of the constant temptation by so many parties to censor speech they hate. Regulation of commercial companies, on the other hand (at least the kind at issue here), is not an incursion on privacy, but aims to prevent incursions on privacy. Speech and privacy are both core principles of freedom, while “avoiding regulation of companies” is simply not. Of course foolish or unnecessary corporate regulations are a bad thing that can harm the economy, but they do not normally tilt power away from individuals or impinge on their shot at a happy, fulfilled life, the way curbs on core values like speech and privacy rights can.

Not only are the different types of “regulation” different in character, but lumping them all together as one dirty word has the effect of diverting Americans’ deep-seated reaction against government content regulation against other, more protective and less intrusive business regulation.

It makes most sense to oppose regulation (for example, of speech) when it curbs individual empowerment, and to support government regulation when it protects individual empowerment. I think there’s a strong empirical case to make that it’s not just government but also companies that can curb individual freedom, and that regulations are needed when they do. That is a long-running debate that extends to the dawn of industrial capitalism when the question first arose: how does individual empowerment help the standing army of the unemployed waiting outside the factory gates?

Thierer recognizes this, acknowledging that this disagreement probably boils down to

just the classic distinction between “civil libertarians” and actual libertarians manifesting itself in a different way. While the two groups share a mutual distrust of government regulation of speech and social affairs, the civil libertarians distrust free markets and invite regulation of them there whereas the actual libertarians do not.

I largely agree. He says civil libertarians “distrust free markets”; the way I would put it is that we possess a pragmatic, clear-eyed realism about the strengths and weaknesses of markets in different contexts, rather than a “trust” (blind faith?) that markets will serve the public good. In any case, one can dispute our value judgments on this matter, but they do not render us inconsistent or in opposition to ourselves. We may not oppose all government regulation—but we think that’s the wrong thing to be consistent about.