In today’s landmark ruling, the Illinois Supreme Court held that private lawsuits seeking statutory damages and injunctions for violation of the Illinois Biometric Information Privacy Act (BIPA) may be pursued by “aggrieved” persons without alleging any actual injury or adverse effect.
BIPA, enacted in Illinois back in 2008, was the seminal state statutory privacy
I keep getting asked about Cambridge Analytica and Facebook. And no one seems to like my response – I’m frankly amazed that this all took so long to blow up. How long? How about since 1973. That’s when the U.S. Department of Health, Education, and Welfare first articulated the Fair Information Practice Principles (FIPPs or FIPs) in its report Records, Computers, and the Rights of Citizens: Report of the Secretary’s Advisory Committee on Automated Personal Data Systems. The FIPPs went on to become bedrock global privacy principles, and central to them are the principles of notice and consent.
As the FTC later explained in Privacy Online: A Report to Congress:
1. NOTICE/AWARENESS
The most fundamental principle is notice. Consumers should be given notice of an entity’s
information practices before any personal information is collected from them….
2. CHOICE/CONSENT
The second widely-accepted core principle of fair information practice is consumer choice
or consent. At its simplest, choice means giving consumers options as to how any personal
information collected from them may be used….
These mechanisms – notice and consent – are what make a self-governing privacy system work. If someone (such as Facebook) is going to obtain and use our personal data, they should first give us notice of how they will use it (such as provide or sell it to others), and then we make a choice – we either consent and provide our data, or we don’t. The government may enforce these representations and choices under fair trade practices laws, such as FTC Act Section 5, but the rules themselves are made in the marketplace.
There has to be some source of governance. The alternative to self-governance through notice and consent is governance by government, with legislators and regulators making the rules for how our data is handled. There’s quite a bit of that in the EU and elsewhere, but in the United States, outside of specific sectors such as healthcare (HIPAA), education (FERPA), and financial services (GLBA & FCRA), there’s little such regulation here. In the U.S. we’ve made a policy decision to largely self-govern the privacy of personal data.
Fast forward from 1973 and, especially in our Internet-driven, U.S. self-regulatory environment, we’ve got a large, smoking crater – precious little government regulation, and even less personal responsibility. Let’s face it. We don’t actually pay attention to privacy policies and terms of use, and we don’t actually make informed choices on our consent to data practices for our personal information. Under our self-governing privacy system, look in the mirror. The enemy is ourselves.Continue Reading (But wait, I didn’t) notice and consent
WiFi provider Purple recently added a “Community Service Clause” to its usual terms and conditions for wireless service:
The user may be required, at Purple’s discretion, to carry out 1,000 hours of community service. This may include the following:
More than 22,000 people accepted these terms during Purple’s two-week-long T&C gambit, with only one attentive person claiming the prize Purple offered to anyone who noticed this silliness. Purple conducted this experiment “to highlight the lack of consumer awareness when signing up to use free WiFi.” Winners include snails, local parks, sewer lines, and stray dogs and cats, now the potential beneficiaries of up to 22 million community service hours. The clear loser? Those. Who. Don’t. Read. Notices.
Continue Reading Reading privacy policies to avoid surrendering your firstborn child