Popular Paternalism

Abstract

This chapter argues that coercive, paternalistic regulations are warranted to address indifference to privacy and data protection concerns spawned by internet and web use; but that even such laws aimed at young children raise serious practical and fairness concerns, pointing to roles for non-legal normative solutions. An analysis of the Children’s Online Privacy Protection Act suggests that paternalistic legislation aimed at older teens and young adults could be justified on grounds friendly to liberal political theory. For mature adults the web is a place to work, socialize and do business. Travel arrangements and shopping for consumer goods takes place online. Many people do virtually all of their banking and bill paying online. They assume common ethics, data security, privacy policies, and laws protect their financial privacy. Internet and web users of all ages give away vast quantities of personal information to internet service providers, website operators, social networking companions and the general public. They give away some of this data intentionally. It often appears that internet/web users are indifferent to privacy. It very least, they over-rely on others’ good will, on posted privacy notices, and on unstable assumptions of trust, reciprocity and civility. Governments readily protects from inadvertent access to adult-themed spam email; and punishes data breaches, identity theft and computer hacking. There may be broader protective roles for public regulation if internet/web users continue to allow others seriously to exploit or harm them and if they make choices that threaten their future flourishing as free moral agents. Voluntary conduct online is exposing data to third-party wrongs and is eroding the public’s taste both for privacy and modest self-restraint. Public regulators could in theory enact strong laws targeting website operators and internet service providers, aimed at benefitting internet/web users. They could even make laws targeting users themselves with strong duties of self-care. It appears that only very strongly coercive measures and censorship could fully protect children and adults. Such measures would be flatly inconsistent with western liberalism. Yet some coercive regulation is possible and justifiable, even though important tasks relating to promoting privacy values are arguably best left to non-coercive schemes and non-government sectors. To address problems of lost privacy resulting from internet/web use, policymakers in EU countries have made their populations the beneficiaries of weakly coercive privacy and data-protection legislation. In the US the Children’s Online Privacy Protection Act (COPPA), a major federal statute which prohibits websites from collecting personal information from children under the age of 13. COPPA is the best example of a willingness to enact paternalistic privacy statutes. COPPA is a case study in justified and unjustified state paternalism in the face of unpopular privacy. The Harriton High School scandal, in which Lower Merion, Pennsylvania public school officials admitted remotely activating school-issued laptop webcams capable of spying on teenagers in their homes, reveals that public authorities can be dangerously reckless with the privacy of youth. Still, assessing COPPA reveals that paternalistic liberty and opportunity-promoting legislation aimed at children, teens and adults is warranted under liberalism.