James Grimmelmann and Peter Swire Testify on Do Not Track

By TAP Staff Blogger

Posted on June 29, 2012

Recognizing that consumer information is the currency of the web, both sides of Congress have recently held hearings to work toward an understanding of how to balance the needs of businesses for user data and the needs of consumers to have some control over their personal online information. TAP scholars James Grimmelmann, New York Law School, and Professor Peter Swire, Ohio State University’s Moritz College of Law, were witnesses.
Last week, the House Subcommittee on Intellectual Property, Competition and the Internet held a hearing ("New Technologies and Innovations in the Mobile and Online space, and the Implications for Public Policy") to learn how the technology industry works to incorporate balanced privacy protections that will inform and protect consumers. Professor James Grimmelmann began his testimony by pointing out that “good privacy technologies and good privacy laws enable people to choose whether, when, and how open they want to be about their lives.” He went on to discuss three principles that he considers indispensable for making real consumer choice a reality:

  • Usability – privacy interfaces must be clear and clearly disclosed.
  • Reliability – a consumer who has expressed a choice is entitled to expect that it will be honored.
  • Innovation for privacy – privacy policy should encourage the development of these technologies, and protect them from interference.

Read Professor Grimmelmann’s full testimony.
In his blog, The Laboratorium, Professor Grimmelmann expands on his testimony, and explains why he thinks there is an attempt to “sabotage” the forthcoming Do Not Track standard. Read Professor Grimmelmann’s blog, “The Sabotage of Do Not Track.”
Yesterday, Professor Peter Swire testified at the U.S. Senate Committee on Commerce, Science, and Transportation’s hearing, “The Need for Privacy Protections: Is Industry Self-Regulation Adequate?” The focus of this inquiry centered on what consumers should expect when they tell online companies that they do not want their information collected for any purpose other than the functionality of the service. 
Professor Swire provided historical context about self-regulation and privacy. In his testimony, he raised four main points:

  • The threat of government regulation spurs the adoption of self-regulation.
  • The history of self-regulation after the 1990s shows that self-regulation declined when the credible threat of government action eroded.
  • The current wave of attention to online privacy has produced progress on Do Not Track, but with broad exceptions to the announced collection limits.
  • We should focus more attention on technical and administrative measures for de-identification in online privacy.
Professor Swire concluded his testimony by emphasizing that “getting online privacy right is important for each of us as Americans.”
Read Professor Swire’s full testimony.
Peter Swire is the C. William O’Neill Professor of Law at the Moritz College of Law of the Ohio State University. He began working on privacy and self-regulation in the mid-1990s. In 1998, he was the lead author, with Robert Litan, of “None of Your Business: World Data Flows, Electronic Commerce, and the European Privacy Directive,” published by the Brookings Institution. In 1999, he was named Chief Counselor for Privacy, in the U.S. Office of Management and Budget. In that role, he was the first (and thus far the only) person to have government-wide responsibility for privacy policy.