• by Joe Mandese  @mp_joemandese, February 22, 2012

Invoking the “I’m a consumer too perspective,” privacy and First Amendment legal expert Jane Yakowitz doesn’t seem so keen on kowtowing to consumer concerns about their online privacy.

Yakowitz, who is a visiting assistant professor of law at Brooklyn Law School, told OMMA Data and Behavioral attendees that there are both emotional and rationale aspects to consumer privacy concerns and that the law should be focusing on the rational ones, not the emotional ones.

“Generally speaking, I think consumers tend to fear innovations that they don’t know. And we should not necessarily rush to satisfy concerns that are not well-founded or not entirely rationale,” she said, adding, “As a consumer, I have these fears too, but that doesn’t mean that law should go there.”

Where the law should go, Yakowitz said, is where there are “real and immediate harm to consumers.”

While that’s not always so clear, Yakowitz said most consumers don’t have the slightest clue of the data their online usage actually generates.

“Most consumers today still don’t fully understand that their computer is generating a lot of data exhaust that can be collected. They still think of surfing the Web as an intimate, private activity,” she said, citing an example of a consumer who frequents WebMD’s website. While that behavior in itself may not be troubling, targeting ads to them based on the fact that they “visited a particular page on depression,” might be.

That said, Yakowitz said that simply giving the consumer “notice” that their data is being collected and that they could be targeted based on it, “probably is enough to provide consent.”