PrivacyTraining_ad300x250.Promo1-01

CS15_300x250_Banner_FINAL
Transparency Should Be the New Privacy

I have lost count of the number of times I have read variations on the statement:

“Tech company X has a website privacy policy longer than Shakespeare’s [Insert famously long play here].”

And the other common one is:

“Actually reading all the privacy policies on the sites you visit would take [insert number between 50 and 100] days each year.”

Even the most dedicated privacy professionals and advocates will tell you, sotto voce and often off the record, that they don’t read them all!

To prove a point, one software company, PC Pitstop, buried a $1,000 prize in a licence agreement to the first person to send them an e-mail to claim it. More than 3,000 people agreed to the terms before they got a result—and paid out.

The website privacy policy is the basis on which organisations can claim they have received consent from customers/visitors to collect whatever data they want and do what they like with it. In a data-driven world, they are important documents. Expensive lawyers are often paid large sums of money to write them in the full knowledge that they will rarely be read. Of necessity, it is written in legalese that most people won’t fully understand, and it is long because it has to cover all eventualities.

Of course, hardly anybody reads them. In the vast majority of cases, it would be a colossal waste of time.

There have been lots of attempts to improve privacy policies, of course. The Information Commissioner’s Office in the UK has published guidance, and the EU Data Protection Regulation proposes a “layered” pictographic model. The idea is laudable, but they ruin it with a mandatory set of icons (PDF – go to pg. 115) that are terrible in almost every single way.

However, the problem is not really with the privacy policy itself as a document; it is the fact that it has been mis-sold to us. We are led to believe its purpose is to inform. We are told this because consent relies on us being informed about what we are consenting to. It is the basis of almost all privacy law throughout the world.

However, if that were true, it wouldn’t be buried in a link at the bottom of the page and written in dense text that is often also in a smaller font than the rest of the site. Website designers and copywriters know how to inform people online. The privacy policy is the document on any website least likely to inform the visitor in any meaningful way.

The transparency statement will be short, clear and simple to understand. It might borrow from the “layered” privacy policy model and would almost certainly involve a strong visual element. It will be easily accessible and you will be encouraged to look at it, especially on a first visit. It will be the basis on which the website will set your expectations for how you and your data will be treated.

The reality is that the privacy policy is designed to protect the owners in the case of a dispute—which is what most legal documents are designed to do. There is nothing wrong with this—these documents are necessary in certain circumstances. It’s just that they don’t fulfil the more common need for accessible information about privacy practices at the company.

To my mind, the solution is not to try to reform them—which will be a difficult and constant battle. The solution is to introduce something else—something that has the sole and clear purpose of informing the visitor about privacy and data practices.

This thing to my mind is a transparency policy, or perhaps a transparency statement.

The transparency statement will be short, clear and simple to understand. It might borrow from the “layered” privacy policy model and would almost certainly involve a strong visual element. It will be easily accessible and you will be encouraged to look at it, especially on a first visit. It will be the basis on which the website will set your expectations for how you and your data will be treated.

It will be backed up by the legal weight of the privacy policy, of course—the transparency statement could not be binding on its own. However it will be important that the privacy policy and transparency statement not be allowed to make incompatible claims.

In fact, in the event of a dispute or regulatory enforcement action, authorities could look at the two in tandem. Where the two disagree or present incompatibilities, the authorities could be given freedom to allow the transparency statement to take precedence and take action on the basis of deceptive practices. This in itself might be less punishing on the website owners—but would be an important incentive to correct such incompatibilities, to ensure transparency doesn’t simply become another layer of obscurity.

Because the transparency statement is also more likely to be read, commented on and engaged with, it will likely improve over time, and accepted standards might emerge. This would potentially create a virtuous circle that further improves clarity for consumers.

It is sometimes said that privacy has the capacity to become a competitive differentiator. If this means having to compare two or more Macbeth-sized documents side by side, that is never going to happen. However, you could spare two minutes to compare transparency statements or discover that one provider doesn’t have one.

Transparency statements could be the vehicle to enable the majority of people to make better-informed choices than they currently do and use a truly market-driven approach to online privacy practice.

photo credit: Stewart Leiwakabessy via photopin cc

Written By

Richard Beaumont, CIPM

3 Comments

If you want to comment on this post, you need to login
  • Dana Nahlen May 14, 2014

    Please provide a generic example of what you mean by a "transparency statement". What would it look like and say. The concept of something different is good, but the explanation of what you mean the statement to be is not clear to me. Thanks.

  • Richard Beaumont May 19, 2014

    Its a fair question. I hope to have a working prototype implementation in a few days

  • Marc Oct 2, 2014

    When it comes to the need for more transparency, you wont' get an argument from me. Amen! But as a person who has both drafted privacy policies and enforced privacy policies on behalf of the FTC, I am having a difficult time understanding how this would be implemented in practice. I don't have an issue with the concept or philosophy behind your thoughtful proposal for a plain and simple transparency statement, but I don't follow how it would play out and balance the multiple objectives set out in your post. In addition, while I agree that privacy policies on the whole are not drafted with the goal of informing the general public about a company's data collection and use practices, they do serve a very valuable purpose. First, they often force a company to review its business model and data practices as part of the very exercise of drafting the privacy policy. Second, we require our members to include specific information in their policies such as retention schedules for data and links to an opt-out mechanism. Third, privacy policies are reviewed by regulators, academics and self-regulatory compliance programs like NAI. This allows those stakeholders to compare practices and representations made by different entities. There is tremendous value in that even if consumers don't read the privacy policies. At NAI for example, not only do we read every word of hundreds of privacy policies every year, we have developed in house a privacy policy scanner that reviews every NAI members' privacy policy every business day for changes. The scanner identifies every revision to every privacy policy and then our team of attorneys look at those changes to help identify potential compliance issues. Although I can't get into details here, it is incredibly useful for both our compliance program and our members. If you have more thoughts on short transparency policies, NAI would be interested in engaging on that subject as we also want more transparency. It's good for everyone.

Related