By STEVE LOHR
IN the wide-open Web, choice and competition are said to be merely “one click away,” to use Google’s favorite phrase. But in practice, the power of digital distribution channels, default product settings and traditional human behavior often matters most.
In a Senate hearing last month about Google, Jeremy Stoppelman, the chief executive of Yelp, pointed to that reality in his testimony. “If competition really were just ‘one click away,’ as Google suggests,” he said, “why have they invested so heavily to be the default choice on Web browsers and mobile phones?”
“Clearly,” he added, “they are not taking any chances.”
Indeed, Google made a big bet early in its history: In 2002, it reached a deal with AOL, guaranteeing a payment of $50 million to come from advertising revenue if AOL made Google its automatic first-choice search engine — the one shown to users by default. Today, Google pays an estimated $100 million a year to Mozilla, coming from shared ad revenue, to be the default search engine on Mozilla’s popular Firefox Web browser in the United States and other countries. Google has many such arrangements with Web sites.
Most economists agree that Google’s default deals aren’t anticompetitive. Rivals like Bing, the general search engine from Microsoft, and partial competitors like Yelp, an online review and listing service for local businesses, have their own Web sites and other paths of distribution. Choice, in theory, is one click away.
But most people, of course, never make that single click. Defaults win.
The role of defaults in steering decisions is by no means confined to the online world. For behavioral economists, psychologists and marketers, defaults are part of a rich field of study that explores “decision architecture” — how a choice is presented or framed. The field has been popularized by the 2008 book “Nudge,” by Richard H. Thaler, an economist at the University of Chicago and a frequent contributor to the Sunday Business section, and Cass R. Sunstein, a Harvard Law School professor who is now on leave and is working for the Obama administration. Nudges are default choices.
In decision-making, examples of the default preference abound: Workers are far more likely to save in retirement plans if enrollment is the automatic option. And the percentage of pregnant women tested for H.I.V. in some African nations where AIDS is widespread has surged since the test became a regular prenatal procedure and women had to opt out if they didn’t want it.
A study published in 2003 showed that while large majorities of Americans approved of organ donations, only about a quarter consented to donate their own. By contrast, nearly all Austrians, French and Portuguese consent to donate theirs. The default explains the difference. In the United States, people must choose to become an organ donor. In much of Europe, people must choose not to donate.
Defaults, according to economists and psychologists, frame how a person is presented with a choice. But they say there are other forces that make the default path hard to resist. One is natural human inertia, or laziness, that favors making the quick, easy choice instead of exerting the mental energy to make a different one. Another, they say, is that most people perceive a default as an authoritative recommendation.
“All those work, and that is why defaults are so powerful,” says Eric J. Johnson, a professor at the Columbia Business School and co-director of the university’s Center for Decision Sciences.
THE default values built into product designs can be particularly potent in the infinitely malleable medium of software, and on the Internet, where a software product or service can be constantly fine-tuned.
“Computing allows you to slice and dice choices in so many ways,” says Ben Shneiderman, a computer scientist at the University of Maryland. “Those design choices also shape our social, cultural and economic choices in ways most people don’t appreciate or understand.”
Default design choices play a central role in the debate over the privacy issues raised by marketers’ tracking of online consumer behavior. The Federal Trade Commission is considering what rules should limit how much online personal information marketers can collect, hold and pass along to other marketers — and whether those rules should be government regulations or self-regulatory guidelines.
Privacy advocates want tighter curbs on gathering online behavioral data, and want marketers to have to ask consumers to collect and share their information, presumably in exchange for discount offers or extra services. Advertisers want a fairly free hand to track online behavior, and to cut back only if consumers choose to opt out.
New research by a team at Carnegie Mellon University suggests the difficulty that ordinary users have in changing the default settings on Internet browsers or in configuring software tools for greater online privacy. The project, called “Why Johnny Can’t Opt Out,” has just been completed and the results have not yet been published. Forty-five people of various backgrounds and ages in the Pittsburgh area were recruited for the study.
To qualify as research subjects, they had to be frequent Internet users and express an interest in learning about protecting their privacy online. Each was interviewed for 90 minutes, and each watched a video showing how online behavioral advertising works.
Then, each person was given a laptop computer and told to set privacy settings as he or she preferred, using one of nine online tools. The tools included the privacy options on browsers like Mozilla Firefox and Microsoft’s Internet Explorer, and online programs like Ghostery and Adblock Plus, as well as Consumer Choice from the Digital Advertising Alliance.
The privacy tools typically proved too complicated and confusing to serve the needs of rank-and-file Internet users.
“The settings they chose didn’t block as much as they thought they were blocking, often blocking nothing,” says Lorrie Faith Cranor, a computer scientist at Carnegie Mellon who led the research.
Ms. Cranor says the research points to the need to simplify privacy software to few choices. “If you turn it on, it should be pretty privacy-protective,” she says. “The defaults are crucial.”
Monday, October 17, 2011
Monday, October 3, 2011
New Book (Ordered): Jeff Jarvis: Are we Too Hung Up on Privacy
Jeff Jarvis: 'We now take it for granted that any piece of information we want is likely a search away.'
By L. GORDON CROVITZ
For many years, privacy has been evolving to become a right as fundamental as equal protection or free speech. But what if it comes at too high a cost? What if we have too much privacy when technology now makes sharing information so much easier and the value of shared information so much greater?
This is the thesis of a new book, "Public Parts: How Sharing in the Digital Age Improves the Way We Work and Live," by Jeff Jarvis, a journalism professor at the City University of New York. In contrast to privacy activists, he argues for "publicness" to make the most of modern technologies.
"Just as we now take it for granted that any piece of information we want is likely a search away," Mr. Jarvis writes, "we are coming to rely on the idea that the people we want to meet are a connection away."
The benefits of social media are leading people increasingly to be more public. Most Americans over the age of 12 now have accounts on Facebook, whose entire purpose is to connect and share personal information. "To join up with fellow diabetics or vegetarians or libertarians or Star Trek fans, we first have to reveal ourselves as members of those groups," Mr. Jarvis writes.
Mr. Jarvis details privacy fears over time arising from new technologies, from the printing press to the telephone to the microphone. A century ago, Kodak cameras made it easy for the first time to take and share photos of people; Teddy Roosevelt for a time banned cameras from parks in Washington as a privacy violation.
Mr. Jarvis is his own test case for the benefits of sharing information. A hyperactive blogger and Twitter poster, he is famous among the social media set for his frank postings about his prostate cancer and the occasional embarrassing side effects of the treatment. He says in return for being so public, he got advice from men who had undergone the same procedure and the satisfaction of urging others to seek treatment. He once complained so bitterly online about problems with his computer that he created what became known online as "Dell hell."
The more than 80,000 people who follow Mr. Jarvis on Twitter know his views on many topics. These are often cranky. He credits WikiLeaks as journalism, thinks advertising revenue will somehow again be enough to fund news reporting, and last Friday reported he had visited Occupy Wall Street demonstrators (Twitter post: "Glad to see they were eating well & a generator powering many Macs") and made a donation. Those of us who disagree with these views appreciate much of the rest of his posts, including his links to interesting articles and events.
Mr. Jarvis is not starry-eyed about the Web. "Some people turn trollish, just announcing that they don't like what I'm saying, adding nothing to the discussion but venom," he told me last week. "They sometimes accuse me of oversharing. Well, I say they're over-listening. If they don't like what I say and don't choose to enter a discussion, they shouldn't follow me—and they shouldn't try to tell me what not to say."
Mr. Jarvis argues it should be up to each person where to balance the risks and rewards of being more public. "When new technologies cause change and fear, government's reflex is to regulate them to protect the past," he says. "But in doing so, they also can cut off the opportunities for the future."
Congress is considering several privacy bills. But Mr. Jarvis calls it a "dire mistake to regulate and limit this new technology before we even know what it can do."
Privacy is notoriously difficult to define legally. Mr. Jarvis says we should think about privacy as a matter of ethics instead. We should respect what others intend to keep private, but publicness reflects the choices "made by the creator of one's own information." The balance between privacy and publicness will differ from person to person in ways that laws applying to all can't capture.
"Perhaps this will lead to what I call the doctrine of mutually assured humiliation," Mr. Jarvis says. "I won't make fun of your silly picture if you don't make fun of mine. Perhaps it will lead to a greater expectation of openness from corporations and transparency from government. Perhaps it will also lead to people being more connected, for they can no longer run away from each other as they'll always be only a link or two apart."
No one could have known when the printing press was invented that it would enable people to share and test new ideas, from democracy to the scientific method. Some day we'll know whether digital technologies have such a profound impact, but we are already altering our behavior to take advantage of what they offer. Yesterday's expectation of privacy is rapidly giving way to something new, and perhaps better.
--------------------------------------------------Stefaan G. Verhulst
Chief of Research
Markle Foundation
10 Rockefeller Plaza, Floor 16
New York, NY 10020-1903
Tel. 212 713 7630http://www.markle.org
P Please consider the environment before printing this e-mail.
By L. GORDON CROVITZ
For many years, privacy has been evolving to become a right as fundamental as equal protection or free speech. But what if it comes at too high a cost? What if we have too much privacy when technology now makes sharing information so much easier and the value of shared information so much greater?
This is the thesis of a new book, "Public Parts: How Sharing in the Digital Age Improves the Way We Work and Live," by Jeff Jarvis, a journalism professor at the City University of New York. In contrast to privacy activists, he argues for "publicness" to make the most of modern technologies.
"Just as we now take it for granted that any piece of information we want is likely a search away," Mr. Jarvis writes, "we are coming to rely on the idea that the people we want to meet are a connection away."
The benefits of social media are leading people increasingly to be more public. Most Americans over the age of 12 now have accounts on Facebook, whose entire purpose is to connect and share personal information. "To join up with fellow diabetics or vegetarians or libertarians or Star Trek fans, we first have to reveal ourselves as members of those groups," Mr. Jarvis writes.
Mr. Jarvis details privacy fears over time arising from new technologies, from the printing press to the telephone to the microphone. A century ago, Kodak cameras made it easy for the first time to take and share photos of people; Teddy Roosevelt for a time banned cameras from parks in Washington as a privacy violation.
Mr. Jarvis is his own test case for the benefits of sharing information. A hyperactive blogger and Twitter poster, he is famous among the social media set for his frank postings about his prostate cancer and the occasional embarrassing side effects of the treatment. He says in return for being so public, he got advice from men who had undergone the same procedure and the satisfaction of urging others to seek treatment. He once complained so bitterly online about problems with his computer that he created what became known online as "Dell hell."
The more than 80,000 people who follow Mr. Jarvis on Twitter know his views on many topics. These are often cranky. He credits WikiLeaks as journalism, thinks advertising revenue will somehow again be enough to fund news reporting, and last Friday reported he had visited Occupy Wall Street demonstrators (Twitter post: "Glad to see they were eating well & a generator powering many Macs") and made a donation. Those of us who disagree with these views appreciate much of the rest of his posts, including his links to interesting articles and events.
Mr. Jarvis is not starry-eyed about the Web. "Some people turn trollish, just announcing that they don't like what I'm saying, adding nothing to the discussion but venom," he told me last week. "They sometimes accuse me of oversharing. Well, I say they're over-listening. If they don't like what I say and don't choose to enter a discussion, they shouldn't follow me—and they shouldn't try to tell me what not to say."
Mr. Jarvis argues it should be up to each person where to balance the risks and rewards of being more public. "When new technologies cause change and fear, government's reflex is to regulate them to protect the past," he says. "But in doing so, they also can cut off the opportunities for the future."
Congress is considering several privacy bills. But Mr. Jarvis calls it a "dire mistake to regulate and limit this new technology before we even know what it can do."
Privacy is notoriously difficult to define legally. Mr. Jarvis says we should think about privacy as a matter of ethics instead. We should respect what others intend to keep private, but publicness reflects the choices "made by the creator of one's own information." The balance between privacy and publicness will differ from person to person in ways that laws applying to all can't capture.
"Perhaps this will lead to what I call the doctrine of mutually assured humiliation," Mr. Jarvis says. "I won't make fun of your silly picture if you don't make fun of mine. Perhaps it will lead to a greater expectation of openness from corporations and transparency from government. Perhaps it will also lead to people being more connected, for they can no longer run away from each other as they'll always be only a link or two apart."
No one could have known when the printing press was invented that it would enable people to share and test new ideas, from democracy to the scientific method. Some day we'll know whether digital technologies have such a profound impact, but we are already altering our behavior to take advantage of what they offer. Yesterday's expectation of privacy is rapidly giving way to something new, and perhaps better.
--------------------------------------------------Stefaan G. Verhulst
Chief of Research
Markle Foundation
10 Rockefeller Plaza, Floor 16
New York, NY 10020-1903
Tel. 212 713 7630http://www.markle.org
P Please consider the environment before printing this e-mail.
Friday, September 23, 2011
Old data learns new tricks: Managing patient security and privacy on a new data-sharing playground
Data is quickly becoming one of the health industry’s most treasured commodities. Yet, health organizations are acutely aware that sensitive data can be easily compromised. In just the last year and a half, a breach of personal health information occurred, on average, every other day. Breaches erode productivity and patient trust. They’re costly, unpredictable, and unfortunately quite common. More than half of healthcare organizations surveyed by PwC have had at least one privacy/security-related issue in the last two years
· Download: Old data learns new tricks (1.24mb)
· Download: Old data learns new tricks: Chart pack (58kb)
Monday, September 19, 2011
NYTimes on ID
Call It Your Online Driver’s License
By NATASHA SINGER NYT 9/18/11
Consumers who still pay bills via snail mail. Hospitals leery of making treatment records available online to their patients. Some state motor vehicle registries that require car owners to appear in person — or to mail back license plates — in order to transfer vehicle ownership.
But the White House is out to fight cyberphobia with an initiative intended to bolster confidence in e-commerce.
The plan, called the National Strategy for Trusted Identities in Cyberspace and introduced earlier this year, encourages the private-sector development and public adoption of online user authentication systems. Think of it as a driver’s license for the Internet. The idea is that if people have a simple, easy way to prove who they are online with more than a flimsy password, they’ll naturally do more business on the Web. And companies and government agencies, like Social Security or the I.R.S., could offer those consumers faster, more secure online services without having to come up with their own individual vetting systems.
“What if states had a better way to authenticate your identity online, so that you didn’t have to make a trip to the D.M.V.?” says Jeremy Grant, the senior executive adviser for identity management at the National Institute of Standards and Technology, the agency overseeing the initiative.
But authentication proponents and privacy advocates disagree about whether Internet IDs would actually heighten consumer protection — or end up increasing consumer exposure to online surveillance and identity theft.
If the plan works, consumers who opt in might soon be able to choose among trusted third parties — such as banks, technology companies or cellphone service providers — that could verify certain personal information about them and issue them secure credentials to use in online transactions.
Industry experts expect that each authentication technology would rely on at least two different ID confirmation methods. Those might include embedding an encryption chip in people’s phones, issuing smart cards or using one-time passwords or biometric identifiers like fingerprints to confirm substantial transactions. Banks already use two-factor authentication, confirming people’s identities when they open accounts and then issuing depositors with A.T.M. cards, says Kaliya Hamlin, an online identity expert known by the name of her Web site, Identity Woman.
The system would allow Internet users to use the same secure credential on many Web sites, says Mr. Grant, and it might increase privacy. In practical terms, for example, people could have their identity authenticator automatically confirm that they are old enough to sign up for Pandora on their own, without having to share their year of birth with the music site.
The Open Identity Exchange, a group of companies including AT&T, Google, Paypal, Symantec and Verizon, is helping to develop certification standards for online identity authentication; it believes that industry can address privacy issues through self-regulation. The government has pledged to be an early adopter of the cyber IDs.
But privacy advocates say that in the absence of stringent safeguards, widespread identity verification online could actually make consumers more vulnerable. If people start entrusting their most sensitive information to a few third-party verifiers and use the ID credentials for a variety of transactions, these advocates say, authentication companies would become honey pots for hackers.
“Look at it this way: You can have one key that opens every lock for everything you might need online in your daily life,” says Lillie Coney, the associate director of the Electronic Privacy Information Center in Washington. “Or, would you rather have a key ring that would allow you to open some things but not others?”
Even leading industry experts foresee challenges in instituting across-the-board privacy protections for consumers and companies.
For example, people may not want the banks they might use as their authenticators to know which government sites they visit, says Kim Cameron, whose title is distinguished engineer at Microsoft, a leading player in identity technology. Banks, meanwhile, may not want their rivals to have access to data profiles about their clients. But both situations could arise if identity authenticators assigned each user with an individual name, number, e-mail address or code, allowing companies to follow people around the Web and amass detailed profiles on their transactions.
“The whole thing is fraught with the potential for doing things wrong,” Mr. Cameron says.
But next-generation software could solve part of the problem by allowing authentication systems to verify certain claims about a person, like age or citizenship, without needing to know their identities. Microsoft bought one brand of user-blind software, called U-Prove, in 2008 and has made it available as an open-source platform for developers.
Google, meanwhile, already has a free system, called the “Google Identity Toolkit,” for Web site operators who want to shift users from passwords to third-party authentication. It’s the kind of platform that makes Google poised to become a major player in identity authentication.
But privacy advocates like Lee Tien, a senior staff lawyer at the Electronic Frontier Foundation, a digital rights group, say the government would need new privacy laws or regulations to prohibit identity verifiers from selling user data or sharing it with law enforcement officials without a warrant. And what would happen if, say, people lost devices containing their ID chips or smart cards?
“It took us decades to realize that we shouldn’t carry our Social Security cards around in our wallets,” says Aaron Titus, the chief privacy officer at Identity Finder, a company that helps users locate and quarantine personal information on their computers.
Carrying around cyber IDs seems even riskier than Social Security cards, Mr. Titus says, because they could let people complete even bigger transactions, like buying a house online. “What happens when you leave your phone at a bar?” he asks. “Could someone take it and use it to commit a form of hyper identity theft?”
For the government’s part, Mr. Grant acknowledges that no system is invulnerable. But better online identity authentication would certainly improve the current situation — in which many people use the same one or two passwords for a dozen or more of their e-mail, e-tail, online banking and social network accounts, he says.
Mr. Grant likens that kind of weak security to flimsy locks on bathroom doors.
“If we can get everyone to use a strong deadbolt instead of a flimsy bathroom door lock,” he says, “you significantly improve the kind of security we have.”
But not if the keys can be compromised.
A version of this article appeared in print on September 18, 2011, on page BU4 of the New York edition with the headline: Call It Your Online Driver’s License.
By NATASHA SINGER NYT 9/18/11
Consumers who still pay bills via snail mail. Hospitals leery of making treatment records available online to their patients. Some state motor vehicle registries that require car owners to appear in person — or to mail back license plates — in order to transfer vehicle ownership.
But the White House is out to fight cyberphobia with an initiative intended to bolster confidence in e-commerce.
The plan, called the National Strategy for Trusted Identities in Cyberspace and introduced earlier this year, encourages the private-sector development and public adoption of online user authentication systems. Think of it as a driver’s license for the Internet. The idea is that if people have a simple, easy way to prove who they are online with more than a flimsy password, they’ll naturally do more business on the Web. And companies and government agencies, like Social Security or the I.R.S., could offer those consumers faster, more secure online services without having to come up with their own individual vetting systems.
“What if states had a better way to authenticate your identity online, so that you didn’t have to make a trip to the D.M.V.?” says Jeremy Grant, the senior executive adviser for identity management at the National Institute of Standards and Technology, the agency overseeing the initiative.
But authentication proponents and privacy advocates disagree about whether Internet IDs would actually heighten consumer protection — or end up increasing consumer exposure to online surveillance and identity theft.
If the plan works, consumers who opt in might soon be able to choose among trusted third parties — such as banks, technology companies or cellphone service providers — that could verify certain personal information about them and issue them secure credentials to use in online transactions.
Industry experts expect that each authentication technology would rely on at least two different ID confirmation methods. Those might include embedding an encryption chip in people’s phones, issuing smart cards or using one-time passwords or biometric identifiers like fingerprints to confirm substantial transactions. Banks already use two-factor authentication, confirming people’s identities when they open accounts and then issuing depositors with A.T.M. cards, says Kaliya Hamlin, an online identity expert known by the name of her Web site, Identity Woman.
The system would allow Internet users to use the same secure credential on many Web sites, says Mr. Grant, and it might increase privacy. In practical terms, for example, people could have their identity authenticator automatically confirm that they are old enough to sign up for Pandora on their own, without having to share their year of birth with the music site.
The Open Identity Exchange, a group of companies including AT&T, Google, Paypal, Symantec and Verizon, is helping to develop certification standards for online identity authentication; it believes that industry can address privacy issues through self-regulation. The government has pledged to be an early adopter of the cyber IDs.
But privacy advocates say that in the absence of stringent safeguards, widespread identity verification online could actually make consumers more vulnerable. If people start entrusting their most sensitive information to a few third-party verifiers and use the ID credentials for a variety of transactions, these advocates say, authentication companies would become honey pots for hackers.
“Look at it this way: You can have one key that opens every lock for everything you might need online in your daily life,” says Lillie Coney, the associate director of the Electronic Privacy Information Center in Washington. “Or, would you rather have a key ring that would allow you to open some things but not others?”
Even leading industry experts foresee challenges in instituting across-the-board privacy protections for consumers and companies.
For example, people may not want the banks they might use as their authenticators to know which government sites they visit, says Kim Cameron, whose title is distinguished engineer at Microsoft, a leading player in identity technology. Banks, meanwhile, may not want their rivals to have access to data profiles about their clients. But both situations could arise if identity authenticators assigned each user with an individual name, number, e-mail address or code, allowing companies to follow people around the Web and amass detailed profiles on their transactions.
“The whole thing is fraught with the potential for doing things wrong,” Mr. Cameron says.
But next-generation software could solve part of the problem by allowing authentication systems to verify certain claims about a person, like age or citizenship, without needing to know their identities. Microsoft bought one brand of user-blind software, called U-Prove, in 2008 and has made it available as an open-source platform for developers.
Google, meanwhile, already has a free system, called the “Google Identity Toolkit,” for Web site operators who want to shift users from passwords to third-party authentication. It’s the kind of platform that makes Google poised to become a major player in identity authentication.
But privacy advocates like Lee Tien, a senior staff lawyer at the Electronic Frontier Foundation, a digital rights group, say the government would need new privacy laws or regulations to prohibit identity verifiers from selling user data or sharing it with law enforcement officials without a warrant. And what would happen if, say, people lost devices containing their ID chips or smart cards?
“It took us decades to realize that we shouldn’t carry our Social Security cards around in our wallets,” says Aaron Titus, the chief privacy officer at Identity Finder, a company that helps users locate and quarantine personal information on their computers.
Carrying around cyber IDs seems even riskier than Social Security cards, Mr. Titus says, because they could let people complete even bigger transactions, like buying a house online. “What happens when you leave your phone at a bar?” he asks. “Could someone take it and use it to commit a form of hyper identity theft?”
For the government’s part, Mr. Grant acknowledges that no system is invulnerable. But better online identity authentication would certainly improve the current situation — in which many people use the same one or two passwords for a dozen or more of their e-mail, e-tail, online banking and social network accounts, he says.
Mr. Grant likens that kind of weak security to flimsy locks on bathroom doors.
“If we can get everyone to use a strong deadbolt instead of a flimsy bathroom door lock,” he says, “you significantly improve the kind of security we have.”
But not if the keys can be compromised.
A version of this article appeared in print on September 18, 2011, on page BU4 of the New York edition with the headline: Call It Your Online Driver’s License.
Friday, September 16, 2011
Privacy Law Would Help U.S. Compete, Official Says
Privacy Law Would Help U.S. Compete, Official Says
By Juliana Gruenwald Updated: September 15, 2011 | 5:59 p.m. National Journal
U.S. firms would be more competitive and better able to comply with foreign privacy laws if the United States had a broad law protecting consumer privacy online, a Commerce Department official told a House panel on Thursday.
“It would be helpful and I think it would help the competitiveness of our businesses if we had baseline privacy protections that are flexible and take into account really the changing economy, [and] changing technologies,” Nicole Lamb-Hale of Commerce’s International Trade Administration told the Energy and Commerce Subcommittee on Commerce, Manufacturing and Trade.
Some privacy advocates have called on the EU to get tougher with the United States and require it to harden up the current mix of industry self-regulation and some specific privacy laws related to health and finance. They say industry self-regulation has failed to protect Internet users who are increasingly being tracked by companies that collect information for advertising purposes. The Obama administration and even some tech firms such as Intel and Microsoft have called on Congress to pass legislation that would establish baseline privacy protections.
The House panel examined how the European Union’s privacy law, which was first adopted in 1995, affects U.S. firms and what lessons it may provide U.S. policymakers. The law bars the flow of personal data about EU citizens to countries that do not have “adequate” privacy protections.
To ensure that U.S. firms would not be harmed by the law, the U.S. government negotiated a “safe harbor” in the late 1990s with the EU that allows companies to be deemed in compliance with the EU privacy law if they follow an agreed set of privacy principles.
Paula Bruening, vice president for global policy for the Center for Information Policy Leadership, said the EU law has not been implemented or enforced consistently among member states. She said it imposes burdensome administrative requirements on U.S. companies.
The EU is currently considering changes to the law to respond to some of these criticisms, but may also make it tougher. Lamb-Hale said it is unclear whether the European Union would continue to recognize the safe harbor after it revises its privacy law.
The Trans Atlantic Consumer Dialogue, a coalition of nearly 80 European and U.S. consumer groups, wrote the subcommittee earlier this week saying there is much the United States could learn from the Europeans on privacy given the rising levels of privacy breaches in the United States.
Ohio State University law professor Peter Swire, a privacy adviser in the Clinton administration, noted that countries outside of Europe have been passing privacy laws based on the EU directive. He said U.S. companies could face problems moving data out of those countries as well.
However, Consumer Data Industry Association President Stuart Pratt told National Journal after the hearing that he believes the cost of complying with a U.S. privacy law would far outweigh any benefits companies would receive from it.
Subcommittee Chairwoman Mary Bono Mack, R-Calif., said she has not decided whether Congress should pass privacy legislation. She plans more hearings to explore the issue. “My purpose in holding this hearing is not to point fingers,” she said. “Instead, my goal is to point to a better way to protect privacy online and promote e-commerce.”
Want to stay ahead of the curve? Sign up for National Journal's AM & PM Must Reads. News and analysis to ensure you don't miss a thing.
By Juliana Gruenwald Updated: September 15, 2011 | 5:59 p.m. National Journal
U.S. firms would be more competitive and better able to comply with foreign privacy laws if the United States had a broad law protecting consumer privacy online, a Commerce Department official told a House panel on Thursday.
“It would be helpful and I think it would help the competitiveness of our businesses if we had baseline privacy protections that are flexible and take into account really the changing economy, [and] changing technologies,” Nicole Lamb-Hale of Commerce’s International Trade Administration told the Energy and Commerce Subcommittee on Commerce, Manufacturing and Trade.
Some privacy advocates have called on the EU to get tougher with the United States and require it to harden up the current mix of industry self-regulation and some specific privacy laws related to health and finance. They say industry self-regulation has failed to protect Internet users who are increasingly being tracked by companies that collect information for advertising purposes. The Obama administration and even some tech firms such as Intel and Microsoft have called on Congress to pass legislation that would establish baseline privacy protections.
The House panel examined how the European Union’s privacy law, which was first adopted in 1995, affects U.S. firms and what lessons it may provide U.S. policymakers. The law bars the flow of personal data about EU citizens to countries that do not have “adequate” privacy protections.
To ensure that U.S. firms would not be harmed by the law, the U.S. government negotiated a “safe harbor” in the late 1990s with the EU that allows companies to be deemed in compliance with the EU privacy law if they follow an agreed set of privacy principles.
Paula Bruening, vice president for global policy for the Center for Information Policy Leadership, said the EU law has not been implemented or enforced consistently among member states. She said it imposes burdensome administrative requirements on U.S. companies.
The EU is currently considering changes to the law to respond to some of these criticisms, but may also make it tougher. Lamb-Hale said it is unclear whether the European Union would continue to recognize the safe harbor after it revises its privacy law.
The Trans Atlantic Consumer Dialogue, a coalition of nearly 80 European and U.S. consumer groups, wrote the subcommittee earlier this week saying there is much the United States could learn from the Europeans on privacy given the rising levels of privacy breaches in the United States.
Ohio State University law professor Peter Swire, a privacy adviser in the Clinton administration, noted that countries outside of Europe have been passing privacy laws based on the EU directive. He said U.S. companies could face problems moving data out of those countries as well.
However, Consumer Data Industry Association President Stuart Pratt told National Journal after the hearing that he believes the cost of complying with a U.S. privacy law would far outweigh any benefits companies would receive from it.
Subcommittee Chairwoman Mary Bono Mack, R-Calif., said she has not decided whether Congress should pass privacy legislation. She plans more hearings to explore the issue. “My purpose in holding this hearing is not to point fingers,” she said. “Instead, my goal is to point to a better way to protect privacy online and promote e-commerce.”
Want to stay ahead of the curve? Sign up for National Journal's AM & PM Must Reads. News and analysis to ensure you don't miss a thing.
Tuesday, September 13, 2011
Jeff Rosen in NYTimes: Protect Our Right to Anonymity
By Jeffrey Rosen September 12, 2011 NYT
IN November, the Supreme Court will hear arguments in a case that could redefine the scope of privacy in an age of increasingly ubiquitous surveillance technologies like GPS devices and face-recognition software.
The case, United States v. Jones, concerns a GPS device that the police, without a valid warrant, placed on the car of a suspected drug dealer in Washington, D.C. The police then tracked his movements for a month and used the information to convict him of conspiracy to sell cocaine. The question before the court is whether this violated the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures of our “persons, houses, papers, and effects.”
It’s imperative that the court says yes. Otherwise, Americans will no longer be able to expect the same degree of anonymity in public places that they have rightfully enjoyed since the founding era.
Two federal appellate courts have upheld the use of GPS devices without warrants in similar cases, on the grounds that we have no expectation of privacy when we are in public places and that tracking technology merely makes public surveillance easier and more effective.
But in a visionary opinion in August 2010, Judge Douglas H. Ginsburg, of the United States Court of Appeals for the District of Columbia Circuit, disagreed. No reasonable person, he argued, expects that his public movements will be tracked 24 hours a day, seven days a week, and therefore we do have an expectation of privacy in the “whole” of our public movements.
“Unlike one’s movements during a single journey,” Judge Ginsburg wrote, “the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil.”
Judge Ginsburg realized that ubiquitous surveillance for a month is impossible, in practice, without technological enhancements like a GPS device, and that it is therefore qualitatively different than the more limited technologically enhanced public surveillance that the Supreme Court has upheld in the past (like using a beeper to help the police follow a car for a 100-mile trip).
The Supreme Court case is an appeal of Judge Ginsburg’s decision. If the court rejects his logic and sides with those who maintain that we have no expectation of privacy in our public movements, surveillance is likely to expand, radically transforming our experience of both public and virtual spaces.
For what’s at stake in the Supreme Court case is more than just the future of GPS tracking: there’s also online surveillance. Facebook, for example, announced in June that it was implementing face-recognition technology that scans all the photos in its database and automatically suggests identifying tags that match every face with a name. (After a public outcry, Facebook said that users could opt out of the tagging system.) With the help of this kind of photo tagging, law enforcement officials could post on Facebook a photo of, say, an anonymous antiwar protester and identify him.
There is also the specter of video surveillance. In 2008, at a Google conference on the future of law and technology, Andrew McLaughlin, then the head of public policy at Google, said he expected that, within a few years, public agencies and private companies would be asking Google to post live feeds from public and private surveillance cameras all around the world. If the feeds were linked and archived, anyone with a Web browser would be able to click on a picture of anyone on any monitored street and follow his movements.
To preserve our right to some degree of anonymity in public, we can’t rely on the courts alone. Fortunately, 15 states have enacted laws imposing criminal and civil penalties for the use of electronic tracking devices in various forms and restricting their use without a warrant. And in June, Senator Ron Wyden, Democrat of Oregon, and Representative Jason Chaffetz, Republican of Utah, introduced the Geolocation Privacy and Surveillance Act, which would provide federal protection against public surveillance.
Their act would require the government to get a warrant before acquiring the geolocational information of an American citizen or legal alien; create criminal penalties for secretly using an electronic device to track someone’s movements; and prohibit commercial service providers from sharing customers’ geolocational information without their consent — a necessary restriction at a time of increasing cellphone tracking by private companies.
It’s encouraging that Democrats and Republicans in Congress are coming together to preserve the expectations of anonymity in public that Americans have long taken for granted. Soon, liberal and conservative justices on the Supreme Court will have an opportunity to meet the same challenge.
If they fail to rise to the occasion, our public life may be transformed in ways we can only begin to imagine.
Jeffrey Rosen, a law professor at George Washington University, is an editor of the forthcoming book “Constitution 3.0: Freedom and Technological Change.”
IN November, the Supreme Court will hear arguments in a case that could redefine the scope of privacy in an age of increasingly ubiquitous surveillance technologies like GPS devices and face-recognition software.
The case, United States v. Jones, concerns a GPS device that the police, without a valid warrant, placed on the car of a suspected drug dealer in Washington, D.C. The police then tracked his movements for a month and used the information to convict him of conspiracy to sell cocaine. The question before the court is whether this violated the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures of our “persons, houses, papers, and effects.”
It’s imperative that the court says yes. Otherwise, Americans will no longer be able to expect the same degree of anonymity in public places that they have rightfully enjoyed since the founding era.
Two federal appellate courts have upheld the use of GPS devices without warrants in similar cases, on the grounds that we have no expectation of privacy when we are in public places and that tracking technology merely makes public surveillance easier and more effective.
But in a visionary opinion in August 2010, Judge Douglas H. Ginsburg, of the United States Court of Appeals for the District of Columbia Circuit, disagreed. No reasonable person, he argued, expects that his public movements will be tracked 24 hours a day, seven days a week, and therefore we do have an expectation of privacy in the “whole” of our public movements.
“Unlike one’s movements during a single journey,” Judge Ginsburg wrote, “the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil.”
Judge Ginsburg realized that ubiquitous surveillance for a month is impossible, in practice, without technological enhancements like a GPS device, and that it is therefore qualitatively different than the more limited technologically enhanced public surveillance that the Supreme Court has upheld in the past (like using a beeper to help the police follow a car for a 100-mile trip).
The Supreme Court case is an appeal of Judge Ginsburg’s decision. If the court rejects his logic and sides with those who maintain that we have no expectation of privacy in our public movements, surveillance is likely to expand, radically transforming our experience of both public and virtual spaces.
For what’s at stake in the Supreme Court case is more than just the future of GPS tracking: there’s also online surveillance. Facebook, for example, announced in June that it was implementing face-recognition technology that scans all the photos in its database and automatically suggests identifying tags that match every face with a name. (After a public outcry, Facebook said that users could opt out of the tagging system.) With the help of this kind of photo tagging, law enforcement officials could post on Facebook a photo of, say, an anonymous antiwar protester and identify him.
There is also the specter of video surveillance. In 2008, at a Google conference on the future of law and technology, Andrew McLaughlin, then the head of public policy at Google, said he expected that, within a few years, public agencies and private companies would be asking Google to post live feeds from public and private surveillance cameras all around the world. If the feeds were linked and archived, anyone with a Web browser would be able to click on a picture of anyone on any monitored street and follow his movements.
To preserve our right to some degree of anonymity in public, we can’t rely on the courts alone. Fortunately, 15 states have enacted laws imposing criminal and civil penalties for the use of electronic tracking devices in various forms and restricting their use without a warrant. And in June, Senator Ron Wyden, Democrat of Oregon, and Representative Jason Chaffetz, Republican of Utah, introduced the Geolocation Privacy and Surveillance Act, which would provide federal protection against public surveillance.
Their act would require the government to get a warrant before acquiring the geolocational information of an American citizen or legal alien; create criminal penalties for secretly using an electronic device to track someone’s movements; and prohibit commercial service providers from sharing customers’ geolocational information without their consent — a necessary restriction at a time of increasing cellphone tracking by private companies.
It’s encouraging that Democrats and Republicans in Congress are coming together to preserve the expectations of anonymity in public that Americans have long taken for granted. Soon, liberal and conservative justices on the Supreme Court will have an opportunity to meet the same challenge.
If they fail to rise to the occasion, our public life may be transformed in ways we can only begin to imagine.
Jeffrey Rosen, a law professor at George Washington University, is an editor of the forthcoming book “Constitution 3.0: Freedom and Technological Change.”
Monday, August 29, 2011
The PII Problem: Privacy and a New Concept of Personally Identifiable Information
The PII Problem: Privacy and a New Concept of Personally Identifiable Information
Paul M. Schwartz
University of California, Berkeley - School of Law
Daniel J. Solove
George Washington University Law SchoolNew York University Law Review, Vol. 86, 2011
Abstract: Personally identifiable information (PII) is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. The basic assumption behind the applicable laws is that if PII is not involved, then there can be no privacy harm. At the same time, there is no uniform definition of PII in information privacy law. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can, in many circumstances, be re-identified. PII and non-PII are thus not immutable categories, and there is a risk that information deemed non-PII at one point in time can be transformed into PII at a later juncture. Due to the malleable nature of what constitutes PII, some commentators have even suggested that PII be abandoned as the means to define the boundaries of privacy law.
In this Article, Professors Paul Schwartz and Daniel Solove argue that although the current approaches to PII are flawed, the concept of PII should not be abandoned. They develop a new approach called “PII 2.0,” which accounts for PII’s malleability. Based upon a standard rather than a rule, PII 2.0 is based upon a continuum of risk of identification. PII 2.0 regulates information that relates to either an “identified” or “identifiable” individual, and it establishes different requirements for each category. To illustrate their theory, Schwartz and Solove use the example of regulating behavioral marketing to adults and children. They show how existing approaches to PII impede the effective regulation of behavioral marketing and how PII 2.0 would resolve these problems.
Paul M. Schwartz
University of California, Berkeley - School of Law
Daniel J. Solove
George Washington University Law SchoolNew York University Law Review, Vol. 86, 2011
Abstract: Personally identifiable information (PII) is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. The basic assumption behind the applicable laws is that if PII is not involved, then there can be no privacy harm. At the same time, there is no uniform definition of PII in information privacy law. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can, in many circumstances, be re-identified. PII and non-PII are thus not immutable categories, and there is a risk that information deemed non-PII at one point in time can be transformed into PII at a later juncture. Due to the malleable nature of what constitutes PII, some commentators have even suggested that PII be abandoned as the means to define the boundaries of privacy law.
In this Article, Professors Paul Schwartz and Daniel Solove argue that although the current approaches to PII are flawed, the concept of PII should not be abandoned. They develop a new approach called “PII 2.0,” which accounts for PII’s malleability. Based upon a standard rather than a rule, PII 2.0 is based upon a continuum of risk of identification. PII 2.0 regulates information that relates to either an “identified” or “identifiable” individual, and it establishes different requirements for each category. To illustrate their theory, Schwartz and Solove use the example of regulating behavioral marketing to adults and children. They show how existing approaches to PII impede the effective regulation of behavioral marketing and how PII 2.0 would resolve these problems.
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