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jL\1 HARPER

Jim Harper is the Web master of 1/vashingtonl;l/atch. a site that tr1cks fec!era:

spending; the editor of Pn~<acilla. a Web-based think tank; and the director of information pol studies at the Cato Institute in Washington. DC He is also

a founding member of the Data Pri•;acv and lntegrit•; Advisorv Committee for the Department of Homeland Securitv. Harper studied political science at the

Universitv of California at Santa Barbara and in 1994 received a law degree from Hastings College of the Universitv of California. His articles about prrvacv

and security have appeared 1n Admrnistrative Law Review. the 'v!innesota Lavv Review, the Hastings Constitutional Law Quarterly. the Blaze, and the Technol- ogy Liberation Front. He has also published two books: Identity Crisis.· How Identification Is Overused and Misunderstood 12006! and Terrorizing Ourselves: Why US Counterterrorism Policy Is Failing and How to Fix It (201 01. coedited with Benjamin H. Friedman and Christopher A. Preble. As an expert in the legal complications surrounding new technologies. Harper has testified at several

congressional hearings and lectured widely.

Web Users Get as Much as They Give

With so much useful (and not so useful) material available free of charge, some

might say that privacy is a fair price for Web users to pay. In this essay pub-

lished in the Wall Street journal alongside the previous selection. Nicholas Carr's ' >~Tracking Is an Assault on Liberty" (p. 538). Harper argues that contemporary business models and opportunities to customize advertising justify the use of data mining. The next essay, o Facebook Is Using You," by Lori Andrews lp. 5511. offers a third perspective on the subject.

If you surf the Web, congratulations! You are part of the information economy. Data gleaned from your communications and transactions grease the gears of modern commerce. Not everyone is celebrating, of course. Many people are concerned and dismayed- even shocked -when they learn that "their" data are fuel for the World Wide Web.

Who is gathering the information? What are they doing with it? How might this harm me? How do I stop it?

These are all good questions. But rather than indulging the natural reac- tion to say "stop," people should get smart and learn how to control per- sonal information. There are plenty of options and tools people can use to

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546 Argument and Persuasion

protect privacy - and a certain obligation to use them. Data about you are not "yours" if you don't do anything to control them. Meanwhile, learning about the information economy can make clear its many benefits. ~

It's natural to be concerned about online privacy. The Internet is an inter- active medium, not a staticone like television. Every visit to a Web site sends information out before it pulls information in. And the information Web surf- ers send out can be revealing.

Most Web sites track users, particularly through the use of cookies, little text files placed on Web surfers' computers. Sites use cookies to customize a visitor's experience. And advertising networks use cookies to gather infor- mation about users. A network that has ads on a lot of sites will recognize a browser (and by inference the person using it) when it goes to different Web sites, enabling the ad network to get a sense of that person's interests. Been on a site dealing with SUVs? You just might see an SUV ad as you continue to surf. Most Web sites and ad networks do not "sell" information about their users. In targeted online advertising, the business model is to sell space to advertisers- giving them access to people ("eyeballs") based on their demo- graphics and interests. If an ad network sold personal and contact info, it would undercut its advertising business and its own profitability.

Some people don't like this tracking, for a variety of reasons. For some, it & feels like a violation to be treated as a mere object of commerce. Some worry that data about their interests will be used to discriminate wrongly against them, or to exclude them from information and opportunities they should enjoy. Excess customization of the Web experience may stratify society, some believe. If you are poor or from a minority group, for example, the news, enter- tainment and commentary you see on the Web might differ from others', pre- venting your participation in the "national" conversation and culture that traditional media may produce. And tied to real identities, Web-surfing data could fall into the hands of government and be used wrongly. These are all legitimate concerns that people with different worldviews prioritize to differ- ing degrees.

''Surreptitious" use of cookies is one of the weaker complaints. Cookies have been mtegral to Web browsing since the beginning, and their privacy ::.onsequences have been a subject of public discusston for over a decade Cookies are a surreptittous threat to pnvacy the way smoking is a surreptttlLIUS ;:hreat tL> !:lealth. If you don't knew about it, you haven't been paying atten- ':ioL But before going into your browser sett:ngs and cancelmg ::.ookies, Web ..;sers should ask another quesnon abom idorma:ion shanng tn the JE:~:-_e ·vvarld. "'What arr1 ~ gettirlg irL ret:1rr .. ?

~1. - --~I , .1•. ·11 l ,.e reason wnv a company uKe 'JOOg-<:: can spend m1~nons al:'tel lT',lulcns ::.f do~lars ~)r._ f!"ee servtces l:ke ~ts searc~1. er..glr.,_e. CJrr..aii, rnappi:-Lg :e>cls. Joogk

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If Web users su less information to to allow personaliza small Web sites wil our Internet an enc government-transp my visitors when d rising means more

Ten years ago- Trade Commissior vacy's sake. lf the "notice, choice, ac varying measure - it has had over tht today. But, unable it produces might support all its fas• access it provides lar set of circums the freedom to u:

Some legisla protect consume ers to abandon r to stay on their feet to the fire. cates who assun in producing it Congress or [he lt would genen

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many benefits. .;. The lnremer is an mcer- ~- ,~-isi: co a \X/eb s1te sen_ds the mformanon Web surf-

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;criminate wrongly against opportunities they should e may stratify society, some •r example, the news, enter- ght differ from others', pre- versation and culture that dentities, Web-surfing dar~ Jsed wrongly. These are ali rldviews prioritize to differ-

'eaker complaints. Cookies eginning, and their privacy .cussion for over a decade. ay smoking is a surreptitious haven't been paying atten- md canceling cookies. Web ltion sharing in the onlme

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----·· Harper I Web Users Get a.s :v1ucf., as They Give

Groups and more is because -Jf onlme advert!Slng that trades m personal matlon. And it's not iust Goorzle. Facebook, YahorJ , MSN and thoLrsa.,...u-1- -. '-' .~.. ~ ) ',r blogs. news sites, and comment boards use advert:tsing to support what rl:P~ .. do. And personalized advertising IS more valuable than advert1s1ng 'itmd ~r just anyone. Marketers will pay more to reach vou tf vou are ltkelv to use rhp ~ products or services. (Perhaps onlme trackmg makes everyone special: J - --"

If Web users supply less information to the Web. the Web will suppk less informatton to them Free content won't go awav 1f consumers decl;ne to allow personaltzation, but there wtll be less of tt. Bloggers and operators of small Web sttes will have a lmle less reason to produce the stuff that mak~' our Internet an endlessly fascinating place to vistt. As an operator of a smal: government-transparency Web site. WashingtonW'atch, I add new features for my visitors when there is enough money to do it. More money spent on adver- tising means more tools for American citizens to use across the Web.

Ten years ago - during an earlier round of cookie concern - the Federal Trade Commtssion asked Congress for power to regulate the Internet for pn- vacy's sake. If the FTC had gotten authority to impose regulations requiring "notice, choice, access, and security" from Web sites - all good practices, in varying measure - it is doubtful that Google would have had the same success it has had over the past decade. It might be a decent, struggling search engine today. But, unable to generate the kind of income it does, the quality of search it produces might be lower, and it may not have had the assets to produce and support all its fascinating and useful products. The rise of Google and all the access it provides was not fated from the beginning. It depended on a particu- lar set of circumstances in which it had access to consumer information and the freedom to use it in ways that some find privacy-dubious.

Some legislators, privacy advocates and technologists want very badly to protect consumers, but much "consumer protection" actually invites consum~ ers to abandon personal responsibility. The caveat emptor1 rule requires people to stay on their toes, learn about the products they use, and hold businesses' feet to the fire. People rise or fall to meet expectations, and consumer advo- cates who assume incompetence on the part of the public may have a hand in producing it, making consumers worse off. If a central authoritY such as Congress or the FTC were to decide for consumers how to deal with cookies, it would generalize wrongly about many, if not most, individuals' interests, giving them the wrong mix of privacy and interactivity. If the FTC ruled that third-party cookies required consumers to opt in, for example, most would not, and the wealth of"free" content and services most people take for granted would quietly fade from view. And it would leave consumers unprotected

1 Latin, ''buver beware." - Eos.

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548 Argument and Persuasion

from threats beyond their jurisd1ction (as in Web trackmg by sttes outside the United States). Education is the hard wav. and it is the only way, to get con- sumers' privacy interests balanced with their other interests.

But perhaps this is a government vs. corporate passion play, with gov- ernment as the privacy defender. The Wall Street Journal reported last week that engineers working on. a new version of Microsoft's Internet Explorer browser thought they might set certain defaults to protect privacy better, but they were overruled when the business segments at Microsoft learned of the plan. Privacy "sabotage," the Electronic Frontier Foundation called it. And a Wired news story says Microsoft "crippled" online privacy protections. But if the engineers' plan had won the day, an equal, opposite reaction would have resulted when Microsoft "sabotaged" Web interactivity and the advertising business model, "crippling" consumer access to free content. The new version of Microsoft's browser maintained the status quo in cookie functionality, as does Google's Chrome browser and Firefox, a product of the nonprofit Mozilla Foundation. The "business attacks privacy" story doesn't wash.

This is not to say that businesses don't want personal information - they do, so they can provide maximal service to their customers. But they are strug- gling to figure out how to serve all dimensions of consumer interest, includ- ing the internally inconsistent consumer demand for privacy along with free content, custom Web experiences, convenience and so on.

Only one thing is certain here: Nobody knows how this is supposed to come out. Cookies and other tracking technologies will create legitimate con- cerns that weigh against the benefits they provide. Browser defaults may con- verge on something more privacy-protective. (Apple's Safari browser rejects third-party cookies unless users tell it to do otherwise.) Browser plug-ins will augment consumers' power to control cookies and other tracking technolo- gies. Consumers will get better accustomed to the information economy. and they will choose more articulately how they fit into it. What matters is that the conversation should continue.

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