Posts Tagged ‘privacy’

“Databuse” as the Future of Privacy?

Is “privacy” such a broad concept as to be meaningless from a legal and policy perspective? On Tuesday, October 14th, the Center for Democracy & Technology hosted a conversation with Benjamin Wittes and Wells Bennett, frequently of the national security blog, Lawfare, to discuss their recent scholarship on “databuse” and the scope of corporate responsibilities for personal data.

Coming from a world of FISA and ECPA, and the detailed statutory guidance that accompanies privacy in the national security space, Wittes noted that privacy law on the consumer side is vague and amorphous, and largely “amounts to don’t be deceptive and don’t be unfair.” Part of the challenge, as number privacy scholars have noted, is that privacy encompasses a range of different social values and policy judgments. “We don’t agree what value we’re protecting,” Wittes said, explaining that government privacy policies have values and distinctions such as national borders and citizen/non-citizen than mean something.

Important distinctions are much less easier to find in consumer privacy. Wittes’ initial work on “databuse” in 2011 was considerably broader and more provocative, applying to all data controllers — first and third party, but his follow-up work with Bennett attempted to limit its scope to the duties owed to consumers exclusively by first parties. According to the pair, this core group of duties “lacks a name in the English language” but “describe a relationship best seen as a form of trusteeship.”

Looking broadly at law and policy around data use, including FTC enforcement actions, the pair argue that there is broad consensus that corporate custodians face certain obligations when holding personal data, including (1) obligations to keep it secure, (2) obligations to be candid and straightforward with users about how their data is being exploited, (3) obligations not to materially misrepresent their uses of user data, and (4) obligations not to use them in fashions injurious to or materially adverse to the users’ interests without their explicit consent. According to Wittes, this core set of requirements better describes reality than any sort of “grandiose conception of privacy.”

“When you talk in the broad language of privacy, you promise consumers more than the legal and enforcement system can deliver,” Wittes argued. “If we want useful privacy policy, we should focus on this core,” he continued, noting that most of these requirements are not directly required by statute.

Bennett detailed how data uses fall into three general categories. The first, a “win/win” category,” describes where the interests of business and consumers align, and he cited the many uses of geolocation information on mobile devices as a good example of this. The second category reflects cases where businesses directly benefit but consumers face a neutral value proposition, and Bennett suggested online behavioral advertising fit into this second category. Finally, a third category of uses are when businesses benefit at consumer’s expense, and he argued that regulatory action would be appropriate to limit these behaviors.

Bennett further argued that this categorization fit well with FTC enforcement actions, if not the agency’s privacy rhetoric. “FTC report often hint at subjective harms,” Bennett explained, but most of the Commission’s actions target objective harms to consumers by companies.

However, the broad language of “privacy” distorts what harms the pair believe regulators — and consumers, as well — are legitimately concerned about. Giving credit to CDT for initially coining the term “databuse,” Wittes defines the term as follows:

[T]he malicious, reckless, negligent, or unjustified handling, collection, or use of a person’s data in a fashion adverse to that person’s interests and in the absence of that person’s knowing consent. . . . It asks not to be left alone, only that we not be forced to be the agents of our own injury when we entrust our data to others. We are asking not necessarily that our data remain private; we are asking, rather, that they not be used as a sword against us without good reason.

CDT’s Justin Brookman, who moderated the conversation, asked whether (or when) price discrimination could turn into databuse.

“Everyone likes [price discrimination] when you call it discounts,” Wittes snarked, explaining that he was “allergic to the merger of privacy and antidiscrimination laws.” Where personal data was being abused or unlawful discrimination was transpiring, Wittes supported regulatory involvement, but he was hesitant to see both problems as falling into the same category of concern.

The conversation quickly shifted to a discussion of the obligations of third parties — or data brokers generally — and Wittes and Bennett acknowledged they dealt with the obligations of first parties because its an easier problem. “We punted on third parties,” they conceded, though Wittes’ background in journalism forced him to question how “data brokers” were functionally different from the press. “I haven’t thought enough about the First Amendment law,” he admitted, but he wasn’t sure what principle would allow advocates to divine “good” third parties and “bad” third parties.

But if the pair’s theory of “databuse” can’t answer every question about privacy policy, at least we might admit the term should enter the privacy lexicon.

-Joseph Jerome, Policy Counsel

Interest Based Ads and More Transparency

Facebook Ads

Facebook wasn’t doing interest based advertising until now?  Huh?

Most users of Facebook know that the ads they see are selected by Facebook based on information on their profile, what they have “liked” and interests they have selected.  Most have also noticed that if they visit a web site off Facebook like Zappos, they may get “retargeted” ads on Facebook for Zappos. Similarly, Facebook works with online and offline retailers to help them buy ads on Facebook aimed at users who have been their customers.

Today Facebook, with much fanfare, has announced that it is launching an interest based advertising program. What’s new? Well, the one thing Facebook hasn’t been doing is selling ads targeted based on the web sites and apps you use outside of Facebook. An individual advertiser could buy an ad, based on your visit to a particular site – but many advertisers couldn’t buy an ad based on your visits to many sites. Now they can.

Got it? Ads on Facebook are selected in an attempt to make them relevant based on your profile, and your activity off of Facebook. And now they will use more activity off Facebook.

What is new is a major new effort to show users extensive detail about the many categories that are used to select ads, and to let users add or edit many categories of interest. This is one of the most extensive moves to give users a deep look at the data used to target ads that we have seen and should make some users feel more in control of the experience.

Don’t like it?  Click on the icon on every targeted ad and turn off the interest based targeting. On mobile, use the limit ad tracking settings on iOS or Android (which will actually tell all apps you dont want interest based ads, not just Facebook).

Privacy legal fights should focus on intrusion, not hurt feelings

Please see FPF Advisory Board member Neil M. Richards in “Privacy legal fights should focus on intrusion, not hurt feelings”, an article from Washington University in St. Louis Newsroom by Jessica Martin. Richards discusses how American privacy law was created in the 19th and 20th centuries and is an inadequate guide for 21st century privacy battles. Richards, JD, is a privacy law expert and professor at Washington University in St. Louis School of Law.

For the full article, click here.

Privacy Legislation Low on Legislators’ List of Priorities

Rep. Anna Eshoo (D-CA) participated in the State of the Net West conference on Tuesday of this week where she said prospects were bleak for any privacy legislation to make it through Congress this year. Even though online privacy tops Eshoo’s list of technological priorities, she believes it lands differently on Congress’ list. With debates centering on the national economy, jobs and the European economy, legislators most likely will not have the time to rewrite privacy legislation. However, the congresswoman did say she wants companies working to adopt transparent privacy policies that are user-friendly, including policies that protect children.

For the full article on the conference from Palo Alto Online, click here.

Privacy Calendar

Oct
21
Tue
6:00 pm Consumer Action’s 43rd Annual Aw... @ Google
Consumer Action’s 43rd Annual Aw... @ Google
Oct 21 @ 6:00 pm – Oct 21 @ 8:00 pm
To mark its 43rd anniversary, Consumer Action’s Annual Awards Reception on October 21, 2014, will celebrate the theme of “Train the Trainer.” Through the power of individual and small group trainings, Consumer Action each year is[...]
Oct
24
Fri
9:00 am Web Privacy & Transparency Confe... @ Princeton University
Web Privacy & Transparency Confe... @ Princeton University
Oct 24 @ 9:00 am – 4:00 pm
On Friday, October 24, 2014, the Center for Information Technology Policy (CITP) at Princeton University is hosting a public conference on Web Privacy and Transparency. It will explore the quickly emerging area of computer science research that[...]
Oct
29
Wed
4:00 pm Big Data and Privacy: Navigating... @ Schulze Hall
Big Data and Privacy: Navigating... @ Schulze Hall
Oct 29 @ 4:00 pm – 7:00 pm
The rapid emergence of “big data” has created many benefits and risks for businesses today. As data is collected, stored, analyzed, and deployed for various business purposes, it is particularly important to develop responsible data[...]
Oct
30
Thu
9:00 am The Privacy Act @40: A Celebrati... @ Georgetown Law
The Privacy Act @40: A Celebrati... @ Georgetown Law
Oct 30 @ 9:00 am – 5:30 pm
The Privacy Act @40 A Celebration and Appraisal on the 40th Anniversary of the Privacy Act and the 1974 Amendments to the Freedom of Information Act October 30, 2014 Agenda 9 – 9:15 a.m. Welcome[...]
Nov
7
Fri
all-day George Washington Law Review 201... @ George Washington University Law School
George Washington Law Review 201... @ George Washington University Law School
Nov 7 – Nov 8 all-day
Save the date for the GW Law Review‘s Annual Symposium, The FTC at 100: Centennial Commemorations and Proposals for Progress, which will be held on Saturday, November 8, 2014, in Washington, DC. This year’s symposium, hosted in[...]
Nov
11
Tue
10:15 am You Are Here: GPS Location Track... @ Mauna Lani Bay Hotel & Bungalows
You Are Here: GPS Location Track... @ Mauna Lani Bay Hotel & Bungalows
Nov 11 @ 10:15 am
EFF Staff Attorney Hanni Fakhoury will present twice at the Oregon Criminal Defense Lawyers Association’s Annual Sunny Climate Seminar. He will give a presentation on government location tracking issues and then participate in a panel[...]
Nov
12
Wed
all-day PCLOB Public Meeting on “Definin... @ Washington Marriott Hotel
PCLOB Public Meeting on “Definin... @ Washington Marriott Hotel
Nov 12 all-day
The Privacy and Civil Liberties Oversight Board will conduct a public meeting with industry representatives, academics, technologists, government personnel, and members of the advocacy community, on the topic: “Defining Privacy.”   While the Board will[...]

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