A panel of privacy experts, ad one brave sole representing “big data” talked at South-by-Southwest about policy issues involved in the collection processing and use of the massive amounts of data corporations are collecting. The initial issue, like many privacy debates, was about whether there was legally cognizable “harm,” or any harm whatsoever. Further, is there any need to add regulation on top of what is already present with the FTC’s ability to regulate unfair and deceptive trade practices?
Berin Szoka from TechFreedom said that setting the bar at whether consumers “knew” of a use of data in a particular manner sets the bar very low. Indeed, it forces consumers to act in a way that we don’t require them to act now: you’re not required to understand how your car works, so why should you be required to know how a company is using data about you? Lillie Coney from EPIC pushed this analogy further and pointed out that regulation of automobiles didn’t occur until sometime after they came into common use, in reaction to harms that consumers couldn’t reasonably anticipate, or be expected to understand.
So is Gmail a good example of where “big data” is going? Gmail applies a relatively dumb artificial intelligence application to “read” email. While time has proven that this application has been used responsibly, it’s not hard to imagine future applications that are “smarter” that will begin to process data in ways that will violate privacy norms. Current privacy norms were created in the analog age and have been amended in a patchwork manner to try to address the digital age. However, their complexity has made it almost impossible for consumers to understand them, and difficult for companies to apply them to their new products.
The tension over privacy and data collection has gone on for at least a century. Indeed, Justice Brandeis in 1890 wrote in the Harvard Law Review that photography and journalism possibly infringed on a right to privacy. This article now appears dated and quaint. So, will the debate about the processing of personal data and privacy be seen as quaint in 112 years? Stanley from the ACLU said that that would not be the case: what the Brandeis law review illustrates is that it’s important to uphold well understood societal norms when technology challenges them.