March 12th, 2015

The Privacy of Regulators

By Emily Naphtal

Recently, the New York Times interviewed the “flip phone caucus”, a group of Senators that barely uses email. For many of these Senators, such as Charles Schumer (D, New York), Lindsey Graham (R, North Carolina), John McCain (R, Arizona), and Orrin Hatch, (R, Utah), this may just be a habit formed over many years of operating in the political world without email. However, the article concludes by lauding the foresight of these Senators – stating that not using email is “a very smart way to avoid embarrassment and possibly jail.”

This suggestion that individuals should “just opt out” of various trappings of modern technology if they want to maintain their privacy has been frequently advanced in discussions on U.S. consumer protection. For example, if a certain service provider such as Facebook updates its privacy policy, users theoretically have a choice to continue using the service or to discontinue their use. However, opt out is not a straight-forward policy for most consumers to understand or implement in a world of interconnected marketing agencies, data collection, and usage. The flip phone caucus Senators have aides to handle their various necessary electronic communications. Most Americans do not enjoy this privilege and must use the internet to fulfill their occupations as well as carry out personal commercial transactions and research.

Companies record and store information about individuals’ movements from webpage to webpage as they browse the internet. Some industry self regulating agencies such as the Network Advertising Initiative (NAI) offer the option to opt out of their customizing advertisement infrastructure. Just by visiting the NAI website, I discovered that 93 different NAI members currently track my internet usage through cookies in order to provide me with targeted advertising. While I can opt out of  “internet advertising delivered to [my] device via HTTP cookies,” my opt out through their trade organization covers neither non NAI members, nor the use of other technologies besides http cookies by NAI members. NAI states that a mechanism for opting out of these other tracking devices is in development. Also, critical to note, opting out of NAI members’ tracking does not affect the storing and sharing of information by various social networking or email services with which I elect to share how I am feeling, where I am going, and the identities of my friends.

A Time journalist recently discovered that opting out of online data collection required behavior that made her appear anti-social and even criminal. The goal of her experiment was to hide her pregnancy from the data collection “bots” on the internet. To accomplish this, she only paid for purchases with cash and prepaid gift cards, only visited baby related websites through Tor, a private browser that routes an individual’s traffic through foreign servers, and she attempted to convince all her acquaintances not to mention the pregnancy on social networking sites. She says this quest forced her into increasingly awkward interactions with family members and the wider world. She deleted an uncle from facebook after he mentioned her pregnancy in a message (which he mistakenly thought was private). And the corner store put her on a watch list for her abnormal purchasing behavior.

Lest consumers become too alarmed they should know that the law does adequately protect information about personal movie rentals. In 1987, a member of the media obtained Robert Bork’s video rental records and they surfaced as part of his contentious and ultimately unsuccessful Supreme Court nomination hearing. In response, Congress made it a crime to disclose video, DVD, and video game rentals without specific consumer consent. 18 U.S.C. § 2710. Companies such as Netflix are still fighting to change this law in order to integrate their products with social media websites.

Perhaps this strangely specific law sheds light on what must happen in order to safeguard the internet privacy of ordinary Americans. Members of Congress must feel that the current dragnet data collection regime threatens their own privacy, their own reputations, and their own jobs, just as they did with respect to movie rental information following the Bork hearing. Until that fated day arrives, Americans who value their privacy can attempt to follow the lead of the Senate’s flip-phone caucus.