The Hidden Roadblock of Privacy Law: What Americans Believe

America’s conception of privacy itself, as much as a deadlocked Congress, is preventing the United States from passing a national digital privacy law, experts tell Axios.

The big picture: American citizens, unique among global populations, view privacy as the right to decide who enters their space.

Zoom out: American individualism historically emphasizes personal choice and freedom, especially freedom from government intrusion into personal space.

  • The Bill of Rights specifically includes protections prohibiting the government from stationing soldiers in private homes without the owners’ consent.
  • “We struggle in this country to see privacy as anything other than preserving individual sovereignty over one’s immediate personal space,” Emily Tucker, executive director of the Center on Privacy & Technology at Georgetown Law, told Axios.

Yes, but: In today’s data-driven, always-online society, the emphasis on individual choice and consent has given many tech companies the green light to build vast stores of personal information about citizens. This data feeds highly profitable targeted advertising companies that guarantee a free service for the customer.

  • “I think Big Tech companies have blatantly exploited this American bias that privacy is about my personal space and my personal choice,” Tucker told Axios.
  • This has led to the current regime, where people ‘consent’ to data collection by clicking an ‘I accept’ box on terms of service they never read.
  • “It’s been really hard for people to realize that privacy is actually not possible at all if it’s organized around personal choice… It has to involve a set of agreements between members of a community of shared practices,” Tucker said. .

State of play: Bipartisan lawmakers from both houses of Congress reached agreement on a comprehensive privacy bill this summer, but it still faces hurdles to become law.

The plot: Beyond America’s individualistic traditions, several other factors stand in the way of federal privacy legislation.

  • A big issue is cost, with lawmakers and businesses reluctant to rack up new compliance costs for U.S. businesses that have become powerhouses of the economy, said Ashley Johnson, senior policy analyst at Information Technology and Innovation Foundation (ITIF).
  • “The fact that we’re a leader in this space is obviously very good for our country in many ways, but it has made regulation more difficult,” Johnson told Axios. “That means lawmakers have a lot more to consider when trying to reach a compromise on regulation.”

Rollback: Ten years ago, the Obama administration unveiled a “privacy rights charterand attempted to craft a legislative privacy strategy that “died on the vine,” said David Vladeck, a Georgetown professor and former FTC official.

  • “There really wasn’t an appetite for regulation, and the reasons were economic – it was the fastest growing part of our economy,” Vladeck told Axios. “We were basically taking over the world in the sense that our platforms were dominating. And so at least initially Congress was just worried about killing the goose.”
  • Now there is more consensus on the need for a law, but less agreement on what it should do.

Another problem is that privacy is a slow-burning issue that’s easy for Congress to put at the bottom of its agenda when faced with pressing crises like the pandemic, the war in Ukraine, gun violence or inflation.

The bottom line: The American public simply doesn’t demand privacy law, said Susan Ariel Aaronson, director of George Washington University’s Digital Trade and Data Governance Hub.

  • “I think there’s this huge contradiction between what people say they want and what they actually want,” Aaronson told Axios. “They want free more than privacy.”

About Charles D. Goolsby

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