Aug 22, 2022 - Technology

Privacy law's hidden roadblock: Americans' beliefs

Illustration of a padlock with a cursor shape as the keyhole.
Illustration: Aïda Amer/Axios

Americans' conception of privacy itself, as much as a deadlocked Congress, stands in the way of the U.S. adopting a national digital privacy law, experts tell Axios.

The big picture:  U.S. citizens, uniquely among global populations, think of  privacy as the right to decide who enters their space.

Zoom out: American individualism historically emphasizes personal choice and freedom, especially freedom from government intrusion into personal space.

  • The Bill of Rights specifically includes protections barring the government from stationing soldiers in private homes without the owners' consent.
  • "We have trouble in this country thinking of privacy as something other than the preservation of individual sovereignty over one's immediate personal space," Emily Tucker, the executive director at the Center on Privacy & Technology at Georgetown Law, told Axios.

Yes, but: In today's data-driven, always online society, that focus on individual choice and consent has given many tech firms a green light to assemble vast stockpiles of citizens' personal information. That data fuels enormously profitable targeted-ad businesses that underwrite free service for the customer.

  • "I do think that Big Tech companies have flagrantly exploited this American bias that privacy is about my personal space and my personal choice," Tucker told Axios.
  • This led to the current regime, under which people "consent" to data collection by clicking an "I accept" box on terms of service they never read.
  • "It's been really difficult for people to come around to the realization that privacy is actually not possible at all if it's organized around personal choice... It has to involve a set of agreements among members of a community about shared practices," Tucker said.

State of play: Bipartisan lawmakers in both houses of Congress reached an agreement on a comprehensive privacy bill this summer, but it still faces obstacles to becoming law.

The intrigue: Beyond American individualist traditions, several other factors stand in the way of federal privacy legislation.

  • A big one is cost, with both lawmakers and the companies reluctant to pile new compliance costs for U.S. firms that have become drivers of the economy, said Ashley Johnson, a senior policy analyst at the Information Technology and Innovation Foundation (ITIF).
  • "The fact that we are a leader in this space is obviously very good for our country in many ways, but it has made regulation more difficult," Johnson told Axios. "It means that lawmakers have a lot more to consider when they're trying to reach a compromise on regulation."

Flashback: A decade ago, the Obama administration unveiled a "privacy bill of rights" and devised a legislative strategy on privacy that "died on the vine," said David Vladeck, a Georgetown professor and former FTC official.

  • "There wasn't really any appetite to regulate, and the reasons were economic — this was the most dynamic part of our economy," Vladeck told Axios. "We were basically conquering the world in the sense that our platforms were dominating. And so at least initially, Congress was just worried about killing the golden goose."
  • Now, there's more of a consensus on the need for a law, but less agreement on what it should do.

Another issue is that privacy is a slow-burn issue that's easy for Congress to drop to the bottom of its agenda when faced with urgent crises like the pandemic, the war in Ukraine, gun violence or inflation.

The bottom line: The American public simply isn't demanding a privacy law, Susan Ariel Aaronson, director of the Digital Trade and Data Governance Hub at George Washington University, said.

  • " I do think there's this huge contradiction between what people say they want and what they actually want," Aaronson told Axios. "They want free more than they want privacy."
Go deeper