Striking a Sensible Balance on the Internet of Things and Privacy

by on January 16, 2015 · 0 comments

FPF logoThis week, the Future of Privacy Forum (FPF) released a new white paper entitled, “A Practical Privacy Paradigm for Wearables,” which I believe can help us find policy consensus regarding the privacy and security concerns associated with the Internet of Things (IoT) and wearable technologies. I’ve been monitoring IoT policy developments closely and I recently published a big working paper (“The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns without Derailing Innovation”) that will appear shortly in the Richmond Journal of Law & Technology. I have also penned several other essays on IoT issues. So, I will be relating the FPF report to some of my own work.

The new FPF report, which was penned by Christopher Wolf, Jules Polonetsky, and Kelsey Finch, aims to accomplish the same goal I had in my own recent paper: sketching out constructive and practical solutions to the privacy and security issues associated with the IoT and wearable tech so as not to discourage the amazing, life-enriching innovations that could flow from this space. Flexibility is the key, they argue. “Premature regulation at an early stage in wearable technological development may freeze or warp the technology before it achieves its potential, and may not be able to account for technologies still to come,” the authors note. “Given that some uses are inherently more sensitive than others, and that there may be many new uses still to come, flexibility will be critical going forward.” (p. 3)

That flexible approach is at the heart of how the FPF authors want to see Fair Information Practice Principles (FIPPs) applied in this space. The FIPPs generally include: (1) notice, (2) choice, (3) purpose specification, (4) use limitation, and (5) data minimization. The FPF authors correctly note that,

The FIPPs do not establish specific rules prescribing how organizations should provide privacy protections in all contexts, but rather provide high-level guidelines. Over time, as technologies and the global privacy context have changed, the FIPPs have been presented in different ways with different emphases. Accordingly, we urge policymakers to enable the adaptation of these fundamental principles in ways that reflect technological and market developments. (p. 4)

They continue on to explain how each of the FIPPS can provide a certain degree of general guidance for the IoT and wearable tech, but also caution that: “A rigid application of the FIPPs could inhibit these technologies from even functioning, and while privacy protections remain essential, a degree of flexibility will be key to ensuring the Internet of Things can develop in ways that best help consumer needs and desires.” (p. 4) And throughout the report, the FPF authors stress the need for the FIPPS to be “practically applied” and they nicely explain how the appropriate application of any particular one of the FIPPS “will depend on the circumstances.”  For those reasons, they conclude by saying, “we urge policymakers to adopt a forward-thinking, flexible application of the FIPPs.” (p. 11)

The approach that Wolf, Polonetsky, and Finch set forth in this new FPF report is very much consistent with the policy framework I sketched out in my forthcoming law review article. “The need for flexibility and adaptability will be paramount if innovation is to continue in this space,” I argued. In essence, best practices need to remain just that: best practicesnot fixed, static, top-down regulatory edicts. As I noted:

Regardless of whether they will be enforced internally by firms or by ex post FTC enforcement actions, best practices must not become a heavy-handed, quasi-regulatory straitjacket. A focus on security and privacy by design does not mean those are the only values and design principles that developers should focus on when innovating. Cost, convenience, choice, and usability are all important values too. In fact, many consumers will prioritize those values over privacy and security — even as activists, academics, and policymakers simultaneously suggest that more should be done to address privacy and security concerns.

Finally, best practices for privacy and security issues will need to evolve as social acceptance of various technologies and business practices evolve. For example, had “privacy by design” been interpreted strictly when wireless geolocation capabilities were first being developed, these technologies might have been shunned because of the privacy concerns they raised. With time, however, geolocation technologies have become a better understood and more widely accepted capability that consumers have come to expect will be embedded in many of their digital devices.  Those geolocation capabilities enable services that consumers now take for granted, such as instantaneous mapping services and real-time traffic updates.

This is why flexibility is crucial when interpreting the privacy and security best practices.

The only thing I think that was missing from the FPF report was a broader discussion of other constructive privacy and security solutions that involve education, etiquette, and empowerment-based solutions. I would have also liked to have seen some discussion of how other existing legal mechanisms — privacy torts, contractual enforcement mechanisms, property rights, state “peeping Tom” law, and existing privacy statutes — might cover some of the hard cases that could develop on this front. I discuss those and other “bottom-up” solutions in Section IV of my law review article and note that they can contribute to the sort of “layered” approach we need to address privacy and security concerns for the IoT and wearable tech.

In any event, I encourage everyone to check out the new Future of Privacy Forum report as well as the many excellent best practice guidelines they have put together to help innovators adopt sensible privacy and security best practices. FPF has done some great work on this front.

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