Defenders of the First Amendment warn against basing laws restricting speech on the most sensitive among us. Thus the flawed theory that an advocate for gay rights should be denied first amendment protection because he may enrage his audience is tagged the “heckler’s veto,” and an old English obscenity case that punished speech that might arouse some susceptible persons was condemned as creating a “pervert’s veto.” Now, Senator Ernest F. Hollings (D-S.C.) has a privacy bill, just approved by the Senate Commerce Committee that would create a “paranoid’s veto” for the Internet.
The idea behind the paranoid’s veto is that new laws are needed to protect “sensitive” information. A company would be required to persuade consumers to “opt in” before it collected “sensitive” information, such as religious or sexual orientation, or even “sensitive” financial information. (The author of this piece is heterosexual, by the way-and doesn’t consider that information particularly sensitive). Implicit in this is a vision of dark-suited businessmen surreptitiously collecting online data for sinister purposes. But this is nonsense.
The reality? Sites that ask visitors such questions are likely to be providing services related to the questions they ask. Sites most likely to ask about sexual orientation would be those offering guidance about sexual identity, information about AIDs or other STDs, or lesbian or gay erotica. Sites that ask for religious information might offer services related to birth, marriage, or burial. They can use the information to improve their web sites, to decide which products to offer, to learn about the ebb and flow of consumer demand in the harsh world of the dot.com downslide. Furthermore, when a consumer responds to the request for information, she is certainly aware that she is doing so, and, if the information is sensitive, can pause to examine the site’s privacy policy. How much more consent is needed?
Substituting federal law for private ethical judgments and common sense about how to create communities of tolerance and trust online will mean more legalese for consumers to wade through. And it will make it that much harder for anyone providing services to those communities to provide those services. Creating an “opt-in” regime for children under 13 in the Children’s Online Privacy Protection Act led some sites to stop offering content for children. Legislators may be about to replicate that result for sites that offer religious or sexually sensitive items. All in the name of “protecting” adults from . . . what? Offers of coupons for kosher groceries?
The best argument that tech companies have come up with against the demonization of business’s natural and ordinary desire to learn about the preferences of the human beings with whom they deal? That the online world should not be regulated if the offline world is not. Not to worry--an amendment was quickly offered to ensure that learning about one’s customers offline will be more difficult, too.
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