Commercial and government surveillance of sensitive data

00:00:00And this is where I think the FTC is really struggling.

00:00:03Right. What is the goal of surveillance at the most basic level?

00:00:07Right. Let's look at what the law is accomplishing and seeking to do.

00:00:11Right. There's commercial surveillance and there's government surveillance.

00:00:14Right. But the government can buy commercial surveillance.

00:00:16So it's effectively all government.

00:00:19You know, there's no limit on the government's ability to acquire commercial related

00:00:23surveillance data anywhere in the world.

00:00:27Right. I think I think they can't sell to Russian or Chinese.

00:00:30But I think outside of that, a very narrow subset of customers, they can sell their data

00:00:34to whoever they want. Right.

00:00:36FedEx can sell your package information to anybody they want.

00:00:39Right. And we've created a value to that data.

00:00:43So my question to you is then you look at the utilitarian perspective, surveillance ethics.

00:00:47Right. And then is deemed if it maximizes overall happiness or and minimizes suffering.

00:00:54So I ask because I've looked at the FTC actions in Congress and Washington state's law and

00:01:01Washington, D.C.'s law, California's law and all of these have different things.

00:01:06Right. But my question to you guys is when you look at it through this lens of the ethical

00:01:11lens of what is surveillance trying to accomplish?

00:01:14Right. What is its functional goal?

00:01:16And and then how is the U.S. and then because I think that's driving sort of this

00:01:22divergence within the FTC.

00:01:24I mean, it'll be interesting to see if the Supreme Court lets it go anyways.

00:01:27But I don't know, maybe Corey that Wayne and Aaron here.

00:01:34I mean, I my my perspective mentioned earlier, at least when you're you're thinking about

00:01:42the ethics of it, I do believe, you know, fundamentally the commercial surveillance is

00:01:49capturing stuff to make you buy things.

00:01:51Right. Like it's it's a money oriented deal when the government is doing it.

00:01:55I think there is a different purpose.

00:01:57And we could we I think the the ethics constructs under those two are different.

00:02:03Now, when the government becomes a purchaser of commercial data, I think that's there's

00:02:10another set of ethics wrapped up in that.

00:02:12So I think, you know, from just an ethical framework, I think you can think about it in

00:02:17that sort of those three buckets, one like a government bucket, one a commercial bucket.

00:02:23And then when the government becomes a purchaser of commercially available data or

00:02:30information. And I think these questions vary depending on which construct you're

00:02:37operating under. Does that make sense?

00:02:40Yeah, I have a different paradigm.

00:02:45I think that both the FTC and nine of the U.S. states have created a differentiation

00:02:55that we haven't talked about, and that is sensitive data.

00:03:00They have all taken the view that there are certain types of data that need to be treated

00:03:06differently than generic commercial data, whether that's a woman's right to an abortion,

00:03:15but was brought up to four by the Dobbs decision in the Supreme Court, whether that sexual

00:03:22preferences, whether that's health information, which is the Washington states, my health,

00:03:28my data, which is broader than just reproductive rights, whether that's dealing with all

00:03:35sorts of different types of societal views as to the propriety for discriminatory purposes,

00:03:42such like ethnic origin.

00:03:44There are certain types of data that ethically it's viewed.

00:03:49They shouldn't be exploited either commercially or by the government.

00:03:54And so I do think that we don't just look at data from a single ethical lens.

00:04:00There is at least a gradiation that has to be analyzed.

00:04:08Yeah, I mean, what do you think, Aaron?

00:04:13Trying to think how to respond to that.

00:04:21Let me circle back to that.

00:04:22I have some thoughts, but I want to be careful to respond.

00:04:28I can weigh in and you can come back.

00:04:30All right.

00:04:31So here's my question, Wayne, because I've heard this.

00:04:35I know the FTC.

00:04:36I work with different stakeholders everywhere, right?

00:04:39And I think each administration reflect the FTC reflects the executive branch function.

00:04:46And I think that I think what really needs to happen is there needs to be a re-evaluation

00:04:53so that it's removed from the executive power and authority to determine the defining level

00:04:58of surveillance on a four-year cycle.

00:05:02I think that what really needs to be asked is the courts have created, well, colorable

00:05:09level, and then the states have certainly created statutory rights.

00:05:13And so I

00:05:15In the United States, what's happened is that you're seeing a divergence at the state level.

00:05:22At the most basic level, Washington State's privacy law, My Health, My Records,

00:05:26that is as most personal as it's going to get. Personal health information, right?

00:05:32My Health, My Records, that is a personal statement about personal information,

00:05:37personal medical information, but that's only in Washington State.

00:05:40And then that divergence from the reality that Global Multinational

00:05:46owns hospitals in Washington, California, Oregon, Idaho, Montana, and Pennsylvania.

00:05:53Do you design for the lowest common denominator? Do you take regulatory risk?

00:05:59There's a larger question of what is the permissible level of surveillance?

00:06:04Right? What is the permissible, acceptable level of surveillance? And I feel like the FTC

00:06:11at some level is being directed by the executive branch,

00:06:16because the legislative branch has been largely silent at a federal level.

00:06:21And then you're seeing at the state level this sort of bubbling level of conflicts as the Supreme

00:06:25Court gets more and more privacy-related litigation as there's a conflict that's happening among the

00:06:31circuits. So I think it's a complicated transaction, but I think there's just disagreement

00:06:38among the states as to what is permissible level of surveillance.

00:06:42Well, I think that when it comes to certain areas, there is general agreement,

00:06:50and that nine of the states have enacted laws that have gone into sensitive data,

00:06:56and more of them will, because there's a general understanding that the use of data for

00:07:02discriminatory purposes is something that society finds ethically repugnant. And I think that I

00:07:09happen to agree with you that the politicization of the Federal Trade Commission is problematic.

00:07:16I agree with you that having the FTC's former independence that was kind of swayed a little

00:07:25bit by whoever was in the White House in terms of the three two-splitting commissioners has

00:07:32tilted a bit. I certainly can't question or quarrel with that. But when it comes to what I

00:07:39think, you know, if you ask what ethics is, ethics is the viewpoint of the population, and ethics

00:07:45changes. Well, one can make an argument that there is an ethical rule that is always true,

00:07:52that ethic is constant, but you can say that ethics changes either over time or in societies.

00:07:58If you take the latter point of view, then we are seeing a change in the ethics in the United

00:08:04States and a view that certain types of data needs to be treated differently than other types of data.

00:08:11I mean, when weighing on the distinction on the types of data, I still, and I mean, all data is

00:08:20not equal, no doubt, like your health data very different than the data related to, you know,

00:08:26the amount of electricity you use in your house, right?

00:08:29Not in my world. I'd rather you have it all. If I can go to a hospital and I can transfer my

00:08:34records from one hospital to the next hospital and not have to go to the next hospital,

00:08:37transfer my records from one hospital to the next hospital and not have an act of Congress,

00:08:41I'm going to be okay with that. My problem is that I can't actually get them to take my medical

00:08:47records from one place to the next. It's literally nothing short of an act of Congress.

00:08:52Accepting out Daniel here, who is, I would be grateful. I would be, think of how much,

00:08:59how easy it would be if there was a unified medical record system that every hospital

00:09:03could take and transfer your records on. They're supposed to be.

00:09:08As the husband to a physician, I can tell you that there is a lot of support for such things

00:09:16in the medical community. There's been support of that for over 20 years.

00:09:21That's my point. That's the crazy part. To be clear, I mean, I do it now,

00:09:25but the thing is, if you transfer, then it's no longer PHI, right?

00:09:29I'm okay with it not being PHI or DHI or super duper HI. I don't care. I want to just be able