• by Wendy Davis  @wendyndavis, April 20, 2010

With potential privacy legislation looming, Google executives have authored a report arguing against any law that requires consumers to opt in to online data collection.

"Opt-in is a rhetorical straw-man that cannot really be implemented by regulatory policies without creating a number of unintended side effects, many of which are suboptimal for individual privacy," state senior policy counsel Nicklas Lundbad and policy manager Betsy Masiello in their new paper, "Opt-in Dystopias."

They assert that requiring opt-in consent would be counterproductive for several reasons. Among others, they warn that companies won't want to ask consumers to repeatedly agree to data collection. Therefore, they argue, companies likely will draft extremely broad opt-ins. "Once a user consents to data collection, why not collect as much as possible?" they ask.

The authors also argue that users could grow accustomed to opting in by rote, resulting in growing nonchalance. "Once consumers are desensitized to opt-in requests and the sequence of interactions required to constitute opting-in, the actual scope can start growing without much awareness on the part of the user," the paper states.

Privacy experts had mixed reactions to the paper. Ryan Calo, a residential fellow at the Center for Internet & Society at Stanford, says the authors raise some valid points. "It's a complex picture, but opt-in is not a panacea," Calo says. "Depending on how it's done, it could be annoying, or it could provide a false sense of security."

But, he adds, the current systems for notifying consumers about online tracking and allowing them to opt out often fall short. "I really think that consumers need greater access to the information that companies have about them, and better choices about what to do with that information," Calo says.

Jules Polonetsky, co-chairman and director of the industry-backed Future of Privacy Forum, points out that the only reason lawmakers are even considering opt-in requirements are because opt-out systems have proven problematic. "It's true that legalistic opt-in requirements could lead to consumer-unfriendly implementations, but the policymakers' drive towards opt-in is driven largely by the fact that companies haven't led with consumer-friendly ways to provide transparency and control," he says.

Many observers, including Federal Trade Commission chair Jon Leibowitz, have criticized Web companies for notifying consumers about online tracking via legalese-filled privacy policies. Those documents often contain links allowing people to opt out of targeting, but are also seen as too lengthy and dense to effectively communicate.

Currently, the Interactive Advertising Bureau and other industry groups are backing an initiative to place icons on ads that are displayed based on data about users' Web histories.

Google, as well as other companies like BlueKai, allows consumers to view and edit the marketing buckets they have been placed in based on their Web-surfing activity.