Considering the criticism on all sides, it’s not a bold prediction to suggest the White House’s Consumer Privacy Bill of Rights is unlikely to go far in the current Congress. Yet while actual legislation may not be the cards, the ideas raised by the proposed bill will impact the privacy debate. One of the bill’s biggest ideas is the creation of a new governance institution, the Privacy Review Board.
The bill envisions that Privacy Review Boards will provide a safety valve for innovative uses of information that strain existing privacy protections but could provide big benefits. In particular, when notice and choice are impractical and data analysis would be “not reasonable in light of context,” Privacy Review Boards could still permit data uses when “the likely benefits of the analysis outweigh the likely privacy risks.” This approach provides a middle-ground between calls for permissionless innovation, on one hand, and blanket prohibitions on innovative uses of information on the other.
Instead, Privacy Review Boards embrace the idea that ongoing review processes, whether external or internal, are important and are a better way to address amorphous benefits and privacy risks. Whatever they ultimately look like, these boards can begin the challenging task of specifically confronting the ethical qualms being raised by the benefits of “big data” and the Internet of Things.
This isn’t a novel idea. After all, the creation of formal review panels was one of the primary responses to ethical concerns with biomedical research. Institutional review boards, or IRBs, have now existed as a fundamental part of the human research approval process for decades. IRBs are not without their flaws. They can become overburdened and bureaucratic, and the larger ethical questions can be replaced by a rigid process of checking-off boxes and filling out paperwork. Yet IRBs have become an important mechanism by which society has come to trust researchers.
At their foundation, IRBs reflect an effort to infuse research with several overarching ethical principles identified in the Belmont Report, which serves as a foundational document in ethical research. The report’s principles of respect for persons, beneficence, and justice embody the ideas that researchers (1) should respect individual autonomy, (2) maximize benefits to the research project while minimizing risks to research subjects, and (3) ensure that costs and benefits of research are distributed fairly and equitably.
Formalizing a process of considering these principles, warts and all, went a long way toward alleviating fears that medical researchers lacked rules. Privacy Review Boards could do the same today for consumer data in the digital space. Consumers feel like they lack control over their own information, and they want reassurances that their personal data is only being used in ways that ultimately benefit them. Moreover, calls to develop these sorts of mechanisms in the consumer space are also not new. In response to privacy headaches, companies like Facebook and Google have already instituted review panels that are designed to reflect different viewpoints and encourage careful consideration.
Establishing the exact requirements for Privacy Review Boards will demand flexibility. The White House’s proposal offers a litany of different factors to consider. Specifically, Privacy Review Boards will need to have a degree of independence and also possess subject-matter expertise. They will need to take the sizes, experiences, and resources of a given company into account. Perhaps most challenging, Privacy Review Boards will to balance transparency and confidentiality. Controversially, the proposed bill places the Federal Trade Commission in the role of arbiter of the board’s validity. While it would be interested to imagine how the FTC could approach such a task, the larger project of having more ethical conversations about innovative data use is worth pursuing, and perhaps the principles put forward in the Belmont Report can provide a good foundation once more.
The principles in the Belmont Report already reflect ideas that exist in debates surrounding privacy. For example, the notion of respect for persons echoes privacy law’s emphasis on fair notice and informed choice. Beneficence stresses the need to maximize benefits and minimize harms, much like existing documentation on the FTC’s test for unfair business practices, and justice raises questions about the equity of data use and considerations about unfair or illegal disparate impacts. If the Consumer Privacy Bill of Rights accomplishes nothing else, it will have reaffirmed the importance of a considered review process. Privacy Review Boards might not have all the answers – but they are in a position to monitor data uses for problems, promote trust, and ultimately, better protect privacy.