World Wide Web inventor Sir Tim Berners-Lee has given a speech in London, re-affirming the importance of privacy, but unfortunately he has muddied the waters by casting aspersions on privacy law. Berners-Lee makes a technologist's error, calling for unworkable new privacy mechanisms where none in fact are warranted.
The Telegraph reports Berners-Lee as saying "Some people say privacy is dead – get over it. I don't agree with that. The idea that privacy is dead is hopeless and sad." He highlighted that peoples' participation in potentially beneficial programs like e-health is hampered by a lack of trust, and a sense that spying online is constant.
Of course he's right about that. Yet he seems to underestimate the data privacy protections we already have. Instead he envisions "a world in which I have control of my data. I can sell it to you and we can negotiate a price, but more importantly I will have legal ownership of all the data about me" he said according to The Telegraph.
It's a classic case of being careful what you ask for, in case you get it. What would control over "all data about you" look like? Most of the data about us these days - most of the personal data, aka Personally Identifiable Information (PII) - is collected or created behind our backs, by increasingly sophisticated algorithms. Now, people certainly don't know enough about these processes in general, and in too few cases are they given a proper opportunity to opt in to Big Data processes. Better notice and consent mechanisms are needed for sure, but I don't see that ownership could fix a privacy problem.
What could "ownership" of data even mean? If personal information has been gathered by a business process, or created by clever proprietary algorithms, we get into obvious debates over intellectual property. Look at medical records: in Australia and I suspect elsewhere, it is understood that doctors legally own the medical records about a patient, but that patients have rights to access the contents. The interpretation of medical tests is regarded as the intellectual property of the healthcare professional.
The philosophical and legal quandries are many. With data that is only potentially identifiable, at what point would ownership flip from the data's creator to the individual to whom it applies? What if data applies to more than one person, as in household electricity records, or, more seriously, DNA?
What really matters is preventing the exploitation of people through data about them. Privacy (or, strictly speaking, data protection) is fundamentally about restraint. When an organisation knows you, they should be restrained in what they can do with that knowledge, and not use it against your interests. And thus, in over 100 countries, we see legislated privacy principles which require that organisations only collect the PII they really need for stated purposes, that PII collected for one reason not be re-purposed for others, that people are made reasonably aware of what's going on with their PII, and so on.
Berners-Lee alluded to the privacy threats of Big Data, and he's absolutely right. But I point out that existing privacy law can substantially deal with Big Data. It's not necessary to make new and novel laws about data ownership. When an algorithm works out something about you, such as your risk of developing diabetes, without you having to fill out a questionnaire, then that process has collected PII, albeit indirectly. Technology-neutral privacy laws don't care about the method of collection or creation of PII. Synthetic personal data, collected as it were algorithmically, is treated by the law in the same way as data gathered overtly. An example of this principle is found in the successful European legal action against Facebook for automatic tag suggestions, in which biometric facial recognition algorithms identify people in photos without consent.
Technologists often under-estimate the powers of existing broadly framed privacy laws, doubtless because technology neutrality is not their regular stance. It is perhaps surprising, yet gratifying, that conventional privacy laws treat new technologies like Big Data and the Internet of Things as merely potential new sources of personal information. If brand new algorithms give businesses the power to read the minds of shoppers or social network users, then those businesses are limited in law as to what they can do with that information, just as if they had collected it in person. Which is surely what regular people expect.
For many years, American businesses have enjoyed a bit of special treatment under European data privacy laws. The so-called "Safe Harbor" arrangement was negotiated by the Federal Communications Commission (FCC) so that companies could self-declare broad compliance with data security rules. Normally organisations are not permitted to move Personally Identifiable Information (PII) about Europeans beyond the EU unless the destination has equivalent privacy measures in place. The "Safe Harbor" arrangement was a shortcut around full compliance; as such it was widely derided by privacy advocates outside the USA, and for some years had been questioned by the more activist regulators in Europe. And so it seemed inevitable that the arrangement would be eventually annulled, as it was last October.
With the threat of most personal data flows from Europe into America being halted, US and EU trade officials have worked overtime for five months to strike a new deal. Today (January 29) the US Department of Commerce announced the "EU-US Privacy Shield".
The Privacy Shield is good news for commerce of course. But I hope that in the excitement, American businesses don't lose sight of the broader sweep of privacy law. Even better would be to look beyond compliance, and take the opportunity to rethink privacy, because there is more to it than security and regulatory short cuts.
The Privacy Shield and the earlier Safe Harbor arrangement are really only about satisfying one corner of European data protection laws, namely transborder flows. The transborder data flow rules basically say you must not move personal data from an EU state into a jurisdiction where the privacy protections are weaker than in Europe. Many countries actually have the same sort of laws, including Australia. Normally, as a business, you would have to demonstrate to a European data protection authority (DPA) that your information handling is complying with EU laws, either by situating your data centre in a similar jurisdiction, or by implementing legally binding measures for safeguarding data to EU standards. This is why so many cloud service providers are now building fresh infrastructure in the EU.
But there is more to privacy than security and data centre location. American businesses must not think that just because there is a new get-out-of-jail clause for transborder flows, their privacy obligations are met. Much more important than raw data security are the bedrocks of privacy: Collection Limitation, Usage Limitation, and Transparency.
Basic data privacy laws the world-over require organisations to exercise constraint and openness. That is, Personal Information must not be collected without a real demonstrated need (or without consent); once collected for a primary purpose, Personal Information should not be used for unrelated secondary purposes; and individuals must be given reasonable notice of what personal data is being collected about them, how it is collected, and why. It's worth repeating: general data protection is not unique to Europe; at last count, over 100 countries around the world had passed similar laws; see Prof Graham Greenleaf's Global Tables of Data Privacy Laws and Bills, January 2015.
Over and above Safe Harbor, American businesses have suffered some major privacy missteps. The Privacy Shield isn't going to make overall privacy better by magic.
For instance, Google in 2010 was caught over-collecting personal information through its StreetView cars. It is widely known (and perfectly acceptable) that mapping companies use the positions of unique WiFi routers for their geolocation databases. Google continuously collects WiFi IDs and coordinates via its StreetView cars. The privacy problem here was that some of the StreetView cars were also collecting unencrypted WiFi traffic (for "research purposes") whenever they came across it. In over a dozen countries around the world, Google admitted they had breached local privacy laws by colelcting excessive PII, apologised for the overreach, explained it as inadvertent, and deleted all the WiFi records in question. The matter was settled in just a few months in places like Korea, Japan and Australia. But in the US, where there is no general collection limitation privacy rule, Google has been defending what they did. Absent general data privacy protection, the strongest legislation that seems to apply to the StreetView case is wire tap law, but its application to the Internet is complex. And so the legal action has taken years and years, and it's still not resolved.
I don't know why Google doesn't see that a privacy breach in the rest of the world is a privacy breach in the US, and instead of fighting it, concede that the collection of WiFi traffic was unnecessary and wrong.
Other proof that European privacy law is deeper and broader than the Privacy Shield is found in social networking mishaps. Over the years, many of Facebook's business practices for instance have been found unlawful in the EU. Recently there was the final ruling against "Find Friends", which uploads the contact details of third parties without their consent. Before that there was the long running dispute over biometric photo tagging. When Facebook generates tag suggestions, what they're doing is running facial recognition algorithms over photos in their vast store of albums, without the consent of the people in those photos. Identifying otherwise anonymous people, without consent (and without restraint as to what might be done next with that new PII), seems to be an unlawful under the Collection Limitation and Usage Limitation principles.
In 2012, Facebook was required to shut down their photo tagging in Europe. They have been trying to re-introduce it ever since. Whether they are successful or not will have nothing to do with the "Privacy Shield".
The Privacy Shield comes into a troubled trans-Atlantic privacy environment. Whether or not the new EU-US arrangement fares better than the Safe Harbor remains to be seen. But in any case, since the Privacy Shield really aims to free up business access to data, sadly it's unlikely to do much good for true privacy.
The examples cited here are special cases of the collision of Big Data with data privacy, which is one of my special interest areas at Constellation Research. See for example "Big Privacy" Rises to the Challenges of Big Data.