Opinion

A Brave New World Demands Brave New Thinking

By Phil Lee, CIPP/E, CIPM

Much has been said in the past few weeks and months about Google Glass, Google’s latest innovation that will see it shortly launch Internet-connected glasses with a small computer display in the corner of one lens that is visible to, and voice-controlled by, the wearer. The proposed launch capabilities of the device itself are—in pure computing terms—actually relatively modest: the ability to search the web, bring up maps, take photographs and video and share to social media.

So far, so iPhone.

But, because users wear and interact with Google Glass wherever they go, they will have a depth of relationship with their device that far exceeds any previous relationship between man and computer. Then throw in the likely short- to mid-term evolution of the device—augmented reality, facial recognition—and it becomes easy to see why Google Glass is so widely heralded as The Next Big Thing.

Of course, with an always-on, always-worn and always-connected, photo-snapping, video-recording, social media-sharing device, the privacy issues are a-plenty, ranging from the potential for crowd-sourced law enforcement surveillance to the more mundane forgetting-to-remove-Google-Glass-when-visiting-the-men’s-room scenario. These concerns have seen a very heated debate play out across the press, on TV and, of course, on blogs and social media.

But to focus the privacy debate just on Google Glass really misses the point. Google Glass is the headline-grabber, but in reality it’s just the tip of the iceberg when it comes to the wearable computing products that will increasingly be hitting the market over the coming years. Pens, watches, glasses (Baidu is launching its own smart glasses too), shoes, whatever else you care to think of—will soon all be Internet-connected. And it doesn’t stop at wearable computing either; think about Internet-connected home appliances: We can already get Internet-connected TVs, game consoles, radios, alarm clocks, energy meters, coffee machines, home safety cameras, baby alarms and cars. Follow this trend and, pretty soon, every home appliance and personal accessory will be Internet-connected.

All of these connected devices—this “Internet of Things”—collect an enormous volume of information about us, and in general, as consumers we want them: They simplify, organize and enhance our lives. But, as a privacy community, our instinct is to recoil at the idea of a growing pool of networked devices that collect more and more information about us, even if their purpose is ultimately to provide services we want.

The consequence of this tends to be a knee-jerk insistence on ever-strengthened consent requirements and standards: Surely the only way we can justify such a vast collection of personal information, used to build incredibly intricate profiles of our interests, relationships and behaviors, is to predicate collection on our explicit consent. That has to be right, doesn’t it?

The short answer to this is “no”—though not, as you might think, for the traditionally given reasons that users don’t like consent pop-ups or that difficulties arise when users refuse, condition or withdraw their consents. 

Instead, it’s simply that explicit consent is lazy. Sure, in some circumstances it may be warranted, but to look to explicit consent as some kind of data collection panacea will drive poor compliance that delivers little real protection for individuals.

Why? 

Because when you build compliance around explicit consent notices, it’s inevitable that those notices will become longer, all-inclusive, heavily caveated and designed to guard against risk. Consent notices become seen as a legal issue, not a design issue, inhibiting the adoption of Privacy by Design development so that—rather than enhancing user transparency, they have the opposite effect. Instead, designers build products with little thought to privacy, safe in the knowledge that they can simply ‘bolt on’ a detailed consent notice as a ‘take it or leave it’ proposition on installation or first use, just like terms of service are now. And, as technology becomes ever more complicated, so it becomes ever more likely that consumers won’t really understand what it is they’re consenting to anyway, no matter how well it’s explained. It’s also a safe bet that users will simply ignore any notice that stands between them and the service they want to receive. If you don’t believe me, then look at cookie consent as a case in point.

Instead, it’s incumbent upon us as privacy professionals to think up a better solution. One that strikes a balance between the legitimate expectations of the individual with regard to his or her privacy and the legitimate interests of the business with regard to its need to collect and use data. One that enables the business to deliver innovative new products and services to consumers in a way that demonstrates respect for their data and engenders their trust and which does not result in lazy, consent-driven compliance. One that encourages controllers to build privacy functionality into their products from the very outset, not address it as an afterthought.

Maybe what we need is a concept of an online “personal space."

In the physical world, whether through the rules of social etiquette, an individual’s body language or some other indicator, we implicitly understand that there is an invisible boundary we must respect when standing in close physical proximity to another person. A similar concept could be conceived for the online world—ironically, Big Data profiles could help here. Or maybe it’s as simple as promoting a concept of “surprise minimization” as proposed by the California attorney general in her guidance on mobile privacy—the concept that, through Privacy by Design methodologies, you avoid surprising individuals by collecting data from or about them that, in the given context, they would not expect or want.

Whatever the solution is, we’re entering a brave new world; it demands some brave new thinking.

photo credit: protozoo via photopin cc

More from Phil Lee

About the Author

Phil Lee is a partner in the Privacy and Information Law Group at Field Fisher Waterhouse LLP, and runs the Palo Alto office of Field Fisher Waterhouse (California) LLP. Lee has particular specialisms in behavioral profiling and cookie regulation, e-marketing and international data transfer strategies (including binding corporate rules). He has worked on numerous multi-jurisdictional data privacy projects across more than 80 countries. 

Lee holds an M.A. in computer science from Cambridge University and a postgraduate diploma in intellectual property from Bristol University. He is a frequent contributor to FFW's Privacy and Information Law blog and is also a contributing author to the IAPP's European Privacy: Law and Practice for Data Protection Professionals and Wolter Kluwers' Global Privacy & Security Laws. Lee is a former committee member of the Society for Computer and Law's Privacy & Data Protection Group.

He can be contacted at phil.lee@ffw.com.

See all posts by Phil Lee

Comments

  • May 30, 2013
    LaVonne Reimer
    replied:

    Love the whole post but especially this (as a lawyer-turned-entrepreneur): “One that enables the business to deliver innovative new products and services to consumers in a way that demonstrates respect for their data and engenders their trust and which does not result in lazy, consent-driven compliance.”

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