At Slate, the University of California at Berkeley’s Chris Hoofnagle has an opinion column about how “use regulation” affects privacy and civil liberties:
A revolution is afoot in privacy regulation. In an assortment of white papers and articles, business leaders—including Microsoft—and scholars argue that instead of regulating privacy through limiting the collection of data, we should focus on how the information is used. It’s called “use regulation,” and this seemingly obscure issue has tremendous implications for civil liberties and our society. Ultimately, it can help determine how much power companies and governments have.
In a use-regulation world, companies may collect any data they wish but would be banned from certain uses of the data. In U.S. law, a good example of use regulation comes from credit reporting. Your credit report can be used only for credit decisions, employment screening, and renting an apartment. Or consider your physician: Her professional norms encourage expansive data collection, but she can use medical records only to advance patient care.
Bans on data collection are powerful tools to prevent institutions from using certain knowledge in their decision-making. But advocates of use regulations have some compelling points: Collection rules are too narrow by themselves. They ignore the real-life problem that we just click away our rights for the newest free service. And, increasingly, technologies gather data with no realistic opportunity to give notice to the individual at all. Some of these technologies can be used to infer knowledge about the very issues collection limitations attempt to protect. […]
Technologists designed systems to make privacy impossible, and now they say it is “pragmatic” to accept their legal proposal to solve the privacy problem.
There are deep problems with protecting privacy through regulating use. When one takes into account the broader litigation and policy landscape of privacy, it becomes apparent that use-regulation advocates are actually arguing for broad deregulation of information privacy.
Read the full article for more of Hoofnagle’s analysis.