How Did Americans Lose Their Right to Privacy?

Americans want their right to privacy restored.

Prior to 1996, Americans had a well-established, offline right to privacy based on the Fourth Amendment of the U.S. Constitution and several strong federal privacy statutes passed in 1974, 1974, 1978, 1984, 1986, 1988, 1994, and 1996.

In 1996, Congress also unwittingly and effectively set in motion an exceptional erosion of Americans’ established offline right to privacy when it passed the Telecom Act, which specially exempted and immunized Internet platforms from normal governmental accountability and consumer protection responsibilities.

Over two decades, this Wild West Internet industrial policy, which has been interpreted by Internet platforms and the courts, has eroded bit by bit Americans established offline right to privacy with a de facto U.S. online privacy piracy policy today.

In practice, America’s Internet law has transmogrified into open season on American consumers’ personal data. That’s because the U.S. Government effectively immunized Internet platforms’ in advance, from civil liability for the collection, use, and monetization of personal information online, that otherwise could be illegal to do offline.

In the near unanimous, bipartisan passage of the 1996 Telecom Act, no one voted to subvert consumers well-established right to privacy.

Nonetheless, since then, Americans’ privacy has been steadily, pervasively, and invasively taken away from them, largely without their consent or meaningful assent, and over much ongoing dissent.

Apparently, the biggest unintended consequence of the 1996 Telecom Act’s de facto Internet industrial policy has been its egregious erosion of Americans’ right to privacy and security.  

Enough. Americans overwhelmingly want their right to privacy restored.

Internet platforms well-marketed and self-serving mantra that people really don’t care about their privacy anymore, warrants healthy skepticism because they obviously do.

Personal privacy has been, is, and will continue to be one of the most bipartisan, overwhelmingly popular issues Congress can resolve.

Why? At the most basic level, privacy is integral to the natural human need for self-preservation. Privacy is akin to being able to hide from potential predatory harm. Without the ability to safeguard one’s privacy, one can’t protect one’s safety, security, identity, reputation, relationships, or dignity.

No privacy means less security and less control over one’s own life.

Privacy is central in a civil society because it is the freedom from harm and from government tyranny. No privacy in the uncivilized Wild West Internet – which is essentially everywhere Americans live, work, and play -- is the perverse immunity, and inverse freedom, for Internet platforms to do most whatever they want with American’s personal data.   

American freedom is freedom from harms, not freedom to harm others.

A decade ago, I testified before Congress on Internet privacy problems, and I have blogged about Internet privacy piracy problems many dozens of times since.

Tellingly, a poll Precursor LLC commissioned with Zogby International in 2010 polling 2,111 American adults, created strong confidence that privacy is an overwhelmingly popular and bipartisan American consumer need and issue. Others can poll the same questions today and expect comparable results given all that has happened to diminish Americans’ online privacy since.  

Consider these particularly overwhelming and telling findings:


·        “The large majority (88%) believe consumers should enjoy similar legal privacy protections online as they have offline, while 4% do not.”


·        “Nine in ten (88%) believe that tracking where Internet users go on the Internet without their permission is an unfair business practice, while 7% believe it is a fair practice.”


·        “Relaxing a privacy policy after a company has collected personal information and associations is an unfair business practice according to nine in ten (91%), while just 1% believe it is a fair practice.”

These findings indicate Google, Facebook, and Amazon are on the opposite side of overwhelmingly bipartisan public opinion. That’s because Google, Facebook, and Amazon have all done this online privacy “bait-and-switch” in promising to protect consumers’ privacy and then reneging after they have the personal data.

In sum, it makes no sense to have a strong offline consumer right to privacy and minimal online consumer right to privacy when Internet platforms are everywhere we live, work and play.

Harms from loss of privacy hurt consumers and their security, regardless of the technology involved.

Congress needs to restore American consumers’ rights to privacy and security, that have been egregiously eroded by U.S. Wild West Internet policy, by ensuring equal accountability under the law for privacy offline and online.

There is overwhelming bipartisan support for what American’s naturally want and need: same consumers, same privacy rules – regardless of the technology.



Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, an internetization consultancy specializing in how the Internet affects competition, markets, the economy, and policy, for Fortune 500 companies, some of which are Internet platform competitors. He is also Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. Cleland has testified seven times before the Senate and House Antitrust Subcommittees on antitrust matters. Overall, eight different congressional subcommittees have sought his expert testimony a total of sixteen times. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc.”


Asymmetric Accountability Harms Series:


Part 1:   The Internet Association Proves Extreme U.S. Internet Market Concentration [6-15-17]

Part 2:   Why US Antitrust Non-Enforcement Produces Online Winner-Take-All Platforms [6-22-17]

Part 3:   Why Aren’t Google Amazon & Facebook’s Winner-Take-All Networks Neutral? [7-11-17]

Part 4:   How the Google-Facebook Ad Cartel Harms Advertisers, Publishers & Consumers [7-20-17]

Part 5:   Why Amazon and Google Are Two Peas from the Same Monopolist Pod [7-25-17]

Part 6:   Google-Facebook Ad Cartel’s Collusion Crushing Competition Comprehensively [8-1-17]

Part 7:   How the Internet Cartel Won the Internet and The Internet Competition Myth [8-9-17]

Part 8:   Debunking Edge Competition Myth Predicate in FCC Title II Broadband Order [8-21-17]

Part 9:   The Power of Facebook, Google & Amazon Is an Issue for Left & Right; BuzzFeed Op-Ed[9-7-17]

Part 10: Google Amazon & Facebook’s Section 230 Immunity Destructive Double Standard [9-18-17]

Part 11: Online-Offline Asymmetric Regulation Is Winner-Take-All Government Policy [9-22-17] 

Part 12: CDA Section 230’s Asymmetric Accountability Produces Predictable Problems [10-3-17]

Part 13: Asymmetric Absurdity in Communications Law & Regulation [10-12-17]  

Part 14: Google’s Government Influence Nixed Competition for Winner-Take All Results[10-25-17]

Part 15: Google Amazon & Facebook are Standard Monopoly Distribution Networks [11-10-17]

Part 16: Net Neutrality’s Masters of Misdirection[11-28-17]

Part 17: America’s Antitrust Enforcement Credibility Crisis – White Paper [12-12-17]

Part 18: The U.S. Internet Isn’t a Free Market or Competitive It’s Industrial Policy [1-4-18]

Part 19: Remedy for the Government-Sanctioned Monopolies: Google Facebook & Amazon [1-17-18]

Part 20: America Needs a Consumer-First Internet Policy, Not Tech-First[1-24-18]

Part 21: How U.S. Internet Policy Sabotages America’s National Security [2-9-18]

Part 22: Google’s Chrome Ad Blocker Shows Why the Ungoverned Shouldn’t Govern Others [2-21-18]

Part 23: The Beginning of the End of America’s Bad “No Rules” Internet Policy [3-2-18]

Part 24: Unregulated Google Facebook Amazon Want Their Competitors Utility Regulated [3-7-18]

Part 25: US Internet Policy’s Anticompetitive Asymmetric Accountability - DOJ Filing [3-13-18]

Part 26: Congress Learns Sect 230 Is Linchpin of Internet Platform Unaccountability [3-22-18]

Part 27: Facebook Fiasco Is Exactly What US Internet Law Incents Protects & Produces [3-26-18]