On notice

U.S. fair information practices are founded on the concept of notice and choice, but the effectiveness this framework has come into question in professional circles, with some suggesting that in the brave new digital world where data collection opportunities are many and data use opportunities are rich, “notice” is failing when it comes to privacy. Privacy notices, they say, are written by lawyers, for lawyers, and are too often focused on reducing legal risk as opposed to educating consumers.  
During a recent interview with the New York Times, FTC Bureau of Consumer Protection chief David Vladeck said that today’s disclosures are long, defensively written, and most consumers don’t read or understand them. Even seasoned attorneys find themselves in the dark. As Vladeck told the Times, he’s been practicing law for 33 years and “can’t figure out what the hell [they] mean anymore.” Vladeck said that consent “in the face of these kinds of disclosures…I’m not sure that consent really reflects a volitional, knowing act.”

Many feel the consumer protection aspect intended by notice and choice has fallen by the wayside in the digital environment.

This is not unique to privacy. The financial services field and others are finding consumers unable to penetrate policy notices with their length and legalese. The repercussions of this paradigm can be far-reaching

That’s radical

In a March Wired magazine exposé, writer Daniel Roth suggested that the recent financial crisis resulted, in part, due to failures of notice that prevented more people from recognizing the harbingers of collapse. In the article, “Road Map for Financial Recovery: Radical Transparency Now!”, Roth suggested that twentieth-century financial disclosure mandates result in a mass of data whose volume “obscures more than it reveals; financial reporting has become so transparent as to be invisible.” Roth suggested a new approach involving “radical transparency,” where data empowers the public for the public good:

We should tap into the massive parallel processing power of people around the world by giving everyone the tools to track, analyze, and publicize financial machinations…only when we give everyone the tools to see each point of data will the picture become clear. Just as epidemiologists crunch massive data sets to predict disease outbreaks, so will investors parse the trove of publicly available financial information to foresee the next economic disasters and opportunities.

David Weil agrees that disclosure improvements are needed. Weil is a co-director of the Transparency Policy Project at Harvard University’s Kennedy School of Government. He and fellow directors Archon Fung and Mary Graham are working on improving disclosure practices in the financial services and other industry sectors. The researchers say that in the same way the Internet has impacted notice and choice, it can bear a “new generation of transparency policies.” Their book, Full Disclosure: The Perils and Promise of Transparency, explains what went wrong with the initial promise of transparency policies and how a new approach could result in regulations that do much more to empower those the information was meant to help.

Archon Fung and David Weil will lead the session “Radical Transparency” at the Privacy Academy 2009, where they will present a comparative analysis of transparency in other policy areas and the parallels with the privacy sector. Fung and Weil will also deliver Friday’s keynote address.

Privacy’s nutrition label

By Larry Dobrow

A story in the August issue of Inside 1to1: Privacy explores a new tool for improving the readability of privacy notices: a nutrition label for privacy.
  The need for more simplified privacy policies isn’t exactly breaking news. For years, consumers—at least those few who bothered to read them—flailed amid the policies’ mix of dense legalese and impermeable jargon. While pundits and consumer advocates railed against the worst offenders and pressed the need for a different approach, it’s not as if they could do much about how, say, Best Buy or Bank of America framed their privacy/information-sharing disclosures.

Behind the scenes, however, a team of academics, researchers, and wonks from Carnegie Mellon University and Microsoft have been attempting to bring clarity and ease-of-use to the privacy-policies debate. The first drafts of their efforts, dubbed the “nutrition label for privacy,” have been tested extensively with consumers and privacy experts alike. While a final product is still months away, the initial versions would make privacy policies easily interpretable for the first time ever.

The academic/research team set out with a single goal, according to Lorrie Cranor, a professor in Carnegie Mellon’s School of Computer Science: to create a standardized format for privacy policies. At first, a bulleted-list format was discussed and mocked up, but it ultimately proved unworkable. Before long, however, the group glanced at a nutrition label on the back of a box of cereal and had a collective “Eureka!” moment.

“Nutrition labels—you don’t read them every time you buy a product, but you know they’re there and you know what you’re going to find on them,” Cranor explains. “Let’s say you go to the doctor and you’re told you have high cholesterol—well, then you look at the label. We were thinking a nutrition-label-type setup might be useful in the same way for privacy.”

The mantra throughout the nutrition label’s evolution was singular: Keep it simple. To that end, the Carnegie Mellon/Microsoft team endeavored to eliminate verbiage not familiar to privacy novices. Phrases like “behavioral profiling” were broken down and explained in basic language. Even terminology like “opt in” and “opt out” was briefly removed from consideration, before being re-installed in later iterations.

“It was very tempting to use symbols to represent various things, but it’s hard for people to understand symbols when you’re talking about fudgy concepts like privacy,” Cranor recalls, admitting with a knowing laugh that there were “all kinds of disasters.” As of late July, she and her peers were still deciding the fate of the dreaded red exclamation point, used in the nutrition label to announce that a company collects data and doesn’t allow users to opt in or opt out, among other things. Apparently focus groups found it too harsh and negative.

So far, feedback from those groups as well as privacy experts—Cranor and her peers handed out drafts of the nutrition label at several conferences, encouraging attendees to mark them up and send them back—has been largely positive. Several A-list companies have responded with enthusiasm and hinted they might eventually want to use the label (Cranor declines to identify them). Others have praised the snapshot the nutrition label gives of an organization’s privacy practices, but are hoping it can be amended to include information about third-party advertising or social-networking practices.

“One thing you do lose is that very detailed bit about third-party advertising. We can represent in the grid everything that comes as a part of it, but maybe not at the level of detail some people may want,” Cranor concedes. As a result, the label is being tweaked for online use: When a user mouses over any cell in the grid, more information will appear on his screen.

As for the future, Cranor says that the nutrition label will be built into the privacyfinder.org search engine—possibly by the time you read this. More testing is currently taking place, with Cranor et al particularly focused on whether the nutrition label deals with privacy too generically and doesn’t take into account quirks from various industries (sensitive ones like healthcare and finance vs. less-sensitive ones like retail).

Cranor is also keen to address a question she was initially asked while participating in a Federal Trade Commission workshop on the topic of privacy policies a year ago. “Somebody asked me point blank, ‘If nobody reads privacy policies, why are we bothering with them?’” she recalls. “What I told them, and what I’ve told a bunch of people since then, is that our goal isn’t that everybody reads privacy policies all the time. Our goal is that when somebody has a question about privacy, that information is there for them and that they can quickly and easily access it. We hope that we’re on our way to that.

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On consent

With all of the national and regional regulatory variations on consent, marketers will do well to carefully plan their global strategies. In an article for the August issue of Inside 1to1: Privacy, Jay Cline, CIPP, explores the global landscape of opt in versus opt out. Read it online at iapp.org/consent.