Google and Facebook were born in California. In an op-ed in today's Los Angeles Times, I argue California's constitution, which has among the strongest privacy protections in America, demands that the state take the lead on online privacy legislation if Congress refuses.
At a Consumer Watchdog conference in Washington DC on December 1st, FTC consumer protection chief David Vladeck told us that he saw no bar to the states taking up "Do Not Track Me" mechanisms if the federal government did not act.
In the op-ed I make this case:
Article 1 of California's Constitution broadly declares that privacy is among our inalienable rights. But the laws enforcing this right are from another era, and our constitutional protection is being undermined….
Silicon Valley companies are already flooding Capitol Hill with lobbyists to warn about the "end of the Internet" if Congress passes such a requirement. They say that about 200 million Americans joined the landmark "do not call me" phone list. What if the same number opted not to be tracked online? Wouldn't that kill the online advertising industry?
These are the same arguments made by companies and the telephone boiler-room operators they hired who once made incessant sales calls that interrupted dinnertime. Yet American commerce did not wither after "do not call" gave us a peaceful meal.
Advertisers may be able to target us better if they know everything about us, but it is the moral mission of government to protect us from being targeted for such invasive data collection without our knowledge and consent….
Giving Americans a visible, uncomplicated choice to stop Internet companies from tracking us online will not end online advertising, but it will force advertisers to respect our personal boundaries. If that means fewer targeted sales of Viagra or shady mortgage refinance schemes, so be it.
The "do not track me" movement is so important because it sets the principle and precedent of the first real governmental limits on the Wild West of Internet data mining. Privacy violations are not victimless. Identity theft has run rampant because so much of our personal information is available in so many places. Teenagers are particularly at risk because they tend to share too much information online. And our jobs, familial relationships and friendships can be jeopardized if information about our medical condition, sexual preferences or lifestyle choices is evident and available to anyone who can see the advertisements on our computer screens.
A poll by Consumer Watchdog this summer found that 90% of Americans want legislation to protect their online privacy and 80% support a "do not track me" mechanism. Another 86% want a single-click button on their browsers that makes them anonymous when they search online.
Today, we have no such choices. The FTC report calls for a shift from focusing on privacy problems after harm occurs to prevention of harm. "Do not track me" is no panacea, but it initiates real control by the consumer over the type of information Internet companies can collect. It's even more important that we have an across-the-board ban on trafficking of children's personal information.
Although bipartisan support exists for a "do not track me" proposal, President Obama, who counts Google executives among his biggest campaign supporters, hasn't thrown his full weight behind a congressional mandate. Online privacy is one of the few bipartisan gifts he can give us at little cost to the government.
The Commerce Department issued a report recently calling for voluntary industry adoption of online privacy but the FTC report makes clear that self-regulation has resulted in the loss of our online privacy. Speaking at a Consumer Watchdog conference in Washington earlier this month, Commerce Department official Daniel Weitzner said Internet browsers were already including "do not track me" functionality. But the fact is without a congressional mandate Internet goliaths that makes billions from tracking us will hardly respect those functions.
If Washington fails to act, California should create its own "do not track me" system through the Legislature or the ballot box. The state that pioneered Internet commerce can also lead the way in ensuring that it does not run roughshod over one of our fundamental rights.