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Opt In Vs. Opt Out - Battle Lines Emerge in Privacy Debate

But while most lawmakers appear to agree that consumers' personal data should be protected online and elsewhere, the question of how best to provide that protection may evolve into one of the most contentious debates taken up by this Congress.

In a set of proposed Internet privacy guidelines drafted last year, the Federal Trade Commission (FTC) said that to protect consumers from unwanted cyber-snooping, Web sites that collect personal data should be required to provide "notice, choice, access and security," in relation to their data-collection activities.

But while the four-pronged "fair information practices" standard has been widely accepted - at least as a guiding principle - combatants in the technology and privacy communities can find little common ground over how those four principles should be applied in practice.

Particularly subject of "choice" battle lines are being drawn between supporters of an "opt-in" standard, that would require Web sites to obtain permission before collecting or transmitting information about consumers, and an "opt-out" standard, under which Web sites would only be compelled to provide consumers with a way to keep their data private.

Members of the high-tech industry lobbying corps, many of whom still oppose any sort of consumer electronic privacy legislation, argue that Congress would cripple the still-nascent e-commerce market by enacting an opt-in provision.

"When you walk into a retail store and they get your name and address, they don't ask if they can use the information (for marketing)," Information Technology Association of America (ITAA) President Harris Miller said. "Why should there be a special rule for Internet commerce."

While Miller concedes that the opt-in vs. opt-out argument will probably be one of the most contentious of the impending congressional privacy debate, he said he is concerned that proponents of opt-in have gathered as much steam as they have.

"If that ends up being a battleground then we really are in trouble," Miller said.

Miller and others in the high-tech industry contend that enacting an opt-in standard would crimp the ability of Web sites to collect what they see as harmless marketing data. Since those data collection activities are central to online advertising, they play a critical role in the already-fragile Internet business model, high-tech industry advocates say.

Although the ITAA opposes any privacy legislation, Miller said that if legislation were to be enacted, it should be designed in such a way as not to impede e- business.

"We propose continuing the current practice of most companies of having an opt- out procedure," Miller said, referring to the practice of many Web sites of offering some sort of checkbox that consumers can click on if they don't want their information to be used for marketing.

At the other end of the spectrum, privacy advocates argue that an opt-in standard is the only reasonable way to truly protect consumers' privacy.

"I think that opt-in seems like a very sensible standard," Electronic Privacy Information Center (EPIC) Policy Analyst Andrew Shen said. "Before information collected for one purpose is used for another to seek permission seems reasonable."

Opt-in proponents want Web sites to use a pop-up box or some other means to request permission from consumers before collecting any personal data for use in marketing.

While Shen agreed with Miller's contention that privacy standards should remain constant in the online and offline worlds, he said that the answer to those disparities is to bring the level of protection up in the offline world as well.

But Miller said he doubts Congress would deal with the issue so equitably.

"I don't see any of those members of Congress (who are) advocating opt-in offering to stop sharing their mailing lists with people," Miller said.

Of the handful of consumer e-privacy bills introduced in the last congressional session, most would have established an opt-out standard, but one or two bills advocated an opt-in approach.

But some legislators argue that the e-privacy issue is too complicated to address with either approach.

Rep. Ed Markey, D-Massachusetts, introduced legislation last year that supported a sort of sliding scale approach to electronic privacy, providing the greatest protection to the most sensitive data like medical information.

Markey's bill is also designed to recognize technological advances that may make the opt-in/opt-out debate moot, Markey staffer Colin Crowell said.

As technologies like the Platform for Privacy Preferences (better known as "P3P") that allow consumers to set their privacy protections at the Internet browser level become commonplace, "opt in-opt out will make less sense," Crowell said.

Pop-up windows and checkboxes may soon be replaced by internal electronic transactions that users never see after installing their privacy preferences into their Internet browsers, Crowell said.

Still, Markey opposes making a simple "opt-out" the hard and fast law of the land until there is some guarantee that consumers will be protected online, Crowell said.

"The poetic irony that faces the tech (industry) people is that the technology that they tout and they revere might actually evolve (to allow) consumers to block" unwanted data gathering, he said. "Technology can solve the problem, but this is not a problem (many in the industry) want to solve with technology."

Crowell said that Markey intends to re-introduce his bill sometime in the next few months when the privacy debate begins in earnest.

A few privacy bills have already been introduced this session and congressional observers expect many more to follow in the coming months.

But from the standpoint of some involved in the ongoing privacy debate, Congress may be putting the cart before the horse in attempting to make a legislative decision on opt-in vs. opt-out.

"We do not have facts in this debate. There has not been an economic assessment of opt-in or opt-out," Center for Democracy and Technology (CDT) Policy Analyst Ari Schwartz said.

While Schwartz agreed that the war over privacy would proceed regardless, he said that Congress should try to study the potential impact of opt-in vs. opt-out standards from a social and economic standpoint before passing legislation on the issue.

Reported by Newsbytes, www.newsbytes.com.

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