Privacy Regulations: Beyond the Legal Exploitation of Data

-- By AikenLarisaSerzo - 10 Dec 2021

Introduction

Rather than encouraging ethical software and data processing, existing privacy regulations legitimize and empower data exploitation of private enterprises. The start of December brings with it a deluge of people sharing their Spotify Wrapped -- an end-of-the-year feature provided by Spotify which summarizes the listening habits of its users. It provides information -- in digestible 5-second clips -- on the top songs, artists and podcasts streamed, the number of minutes spent streaming songs, and comparative insights. Users are then given the option to share the insights in various social platforms. Incredible how Spotify made everyone immediately and proudly share insights gathered about them by a private company with laser-like precision.

Spotify, like other tech companies, made the collection and processing of personal information acceptable, if not natural. Users voluntarily share data in exchange for insights and convenience.

The GDPR and regulations like it makes processing of personal information legal provided that consent is obtained. Countries that enacted general privacy laws, like the Philippines, have largely adopted consent-based and accountability principles. The Philippines actually made it stricter by making violations criminal. This incentivized tech companies to engage lawyers, conduct audits, and draft privacy policies. This results in lengthy and legalese consent forms, which Zuboff aptly calls surveillance policies.

The implementation of audits and privacy policies renders the processing of personal information legal provided that the extent of such processing is captured in the consent forms. However, it is doubtful whether these actually enhance privacy rights. If any, privacy regulations only appear to legitimize the comprehensive and unscrupulous scraping and processing of personal data.

In the Philippines, the strict privacy laws have not prevented companies from engaging in the wide scale exploitation of data. During the height of the pandemic, Huawei provided local governments with AI technology that enables doctors to identify probable COVID cases through the patients’ CT scans. The Philippines essentially volunteered itself to be the testing ground (and an additional resource of data sets) for Huawei’s algorithms. A basic version of Facebook may also be accessed by users for free. Such an act, disguised as philanthropy, allows Facebook to collect behavioral data about the population in a manner similar to what the tech giant did in India. The political polarization of the population, as described by Maria Ressa, and the prevalence of misinformation clouding the upcoming elections could be manifestations of the echo chambers enabled and empowered by Facebook.

Inadequacies of Clickwraps and Consent Forms Forms

Consent-based regulations are not sufficient to enhance privacy rights. These laws have unrealistic assumptions about data subjects and controllers.

The regulations assume that users have the ability and the resources to understand consent forms. The general population do not understand what rights they are giving away. The consent provided is far from being an informed one.

The system created by the regulations requires users to read and understand consent forms that accompany the services they access and use. Given the resulting length and language of such forms, and the number of services accessed by a user, the regulations presuppose that users will be able to spend the necessary time and resources to understand the forms.

Assuming that a user actually studies the consent forms, it is impossible for users to negotiate the terms of a service’s product or services. The only choice is for the user to refrain from using the problematic product or services.

Whether the user actually has a “choice” is another question. If a user wants to use a music streaming service, all the popular providers (Spotify, Apple Music, Youtube Music) would most likely have the same comprehensive and disproportionate terms in its consent forms that would allow said providers to process and share the user’s personal information both to enable the delivery of the service and more. The choice to pick a service, therefore, is illusory.

The regulations further assume that the entities controlling and processing data understand the breadth and depth of the processing activities they want to do and that they can synthesize this in consent forms. Technology and business models rapidly develop. It is unrealistic to expect that the consent forms and the users’ informed consent will also be updated in lock step.

Possible Solutions

Regulations will not be sufficient to protect privacy rights of individuals. It is difficult to regulate behavior when there is no guarantee that the subject matter of the regulations possesses the required competencies and resources to understand the extent of the consent they are giving. Even the drafters of consent forms will not be able to completely capture the extent of their processing activities.

Other solutions should be implemented to supplement regulations. Overregulation may be detrimental as policy makers may lack the necessary understanding of technology due to the velocity at which it is changing. Regulations should not be too narrow to restrict innovation but should neither be too broad as to be a mere scrap of paper. Technology outpaces regulations. Government and other stakeholders should be provided with a space to test out technologies and understand how these can affect privacy. The solution proposed in class -- that a government agency be created to to perform this -- is a step towards the right direction. Such an agency should be manned by competent and technical people, but at the same time, should be insulated from the influence of Big Tech. (This may be difficult to do in countries where tech talent is hogged by private enterprise due to the unappealing nature of government work.)

The foregoing initiative will only be sustainable if the services of Big Tech are replaced by software that is understandable. No software should be allowed to proliferate as black boxes. Software, to be democratic and enable the protection of individual rights, should be transparent, modifiable, and its control should not be limited to a few. The combination of regulation, opensource software, and tech education should work together to encourage the use of technology that protects individual privacy.

The consis

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