While congress and the White House seem to be caught in the icy grip of gridlock over most federal policy, there is a growing view that privacy legislation could break through the logjam.
Lawmakers of all political stripes and a growing number of players in the internet ecosystem recognize that the time has come to do something to protect Americans’ personal data from abuses. This confluence presents a rare opening in the Balkanized political landscape, but it’s important that lawmakers act without Balkanizing the internet itself.
Privacy legislation is tricky, and not just because of the divisiveness of modern partisan politics.
Privacy: It’s Complicated
The disparate interests operating in the internet ecosystem also have different views about what to do and to whom it should be done. As lawmakers consider a new privacy regime, they need to do so with up-to-date knowledge about how the internet ecosystem functions today.
When Americans send messages, shop online or participate in social media, they don’t think of the internet as being made up of a bunch of different parts. They think of it as a functioning whole, without distinguishing search engines, social media platforms or internet service providers. Consumers simply want to buy or sell products and communicate with each other and the world at large over the broadband platforms they’ve come to know without sacrificing their sensitive personal information.
That’s why it makes little sense for lawmakers to approve a new privacy law that contains more onerous privacy requirements for some portions of the internet ecosystem than for others. Consumer privacy should not vary depending on where the user happens to be along the internet continuum at any given moment. That would lead to widespread consumer confusion about the privacy rights of internet users, undermining a key benefit of Congress passing a privacy law: giving consumers greater confidence in the integrity of their internet experience.
Companies that operate at the “edge” of the internet — such as Facebook, Google and Amazon — gather reams of information about internet users and monetize that information through targeted advertising. Some edge providers use consumer information they have collected as a commodity, selling it to other companies that will use it for their own purposes. Privacy laws should treat companies at the internet edge the same as the internet service providers that are largely prevented from accessing these vast swaths of personal data.
Search engines, social media sites and e-commerce platforms have unfettered access to user activity on their websites. They take the data they’ve gathered and combine it with machine learning capabilities to form an intimate picture of the individuals who access their services.
By contrast, encryption, virtual private networks and other technological barriers bar ISP access to the treasure trove of sensitive personal information that is routinely mined and refined by companies on the internet edge. Coupled with consumers’ dependence on WiFi hotspots and their desire to use multiple devices and different service providers, ISPs can see only a fraction of an individual’s activity.
Uniformity Is Key
The task for Congress is to create a straightforward set of privacy rights and company obligations that applies across the internet continuum, enhancing consumer understanding and confidence. In a national internet marketplace that is truly interstate in function, contrary state privacy laws should be disallowed.
There should also be a consistent, coordinated enforcement mechanism that crosses federal and state boundaries to provide accountability and protect consumers. Fortunately, there is already a federal agency with expertise that can ensure that Congress’s goal is carried out: the Federal Trade Commission, which among all of the federal agencies has the most extensive experience overseeing consumer privacy.
Lawmakers, edge companies, ISPs and consumers all understand that our current privacy regime isn’t up to the task, and we all know that now is the time to do something about it. Even as the White House and Congress seem more at odds than ever, and the partisan gap between the parties seems unbridgeable, there is no reason we can’t put our divisions aside and approve a privacy bill that will protect consumers’ data, and won’t break the internet ecosystem into dozens of fractious fiefdoms.
Rick Boucher, a Democratic member of the House of Representatives from Virginia for 28 years, is honorary chairman of the Internet Innovation Alliance.
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