Public opinion and policy initiatives for online privacy protection

Journal of Broadcasting & Electronic Media, Sept, 2003 by Miriam J. Metzger, Sharon Docter

The rapid development of the Internet and its ability to record, monitor, and report almost every detail of users' behavior has fueled public concern about personal privacy in the online environment (Lievrouw, 2000). As a consequence, consumer groups are putting pressure on both the federal government and the electronic commerce industry to respond appropriately to these concerns. The purpose of this study is to explore the congruence between the public's concerns about online privacy and recent legislative efforts to address this issue. The questions to be addressed in this study include: (1) What is the extent and nature of public concern over online privacy? (2) What are the industry's and the government's responses to this concern? And finally, (3) How well do these responses address the public's concerns?

Before answering these questions, however, the role of public opinion in the policy process needs to be addressed. A perennial controversy in democratic theory concerns the use of public opinion as an appropriate guide to policy formation. Some argue that public opinion allows representative democracy to work by helping representatives better understand constituents' desires. In this way, public opinion safeguards against misrule and acts as an agent of progress (see Palmer, 1936). Others point to the dangers inherent in relying on public opinion that is often shallow and misinformed (Price, 1992).

Harper and Singleton (2001), for example, take the view that survey data should not drive public policy because respondents' online privacy preferences are often inconsistent with their behaviors, and because they are not given time to consider the complex issues and trade-offs involved in this topic, such as the legal and economic consequences of various policy options. Indeed, when the public advocates online privacy policies that are in conflict with the First Amendment rights of Web site operators, public opinion data become irrelevant to the formation of policy. However, this study takes the opposite stance that public opinion regarding online privacy issues has an important role to play in the policy-making process because it can guide the development of policy that is responsive to public needs, and thus better meet the democratic ideals to which our system of governance was originally aimed.

The debate over the role of public opinion in policy formation also gets to the issue of who should set the policy agenda for the issue of online privacy--government and business elites or members of the public. This is an important question because both groups stand to lose a great deal from policy that fails to protect their interests. Although the present study cannot provide a definitive answer to that question, it brings to light the important political and economic consequences of either option, while providing a glimpse into what form federal online privacy policy will likely take in the near future. In addition, this study uses Edelman's (1967, 1989) theory of symbolic politics to examine the implications of policy makers' failure to respond in meaningful ways to Internet users' privacy concerns.

The Extent and Nature of Public Concern

Recent studies estimate that approximately 56% of Americans are now regular users of the Internet and, not only are more people going online every month, but the demographic diversity of Internet users is expanding as well (Rainie & Packel, 2001; UCLA Center for Communication Policy, 2001; U.S. Department of Commerce, 2000). People are using the Internet for a wide variety of tasks, including information-seeking, entertainment, conversing with others, working, and shopping (Ferguson & Perse, 2000; Flanagin & Metzger, 2001; Papacharissi & Rubin, 2000; Rainie & Packel, 2001; Tewksbury & Althaus, 2000). In fact, despite a recently declining economy, electronic commerce is thriving, with nearly half of Internet users making at least one online purchase in 2001 (UCLA Center for Communication Policy, 2001).

Interestingly, however, research finds that a major reason for not using the Internet is fears about online privacy and security (Federal Trade Commission, 2000; Lenhart, 2000; Palmer, Bailey, & Faraj, 2000; UCLA Center for Communication Policy, 2000, 2001). Although definitions of privacy abound in the literature, most include notions of anonymity, intrusion, surveillance, and autonomy. The notion of anonymity stems from Warren and Brandeis' (1890) definition of privacy as "the right to be let alone" (p. 75). In the online environment, anonymity refers to individuals' ability to suppress their true identity while surfing the Internet and is sometimes accomplished by programs that strip online information of its personally-identifying aspects. (1) The problem with this "de-identified information," however, is that any process of de-identification can be reversed, resulting in re-identification, and thus, privacy violation. Intrusion incorporates the idea of "trespass," and like anonymity, comes from legal definitions of privacy that predate the Internet. In the online context, intrusion involves individuals' control of unwanted information (e.g., "spam"). It also may include the use of data mining programs that search and then cross-reference information stored in data bases, revealing "new" information about individuals that was previously unknown--for example, buying habits and other behaviors (see Tavani, 2000).