The Obama Administration recently released a position paper on consumer data privacy. I have mixed feelings about it.
The document admirably says:
- Internet-related regulation should be informal, so as to maintain flexibility in the face of technological change (and, less clearly stated, government technological ignorance).
- Consumers should be given opt-ins and opt-outs regarding data retention, which should have good, clear user interfaces.
- If you don’t have good data security, then you’re not doing a good job of protecting privacy.
But it says less than it seems to about protecting citizens from privacy invasion by businesses. And it says nothing at all about protecting citizens from privacy invasion by government, which in the first footnote it says is beyond the scope of the document. On the whole, I think the document does much less than what is needed.
The core of the paper is a “Consumer Privacy Bill of Rights”, with seven provisions. Here goes:
1. INDIVIDUAL CONTROL: Consumers have a right to exercise control over what personal data companies collect from them and how they use it. Companies should provide consumers appropriate control over the personal data that consumers share with others and over how companies collect, use, or disclose personal data. Companies should enable these choices by providing consumers with easily used and accessible mechanisms that reflect the scale, scope, and sensitivity of the personal data that they collect, use, or disclose, as well as the sensitivity of the uses they make of personal data. Companies should offer consumers clear and simple choices, presented at times and in ways that enable consumers to make meaningful decisions about personal data collection, use, and disclosure. Companies should offer consumers means to withdraw or limit consent that are as accessible and easily used as the methods for granting consent in the first place.
The good stuff in there I’ve already noted. But on its own it doesn’t limit companies from saying “Give up your privacy or we won’t serve you.”
2. TRANSPARENCY: Consumers have a right to easily understandable and accessible information about privacy and security practices. At times and in places that are most useful to enabling consumers to gain a meaningful understanding of privacy risks and the ability to exercise Individual Control, companies should provide clear descriptions of what personal data they collect, why they need the data, how they will use it, when they will delete the data or de-identify it from consumers, and whether and for what purposes they may share personal data with third parties.
Good stuff, already noted.
3. RESPECT FOR CONTEXT: Consumers have a right to expect that companies will collect, use, and disclose personal data in ways that are consistent with the context in which consumers provide the data. Companies should limit their use and disclosure of personal data to those purposes that are consistent with both the relationship that they have with consumers and the context in which consumers originally disclosed the data, unless required by law to do otherwise. If companies will use or disclose personal data for other purposes, they should provide heightened Transparency and Individual Control by disclosing these other purposes in a manner that is prominent and easily actionable by consumers at the time of data collection. If, subsequent to collection, companies decide to use or disclose personal data for purposes that are inconsistent with the context in which the data was disclosed, they must provide heightened measures of Transparency and Individual Choice. Finally, the age and familiarity with technology of consumers who engage with a company are important elements of context. Companies should fulfill the obligations under this principle in ways that are appropriate for the age and sophistication of consumers. In particular, the principles in the Consumer Privacy Bill of Rights may require greater protections for personal data obtained from children and teenagers than for adults.
That sounds like it offers consumer protection — but the body of the paper (Pages 15-19) makes it clear that almost any use of data fits into “context”. Examples include:
- Obvious data transfers necessary for the performance of services, such as giving your address to a shipper.
- Marketing at you.
- Analyzing one’s own service.
- Fraud prevention.
- Complying with law enforcement orders and other legal obligations.
- Protecting intellectual property.
- “Any particular ad-based business model.”
The one example in the direction of actual consumer protection is
The Administration also encourages companies engaged in online advertising to refrain from collecting, using, or disclosing personal data that may be used to make decisions regarding employment, credit, and insurance eligibility or similar matters that may have significant adverse consequences to consumers.
But while I appreciate the sentiment, I don’t see that as amounting to much. First, the “collecting” part is almost totally bogus. Facebook stores pictures showing the color of your skin, while Visa knows whether you attend Tyler Perry films, and both may know whether you smoke cigarettes or eat fatty foods. Your legal defenses against race- or health-based discrimination have nothing to do with data collection; rather, they are solely in the form of restrictions on information use.
Further, there’s nothing in there about restricting the use of marketing information for preferential offers of special deals, invitations, differentiated prices, etc. — including, for example, differentiated prices for credit. All told, you may already have legal protections against discrimination, for example in matters of employment or financial services — but the Consumer Privacy Bill of Rights does little to strengthen them.
4. SECURITY: Consumers have a right to secure and responsible handling of personal data. Companies should assess the privacy and security risks associated with their personal data practices and maintain reasonable safeguards to control risks such as loss; unauthorized access, use, destruction, or modification; and improper disclosure.
Good stuff, already noted.
5. ACCESS AND ACCURACY: Consumers have a right to access and correct personal data in usable formats, in a manner that is appropriate to the sensitivity of the data and the risk of adverse consequences to consumers if the data is inaccurate. Companies should use reasonable measures to ensure they maintain accurate personal data. Companies also should provide consumers with reasonable access to personal data that they collect or maintain about them, as well as the appropriate means and opportunity to correct inaccurate data or request its deletion or use limitation. Companies that handle personal data should construe this principle in a manner consistent with freedom of expression and freedom of the press. In determining what measures they may use to maintain accuracy and to provide access, correction, deletion, or suppression capabilities to consumers, companies may also consider the scale, scope, and sensitivity of the personal data that they collect or maintain and the likelihood that its use may expose consumers to financial, physical, or other material harm.
6. FOCUSED COLLECTION: Consumers have a right to reasonable limits on the personal data that companies collect and retain. Companies should collect only as much personal data as they need to accomplish purposes specified under the Respect for Context principle. Companies should securely dispose of or de-identify personal data once they no longer need it, unless they are under a legal obligation to do otherwise.
Only as good as the “Respect for Context” principle. And note the “legal obligation” out clause.
7. ACCOUNTABILITY: Consumers have a right to have personal data handled by companies with appropriate measures in place to assure they adhere to the Consumer Privacy Bill of Rights. Companies should be accountable to enforcement authorities and consumers for adhering to these principles. Companies also should hold employees responsible for adhering to these principles. To achieve this end, companies should train their employees as appropriate to handle personal data consistently with these principles and regularly evaluate their performance in this regard. Where appropriate, companies should conduct full audits. Companies that disclose personal data to third parties should at a minimum ensure that the recipients are under enforceable contractual obligations to adhere to these principles, unless they are required by law to do otherwise.
Once again, note the “required by law” out clause.
Bottom line: The Obama Administration’s recent paper on consumer data privacy is OK as far as it goes, but it does little to address any of the real dangers electronic surveillance creates.