The hidden power of opt-outs
How to improve GDPR
Europe’s General Data Protection Regulation (GDPR) is in the news because the UK may change EU privacy rules that it inherited as a result of Brexit. Some people think that GDPR has caused massive harm to consumers by reducing innovation. Others think it is a vital protection. What’s missing from this debate is the idea of giving consumers the option to choose for themselves.
Take ‘pop-up’ cookie notices, for example – the things that suddenly occupy the whole screen when you click through to an article on a new website. Many ‘digital natives’ hate them. People who are less comfortable with the Internet may find them reassuring. But there is no need to impose the same rule on everyone.
Those who enjoy clicking through endless forms to select cookie options should be able to continue to do so. But we can also give the others the power to opt out of such pop-ups permanently.
Full details would need to be worked out, but one approach might be for the Government to provide a simple web page that drops an ‘opted out’ cookie for anyone who presses the opt out button. Then they need never see another cookie notice. As for those who don’t want to opt out, they need never visit that web page, and nothing will change for them. All that would only require a small tweak to the law.
In insisting that people should have to choose every time, for each single website, rather than being allowed to choose once for all of them, GDPR imposes a high and unnecessary cost on many individual consumers.
This illustrates a recurrent theme of clumsy policy design. Far too often, we fail to make rights alienable, so the right holder can choose to do what’s best for them. That stops people negotiating to find the best solutions to suit them, or their community.
Some rights, of course, we don’t want to make alienable. Few would argue that we should let people sell themselves into slavery. But it seems a stretch to argue that people shouldn’t have the right to give up on cookie notices. They can always opt back in later. Failing to give them that choice seems like a case of sloppy thinking, or an unduly authoritarian mindset.
We can see the enormous power of this principle in many settings - for example in housing. The ‘street votes’ idea can be seen as a collective power to opt out of certain unhelpful rules. A similar idea was used to reform minimum lot sizes in Houston. And on the other side of the coin, opt-ins are legally similar to opt-outs, but starting from a different position. Opt-ins have proven powerful in Seoul and Tel Aviv.
This was a short temporary interruption in the planned Ziggurat series, to cover breaking UK news about privacy law. The next post will introduce a new character - the ‘policy entrepreneur’ - and look at the cunning tools used to get parking reform in San Francisco.