The Future of Privacy: More Data and More Choices

As I wrapped up my time at the Future of Privacy Forum, I prepared the following essay in advance of participating on a plenary discussion on the “future of privacy” at the Privacy & Access 20/20 conference in Vancouver on November 13, 2015 — my final outing in think tankery. 

Alan Westin famously described privacy as the ability of individuals “to determine for themselves when, how, and to what extent information about them is communicated to others.” Today, the challenge of controlling let alone managing our information has strained this definition of privacy to the breaking point. As one former European consumer protection commissioner put it, personal information is not just “the new oil of the Internet” but is also “the new currency of the digital world.” Information, much of it personal and much of it sensitive, is now everywhere, and anyone’s individual ability to control it is limited.

Early debates over consumer privacy focused on the role of cookies and other identifiers on web browsers. Technologies that feature unique identifiers have since expanded to include wearable devices, home thermostats, smart lighting, and every type of device in the Internet of Things. As a result, digital data trails will feed from a broad range of sensors and will paint a more detailed portrait about users than previously imagined. If privacy was once about controlling who knew your home address and what you might be doing inside, our understanding of the word requires revision in a world where every device has a digital address and ceaselessly broadcasts information.

The complexity of our digital world makes a huge challenge out of explaining all of this data collection and sharing. Privacy policies must either be high level and generic or technical and detailed, each option proves of limited value to the average consumer. Many connected devices have little capacity to communicate anything to consumers or passersby. And without meaningful insight, it makes sense to argue that our activities are now subject to the determinations of a giant digital black box. We see privacy conversations increasingly shift to discussions about fairness, equity, power imbalances, and discrimination.

No one can put the data genie back in a bottle. No one would want to. At a recent convening of privacy advocates, folks discussed the social impact of being surrounded by an endless array of “always on” devices, yet no one was willing to silence their smartphones for even an hour. It has become difficult, if not impossible, to opt out of our digital world, so the challenge moving forward is how do we reconcile reality with Westin’s understanding of privacy.

Yes, consumers may grow more comfortable with our increasingly transparent society over time, but survey after survey suggest that the vast majority of consumers feel powerless when it comes to controlling their personal information. Moreover, they want to do more to protect their privacy. This dynamic must be viewed as an opportunity. Rather than dour information management, we need better ways to express our desire for privacy. It is true that “privacy management” and “user empowerment” have been at the heart of efforts to improve privacy for years. Many companies already offer consumers an array of helpful controls, but one would be hard-pressed to convince the average consumer of this. The proliferation of opt-outs and plug-ins has done little to actually provide consumers with any feeling of control.

The problem is few of these tools actually help individuals engage with their information in a practical, transparent, or easy way. The notion of privacy as clinging to control of our information against faceless entities leaves consumers feeling powerless and frustrated. Privacy needs some rebranding. Privacy must be “appified” and made more engaging. There is a business model to be made in finding a way to marry privacy and control in an experience that is simple and functional. Start-ups are working to answer that challenge, and the rise of ephemeral messaging apps are, if not perfect implementations, a sure sign that consumers want privacy, if they can get it easily. For Westin’s view of privacy to have a future, we need to do a better job of embracing creative, outside-the-box ways to get consumers thinking about and engaging with how their data is being used, secured, and ultimately kept private.

Ethics and Privacy in the Data-Driven World

As part of the U.S. Chamber of Commerce’s “Internet of Everything” project, my boss and I co-authored a short essay on the growing need for company’s to have a “data ethics” policy:

Formalizing an ethical review process will give companies an outlet to weigh the benefits of data use against a larger array of risks. It provides a mechanism to formalize data stewardship and move away from a world where companies are largely forced to rely on the “gut instinct” of marketers or the C-Suite. By establishing an ethics policy, one can also capture issues that go beyond privacy issues and data protection, and ensure that the benefits of a future of smart devices outweigh any risks.

// Read more at the U.S. Chamber Foundation.

A Few Thoughts on De-Identification and Lightning Strikes

Been spending more and more time at work trying to get a handle on the politics (and definition) of de-identification. De-identification, in short, are processes designed to make it more difficult to connect information with one’s identity. While industry and academics will argue over what exactly that means, my takeaway is that de-identification battles have become proxies for a profound lack of trust and transparency on both sides. I tried to flesh out this idea a bit, and in the process, made the mistake of wading into the world of statistics. // Read more on the Future of Privacy Forum Blog.

Developing Consensus on the Ethics of Data Use

Information is power, as the saying goes, and big data promises the power to make better decisions across industry, government, and everyday life. Data analytics offers an assortment of new tools to harness data in exciting ways, but society has been slow to engage in a meaningful analysis of the social value of all this data. The result has been something of a policy paralysis when it comes to building consensus around certain uses of information.

Advocates noted this dilemma several years ago during the early stages of the effort to develop a Do Not Track (DNT) protocol at the World Wide Web Consortium. DNT was first proposed seven years ago as a technical mechanism to give users control over whether they were being tracked online, but the protocol remains a work in progress. The real issue lurking behind the DNT fracas was not any sort of technical challenge, however, but rather the fact that the ultimate value of online behavioral advertising remains an open question. Industry touts the economic and practical benefits of an ad-supported Internet, while privacy advocates maintain that targeted advertising is somehow unfair. Without any efforts to bridge that gap, consensus has been difficult to reach.

As we are now witnessing in conversations ranging from student data to consumer financial protection, the DNT debate was but a microcosm of larger questions surrounding the ethics of data use. Many of these challenges are not new, but the advent of big data has made the need for consensus ever more pressing.

For example, differential pricing schemes – or price discrimination – have increasingly become a hot-button issue. But charging one consumer a different price than another for the same good is not a new concept; in fact, it happens every day. The Wall Street Journal recently explored how airlines are the “world’s best price discriminators,” noting that what an airline passenger pays is tied to the type of people they’re flying with. As a result, it currently costs more for U.S. travelers to fly to Europe than vice versa because the U.S. has a stronger economy and quite literally can afford higher prices. Businesses are in business, after all, to make money, and at some level, differential pricing makes economic sense.

However, there remains a basic concern about the unfairness of these practices. This has been amplified by perceived changes in the nature of how price discrimination works. The recent White House “Big Data Report” recognized that while there are perfectly legitimate reasons to offers different prices for the same products, the capacity for big data “to segment the population and to stratify consumer experiences so seamlessly as to be almost undetectable demands greater review.” Customers have long been sorted into different categories and groupings. Think urban or rural, young or old. But big data has made it markedly easier to identify those characteristics that can be used to ensure every individual customer is charged based on their exact willingness to pay.

The Federal Trade Commission has taken notice of this shift, and begun to start a much-needed conversation about the ultimate value of these practices. At a recent discussion on consumer scoring, Rachel Thomas from the Direct Marketing Association suggested that companies have always tried to predict customer wants and desires. What’s truly new about data analytics, she argued, is that it offers the tools to actually get predictions right and to provide “an offer that is of interest to you, as opposed to the person next to you.” While some would argue this is a good example of market efficiency, others worry that data analytics can be used to exploit or manipulate certain classes of consumers. Without a good deal more public education and transparency on the part of decision-makers, we face a future where algorithms will drive not just predictions but decisions that will exacerbate socio-economic disparities.

The challenge moving forward is two-fold. Many of the more abstract harms allegedly produced by big data are fuzzy at best – filter bubbles, price discrimination, and amorphous threats to democracy are hardly traditional privacy harms. Moreover, few entities are engaging in the sort of rigorous analysis necessary to determine whether or not a given data use will make these things come to pass.

According to the White House, technological developments necessitate a shift in privacy thinking and practice toward responsible uses of data rather than its mere collection and analysis. While privacy advocates have expressed skepticism of use-based approaches to privacy, increased transparency and accountability mechanisms have been approached as a way to further augment privacy protections. Developing broad-based consensus around data use may be more important.

Consensus does not mean unanimity, but it does require a conversation that considers the interests of all stakeholders. One proposal that could help drive consensus are the development of internal review boards or other multi-stakeholder oversight mechanisms. Looking to the long-standing work of institutional review boards, or IRBs, in the field of human subject testing, Ryan Calo suggested that a similar structure could be used as a tool to infuse ethical considerations into consumer data analytics. IRBs, of course, engage in a holistic analysis of the risks and benefits that could result from any human testing project. They are also made up of different stakeholders, encompassing a wide-variety of diverse backgrounds and professional expertise. These boards also come to a decision before a project can be pursued.

Increasingly, technology is leaving policy behind. While that can both promote innovation and ultimately benefit society, it makes the need for consensus about the ethics at stake all the more important.

White House/MIT Big Data Privacy Workshop Recap

Speaking for everyone snowed-in in DC, White House Counselor John Podesta remarked that “big snow trumped big data,” while on the phone to open the first of the Obama Administration’s three big data and privacy workshops.  This first workshop, which I was eager to attend (if only to continue my streak of annual appearances in Beantown), focused on advancing the “start of the art” in technology and practice.  For a mere lawyer such as myself, I anticipated a lot of highly technical jargon, and in that regard I was not disappointed. // Full recap on the Future of Privacy Forum Blog.

Common Sense Media Student Privacy Summit All About Self-Regulation

The biggest takeaway from Common Sense Media’s School Privacy Zone Summit was, in the words of U.S. Secretary of Education Arne Duncan, that “privacy needs to be a higher priority” in our schools.  According to Duncan, “privacy rules may be the seatbelts of this generation,” but getting these rules right in sensitive school environments will prove challenging.  As the Family Educational Rights and Privacy Act (FERPA), one of the nation’s oldest privacy laws, turns forty this year, what seems to be apparent is that are schools lack both the resources and training necessary to even understand today’s digital privacy challenges surrounding student data.

Dr. Terry Grier, Superintendent of the Houston Independent School District, explains that his district of 225,000 students is getting training from a 5,000 student district in North Carolina.  The myriad of different school districts, varying sharply in wealth and size, has made it impossible for educators to define rules and expectations when it comes to how student data can be collected and used.

Moreover, while privacy advocates charge that schools have effectively relinquished control over their students’ information, several panelists noted that we haven’t yet decided who the ultimate custodian of student data even is.  One initial impulse might be to analogize education records to HIPAA health records, which belong to a patient, but Cameron Evans, CTO of education at Microsoft, suggested that it might be counterproductive to think of personalized education data as strictly comparable to individual health records.  On top of this dilemma, questions about how to communicate and inform parents have proven difficult to answer as educational technology shifts rapidly, resulting in a landscape that one state educational technology director described as the “wild wild west.”

There was wide recognition by both industry participants at the summit and policymakers that educational technology vendors need to establish best practices – and soon.  Secretary Duncan noted there was a lot of energy to address these issues, and that it was “in the best interest of commercial players to be self-policing.”  The implication was clear: begin establishing guidelines and helping schools now or face government regulation soon.

Average Folks and Retailer Tracking

Yesterday evening, I found myself at the Mansion on O Street, whose eccentric interior filled with hidden doors, secret passages, and bizarrely themed rooms, seemed as good as any place to hold a privacy-related reception. The event marked the beta launch of my organization’s mobile location tracking opt-out.  Mobile location tracking, which is being implemented across the country by major retailers, fast food companies, malls, and the odd airport, first came to the public’s attention last year when Nordstrom informed its customers that it was tracking their phones in order to learn more about their shopping habits.

Today, the Federal Trade Commission hosted a morning workshop to discuss the issue, featuring representatives from analytics companies, consumer education firms, and privacy advocates. The workshop presented some of the same predictable arguments about lack of consumer awareness and ever-present worries about stifling innovation, but I think a contemporaneous conversation I had with a friend better highlights some of the privacy challenges mobile analytics presents.  Names removed to predict privacy, of course!

Ephemeral Communication and the Frankly App Podcast

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

My former coworker was utterly enamored with Snapchat, on the grounds that she liked being able to express herself in ways that were not permanent.  In terms of our interpersonal relationships, it used to be that only diamonds were forever — now most of our text messages are, too.

Should a simple text last forever?  Last week, I reached out to Frankly, a new text-messaging app that provides for self-destructing texts, to talk about the development of the app and the future of ephemeral communication.

Click on the media player above to listen, or download the complete podcast MP3 here.

Because Everyone Needs Facebook

Facebook has rolled out several proposed updates to its privacy policy that ultimately gives Facebook even more control over its users information.  Coming on the heels of $20 million settlement by Facebook for using user’s information for inclusion in advertisements and “sponsored stories,” Facebook has responded by requiring users to give it permission to do just that:

You give us permission to your name, profile picture, content, and information in connection with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us.

A prior clause that suggested any permission was “subject to the limits you place” has been removed.

This is why people don’t trust Facebook. The comments sections to these proposed changes are full of thousands of people demanding that Facebook leave their personal information alone, without any awareness that that ship has sailed.  I don’t begrudge Facebook’s efforts to find unique and data-centric methods to make money, but as someone who is already reluctant to share too much about myself on Facebook, I can’t be certain that these policies changes aren’t going to lead to Facebook having me “recommend” things to my friends I have no association with.

But no one is going to “quit” Facebook over these changes.  No one ever quits Facebook.  As a communications and connectivity platform, it is simply invaluable to users.  These changes will likely only augment Facebook’s ability to be deliver users content, but as someone who’s been with Facebook since early on, Facebook sure has transformed from this safe lil’club into a walled Wild West where everyone’s got their eye on everyone.


Enter the Nexus?

In 2032, a group of genetically engineered neo-Nazis create a super virus that threatens to wipe away the rest of humanity. Coming on the heels of a series of outbreaks involving psychotropic drugs that effectively enslave their users, this leads to the Chandler Act, which places sharp restrictions on “research into genetics, cloning, nanotechnology, artificial intelligence, and any approach to creating ‘superhuman’ beings.” The Emerging Risks Directorate is launched within the Department of Homeland Security, and America’s war on science begins.

This is the world that technologist Ramez Naam sets his first novel, the techno-thriller Nexus. Nexus is a powerful drug, oily and bitter, that allows humans minds to be linked together into a mass consciousness. A hodgepodge of American graduate students develop a way to layer software into Nexus, allowing enterprising coders to upload programs into the human brain. It’s shades of The Matrix, but it’s hardly an impossible idea.

Read More…

1 2  Scroll to top