With the exception of a call for greater transparency around how companies collect and use data — a growing bi-partisan, public-private sector bright spot in the American debate on privacy — the US Chamber of Commerce’s ten new privacy principles and the Internet Association’s almost identical principlesreleased today reflect long-standing industry hostility towards effective government regulation and privacy more broadly. The principles are mostly an extension of the “trust us to do the right thing” argument they’ve been making for years, which have failed miserably.
The Chamber’s very first principle to prohibit state laws altogether on the subject is a not-so-subtle swipe at the popular new law on privacy in California, which industry fought tooth and nail. While imperfect, the law marked an important watershed in popular awakening to the abuses and dangers of the current “click here so we can own your data” model. The Chamber goes on to say in this first principle that “the United States already has a history of robust privacy protection,” which, in addition to being downright cynical and wrong, signals a new round of opposition to meaningful government oversight or intervention.
Their principle on harm-focused enforcement is another clearly outdated and limited approach, as is the call to prohibit individuals from being able to bring an action based on an infringement of their privacy. Together, they completely marginalize us as citizens and consumers, and ask us to trust the system to work on our behalf.
Meanwhile, the Internet Association has loopholes and doublespeak galore. Almost all references to data rights are bounded by phrases like “personal information they have provided,” which often amounts to less than 1% of data collected or purchased by companies. The coup de grace: “individuals should have meaningful controls over how personal information they provide to companies is collected, used, and shared, except where that information is necessary for the basic operation of the business…” When the entire business is predicated on advertising or personalized content and services, I’m not sure what is left really.
As a skeptic myself toward most prescriptive government regulations — I’d rather see innovative new tools and business models solve market and societal failures wherever possible — I spent years watching how utterly incapable industry is of reforming itself when it comes to data and privacy. There is simply too much money and power tied to them while all of the negative externalities fall on us as users — a textbook market failure.
That led me, in addition to my startup efforts on privacy, to work on a number of initiatives that helped create the principles and specifics for the new EU regulations known as GDPR (General Data Protection Regulation). These laws, also imperfect, not only aim to curb current abuses, they mandate far greater transparency and provide a roadmap for a fairer and more sustainable data and privacy model built around the rights of individuals about how their data is used.
Criticized for stifling innovation, GDPR is actually doing the opposite — it is catalyzing the private sector to start building new services that empower people directly with their data, competing both over how much value they can create for users if given access to their data while also showing what good stewards they can be of that data. It’s turning the “race to the bottom” we’ve seen around data and privacy into a much more enlightened and compelling “race to the top.”
Not surprisingly, the Chamber and most US companies have not been fans of GDPR. The lip service given in the principles to “privacy innovation” is a far cry from the vision and efforts underway in Europe, and nowhere do they reference our rights as citizens or consumers. In fact, as mentioned earlier, they only seek to limit those rights.
The most concerning potential development is the use of regulation shaped by these industry lobbying groups to further entrench their power and disadvantage startups and newcomers. The Electronic Frontier Foundation and others have been sounding the alarm on that possibility, and my read on the recent Congressional hearings by Facebook and Twitter is that this is their new strategy. In fact, the degree to which these privacy principles mimic the principles of GDPR while undermining them at every turn is nothing short of dastardly.
To conclude on a positive note, transparency is the single most important key to addressing the worst abuses around privacy and to unlocking a private sector competition to do right by users and their data. Despite 20 years with the curtains drawn tight around data collection and exploitation by industry, it’s simply un-American to stand against greater transparency — which is why both Republicans and Democrats are in favor of it.
Embracing the Chamber’s and the Internet Association’s call for transparency is the perfect jujitsu opportunity for those of us who want to see a more pro-user, pro-privacy model emerge. The real battle will be over just how far it goes, over how much we truly get to see and understand how our data is collected and for what purpose. Once that genie is out of the bottle, we can expect the private sector to get back to what it does best — creating even more incredible data-driven services that truly meet our needs and interests.