Contrary to popular belief, the right to privacy is not enshrined in the United States Constitution. That’s right, the word is nowhere to be found. We asked Aaron Kelly, an Arizona Attorney what he thought and this is what he said.
The Bill of Rights does imply certain privacy protections — the privacy of beliefs (1st Amendment), the privacy of your home (3rd Amendment), the privacy of your person and possessions (4th Amendment), and the privacy of certain types of personal information (5th Amendment).
But the explicit privacy laws we have were shaped by Supreme Court cases over the last one hundred or so years and as such, are protected by the Ninth Amendment of the Bill of Rights. This includes any potential right to privacy in your personal information.
Information has become a purchasable commodity; indeed, it is the new currency. For every rejected credit card application, a line of debt repair service marketers stand clawing at the door just waiting to buy that information. For every person that signs up for a free diet tip newsletter, there are dozens of upsell products to promote to their inbox each week after. Every person that visits a website, fills out a form, or clicks on a link represents a personalized marketing opportunity. The 21st century is poised at an intersection of technology, law, and economics that is reshaping the way we think about business — and privacy.
Why is Internet privacy important for financial privacy anyway? What does anyone care if some corporation knows that they are between the ages of 35 and 44; that 33 of their 150 Facebook friends play Farmville; they like indie movies and Thai food, and recently contemplated taking a trip to Belize? As Google CEO Eric Schmidt has observed, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”
It turns out, however, that the majority of Americans do care – though often not enough to do much about it. Sixty-nine percent of the respondents in a recent Carnegie-Mellon University study believe that online privacy is a right, and 64% find the notion of targeted advertising invasive. Although participants understand that advertising supports free online content, they do not believe their personal data should be part of that exchange. But what if the opposite was true, that by paying a fee they could avoid advertising? Only 11% of respondents favor this model; 61% think paying to keep their data private is a form of extortion. Only 20% of participants see any benefit to targeted advertising, and 40% say they are willing to change their behavior in order to prevent advertisers from collecting their data.
Internet attorney Aaron Kelly Law says that the underlying consumer apprehension towards targeted advertising is largely a lack of understanding as to how it operates. Raw bits of data about who we are and what we are doing are aggregated, subjected to sophisticated analysis and shared in a process few consumers truly understand. Plus, the data is stored for a much longer period of time than consumers expect it to be stored. As much as anything, it’s this lack of transparency most consumers resent: it is our data, after all; we should control it. Consumer advocate groups and, to some extent, some governments concur. This is where laws and regulatory agencies start getting involved and inserting themselves between the “customer” and the “marketer”.
So what do we mean when we talk about “Privacy”, and how does it affect our legal rights and obligations as online businesses? In effect, there are three main concerns when it comes to electronic privacy: Collection of Personally Identifiable Information, Use of that Personally Identifiable Information, and (3) Laws governing the collection and usage of Personally Identifiable Information (PII). While different types of solutions have been presented to answer who should decide what, if any, laws should apply, the following 3 options are the most common themes.