Three Reasons Why A ‘Do Not Track’ Bill Will Pass In 2011

On Friday, U.S. Rep. Jackie Speier (D-Calif.) introduced the first Do Not Track privacy proposal, and other such bills are on the way. At first glance, there doesn’t seem to be good reason to believe any of these bills will pass this year.

After all, the strongest Do Not Track proposal came from the Federal Trade Commission, a five-person commission with a Democratic majority; so why wouldn’t the Republican majority in the House simply block the idea, just like it appears set to do with the net neutrality proposal from the Federal Communications Commission?

In fact, there are a few good reasons to believe that online privacy is an area where politicians will manage to collaborate and actually produce a law.

»  The phrase ‘Do Not Track’ is proving to be a brilliant political slogan.

Even though it’s a quite different mechanism, the wording evokes the Do Not Call list banning telemarketers from calling homes without permission. “The Do Not Call registry is the most popular federal government program since the Elvis stamp,” said FTC Commissioner Julie Brill at a privacy event at UC Berkeley this week. “It’s a word that puts advertisers in particular on the defensive,” said Peter Swire, who took the position of privacy chief in 1999 under President Bill Clinton, and who was speaking at the same event. And it’s so short it fits perfectly into newspaper headlines–so short and useful that it’s tough to think of another phrase to replace it. “Reporters are stuck with the phrase,” said Swire.

»  Political polarization has been overcome before on the privacy issue.

We’re hearing a lot about gridlock in Washington, but significant privacy legislation was passed in the 1990s, with the same balance of power that exists in 2011–a Democratic president, following a big setback in a midterm election, was facing an energized Republican majority in the House. Those laws include the landmark HIPAA privacy rules around health-care information, as well as the Children’s Online Privacy Protection Act, or COPPA, which Swire described as a kind of Do Not Track bill aimed at kids. A sharply divided government didn’t exactly make the idea of stopping trackers from following kids around into a tough sell. “COPPA passed in about three seconds back in 1998,” said Swire.

»  The deficit is big, and passing privacy legislation is relatively cheap.

“Congress is going to be looking for bills that have a specific attribute–bills that don’t cost money out of the federal budget,” said Swire. Members of Congress–including members of the incoming Republican majority–are going to want to go home to their constituencies with a story to tell about something they did, other than reducing benefits in a time of need. Telling people that their privacy is being protected could make voters feel like their representatives are doing something important, without breaking the bank.