Attempting to protect consumers’ personal data through legislation will not result in free speech violations, says privacy law expert.

Streams of junk mail full of personalized offers for anything from credit cards and mortgage refinancing to hobby supplies and vacation deals are unending. While annoying, these solicitations also raise significant privacy concerns leaving many consumers wondering how these companies know so much about their lives.

Neil Richards

This privacy threat highlights the need for constructive discussions about strengthened privacy legislation.

“This is not the time for frivolous debates about the First Amendment and privacy law,” Richards says.

“Regulating how two parties handle information during a commercial transaction no more offends the Constitution than government regulation of other aspects of the commercial relationship. Our law is replete with instances where confidential information is protected against disclosure under a whole host of public and private law rules, few of which have ever been thought to involve restrictions on speech.”

Recent telemarketing regulation, including the Do Not Call list, provides a prime example of legitimate and necessary privacy legislation.

“The enormous public outcry and prompt Congressional action surrounding the judicial invalidation of the Do Not Call list suggests that there is little tolerance today for constitutionalizing data policy,” Richards says. “Indeed, while such regulation certainly implicates the commercial speech rights of the telemarketers, the First Amendment nevertheless permits significant regulation of telemarketing activity.”

Richards finds that the real danger presented by the tension between privacy and the First Amendment is not that we must choose one over the other, but that we must instead avoid constitutionalizing important public law issues.

“The First Amendment is tremendously important to our society, but it’s got very little to do with the sorts of basic privacy laws that regulate the trade in personal data,” he says. “Letting go of the notion that protecting privacy damages free speech opens the door for a real discussion about how to protect personal information in our increasingly digital society.”