Category: Privacy (Consumer Privacy)

2

Can Spam and Spyware Ever Be Good?

Over at the Conglomerate, Professor Eric Goldman’s paper, A Coasean Analysis of Marketing, is being workshopped in the Conglomerate’s Second Annual Junior Scholars Workshop. Professors Peter Huang and Frank Pasquale (previously a guest blogger here at Concurring Opinions) are providing commentary.

Eric Goldman was teaching at Marquette Law School. This fall, he will be moving to Santa Clara Law School. He has a very informative blog about technology and marketing law issues.

I’ve read Eric’s paper, and it is quite interesting and provocative. Eric attempts to point out the brighter side to junk mail, spam, adware, and other marketing technologies that most of us detest. Is there such a thing as a good spam? I have my doubts, but Eric presents a thoughtful argument why we shouldn’t view spam and other marketing technologies as totally evil. He argues that we ought to be very careful in how we regulate marketing, and he proposes new approaches toward addressing the problems unwanted marketing create. Here’s the abstract:

Consumers claim to hate marketing—mostly, because they get too much unwanted marketing. In response, regulators develop medium-by-medium marketing suppression regulations. Unfortunately, these ad hoc solutions do little to satisfy consumers, and dynamic technologies and business practices quickly render them moot. Instead of continuing this cycle, there would be some benefit to developing a cross-media marketing regulatory scheme. However, any holistic solution must be predicated on a clear rationale for regulating marketing. The most common justification is that marketing imposes a negative externality on consumers, but this argument ignores the private and social welfare created by marketing and can lead to cost overinternalization and marketing undersupply. The Coase Theorem also suggests that social welfare improves by reducing the costs of matching marketers with interested consumers. To achieve this, consumers need a low cost but accurate mechanism to manifest their preferences. This Article shows that typical regulatory and marketplace solutions do not provide effective mechanisms. Instead, marketer-consumer matchmaking will improve from technology that will automatically infer consumer preferences and use these inferences to filter incoming marketing and seek out wanted content. This technology does not yet exist, but it is being rapidly developed. However, regulation of surreptitious monitoring devices (like adware and spyware) may inadvertently block the development of this socially-beneficial technology. As a result, current regulatory overreactions to developing technology may counterproductively foreclose social welfare improvements.

The Conglomerate welcomes your comments on Eric’s paper: “We invite all readers to comment on Eric’s paper in the commennts section of this post.” Please comment over at the Conglomerate post.

2

The ChoicePoint Settlement

choicepoint3.jpgRecently, the FTC announced a settlement in its complaint against the data broker ChoicePoint for a data security breach that resulted in over 160,000 people’s personal information being sold to identity thieves. According to the Washington Post:

Data broker ChoicePoint Inc. yesterday agreed to pay a $10 million federal fine over security breaches that exposed more than 160,000 people to possible identity theft. Privacy experts praised the settlement as a warning to companies to get more serious about protecting sensitive information.

The Alpharetta, Ga.-based company, one of the nation’s largest buyers and sellers of personal information such as Social Security numbers, birth dates and addresses, also agreed to pay $5 million into a fund to compensate people who suffered as a result of the breaches.

The Federal Trade Commission, which said the fine was the largest civil penalty it had ever imposed, said ChoicePoint violated consumers’ privacy and breaking federal laws by mishandling the information and misleading people about its privacy policy.

The FTC complaint is here. There are some important issues worth discussing in connection with the news of the settlement.

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32

Do No Evil and Perhaps Do Some Good: Google, Privacy, and Business Records

google5.jpgI just blogged about the case where the goverment is seeking search query records from Google. I am very pleased that Google is opposing the goverment’s suboena. According to the AP artice:

Google — whose motto when it went public in 2004 was “do no evil” — contends that submitting to the subpoena would represent a betrayal to its users, even if all personal information is stripped from the search terms sought by the government.

“Google’s acceding to the request would suggest that it is willing to reveal information about those who use its services. This is not a perception that Google can accept,” company attorney Ashok Ramani wrote in a letter included in the government’s filing.

In contrast to Google, other search engine companies such as Yahoo complied with the subpoenas without putting up a fight. Google is to be applauded for taking the effort to rebuff the government’s request.

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7

The Gifts You Can No Longer Return

My-Date-With-Drew.jpgIn the fun and light documentary, My Date With Drew, an average guy named Brian Herzlinger chronicles his attempt to get a date with Drew Barrymore. The documentary was made on a shoestring budget of just $1100, and Brian cut costs by buying a video camera at Circuit City, using it until the 30-day return window was up, and then returning it to the store for his money back.

But Herzlinger’s documentary may one day be notable not for his quest to meet a celebrity but for capturing what might be a quaint piece of nostalgia — the easy and hassle-free ability to return merchandise.

Returning merchandise has become much harder these days. Those unwanted gifts you received this holiday season might be much more difficult to return. According to a WSJ article (don’t bother clicking the link, as the article can’t be accessed without paying a massive fee):

Retailers are further clamping down on return policies, imposing penalty fees and using sophisticated computer databases to flag serial returners trying to game the system. Some are also adding exceptions and caveats to their return policies — for instance, making it particularly hard to return certain kinds of products, such as electronics.

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0

Microsoft: A Pro-Privacy Company?

microsoft2.jpgMicrosoft has recently announced that it supports comprehensive national privacy legislation. According to a white paper by Microsoft Senior Vice President and General Counsel Brad Smith:

Over the past few years, however, several factors have altered the privacy landscape in such a way and to such a degree that we now believe the time has come to support national privacy legislation as a component of a multifaceted approach to privacy protection. As a strong supporter of free-market solutions, Microsoft did not come to this decision without careful consideration. But it is one we now believe is the right course in order to provide meaningful protections for individuals, while avoiding unnecessary obstacles to legitimate business activities.

I applaud Microsoft’s shift from calling for self-regulation to calling for comprehensive privacy regulation. I have long believed that self-regulation has not worked effectively.

My main concern with Microsoft’s proposal is its call for federal preemption of state regulation:

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2

Teaching Information Privacy Law

privacy1a.jpgThis post was originally posted on PrawfsBlawg on May 10, 2005. I have made a few small edits to this post.

For the law professor readers of this blog, especially newer professors (or professors-to-be) who are still figuring out the courses they want to teach, I thought I’d recommend information privacy law as a course you might consider teaching. (I have a casebook in the field, so this is really a thinly-disguised self-plug.)

Information privacy law remains a fairly young field, and it has yet to take hold as a course taught consistently in most law schools. I’m hoping to change all that. So if you’re interested in exploring issues involving information technology, criminal procedure, or free speech, here are a few reasons why you should consider adding information privacy law to your course mix:

1. It’s new and fresh. Lots of media attention on privacy law issues these days. Students are very interested in the topic.

2. Lively cases and fascinating issues abound. There’s barely a dull moment in the course. Every topic is interesting; there is no rule against perpetuities to cover!

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11

Free Credit Reports: My Exciting Adventure

Under the federal Fair and Accurate Credit Transactions Act of 2003, the credit reporting agencies must provide a yearly free credit report to individuals who request it. This was one of the benefits given to consumers by the law in return for extending the federal preemption of certain state law regulations.

There are three major credit reporting agencies: Equifax, Experian, and Trans Union. You may have heard that there’s a new website where you can conveniently get your credit report from all three agencies. Since I pay attention to this field of law, I knew the name of the website, but many people I’ve spoken to don’t know what it is called.

But we live in the age of Google, so most people would just do a Google search for “free credit report.” Here’s what you pull up in your search:

annualcreditscore3a.jpg

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0

Debate on Privacy and Security Regulation

cnet1.jpgThere is an interesting set of debates going on this week over at CNET about information privacy and security regulation.

Participants include: Orson Swindle (former FTC commissioner); Jim Harper (director of information policy studies at the Cato Institute; member of the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee); Chris Hoofnagle (Director, Electronic Privacy Information Center West Coast Office); James Van Dyke (Founder and Principal of Javelin Strategy & Research); and California Senator Joe Simitian.

There are new topics each day. Today’s topic is state versus federal regulation of privacy and security, and the debate has also addressed the issue of whether common law tort regulation is preferable to legislative statutory regulation.

2

Hurricane Katrina and Credit Scores

creditscore1.jpgBob Sullivan at MSNBC writes:

A second storm surge may soon start slamming into Gulf coast residents hit by hurricanes Katrina and Rita. Mounting unpaid bills will lead to a surge of black marks on victims’ credit reports, say consumer advocates, sinking their credit scores. And now, they say, efforts to convince the nation’s credit bureaus to develop new systems to account for victims’ temporary bill-paying troubles have hit a major snag.

Consumers who can’t make their house payments any more – even if that house has been completely swept away by the storm – may face the ultimate penalty in America’s credit-driven society: A credit score so low they won’t qualify for the loans they need to start rebuilding.

Consumer groups, anticipating the coming surge of late payments and account defaults, have asked credit bureaus to help. The consumer groups proposed that the bureaus take a pre-Katrina credit score snapshot of all residents in the affected areas. Later, when victims apply for loans, the pre-Katrina score could be used to identify whether victims were good credit risks before the storm.

This sounds like a sensible proposal, something that will help the survivors of the hurricane rebuild their lives. After all, without good credit, it is much more costly to take out a loan, and sometimes nearly impossible to get a loan or credit.

Fair Issac, the company that creates the formula for generating credit scores supports this proposal. The credit reporting agencies, however, won’t have any of it:

But on Thursday, consumer groups revealed that the nation’s three bureaus – Experian, Trans Union, and Equifax – have declined to participate in the plan.

The reasons are:

A second score likely wouldn’t comply with parts of the Fair and Accurate Credit Transaction Act, the firm indicated in a letter sent to Consumers Union.

Equifax’s David Rubinger said the presence of a second score could create confusion both for lenders and consumers. Also, credit bureaus and lenders sometimes use alternate scoring systems, he said, so a snapshot FICO score would be of little use to those lenders.

First of all, I’m not familiar with a provision of the Fair Credit Reporting Act (FCRA) that would prohibit reporting a second score. If there is something in the law that prohibits reporting another score, then Congress should make an exception for victims of certain sudden catastrophes.

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5

Notice of Privacy Practices

privacy-policy1.jpgA friend recently asked why we don’t have a privacy policy for this blog. We have a registration statement, after all, so why not a privacy policy? So without further ado, I present to you our shiny new privacy policy:

Notice of Privacy Practices

1. Our Commitment to Your Privacy. We at Concurring Opinions respect your private information deeply, which is why we want to gather and use every last bit of it. By visiting www.concurringopinions.com, you are accepting the practices described in this Privacy Notice. Moreover, even by hearing about this site, thinking about this site, or attempting to forget about this site, you hereby fully consent to everything described hereinafter in this Privacy Notice.

2. Our Promise to You. You hereby agree to be unilaterally bound by all terms stated in this Privacy Notice. However, this Privacy Notice is not binding on us in any way. We reserve the right to change, amend, or revoke this Privacy Notice at any time, without providing notice to you beforehand or in the future. Indeed, our privacy practices may currently be entirely different from those stated herein.

3. The Data We Collect and Share. Concurring Opinions gathers the maximum possible information about you to better understand you and to provide you with the content you so enjoy. We harvest your email addresses, track your IP addresses, and we provide them to numerous commercial data brokers in exchange for further information about you. We construct extensive dossiers about all of our visitors. We use this information to better customize Concurring Opinions so that we can deliver content suited to your interests, hobbies, and needs. We also share your information with our trusted as well as our non-trusted business partners. We do, however, take steps not to sell the data to identity thieves unless they pay us a higher rate. In the event of bankruptcy, we will sell your personal data to the highest bidder.

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