A few days ago, I found myself attending a pitch by the Consumer Reports Digital Lab for their Data Rights Protocol. At first glance, it’s a great idea! Give organizations a standardized interface for exercising your data rights, which means you can use a simple app to request what data is collected about you, have it deleted, etc. What’s not to love?
Turns out, there are some immediate concerns, and some longer-term, more vague issues that need addressing.
A few years ago, the State of California passed their Consumer Privacy Act, which is now being implemented into law. It’s modelled somewhat similarly to the European Union’s General Data Protection Regulation, though there are also some differences between them.
Under these laws, consumers have been granted data over personally identifying information (PII), such as the right to know who keeps which information, and to have it deleted.
The Consumer Reports Digital Lab performed some research and found that people do not often exercise their rights, because doing so proves difficult. Bringing transparency into the process by offering a standard interface to many organizations was the goal behind the development of the data rights protocol.
The protocol therefore seems like an effective solution to the problem, as it enables the use of simple apps for these purposes.
CCPA vs GDPR
When asked about the GDPR, however, the lab representative spoke about a “laser focus” on California.
At this point it’s worth understanding how these two different pieces of legislation apply. A detailed comparison can be found in GDPR v. CCPA - The Future of Privacy Forum, and will not be reiterated here.
The short form, however, is that GDPR is supposed to protect people in the EU, even when the entity gathering data is outside. In CCPA, the phrasing is subtly different, in that it protects California residents – not visitors – and the entity has to “do business” in the state, which tends to involve exceeding taxation thresholds.
In other words, the reason that GDPR is blamed for cookie banners worldwide is because any person in the Union could theoretically visit the website. CCPA might not apply for something as simple as that.
As an aside, note that cookie banners are in no way required by GDPR, and are a deceptive pattern intended to make people believe such a requirement exists. It does not. Advertisers hate the GDPR, however, so have found cookie banners as a tool to make people hate it as well.
Finally and crucially, GDPR requries informed consent for collecting data. CCPA does not. That is, under CCPA companies may collect data about you without your knowledge.
Horse before the Cart
The first thing that comes to mind when working through this is that CCPA puts the cart before the horse. In the interest of privacy, it’s the gathering and processing of PII that should be regulated – permitting folk to review PII and have it deleted just follows from that.
Under CCPA, a business could legitimately hide their data gathering practices, and thereby avoid acting on requests for disclosure or deletion.
This is clearly not a problem with the data rights protocol! But it is also somewhat disheartening situation that the focus of the protocol is limited to situations where individuals already detected that their data is being gathered.
It would broaden the scope of the protocol considerably and for the better if it included from the get-go things about giving consent for processing in the first place – with appropriate warnings that data might be gathered without consent in other situations.
A Good Excuse?
A less obvious concern is that the protocol is developed in cooperation with data processing companies. There is no reason to assume that the consumer reports digital lab is corrupt in any form. There is no reason to assume that the resulting protocol is not good enough.
But it does raise the question why these processing companies would get involved in this effort.
It’s clearly in their interest to appear to do the right thing for data subjects, even though CCPA gives them plenty of opportunity to be sneaky. And that, then, suggests that maybe their involvement is merely a form of #PrivacyWashing.
The data rights protocol seems like a good start. But the specific limitations of the California legislation it targets make it easy to hold up implementation of the protocol as a seal apparently indicating that one acts in data subject’s best interest – distracting from the fact that data can be harvested without consent.
It appears as if extending the protocol to other legislations is vital to help avoid this. And it’s absolutely necessary before one can speak about “standardizing” access to data subject’s rights.
The current state of things leaves me hopeful that this project develops into something far more useful than it currently is. But until that happens, it may be prudent to eye it very carefully. There is a potential for misuse as a PrivacyWashing technique here that should not be ignored.