Could A Consumer Privacy Bill Of Rights Even Work?

The White House is making a big deal over its introduction of a Consumer Privacy Bill of Rights concerning corporation’s use of personal data. Unlike Europe, where there are a bunch of privacy protection laws, the US has gotten by without such laws for the most part. I can certainly understand the desire for a bill of rights like this — and like many, I’m creeped out about how some sites make use of my data (especially in that uncanny valley of targeted advertising) — but I’m not so creeped out that I think a law is the answer. In fact, a few things about this plan leave me concerned.

Privacy rights is one of those things that seems like a good idea, but seems very difficult to actually implement effectively, without either stifling useful services that really aren’t creepy or troublesome, or just creating a set of plans so meaningless as to be a waste of time. For example, we’ve long argued that privacy policies are pointless, but these days for many sites, it’s required that you have one. This is one of those ideas that sounds good: of course a site should have a privacy policy! Except… no one reads these privacy policies, and most people (incorrectly) assume that if a site has a privacy policy, it means their information is private. But that’s not necessarily the case. You could have a “privacy policy” that says “we widely share all your info and we mock you at the same time!” and as long as the company does just that, it’s likely still a legit privacy policy.

And that leads to screwed up incentives. Basically, sites have the incentive to be broad, vague and not very thorough in their privacy policies, to avoid running afoul of their own rules (which is where they start getting into trouble with the FTC). If you create a really locked down privacy policy, it just means there are more opportunities for you to break those rules and face an issue with the FTC. Thus, to protect yourself, you write a very vague and broad privacy policy just to avoid having to worry about tripping over it.

My fear is that we end up with the same screwed up incentives, but on a wider scale, with this “bill of rights.” Here’s what the White House is suggesting:

  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.
  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.
  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.
  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.
  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.
  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.

Now, I see a list like this, and, as a consumer, there are parts of it to which I instinctively say, “yeah, right on!” But, from the point of view of someone who runs a popular website, I look down that list and see possible pitfalls. There are a few areas where I could be afraid of accidentally violating such a “Bill of Rights,” without meaning to and certainly without intending harm. That’s what happens when you have vague laws. This isn’t to say there should be a free for all, but I do worry that making this “Bill of Rights” a reality may chill certain innovative businesses, while also causing some disruptions for small ongoing businesses. This doesn’t mean the issue shouldn’t be tackled, but as with SOPA/PIPA, I’d rather there be a much clearer statement not just on the problem or the fix being worked on — but on the wider implications of it.

And, if we’re talking about “privacy rights,” shouldn’t the focus really be on the government? After all, in the real Bill of Rights we already have a 4th Amendment that is a form of privacy protection… and which the federal government keeps trying to chip away at. It seems kind of ironic that the same government that is talking about how we need a privacy “bill of rights” for consumers against companies, is actively trying to take away those same kinds of privacy rights when the government is involved…

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