Most of the legislative privacy buzz this session has centered around online behavioral advertising (OBA) — along with the Federal Trade Commission’s proposal for a universal “do-not-track.”

The center of discussion for U.S. legislators and regulators has been clear and conspicuous disclosure to users about OBA and to allow opt-outs.    Regulators on the EU are engaged in the ‘great cookie debate” over whether the EU privacy laws require a user’s explicit consent to OBA or whether opt-out would be sufficient.

Two privacy experts argue in a new paper that they are all missing the point and this paper is excellent reading.  Omar Tene, a fellow at the Center for Democracy and Technology, and Jules Polonetsky, co-chair and co-director of the Future of Privacy Forum think tank write:

Unless policymakers address this underlying normative question — is online behavioral tracking a social good or an unnecessary evil — they may not be able to find a solution for implementing user choice in the context of online privacy…..This is not to say that a value judgment needs to be as stark as a binary choice between privacy and efficiency. On the contrary, a more nuanced equilibrium is needed taking into account the benefits of not only privacy rights but also access to information and services, freedom of speech and economic efficiency.