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Protections Against Commercial Internet Spying: Why Delay is Deadly

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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October 17, 2012

I wrote last week about how the ad industry is going on the attack against Do Not Track. Then yesterday, as the New York Times reported, the Direct Marketing Association kicked off a $1 million public relations campaign to try to persuade policymakers and the public that privacy protections from the data mining industry are not needed. Unfortunately, those who are advocating on behalf of the public do not have $1 million to throw into a counter-campaign. The outcome will be a test of the degree to which money can trump the public good in our political system right now. And that highlights one of the dynamics that it seems to me is at work when it comes to regulating commercial privacy: delay is deadly.

What privacy advocates want to do is declare commercial spying off-limits. Companies, including marketing and advertising companies, can compete and innovate, but we need to put up some fences in the pasture and say “you shall not graze these lands,” because doing so violates our values. We do that in areas such as child labor, and we need to do it with regards to commercial spying. The problem is, if we delay in drawing those lines, then companies begin to make hay from those areas that should be forbidden, and then it becomes much harder to get them to stop, because they can deploy the money they make there to stop rules and protections from being erected.

Let me use an example to illustrate this dynamic. Imagine that I have a business plan: I’m going to deploy computers to listen in on people’s voice telephone calls, use voice recognition to transcribe what is said, and computer algorithms to discern valuable information about the people on the line—their interests, plans, opinions, and attributes. Then I monetize that.

All of this is currently technologically feasible, but it’s not being done. Why? Because our telecommunications privacy laws make it illegal. However, if voice telephone technology, instead of being a century old, were to spring up suddenly today, with no longstanding privacy protections and expectations in place, there is little doubt that companies would be rushing in to graze those pastures. And, there is little doubt that anyone proposing to ban what the industry might call “voice-based marketing” would be subject to all the arguments we are now hearing about commercial internet spying: it will deprive companies of needed revenue, forestall innovation, cost jobs, etc. Since this kind of scheme is simply out of the question, phone companies and others today look elsewhere for innovation—but if such a law was proposed when revenue streams had already sprung up from this, it would be much harder to dislodge it.

That’s why it’s vital that we get good privacy protections in place soon, before the practice of commercial internet surveillance—and the revenue streams it produces—become any more intrusive and entrenched than they already are.

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