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Vanderbilt Journal of Entertainment & Technology Law

First Page

553

Abstract

As the twenty-first century bustles forward, the e-commerce arena becomes an ever more dangerous place. On a daily basis, Websites collect vast amounts of personally identifying information (PHII) and mine it in sophisticated databases to discover consumer trends and desires. This process provides many benefits--such as tailored Web sites and relevant marketing--that few Web surfers would care to do without. However, serious threats lurk in cyberspace and are enhanced by consumers who continue to submit vast amounts of information in a state of relative unawareness. Not wanting to miss out on their Web surfing experience, visitors submit their personal information without glancing at a company's privacy policy. In 2008, for example, 100% of the most highly trafficked Web sites in the United States collect PHII while just over sixty percent have privacy polices that clearly explain PHII practices. Instead of offering explanations, e-commerce companies obfuscate and exacerbate the serious threats surrounding PII collection and dissemination. This occurs most often via inconspicuously posted privacy policies written in small font and filled with legalese and loopholes. The United States legal system allows such obfuscation unless a company breaks a privacy promise.

This article argues for a federal PII tagging law where companies face a choice, and must either: (1) post a clear and conspicuous privacy policy drafted in plain English; or (2) associate(tag) their name to each piece of data they disseminate. Over time, consumers will tire of solicitations beginning with the required phrase "Hi, I represent company X and we purchased your telephone number, etc. from company Y. " Such social pressure will lead companies to take the simple and nearly costless step of drafting and posting better privacy policies. At the end of the day, tagging legislation represents a middle-ground solution that protects PII without excessively hindering e-commerce efficiency.

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