By: Marion Goodsell
The JHTL blog frequently covers privacy issues. The contributors explore the legal consequences of forfeited information and consider the beneficial uses of data against losses in privacy and the risk of opportunistic use. I have read these thoughtful pieces, but still use free apps and social media. If I can ignore the advertisements and proceed to the content, then I am not too bothered.
In the car, privacy is relevant. It is one space where you can ignore your devices, and have the chance to drive beyond their service range. The car offers solitude and passage out. However, a car’s connectivity may spoil this notion. I doubt that my car has the sophistication to divulge location data, but such technology may become a standard feature.
Marketplace’s Dan Weissmann, recently reported on data collection by car companies. He highlighted the industry’s recent publication of consumer privacy protection principles, as they contemplate collecting location, driver behavior, and even biometric data. This degree of intrusion quashed my notion of driving as escapism.
The document notes that affirmative consent would not be required in the use and sharing of location, behavior, or biometric data. This section limits circumstances reasonably necessary to ensure safety, avert theft, foster product development or a corporate merger, for warranty purposes. Further, it is necessary to “comply with a lawful government request, regulatory requirement, legal order, or similar obligation, which, in the case of requests or demands from governmental entities for Geolocation Information, must be in the form of a warrant or court order, absent exigent circumstances or applicable statutory authority.”
While the list looks expansive, it also seems like the predictable categories were elected. The companies naturally would use the information in product development, as actual behavior is a more reliable metric than most other consumer feedback. Sharing information with the emergency responders is part of the service provided by collecting it, while, sharing with the government more generally, resembles the conduct of communications companies and Internet service providers. Once information is collected it seems that ‘reasonably necessary’ can be a flimsy limit on sharing without the backstop of affirmative consent, to say nothing of how the information is secured.
The Electronic Frontier Foundation (EFF) challenges intrusions on privacy and presents a stronger narrative about the harms of collecting such information. Both the EFF and a 2013 GAO report demonstrate that consumers are mainly unaware of what information is collected, and often without the consumers’ consent. Where information has not been formerly tracked it is hard to know its value, or what consenting, or not, to its collection and sharing mean. However, privacy advocates put this in stark terms: how would you feel about your location or biometrics being regularly logged, beyond your active consent or control?
Will this be the form of data mining and surveillance that pushes us beyond privacy and solitude as considered under Forth Amendment protections, toward informational self-determination and stronger protections for informed consent and privacy? At the least, Senator Ed Markey is pressing for federal legislation to ensure consumers’ privacy, through informed choices and the option to refuse any form of information collection.