On Wednesday, the Pew Research Center released its third report on Americans’ attitudes towards privacy and surveillance. While the report confirms previous findings that, no, privacy is not dead, it focuses a broader look at Americans’ views on privacy in public and information control. It finds that our privacy-values are particularly heightened with respect “to having a sense of control over who collects information and when and where activities can be observed.”
Nearly all adults report that who is gathering information and what information are an essential dimension of privacy control. Strong majorities believe — 74% believe “very strongly” — that it is important to be in control of who can get information about you. The home continues to be viewed as “do not disturb” zones, which may present interesting implications for the emerging Internet of Things. And by a 2-to-1 margin, Americans believe in limits on employer-monitoring of employees.
One particularly interesting finding from the report are the Americans’ views toward data retention broadly. Most Americans believe that only “a few months” or less is long enough for companies to store most records of their activities. Different industry sectors get more or less leeway. For example, majorities support credit card companies retaining their data, but even here, the length of time people feel are reasonable retention periods varies. Once again, strong majorities were skeptical of the need for online advertisers to “safe any info” about them for lengthy periods of time, if at all.
The Future of Privacy Forum’s Capitol-Area Academic Network was privileged enough to discuss the Pew privacy project with the report’s authors last fall, and Pew’s series continues to demonstrate not only the value of privacy — but the strong need to think about better ways to offer privacy controls and communicate practices with consumers.
We were especially concerned with the requirement that apps be automatically capable of “collecting and transmitting” a wide array of data including the requested pick-up time, date, and location, which could be collected even in the event that the passenger later cancelled the trip. The proposed rules provide no guidance with regard to when and how such transmission would occur, suggesting this data could be requested at the sole discretion of TLC.
This sort of broad data collection by a government agency presents important privacy issues. In particular, it raises key Fourth Amendment concerns, as well as permits wide swaths of sensitive data to potentially be released publicly through state Freedom of Information laws. Several news reports have previously demonstrated how even allegedly anonymized taxicab data can be “reverse engineered” to reveal passenger names and trip pick up and drop location information.
Everyone understands the TLC’s need to regulate FHVs and that mobile apps are increasingly the mechanisms that govern these services. FPF in particular has been a strong proponent of smart city initiatives, and using trip data to optimize traffic flows, improve the environment, and advance safety.
Nonetheless, we urge the TLC to seriously consider the privacy challenges posed by its proposal. Our letter encourages the Commission to engage in a more in-depth consultative process with privacy experts, organizations and the public in order to determine how to achieve TLC’s goals to guide FHV apps without unnecessarily placing passengers’ privacy at risk. The full letter is available to read here.
A Historical Primer on Section 215 Bulk Collection
Over on the IAPP’s Privacy Tracker blog, FPF Senior Fellow explains how the past week has seen two significant events concerning Section 215 of the USA PATRIOT Act. First, on May 7, the Second Circuit ruled that “the telephone metadata program exceeds the scope of what Congress has authorized and therefore violates” Section 215. And yesterday, the House of Representatives approved the USA FREEDOM Act by 338-88, which could limit by statute collection of domestic telephone metadata and other records under Section 215. According to Swire, this week’s activities will have potential important effects in the long term on surveillance policy.
Parents Rights To Student Data Privacy
FUTURE OF PRIVACY FORUM INTRODUCES DIGITAL GUIDE TO EQUIP PARENTS WITH KNOWLEDGE, UNDERSTANDING OF LAWS GOVERNING STUDENT DATA USE AND PRIVACY
New Website Developed in Partnership with National PTA, ConnectSafely.org
WASHINGTON, D.C. – Monday, April 27, 2015 – As the digital revolution continues to transform students’ learning, how teachers instruct in classrooms, and the way schools gather pupil data and information to improve education, the Future of Privacy Forum (FPF) today unveiled a new, timely web resource to provide clear and straightforward overviews of parents’ rights to student data under the various relevant federal laws in effect.
“A Parent’s Guide to Student Data Privacy Rights”, developed and published in partnership with the National PTA and ConnectSafely.org, is a valuable tool for parents seeking answers and guidance related to major federal laws on education privacy, such as the Family Educational Rights and Privacy Act (FERPA) and the Children’s Online Privacy Protection Act (COPPA), as well as other laws and policies. It is also designed to help parents better communicate on these topics with teachers, schools and school districts.
“As data and technology use expands to improve educational outcomes, the focus needs to stay on parents and students, and it is essential for parents to understand how their children’s information is being handled and used,” said Jules Polonetsky, Executive Director, FPF. “We developed this guide with the National PTA and ConnectSafely to help parents understand the laws that protect student data and their rights under these laws. We live in an increasingly connected world, but whether the information is online or on paper, the basic privacy and access rights remain the same.”
The free, digital guide also includes a list of additional resources on topics related to student privacy from organizations such as:
National PTA
ConnectSafely
Future of Privacy Forum
S. Department of Education
Federal Trade Commission
Fordham University School of Law
Some of the common questions that are answered in the guide include:
Who has access to information about children?
What is COPPA and when does it apply to information from students?
Are there other laws about student data?
What about companies that provide online tools to schools?
When do I have the choice to “opt out” of my child’s information being shared?
Your child’s data: How to gain access, make corrections, or request deletion
“Technology and the Internet are powerful tools for teaching and learning, but at the same time, it is imperative that students’ academic and personal information is protected,” said Otha Thornton, Jr., President, National PTA. “It is a top priority of National PTA to safeguard children’s data and make certain that parents have appropriate notification and consent as to what and how data is collected and used. National PTA is pleased to collaborate with the Future of Privacy Forum and ConnectSafely.org to bring the Parents’ Guide to Student Data Privacy to families nationwide to ensure they are knowledgeable about the laws that protect student data as well as students’ and parents’ rights under the laws.”
“As schools increase the use of technology and student data, parents have privacy concerns regarding their children’s information,” said Olga Garcia-Kaplan, parent and advocate for student data privacy. “This guide provides a clear and concise explanation for parents to understand their rights and laws that are in place to protect their privacy.”
The guide is part of FPF’s “FERPA|SHERPA” website, which provides service providers, parents, school officials, and policy makers easy access to laws, best practices, and guidelines that are essential to understanding privacy issues in education and how to responsibly use student data.
About Future of Privacy Forum
The Future of Privacy Forum (FPF) is a Washington, DC based think tank that seeks to advance responsible data practices. The forum is led by Internet privacy experts Jules Polonetsky and Christopher Wolf and includes an advisory board comprised of leading figures from industry, academia, law and advocacy groups. For more information, visit fpf.org
This morning, the Center for Strategic and International Studies presented a panel conversation on some of the challenges – and opportunities – around domestic drone use. After following the issue for years, it would appear that drone policy’s day has finally arrived. According to the FAA, nearly 4,500 comments were submitted in response to the agency’s proposed rulemaking for drones, or unmanned aircraft systems (UAS), and the NTIA received over 50 comments specifically on privacy issues around drones.
While the Future of Privacy Forum continues to think about how best to address these issues, there is little question that domestic and commercial drone use offer tremendous societal benefits. At the panel, Brian Wynne, President of AUVSI, a leading robotics trade association, explained that drones will create over $83 billion in economic activity in their first decade, and promise to generate tens of thousands of jobs. Wynne suggested that it is “almost impossible to anticipate all the different ways we can utilize UAS moving forward.”
Even the ACLU’s Jay Stanley, who remains concerned about law enforcement’s eagerness to use drone technology, admitted that drones could be a “generative technology” in the private sector. He noted that privacy issues on the commercial side are incredibly complicated, not only implicating the First Amendment but perhaps lacking the sort of privacy-invasive incentives that could exist in law enforcement. Indeed, his “nightmare scenario” is a world where drones could be used for persistent surveillance, while members of the public, including journalists and entrepreneurs, will be hamstrung in their ability to use UAS technologies.
Stanley applauded the “outpouring” of interest on privacy with drones. He echoed notions that drones are more salient among the public. “It’s not hard to see the privacy issues with a drone with a camera on it,” he said. “Things like big data are more abstract.”
Adam Cox, from CSIS and an advisor to DHS’ Advanced Research Projects Agency (HSARPA), suggested that privacy and drones presents a “technically sexy problem.” “A lot of people are interested [in the technology],” he explained, and because drones allow everyone to engage in flight, “people are going to want to put new things on this.” He encouraged technologists to work hand-in-hand with policymakers, recommending both geofencing solutions and education efforts toward both manufacturers and operators of drones.
On that front, the Future of Privacy Forum is eager to engage. Last week, we filed comments with the NTIA on our thoughts on privacy and domestic drone use. A wide variety of individuals and organizations also submitted comments ahead of a new drone privacy multistakeholder effort, and it is clear that there are a number of ideas in play for how to address data collection and use by drones, as well as the address public concern about a loss of privacy from above.
In addition to several procedural recommendations, our comments focus on the value of transparency and training to address privacy concerns. We recognize that drones present different types of transparency challenges, both in terms of general practice and then individual drone flight. In both instances, we support conversations about what sort of information could be communicated to consumers in a way that does not place significant burdens onto individual UAS operators. Further, while drone operation will require at least some degree of safety training, we are hopeful some type of privacy training can be incorporated into that.
As today’s panel and all these comments suggest, there is much work to be done to figure out how general privacy principles can be applied to a diverse array of UAS technologies. While we support a technology neutral approach, it is clear that consumers, businesses, and policymakers all need to have a voice in determining how commercial drones can and should take flight.
-Joseph Jerome, Policy Counsel
FPF Senior Fellow Peter Swire Provide Comments to the FCC on Broadband Consumer Privacy
Later today, Peter Swire, FPF Senior Fellow, will participate at the FCC’s public workshop on broadband consumer privacy. He also prepared written comments expanding on his thoughts. Professor Swire summarizes his research as follows:
First, I examine the effect of the Section 222(a) definition of “proprietary information” as compared with the Section 222(c) definition of “customer proprietary network information.” (CPNI) My conclusion, based on some analogous provisions from HIPAA and GLBA, is that the Commission should be cautious about founding any additional regulatory requirements under this proceeding based on the language in 222(a).
Second, I examine the intersection of privacy and competition law, drawing on my previous writings in the area. New entry into online advertising, including by broadband providers, could be a new source of competition on privacy attributes. My recommendation to the Commission is to consider the effects of this potential competition on privacy and other non-price aspects of competition, along with price aspects of competition, as part of the overall assessment of how to govern the use of CPNI for broadband providers.
Third, I address priority uses of information that I believe should be permitted in the CPNI context. Although I do not seek to create a complete list of possible exceptions to the general CPNI rule of consumer opt-out, I do emphasize three areas where an opt-out is not generally appropriate – anti-fraud, cybersecurity, and research on network usage. I also analyze the role of de-identification and aggregate information under Section 222, suggesting strategies to preserve the utility of de-identified and aggregate information while protecting privacy. In this discussion, I do not take a position on whether a rules-based, principles-based, or other approach should be adopted by the Commission. Instead, I emphasize that important interests such as anti-fraud and cybersecurity should be taken into careful consideration in whatever approach the Commission pursues.
He concludes that translating Section 222 privacy protections to the broadband sector is far from a simple task, noting the “considerable technical and market differences from the telephone market governed by the 1996 CPNI rules.”
Future of Privacy Forum Releases Statement on FTC's Settlement with Retail Tracking Company
“Today’s settlement by the Federal Trade Commission with Nomi, a mobile location tracking company, demonstrates the need for companies with emerging technologies to be clear about the choices they provide consumers”, said FPF Executive Director Jules Polonetsky.
The need for transparent privacy policies in the field of mobile location analytics was the genesis behind the development of FPF’s Mobile Location Analytics “Code of Conduct”. Signatories of this binding set of privacy principles must provide consumer with clear opt-out options for tracking by MAC address or similar identifiers.
Consumers can easily and quickly opt-out of mobile location analytics by entering their device’s Wi-Fi or Bluetooth MAC addresses at www.smart-places.org.
Comcast Newsmakers: Jules Talks Consumer Privacy and Location-Based Services
In a recent episode of Comcast Newsmakers, Jules discussed the many new ways that data about your location is being used — such as navigation or helping you connect with friends. He addressed what can you do to protect the privacy of that data? A conversation with Jules Polonetsky, Executive Director and Co-Chair of the Future of Privacy Forum.
When Opting Out of Student Data Collection Isn't the Solution
Opting-out, whether for testing or other activities, is getting a lot of press in the Education world right now. Jules and I recently wrote for EdSurge on this topic…when it is, or isn’t, the right policy decision.
The bottom line? “Opt-out rights should be an opportunity for parents to decline uses of data that truly are secondary to the functioning of our educational system – not an opportunity to avoid resolution of education policy issues that affect all students.”
Posted by: Brenda Leong, Legal and Policy Fellow/Education Privacy
Comparing the Data Broker Bill to the Consumer Privacy Bill of Rights
Considering the privacy concerns raised by data brokers, we thought it would be useful to compare how data brokers are treated under Senator Edward Markey’s recent data broker bill, which has considerable support from privacy and consumer advocates (as well as Senators Blumenthal, Franken, and Whitehouse), and under the Consumer Privacy Bill of Rights.
The different receptions each bill has received is interesting in light of the fact that Sen. Markey’s bill echoes much of the Consumer Privacy Bill of Rights (CPBR) by giving consumers greater access to and control over personal data collected about them. While the CPBR has a broader scope and attempts to set out privacy and security obligations across sectors and industries, its provisions would still apply to data brokers and perhaps accomplish some of the same aims as the Markey bill.
Scope: Who and What Gets Covered?
The Markey bill applies exclusively to data brokers, which are defined as a “commercial entity that collects, assembles, or maintains personal information concerning an individual who is not a customer or an employee of that entity in order to sell the information or provide third party access to the information.” The CPBR applies to any “covered entity” that collects, creates, processes, retains, uses, or discloses personal data, which would include data brokers. Though it does provide several carve outs, it is unlikely that most data brokers within the meaning of the Markey bill would fall under any of the exceptions in the CPBR.
The CPBR has a far more detailed definition of personal information, which echoes the definition used by the Federal Trade Commission. It focuses on any information that is linked or linkable to a specific individual – or that is linked to a device that is associated with or routinely used by an individual. The definition sets forth a non-exhaustive list of types of personal data (notably “unique persistent identifiers” and “unique identifiers or other uniquely assigned or descriptive information about personal computing or communication devices”). It carves out de-identified data (detailing the requirements for data to be considered de-identified), deleted data, employee information and some “cyber threat indicators.”
The Markey bill does not give a precise definition of personal information but does differentiate between non-public and public record information, placing different correction requirements on data brokers for each category. The Markey bill emphasizes that non-public information is “of a private nature,” but it is unclear whether non-public information would precisely capture all of the types of data envisioned by the CPBR definition.
Transparency Obligations
Both acts would oblige data brokers to provide the individual with a clear and conspicuous notice. The Markey Bill requires the data broker to maintain an internet website to allow individuals to review information about them and to express their preferences. The CPBR does not have this requirement, but the broader bill is more precise with regards to the content and format of the notice, which shall inform the consumer about the company’s privacy and security practices.
Accuracy, Access, and Correction Rights
Both bills require data brokers to maintain reasonable procedures to ensure that personal data under their control is accurate. However, the core of both bills is focused on improving consumer access to their personal data, as well as their ability to correct any inaccuracies.
1. Access
The Markey bill and the CPBR would set out obligations for data brokers to provide consumers with access to their information upon request. In terms of access requirements, the Markey bill requires data brokers to “provide an individual a means to review any personal information or any other information that specifically identifies that individual, that the data broker collects, assembles, or maintains on that individual.” The CPBR requires that individuals be given “reasonable access to, or an accurate representation of, personal data that both pertains to such individual and is under the control of such covered entity.”
Although both bills offer an access right, the CPBR contains some limitations that could result in consumers being denied access by data brokers. Specifically, the bill states that the “degree and means of any access shall be reasonable and appropriate for the risks associated with the personal data, the risk of adverse action against the individual if the data is inaccurate, and the cost of the covered entity of providing access.” There is considerable question about how these considerations might limit access.
2. Correction
Both bills require data brokers to give individuals the ability to challenge the accuracy and completeness of any personal data they hold about a consumer. If a consumer can prove an inaccuracy, the Markey bill requires the data broker to correct the information. It is interesting to note that the CPBR would allow a data broker to decline to correct an inaccuracy in cases where the use of incorrect data cannot result in an adverse action against an individual, but then gives consumers the right to demand the information be deleted.
While the CPBR places a number of limitations on consumer access, the Markey bill places similar limits on the ability of consumers to correct information. For example, the CPBR limits access requests that are “frivolous and vexatious,” and the Markey bill allows data brokers to deny requests to correct information that it believes are “frivolous or irrelevant.”
Individual Control and Accountability
The CPBR emphasizes the importance of individual control, and would require data brokers to provide individuals with “reasonable means to control the processing of personal data about them in proportion to the privacy risk to the individual and consistent with context.” However, the bill is largely silent as to what “reasonable means” could entail, but it allows for companies to satisfy the right of individual control by permitting individuals to request that their personal information be de-identified. The Markey bill is more direct, giving individuals the right to stop data brokers from using, sharing, or selling their personal information for marketing purposes through an opt-out mechanism.
The Markey bill’s accountability obligation consists only of an auditing requirement, requiring each data broker to “establish measures that facilitate the auditing or retracing of any internal or external access to, or transmission of, any data containing personal information collected, assembled, or maintained by the covered data broker.” The accountability obligations are much broader in the CPBR. It includes, but is not limited to, employee training, audits, “privacy by design,” and contractual requirements.
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Despite the completely different reception each bill received, this short analysis suggests that both would impose similar obligations on data brokers. Both work to improve transparency around data practices and to improve consumer’s access to the vast array of personal information being held by data brokers. There is no question many provisions in the CPBR have been sharply criticized, but the bill could largely facilitate the same goals as the Markey bill. In some respects, the broad nature of the CPBR even allows the bill to go further than the Markey bill, offering important security obligations and contextual considerations that are not addressed by the Markey bill at all.
