Static Privacy Legislation Dangerous In Dynamic Digital Age

Published in Online Spin, March 30th 2012

I agree that an employer should never ask you for your Facebook password as a condition of employment. Actually, they should never ask you for your Facebook password, period -- just as they should never tap your phone or install a closed-circuit camera in your bathroom. Some things are just common sense.

And I realize that some employers don’t have a whole lot of common sense, and that some people are not in a position to be able to walk away from potential employment of any kind, even if sticking around means being forced to open the lid on their secret LOLCat status updates and hidden XKCD obsessions. And that if you’re not in a position to be able to walk away, employers shouldn’t be able to take advantage of your vulnerability. The people likely to fall victim to this sort of invasive snooping are exactly the people who are least personally resourced to defend against it, so they may need a bit of help.

And because I agree with these things, I understand why TechCrunch’s Sarah Perez took the tone she did in her article. “Well, that didn’t take long,” she griped. “A proposed Facebook user protection amendment… has already been shot down.” Read a bit more, and you’ll see that responsibility for the amendment’s failure to pass lies squarely with the Republicans, who voted nearly unanimously against the measure.

All this might lead you to believe I think the Republicans were out of line, and that, as quickly as possible, we should be enacting legislative privacy protections in this crazy new world of online oversharing, and that we should probably make those privacy protections retroactive so we can take the Nosy Parker employers who started the whole kerfuffle and just throw them in jail.

And you’d be wrong.

My Daily Online Examiner colleague Wendy Davis reported on the skepticism of House Republicans when it comes to privacy proposals. Rep. Mary Bono Mack (R-Calif) was apparently “leery that advancements like ‘do not track’ will work as intended… Rep. Fred Upton (R-Mich.)… said he was ‘highly skeptical of Congress’ or a government regulator’s ability to keep up with the innovative and vibrant pace of the Internet without breaking it.’”

Upton may or may not think about the Web the same way you and I do, but I have to agree with him on this one. These are people who still haven’t gotten the memo that “The Facebook” is now just “Facebook,” people who get their Twitter streams printed out each morning and read them, people who think that despite not understanding the tiniest fraction of how SOPA and PIPA would work still think they would be qualified to vote on such significant legislation as long as some “nerds” explain it to them. (“Nerds?” asked Jon Stewart. “I think the word you’re looking for is ‘experts.’”)

So, no, I don’t particularly want these guys (yeah, they’re almost all guys) drafting and instituting legislation that they don’t understand. I want these bills or amendments or motions to be drafted by a cross-section of nerdy experts, from the Google engineers to the Anonymous hackers, from the people who represent the collection, dissemination and monetization of our user data to the people who do everything possible to remain invisible to said profiteers.

In fact, if there were ever legislation that should be crowd-sourced, this is it. Chuck a draft privacy bill on Wikipedia, and watch what happens to it. Put people in charge who know what they’re talking about, who understand the space and are active members of the community, and let the power of the multitudes keep them in check.

Do you think it’s possible to crowd-source legislation? Keen for your thoughts, below or on Twitter.

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