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RSSNewspapers print pictures of people who don't want their photo shown, political campaigners ring people's doorbells seeking votes, and Web sites post the purchase price of home sales. Generally, these activities are permissible in the U.S., because First Amendment freedom of speech principles outweigh whatever privacy interest people think is being compromised.
On the other hand, courts have also upheld restrictions on speech -- especially ads, considered "commercial speech" -- in the name of protecting people from intrusion. Consider the do-not-call list. The Federal Trade Commisson had to defend the registry against a First Amendment challenge in federal court and, at one point, was banned from creating the registry. Ultimately, the 10th Circuit decided that the agency could go forward with the registry, but this outcome wasn't certain when the case first began.
Now, this clash is coming up again with behavioral targeting -- serving ads to people based on their Web-surfing history. The Newspaper Association of America late last week filed comments with the FTC arguing that any rules impeding newspapers' ability to serve ads to readers would violate newspapers' First Amendment rights.
Courts have long said that the ability to advertise is a First Amendment right, but there's obviously far less precedent about whether serving ads based on people's Web-surfing history violates other rights. Privacy advocates are calling for limits, saying that at a minimum, companies shouldn't deploy behavioral targeting without consumers' consent -- with some advocates arguing that consumers should explicitly consent via opt-ins.
Much of the legal restrictions might end up turning on whether people have a reasonable expectation that their Web history is, or should be, confidential. On one hand, everyone who stops and thinks about it must surely know that all clicks leave a digital trail. At the same time, many users simply can't fathom that anyone else -- ISPs, ad networks, etc. -- actually collects that information, much less analyzes it and then sends ads based on it.
Of course, one way Web companies can help insure people know that clickstream data is being collected is by posting clear, easy-to-read privacy policies. And, under the circumstances, asking people to consent to behavioral targeting, either by opting in or not opting out, doesn't seem like the kind of restriction that would necessarily violate the First Amendment.
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As for the privacy, this is my computer and I paid for the service to exchange information so it is my connection and my choice for it not to be shared according to what someone else wants to know. These are not e.g. utube or facebook moments.
I could care less if someone wants to call people and try and sell them something while they're eating dinner. It is indeed, their right of free speech. But that same freedom give me the option of saying, "Don't call me. I don't want to listen to what you have to say." We have the right to turn our backs, or never to listen in the first place.
The same holds true for behavorial marketing. You need my permission to express your right of free speech to me. I may well choose to opt-in, I see an advantage in receiving material that is based on what I seek out on the 'Net. But I also reserve the right to have you not send me anything.
Privacy rights and freedom of speech aren't colliding, they're coexisting. Equally protected by the 1st Amendment.
You may something to say, I have the right to choose whether or not to listen.