Consent, data ownership and the ethics of collection

00:00:00So, I think that it's a balancing act in a lot of ways, but there's a lot of ethics

00:00:07with it, right?

00:00:08And I think the Federal Trade Commission, I don't know if they're over their skis

00:00:13or under their skis, but it's well beyond my pay grade, but I think that the interesting

00:00:19part of the conversation is, what are the ethics involved?

00:00:23And ethics from our perspective of U.S.-based ethics, because Europe has a different definition

00:00:28of what's permissible surveillance.

00:00:31South American countries have their own definitions, so this is sort of through a U.S.-centric

00:00:35lens, right?

00:00:36And if we look at it, you know, data use isn't neutral, right?

00:00:40I mean, Aaron, you want to kick off here, sort of the ethical critique here of surveillance,

00:00:44and then we'll keep it going.

00:00:48Well, I think you've opened up yet another Pandora's box here of data, but the, you know,

00:00:58I guess I'll start off by just saying is, you know, we can theoretically talk about

00:01:07when you're collecting data, if you want, you know, whether or not you consent, non-consent,

00:01:12the right to collect, et cetera.

00:01:14Consent in and of itself has, you know, its own implications, but it's, I think, what

00:01:19you're getting at with the first bullet is really it's how you use it, and I always refer

00:01:24to it as being whether or not you're a proper data steward and whether or not you have the

00:01:28right to use that information and what purposes you're using it for.

00:01:32We already talked a little bit about the collection of information and then selling it off and

00:01:36whether people know what they're doing.

00:01:38I mean, there's certainly a number of laws that impact, you know, the collection, storage,

00:01:42and distribution, and use, and disclosure, et cetera, of data.

00:01:46But then there's also the, you know, whether or not you have, you know, whether or not

00:01:52people truly understand whether or not, let's call it whether in the commercial or legal

00:01:56or other, you know, in other worlds, whether or not they understand, and I think we already

00:02:00mentioned that, their information is being collected.

00:02:03There's lots of, I think, lots of data collections are sort of innocuous, right, so it's how

00:02:09you utilize things, and you've heard everyone talk about the expression of, you know, if

00:02:13you're not paying for something, then you're the product, right?

00:02:17You know, your data is what's being collected, right?

00:02:19That's the value.

00:02:20So, you know, and we've already mentioned, you know, I think in your first bullet there

00:02:26or somewhere in here is, you know, people don't realize whether and how and who's collecting

00:02:32their information or who's surveilling them and whether or not there are, you know, appropriate

00:02:36safeguards in place to limit who has that access or how that data is being given and

00:02:42whether or not, you know, we have, there's lots of ways in which, and I think we'll talk

00:02:48about it in a little bit, is just how, you know, while there are safeguards and different

00:02:54laws in place that will allow us to sort of restrict how data is collected, there's lots

00:02:58of, let's say, leniencies or, you know, exceptions as to, you know, what guardrails are put on

00:03:06data collection.

00:03:07I think I'll pause there and...

00:03:11Yeah, I'll jump in because I think that there's a fundamental point that needs to be discussed,

00:03:20and that is there has been a presumption in the United States that you don't have an

00:03:28interest in your own personal information, that when it enters the public domain, it's

00:03:34public.

00:03:36And that's contrary to what you would read in Article 6 of the GDPR, where the lawful

00:03:42use of data is prescribed into certain categories, one of which is consent, and you can't always

00:03:48get consent.

00:03:49An employee cannot consent to an employer, and employment data is an important subject

00:03:53to talk about, I might add.

00:03:56But my point in trying to bring this up is, back on March 31st of last year, if I recall

00:04:04correctly, Lena Kahn, the head of the Federal Trade Commission, had a blog post where what

00:04:11she indicated was that online tracking of individuals was a per se improper activity.

00:04:21It was looking at sensitive data, and explicit consent is something the FTC said should be

00:04:28required, contrary to all American legal principles until she said it.

00:04:34But the question is, we're talking about ethics.

00:04:37Was she right, ethically speaking?

00:04:39The fact that our law says something, because we're talking about the critiques of surveillance,

00:04:44our law says that you can collect it, but ethically, is that correct?

00:04:48Or is the head of the FTC correct?

00:04:51Is the GDPR correct?

00:04:53I think we don't start from the position of the viewpoint of America in 2022 is ethical.

00:05:00I think we have to question whether that's ethical or not.

00:05:04Yeah, I feel I don't want to be the proverbial government hack here, but I feel like maybe

00:05:12that's why you have me on here, Daniel.

00:05:14But I'll say the concepts that you just said up there, I think a lot of that, like a panopticon,

00:05:22the power of the state to control people by the fear that they're being watched, this

00:05:27alludes to state power.

00:05:29I think in the U.S., we have largely thought about the concern, going back long before

00:05:35the Internet, of regulating what government can do over its citizens.

00:05:41I think in Europe, it's different.

00:05:44I think they look a lot more at companies.

00:05:47I think the U.S. has not been very energized to get into what companies do and do not.

00:05:54Yeah, and I think it's a fundamental.

00:05:57So I used to think this and then I was still mulling it over.

00:06:01But there's the in the United States, the U.S.

00:06:04government can buy the data from private companies.

00:06:09The company sells it, they can buy it in the open market.

00:06:13And they do. But aren't you asking?

00:06:15But that's it. But but in theory, if that's in that in that scenario, there was in theory

00:06:22consent in place to allow that sale to occur.

00:06:26Yeah, I'm not saying.

00:06:27But this is my whole point about the the power dynamic relationship between the state and

00:06:33the individual and the perception, because in Europe, the ability of like when you check

00:06:39into a hotel in Europe, you can send to GDPR and collecting the information.

00:06:43They tell you your rights and you can sign all the forms when you do a deal.

00:06:46But you do consent.

00:06:48Yeah, right. You do inevitably consent.

00:06:51That same hotel chain can sell their data to the French government.

00:06:55That corporation still is fully empowered to use the free market.

00:07:01So I think at its core, the only shift is the cost of not getting appropriate consent

00:07:07from a corporation.

00:07:08But at a functional level, the government, you know, is getting the data one way or

00:07:14another. Right. It's just a matter of the means by which they are obtaining it.

00:07:19Because if you go all the way the other side of the spectrum into Asia, right, they don't

00:07:24ask. They just take.

00:07:26Right, but it's just like buying it effectively, they're just sure they have mandatory

00:07:32buyer versus a free market buyer.

00:07:35But I think that the relationships between the state and, you know, now is it the real

00:07:41question is the ethics of it.

00:07:43Right. Well, the difference between surveillance and spying, the difference between knowing

00:07:47that your TV is collecting data about your viewing your habits and the state buying the

00:07:52information to know what to do to influence the general population.

00:07:57Right. There's a difference on how data is used.

00:08:00Right. Because knowing that everybody watches, I don't know what they watch anymore, but

00:08:06let's say six, they watch TV from this hour to this hour.

00:08:10This is the time to blanket the market waves or whatever it may be.

00:08:14Right. Difference between surveillance versus spying or spying.

00:08:19They just take it. I mean, you don't even know it's occurring at the collection.

00:08:23But one might argue that the citizen itself doesn't know that it's coming.

00:08:27It's being collected anyways.

00:08:28And I think when you were sort of alluding to that earlier, but I think maybe when you

00:08:33want to finish your thought and then Corian and Aaron weigh in as well.

00:08:36No, I'm going to let others jump in.

00:08:39I have already spoken.

00:08:40It's quite all right.

00:08:42And I mean, the only thing that I would say, Daniel, is what I was getting at is is sort

00:08:47of the the ethics.

00:08:49Right. It's been a long time of a philosophy guy at heart.

00:08:52So prior to law school, that's that's background.

00:08:55And I think when you do the the ethical analysis, the purpose for which data is

00:08:59collected is very different from a government lens to a commercial lens.

00:09:04And it does like when it's when that transaction occurs beyond collection.

00:09:10Right. When it's going from commercial to government, like the rules around that are,

00:09:15you know, I would say it's we're constantly trying to figure that out right now.

00:09:23But I do think in a very traditional sense, like when the government gets a warrant or

00:09:29electronic surveillance warrants, like they are they have a purpose for doing that that

00:09:34is articulated, the like broad scale collection and harvesting of data.

00:09:40Like if you think about the lifespan of data, you know, the collection, retention,

00:09:44dissemination, retention, I would throw use in that bucket like what you're doing with it

00:09:49while you have it. How long do you need to keep it?

00:09:53I think if you think about that life cycle, we don't we don't ask enough questions on

00:10:00the the the collection that I think we we should

00:10:04like, should you be collecting that data?

00:10:06Do you need it? And then if you need it, how long do you need it for and for purposes?

00:10:11And we just don't do that in the U.S., at least commercially.

00:10:15We need to do a better job. That's all I would say.

00:10:22I won't disagree with that, and I but I will I will add, though, that on,

00:10:29you know, and it's probably more limited here to the U.S.

00:10:32issue anyway, but the surveillance versus spying is the question is whether or not they're

00:10:36one in the same to some degree.

00:10:37So you can certainly take a look at certain technologies and it would be surveillance.

00:10:42You're talking about the disclosure of what you're doing, you know, in the consent process,

00:10:46et cetera. But many would say that that process in itself is amorphous and doesn't

00:10:53really truly indicate whether or not something is or to the extent of what, you know, what

00:10:58data is being surveyed or being collected, which would then, you know, which would border

00:11:04on, you know, potentially on spying, you know, based upon how some of that language or

00:11:08disclosure is presented to an individual or the fact that where I see a lot of is, you

00:11:15know, where you start to employ multiple third parties essentially.

00:11:17And so you may not have actual insight into downstream data collection processes, which,

00:11:23again, could be on that border of surveillance versus spying.

00:11:27But then it goes into, which is an interesting statement that Corey made in terms of, look,

00:11:32from a legal perspective, you know, the government collection of information is generally

00:11:37going to be more limited in both duration, scope and direction.

00:11:42But again, there's lots of, you know, there's lots of, I don't want to call it partnering,

00:11:49but, you know, acquiring of that data through from commercial means, which doesn't have

00:11:53those same restrictions on it.

00:11:54And I agree, but when you go ahead.

00:11:59One thing we haven't focused on in this discussion that I think bears some mention is not just

00:12:07the collection of data, but we briefly touched upon its retention.

00:12:12And one thing that I did two years ago when Congress was busily looking at creating a

00:12:19nationwide privacy law was go down to Washington and meet with the senators and congressional

00:12:25staffers to talk about.

00:12:28What are the issues?

00:12:29Why can't we get a nationwide bill?

00:12:32And there were really two reasons and they tell you lobbyists.

00:12:36And but but but and I've met with lobbyists to two reasons.

00:12:42One of them was the obvious reason, which was private right of action and those that

00:12:47wanted it and those that didn't.

00:12:49But the other reason that the and the principal reason in the author's off in the author's

00:12:55own chambers was data retention and the fact that there is an interest on the part of both

00:13:02private industry and the government to keep data for a period of time longer than its

00:13:09intended use. When an individual, in fact, consents, I need the package sent to me.

00:13:15I need you to know this information to charge me.

00:13:19And that's done.

00:13:21What are the ethics of continuing to keep that information and now using it for a purpose

00:13:27that the individual did not authorize?

00:13:30And industry and government wants to keep the data and individuals, many on the side

00:13:37of privacy advocates, want that data destroyed.

00:13:41And they can't even agree to have it destroyed in a three year period.

00:13:44Yeah, well, let's be clear.

00:13:46Their argument is that you they didn't say anything.

00:13:49So therefore, they're allowed to keep it.

00:13:51But I mean, before we get into it, wade into this topic here, I want to I want to talk

00:13:56sort of there's a different perspective.

00:13:59There's a deontological content.

00:14:02And, you know, you know, the real question is surveillance itself inherently a right or

00:14:06wrong act. Right.

00:14:07That's a function of the society in which you're operating in the legal system and

00:14:11regime. Right.

00:14:13And then looking at how it works is what you're trying to accomplish with surveillance.