The Tension Between Innovation and Application Privacy Regulation
Today’s discussions about application privacy revolve around smartphones and tablets. However, the app ecosystem is evolving significantly beyond these devices to encompass new services and emerging technologies, such as wearable computing—for example, fitness accessories and smart eye wear. These trends raise questions about how to best regulate app privacy in a technology-neutral way that will keep pace with rapid change and consumer adoption. The solution—whatever it is—will be determined in large part by the various stakeholders, trends in the ecosystem and the future of app innovation.
On the regulatory front, FTC and state level privacy enforcement is becoming increasingly aggressive. However, their efforts and solutions are impaired by a legal framework designed in an era when the frenetic pace of today’s technology-driven society could not have been conceived. Although enforcement orders will continue to have a place in privacy regulation, the focus on preemptive measures—such as 20-year monitoring programs—as a way to cure abuses and change behavior is questionable, given the extent of technological change in the past few years.
Legislative activity also follows this trend. When an app gains notoriety for privacy infringement, some legislators tend to react by introducing app privacy bills that would impose blanket restrictions on the entire market. The intent behind these proposals is laudable, but all this would do is impose difficult compliance costs on developers, many of whom are poorly equipped to make such changes. Meanwhile, technology charges forward, changing consumer norms and expectations along the way.
Rather than trying to anticipate and prevent abuses through cumbersome enforcement and inflexible legislative proposals, it seems prudent to focus on targeted enforcement of offenders against evolving privacy norms, informed by app privacy guidelines and best practices. Current app privacy self-regulatory efforts have not yet proven their efficacy, but they are better equipped to adapt to change and should also be given an opportunity to guide future app privacy issues, in place of formal legislation.
The current app delivery system further demonstrates the complexity of controlling app privacy in a changing environment. Some app delivery platforms have the ability to address certain privacy concerns directly—such as Apple’s recent move to stop accepting apps that access a device's unique identifier. Apple can address this because it is a vertically integrated platform; it controls the hardware, software, services and distribution of its products.
Other platforms, such as Google and Amazon, are by design decentralized. This allows for more developer discretion and growth, but also diffuses responsibility for privacy away from a central authority. In theory, the former model presents less of a regulatory challenge, because one entity is “responsible” for non-compliance. On the other hand, the distributed model seems to be gaining traction. Further, the scalability of a central, curating authority, given the fast growth of the app industry, is debatable. It’s also important to note that new players can enter and alter the ecosystem at any time—or they may create entirely new communities to deliver apps to users. These future models and technologies will further frustrate existing approaches to app privacy regulation.
The app ecosystem will continue to evolve as new devices make their way into the marketplace. Smart phones and tablets, which have only recently become essential consumer devices, will likely be replaced by revolutionary new computing devices. But the future isn’t just about wearable computing; it’s the “Internet of Things”—the growing connectivity of electronic devices and everyday objects, which offer specific services while providing new and exciting user experiences. Accordingly, regulators and policymakers need be thinking about app privacy with a broader, technology-neutral perspective in mind. Regulation based on specific devices, or even certain characteristics of devices or platforms is likely to become quickly outdated. The challenge will be ensuring privacy protection in a way that enables effective enforcement but does not impose restrictive technological mandates.
Let’s not forget about consumers.
With their insatiable appetite for new technology and new ways to connect with each other, consumers are at the heart of the app privacy challenge. But they are also critical to the solution. Consumers drive the direction of innovation through the choices they make and the technologies they adopt. They are best positioned to demand responsible behavior from the commercial interests involved in the app ecosystem. Consumers will continue to use apps and technologies that operate in a manner consistent with their norms and expectations. App providers who fail to align their offerings in this way will lose out on adoption and are likely to fail.
Perhaps the concept that "consumers need to be protected from themselves" with respect to these technologies—with which they so readily engage—is best left behind.
About the Author
Kenesa Ahmad, CIPP/US, is an information privacy attorney and co-author of U.S. Private-sector Privacy: Law and Practice for Information Privacy Professionals. Ahmad received her law degree from the Moritz College of Law of The Ohio State University, where she served as an articles editor of the Ohio State Law Journal. She also received her LLM from Northwestern University Law School. From 2011-2012 Ahmad completed legal and policy fellowship with the Future of Privacy Forum. She is now an associate in the global privacy practice of Promontory Financial Group.