The latest attempt to create the first broad national data
privacy law in the United States is causing the typical nonsense in Washington.
But from the mess in Congress and elsewhere in the
US, we’re finally seeing
progress in defending Americans from the unrestrained information-harvesting
economy.
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What’s emerging is a growing consensus and a body of (imperfect)
laws that give people real control and companies more responsibility to tame
the nearly limitless harvesting of our data. Given all the bickering, tacky
lobbying tactics and gridlock, it might not look like winning from up close.
But it is.
Let me zoom out to the big picture in the U.S. Tech companies
like Facebook and Google, mostly unknown data middlemen and even the local
supermarket harvest any morsel of data on us that might help their businesses.
We benefit from this system in some ways, including when
businesses find customers more efficiently through targeted ads. But the
existence of so much information on virtually everyone, with few restrictions
on its use, creates conditions for abuse. It also contributes to public
mistrust of technology and tech companies. Even some companies that have
benefited from unrestricted data collection now say the system needs reform.
Smarter policy and enforcement are part of the answer, but there
are no quick fixes — and there will be downsides. Some consumer privacy
advocates have said for years that Americans need a federal data privacy law
that protects them no matter where they live. Members of Congress have
discussed, but failed to pass, such a law over the past few years.
The weird thing now is that big companies, policymakers in both
parties and privacy die-hards seem to agree that a national privacy law is
welcome. Their motivations and visions for such a law, though, are different.
This is where it gets frustrating.
A consortium that includes corporate and technology trade groups
kicked off a marketing campaign recently that calls for a federal privacy law —
but only under very specific conditions, to minimize the disruption to their
businesses.
They want to make sure that any federal law would overrule
stronger state privacy laws, so businesses can follow one guideline rather than
dozens of potentially conflicting ones. Businesses may also hope that a law
passed by Congress is less disruptive to them than anything the Federal Trade
Commission, which now has a Democratic majority, implements.
This is one of those legislative tugs of war that is unseemly to
watch from the outside and enraging to longtime consumer privacy advocates.
Evan Greer, director of the digital rights group Fight for the Future, told me
she sees what corporate lobbyists are supporting as “watered down,
industry-friendly laws that offer privacy in name only.”
Behind the muck, though, there is emerging agreement on many
essential elements of a federal privacy law. Even the biggest sticking points —
whether a federal law should override stronger state laws, and whether
individuals can sue over privacy violations — now seem to have workable middle
grounds. One possibility is that the federal law would overrule any future
state laws but not existing ones. And people might be given the right to sue
for privacy breaches under limited circumstances, including for repeat
violations.
Laws are not a cure-all for our digital privacy mess. Even smart
public policies produce unwanted trade-offs, and sometimes poorly designed or
inadequately enforced laws make things worse. Sometimes new laws can feel
pointless.
Most people’s experience with Europe’s sweeping 2018 digital
privacy regulation, the General Data Protection Regulation or GDPR, is annoying
pop-up notices about data tracking cookies. The first of two of California’s
digital privacy provisions in theory gives people control over how their data
is used, but in practice often involves filling out onerous forms. And recent
data privacy laws in Virginia and Utah mostly gave industry groups what they
wanted.
Is any of that progress on protecting our data? Kinda, yes!
Some privacy advocates may disagree with this, but even
imperfect laws and a shifting mindset among the public and policymakers are
profound changes. They show that the defaults of America’s data-harvesting
system are unraveling and more responsibility is shifting to data-collecting companies,
not individuals, to preserve our rights.
“Progress looks like not completely perfect laws; there is no
such thing. It looks like fits and starts,” Gennie Gebhart, the activism
director for the Electronic Frontier Foundation, a privacy advocacy group, told
me.
I don’t know if there will ever be a federal privacy law.
Gridlock rules, and such regulation is tricky. But behind the lobbying and the
indecision, the terms of the debate over data privacy have changed.
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