We often characterize the U.S. privacy framework as being sectoral. That is, instead of a comprehensive privacy framework at the federal level, the United States provides by statute heightened, statutory protections for certain kinds of personal information, including financial data, health information and children’s data, as they are used in certain types of activities. Even those who call for comprehensive privacy legislation would probably admit that there is some sense to the strategy of identifying sensitive types of information and providing heightened protections for them. But, as recent legislation shows, lawmakers don’t always focus on sensitive types of information. Sometimes they carve out sectors by focusing on specific technologies and services. For example, we wrote recently on the potential regulatory scenarios facing unmanned aerial systems (UAS), commonly referred to as drones. This month, we considered writing (and likely will in coming months) on legislation currently being considered for privacy in the context of “connected cars.”
That got us to wondering: What will the next laws be? Are refrigerator privacy laws on their way? What about televisions, thermostats, robots, and toilets?
Each of those devices has the potential to raise privacy concerns when (and not if) they come with connected technologies and features. Lawmakers that note those privacy concerns may be tempted to pass legislation establishing privacy protections. Consider some of the bills that have already been proposed:
- The U.S. Senate Committee on Commerce, Science and Transportation is considering the Driver Privacy Act, which would make vehicle owners the owners of information collected by their vehicles’ event data recorders.
- The U.S. House Subcommittee on Commerce, Manufacturing and Trade has received the the We Are Watching You Act, which would require video streaming services to provide notices before collecting visual or auditory information from devices displaying streaming content.
- The same subcommittee is considering legislation that would require retail establishments to post notices if they track customers’ locations using radio signals emitted by customers’ devices.
- California is considering a bill that would require smartphones and tablets to come equipped with “kill switches” that render the devices inoperable when not in the possession of their rightful owners.
At first glance, these proposals may seem reasonable, and focusing privacy laws on specific technologies and services isn’t a novel concept in the United States. The Electronic Communications Privacy Act (ECPA) is noted, and often criticized, for addressing the technologies present in 1986. The Video Privacy Protection Act (VPPA) was designed for video tape rentals and sales, though it has been interpreted more broadly.
So, why make note of the tech-/service-specific bills under consideration? The answer is simple: Technology evolves, more quickly today than ever before, while legislation remains relatively static. Technology-/service-specific legislation may therefore stifle the development of services made to meet evolving consumer preferences while ultimately proving ineffective at addressing the privacy concerns it was intended to mitigate. Such legislation can also create compliance challenges.
The VPPA illustrates how tech- and service-specific legislation may prevent consumers from getting the services they want. Congress passed the VPPA after a reporter obtained and disclosed the video rental history of Supreme Court nominee Robert Bork. In the aftermath of that disclosure, it seemed reasonable to prohibit video providers from disclosing customers’ information without their written consent. But along came social media, and consumers found it desirable to share their viewing histories with friends or even with the general public. The VPPA’s written consent requirement prevented that until the law was amended in 2012.
The We Are Watching You Act could have a similar effect, though it is unlikely to become law. If a video streaming service is recording video and auditory information from viewers for a wide range of purposes, it may seem reasonable to require providers to offer prominent notice. However, what if the service collects the information only to adjust the sound level and display settings based on the viewer’s environment? In those circumstances, would viewers really want “We are watching you” and a description of the data practices to be displayed throughout the latest episodes of their favorite series?
ECPA illustrates how tech- and service-specific legislation may become outdated and ineffective. ECPA was designed to protect electronic communications stored on or transmitted by computers. When the law was drafted in 1986, e-mail service providers stored e-mails for a short period of time until users downloaded the emails onto their personal computers. So it made some sense to consider emails stored for over 180 days to be abandoned and allow the government to access such e-mails without a warrant. Now, users store e-mails in the cloud for years, and the 180-day distinction makes little sense.
Legislation like the retail tracking bill mentioned above has the potential to become similarly outdated. Companies will almost certainly develop new ways of learning about how individuals move through and around brick-and-mortar stores without collecting radio signals. Video, sound and other signals may allow for similar analytics. Legislation focusing solely on radio signals could be obsolete within just a few years.
Tech- and service-specific legislation can also create compliance problems. For example, connected cars are sometimes referred to as “smartphones on wheels.” Does that mean that connected cars need to comply with mobile device laws? (We do note that the California “kill switch” law would only apply to handheld devices.) Moreover, as the Internet of Things matures, more and more devices will populate complex webs of connectivity and interaction. In those ecosystems, it may be difficult to determine where one device ends and another begins. If a connected thermostat collects and responds to information from a connected car, would the collection be considered part of a thermostat service, part of a car service, or both? Organizations may be left to guess at the regulatory regimes governing their products and services and devote resources to complying with potentially conflicting regulations.
All this does not necessarily argue against the reasonableness of all tech- and service-specific legislation. Such legislation may sometimes be needed to address concrete privacy harms. Increasingly, though, and as recognized in the “Big Data” report recently issued by the Executive Office of the President, policy makers may start considering whether data is likely to be used in certain ways; e.g., to discriminate against or otherwise harm individuals, and to regulate such uses, as opposed to enacting technology- or service-specific legislation. Regardless, lawmakers should consider whether particular tech- or service-specific bills will be able to adapt to evolving technologies and consumer preferences, and should also consider the degree to which such legislation can create conflicting or unclear obligations as the connected world evolves. Businesses interested in deploying innovative data-rich technologies or services should themselves plan to address privacy concerns prior to regulation—either at the company level or industry-wide. For whatever the organizing principle of future legislation may be—data use, data types or specific technologies and services—efforts to regulate privacy are certain to continue.