Protecting Privacy in a Free Society

By Dan Schneider

No American value has been challenged more by the rise of the internet than our commitment to personal privacy.

On the one hand, the internet generation is the most open in our history, documenting their lives through millions of selfies and sharing vast troves of information in exchange for a more tailored and affordable internet experience. On the other, Americans still recoil from intrusive government surveillance, 86% of internet users saying they at times hide their identity or use “incognito” tools. Overall, nine out of ten Americans believe they have lost control over how their data is collected and used.

The path for achieving a responsible and healthy digital world begins with two foundational conservative principles: (1) that the person is the fundamental unit of government and (2) that the rights and choices of individuals take primacy over federal and state government. Indeed, it is “We the People” who establish and limit government and also reserve all non-delegated powers to ourselves.

Getting internet privacy right starts with this core insight: individuals must be free to determine how they interact with the digital world and government must not dictate their choices, options, or beliefs.

That’s why the patchwork of supposed “privacy” bills being introduced in states around the country, such as AB 375 here in California, are so fundamentally misguided. Rather than empower consumers to make informed choices, these laws arbitrarily choose for us. It creates the worst of all possible worlds, undermining citizens’ control of their data while still exposing them to massive privacy gaps and risks.

One of the worst aspects of the California bill is that it applies only to part of the internet, covering broadband providers but ignoring many of the most aggressive and pervasive users of data online, including the big search, social media, and application firms.

That is government picking winners and losers in a critical area of modern life, and doing it so irrationally that it will only confuse and disempower individuals. No one will be able to keep track of this patchwork regulatory morass and the result will be a privacy mirage – where citizens think their data is protected when in fact it is not.

Ultimately, by denying broadband providers the ability to offer low-cost or ad-supported services while giving free reign to others to monetize the data, the legislation will result in quasi-monopolies which will re-sell the data at much higher prices. Simple economics shows that competition restrictions like these ultimately harm only one person: the consumer.

The proposal fails in other ways as well. It establishes an outlier “opt in” regime that conflicts with how data is handled on most of the internet, shutting off the flow of recommendations, discounts, and meaningfully targeted advertisements that consumers can take advantage of. This will force consumers to face an endless flood of disruptive and confusing “click yes to continue” boxes, desensitizing them to genuine privacy risks and furthering the sense that regular internet users have lost control.

It’s yet more market distortion falsely masquerading as privacy protection inside a Potemkin privacy bill that leaves almost every internet company free to do what they want with consumer data regardless of an individual’s preference or choice.

Politicians can spin a default “opt in” for broadband as putting consumers in charge, but the truth is most people simply don’t dig into the depths of their internet settings or even read the various terms and conditions they are presented, so default rules need to match their expectations or they undermine choice. Today, 83% of consumers expect that the level of protection for the data online will depend on how sensitive it is, an expectation that the California bill upends.

Conservatives committed to effective privacy protection rooted in personal liberty and choice have beaten back similar bills in other states, and they should stay united and hold the line here in California as well.

The American Conservative Union and other groups are paying close attention to these attacks on privacy and will continue to highlight the issue with events as well as continue the drumbeat urging Republicans in the state house to stand firm for real privacy protection. Lending any conservative credibility to this flawed effort will only be a springboard for even greater assaults on liberty at the state and national level yet to come.

Dan Schneider is executive director of the American Conservative Union.