Bonus Content: Privacy’s Meaningful Purpose

A few years ago, I dreamed up a concept of “meaningful privacy” to better define the discussion around the broad topic of privacy. I noticed that not every piece of data is equal. Some things are kept private because there is a concern of actual harm if the information is publicized. Some other things are kept private because of societal or cultural norms and traditions. Privacy is not and end in itself- we have it for the purpose of protecting information. However, different data has different value. Therefore, the value of privacy is relative, varying according to the data in question. One effect of this concept is to treat different breaches according to the type (or value) of data in question.

There is a huge and illuminating problem with this idea of “meaningful privacy”: Just because someone didn’t steal anything from your house doesn’t mean you feel comfortable about a break-in. Although privacy is not an end in itself, it is intrinsically upsetting when our privacy is violated. The biggest fear is the potential for future violations of privacy: just because no harm occurred as a result of one violation, there is no guarantee about future violations. Furthermore, a past violation of privacy indicates a vulnerability and thus the potential for future violations. With a diminished expectation of privacy, there is diminished privacy. Privacy is of little use if it cannot be relied upon.

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Horizon: The Dawn of Zero Privacy?

Horizon: Zero Dawn is a problem because I don’t know which game I have to slide out of my top 5 in order to fit it into that list. (It might be have to replace “Child of Light,” which pains me, but replacing any would pain me… maybe “Outlaws” will move to #6 …) It’s an incredible game in its own right, with beautiful artwork, well-written characters, and genuinely fun gameplay. I find its story especially fascinating—and particularly relevant as we grapple with a framework for governing and living in an age of digital information and interconnected devices. Though its central technological focus is on Artificial Intelligence and the future of humanity, it touches a multitude of topics- including data privacy.

Although Judge Richard Posner famously decried privacy as a way for bad people get away with bad things, privacy is important for personal development and free association. Privacy is essential to our culture, and it is only valuable inasmuch as it is protected and reliable. Our expectations of privacy follow us into our digital extensions. However, one of the best methods of securing privacy is impractical in the face of consumer demands for interconnection and convenience.

I. Can We Have Privacy by Design When We Demand Designs that Compromise our Privacy?

The Federal Trade Commission’s favored method for protecting Privacy is “Privacy By Design.” In simple terms, this often means designing a product to rely as little on privacy as possible. After all, if no data is collected, there is no data to steal. However, there are serious questions about the feasibility of this approach in the face of consumer expectations for interconnected devices.

Privacy by Design is a much better idea than the sophomoric idea of increasing security measures. Designing a house not to be broken into is better than trying to just put a good lock on the front door. To put it another way: Think of it as building a dam without holes rather than trying to plug all of the holes after you finish building.

I’ve heard tech entrepreneurs talk about “The Internet of Things” at conferences for many years, now. They talk about it like it’s a product currently in development and there’s an upcoming product launch date that we should be excited about- like we can line up for outside of a retail store hours before the doors open so we can be the first to get some new tech device. This is not how our beloved internet was created. Massive networks are created piece by piece- one node at a time, one connection at a time. The Internet of Things isn’t a tech product that will abruptly launch in Q3 of 2019. It’s a web of FitBits, geolocated social media posts, hashtags, metadata, smart houses, Alexas and Siris, searches, click-throughs, check-ins, etc. The “Internet of Things” is really just the result of increasingly tech-savvy consumers living their lives while making use of connected devices.

That’s not to diminish its significance or the challenges it poses. Rather, this highlights that this “Coming Soon” feature is really already here, growing organically. Given that our society is already growing this vast network of data, Privacy by Design seems like an impossible and futile task. The products and functions that consumers demand all require some collection, storage, or use of data: location, history, log-in information- all for a quick, convenient, personalized experience. One solution is for consumers to choose between optimizing convenience and optimizing privacy.

II. A Focus on Connected Devices

Horizon: Zero Dawn is a story deliberately situated at the boundary of the natural world (plants, water, rocks, trees, flesh and blood) and the artificial world (processed metals, digital information, robotics, cybernetics). As a child, Aloy falls into a cavern and finds a piece of ancient (21st century) technology. A small triangle that clips over the ear, this “Focus” is essentially a smart phone with Augmented Reality projection (sort of… JawBone meets GoogleGlass and Microsoft Hololens). This device helps to advance the plot, often by connecting with ancient records that establish the history of Aloy’s world (it even helps with combat and stealth!).

It’s also a privacy nightmare. The primary antagonist first sees Aloy -without her knowledge- through another character’s Focus. Aloy’s own Focus is hacked several times during the game. A key ally even reveals that he hacked Aloy’s Focus when she was a child and watched her life unfold as she grew up. (This ultimately serves the story as a way for the Sage archetype to have a sort of omniscience about the protagonist.) For a girl who grew up as an outcast from her tribe, living a near-solitary life in a cabin on a mountain, with the only electronic device in a hundred miles, she manages to run into a lot of privacy breaches. I can’t imagine if she tried to take an Uber from one village to the next.

Our interconnected devices accumulate deeply astonishing volumes of data- sometimes, very personalized data gets captured. In a case heard by the Supreme Court this month, a man in Ohio has his location determined by his cell phone provider. The police obtained this information and used it as part of his arrest and subsequent prosecution. The Supreme Court recently heard a case about the use of warrants for law enforcement to access cell phone data. (This is different from the famous stalemate between the FBI and Apple after the San Bernadino shooting, when Apple refused an order to unlock the iPhone of a deceased criminal.)  As connected devices become omnipresent, questions about data privacy and information security permeate very nearly every side of every facet of our daily lives. We don’t face questions about data the way that one “faces” a wall; we face these questions the way that a fish “faces” water.

From cell phone manufacturers to social media platforms, the government confronts technology and business in a debate about the security mechanisms that should be required (or prohibited) to protect consumers from criminals in myriad contexts and scenarios. In this debate, the right answer to one scenario is often the wrong answer for the next scenario.

Conclusion: Maybe We Don’t Understand Privacy In a New Way, Yet

The current cycle of consumer demand for risky designs followed by data breaches is not sustainable. Something will have to shift for Privacy in the 21st century. Maybe we will rethink some part of the concept privacy. Maybe we will sacrifice some of the convenience of the digital era to retain privacy. Maybe we will try to rely more heavily on security measures after a breakthrough in computing and/or cryptography. Maybe we will find ways to integrate the ancient privacy methods of the 20th century into our future.

 

What the Internet of Things can Learn from “The Order 1886”

Great (Sounding, Looking) Potential

The Order 1886 has great quality graphics, but is a poor quality game. Just because the technology involved is cutting edge doesn’t mean the final product is good. The internet of things relies on some cutting edge technology and novel ideas, but that doesn’t mean the final product is always favorable.

I’ve been hearing about the “Internet of Things” for several years now. Middle-aged entrepreneurs are just sure that this “the next big thing,” except it’s going to be bigger than the car or the light bulb. From what I’ve seen, IoT is a glossy, shiny, pretty gimmick that hasn’t shown it’s poised to really solve problems that consumers feel they have. So far, we don’t think a fridge that buys eggs for us is really what’s missing in our lives.

Having sophisticated technology isn’t the same as having a great (or even marketable) tech product. In the same way, having glossy graphics isn’t the same as having a good (or even marketable) game. Both IoT and Order 1886 are impressive at a glance, but fail to live up to expectations as one spends more time with them.

Burger King Sets Itself Up For Trolling

The broad IoT idea continues to reveal vulnerabilities and half-thought-out applications. A few months ago, Burger King aired an ad in which the actor in the commercial asked the viewer’s smart phones to read the first paragraph of the Wikipedia page about Burger King’s flagship product, The Whopper. The completely predictable result was that people started vandalizing the Wikipedia page in question, leading the ad to tell people that The Whopper contained humans and cyanide.

There’s a lot I could go into about this example, especially about troll behavior and the weaknesses of IoT’s reliance on unsecure nodes. I want to highlight that the problem wasn’t about hacking into Burger King or Android systems. There are some concerns with IoT and that sort of hacking, but there’s another problem: Entrepreneurs rely on the web without knowing what 4Chan is or having have never been verbally abused by a stranger for the length of an entire League of Legends match. That is a mistake.

This example also illustrates why IoT hasn’t gotten traction: It’s still a gimmick that breaks often. Even when it works at its best, IoT is a fun and surprising answer to a question no one asked. The best case for Burger King’s commercial is that they surprise a few consumers, but also stir fears about privacy and security in doing so. The success of IoT still hangs on the uncomfortable reality of diminishing personal privacy, and many consumers haven’t completely reconciled leaving the past with entering the future.

The Order 1886 Fails as a Game, IoT Still Fails as a Tech Product

One of the reasons people were so angry about The Order 1886 is that the trailers looked so good. People bought into the promise and the hype, and then it failed to deliver in meaningful ways. Similarly, the more glossy the presentations about IoT get, the more consumers will feel the gap when they don’t experience a meaningful impact as a result of using it.

It’s the applications that go on top of the tech that really matter. Platforms and apps that balance consumer’s emotions about privacy and security will be the only thing that can really bring about the kind of pervasive, omnipresent IoT about which I keep hearing (excited and vague) presentations.

Things that look really good but don’t do anything are called art. Things that do something useful are called products. Usefulness is not the sole factor in a product’s quality or its marketability, but it is important- especially if it wants to be more than a fad or gimmick that ends up with a discount sticker in the bargain bin.

Are Trademarks a Data Security Alternative to Sad, Weak, Outdated Copyrights?

If you’ve been on the web for a while, you’ve seen an advertisement that looks like the user interface of the website you’re viewing- or maybe an ad that has a false close button, and clicking it just navigates you to the advertised page. These are blatant ways to trick consumers into taking actions they don’t want to take. Sometimes, these inadvertent actions can create security vulnerabilities such as malware.

Despite all of the focus on applying copyright law to the internet, I wonder if there are hints of trademark and trade dress protections that could become relevant to data privacy issues. I will cautiously, even timidly, explore a few of those possibilities (which several others have explored over the last few years).

I. Trademarks: When it Comes to Data Privacy, Accept No Imitations.

Trademarks have a simple purpose: to let consumers know the origin of a good or service. Trademarks are often a word, phrase, or image (logo), but can also be a sound or smell (on rare occasion, it can get a bit more abstract ).

A major category of trademark infringement is counterfeiting. That $20 “ROLEX” watch from the guy in the alley? That’s a counterfeit (sorry), and one of the legal issues involved in the sale of that watch is the use of a trademark without the legal right to use it. There haven’t been a lot of counterfeit websites on the internet, especially since SSL and other authentication processes got better. However, there are plenty of imitation apps and games. One of the reasons such apps and games fail and are quickly removed from distribution is that they infringe trademarks.

However, some countries do not have the same standards regarding trademark (or copyright) enforcement. Consider an imitation League of Legends game, lampooned here. At the end of the video, the player says “Oh, and it’s also a virus,” as his security software reports malware after playing the game. This humorously underscores the point that many infringing* products pose a security and privacy threat. Using trademark law to limit the proliferation of readily accessible, easily confused programs is a valuable practice in maintaining computer security for consumers.

II. Trade Dress: No One Really “Owns” That Icon… But You Know Who Owns That Icon.

Trade dress is a sort of sub-category of trademarks. It’s rarely talked about or used, but it can be thought of as the totality of design and aesthetics that go into a product, place, or service that make consumers identify the source. Color palette, patterns, shapes, and other factors go into the evaluation of trade dress. Crucially (and perhaps fatally), elements of a trade dress must be considered “non-functional.”  For example, the major case in trade dress concerned a Tex-Mex restaurant that used the same colors and layout of another Tex-Mex restaurant.

Here’s the controversial idea I think deserves consideration: Could misleading, camouflaged web content be considered an infringement of trade dress? (Think of the kinds of ads that make you believe you’re not clicking on an ad, but rather some piece of actual content on the site- especially regarding navigation buttons that match the navigation icons of the site.)

The reason I look to trade dress for a solution is that icons and interfaces, even stylized ones, are not subject to trademark, copyright, or patent protections. Furthermore, websites are increasingly treated as the digital equivalent of stores and offices of businesses- so much so that designs and layouts can come to be the trade dress of that business. Thus, there is a gap in the legal protection of user interfaces, and a need to cover that gap.

(Treating websites as subject to trade dress might have the added benefit of discouraging UX and UI designers from fiddling with the location and arrangement of navigation tools every other month just to justify their paycheck. And that’s the kind of change this world really needs.)

Conclusion: Trademark Protection is Already Working, Trade Dress is Still Vague and Untested

Trademark law is already quietly making the digital ecosystem a little bit safer by eschewing threatening knock-off games and apps. I think there’s a case to be made for applying trade dress to websites and UIs, but it would be a novel application and courts may be hesitant to apply the law so creatively.

 

* “300 Heroes” Infringes both copyrights and trademarks, but it’s the funniest example.

 

Her Data Is Part of Her Story, But Her Story is not Just Her Data.

Her Story” is a great example how piecing together bits of information can create a picture of a person or an event. It is also an example of some of the limits of that picture.

Hack Her Data, Hack Her Story

Her Story” is difficult to describe or classify as a game. It’s a little like trying to find and organize the pieces of a detective novel. The game doesn’t give the player a lot of direction; part of the game is the discovery of the game itself. The game allows the player to search a police database to find short movie clips from several police interviews with a woman. No context is given for why the woman was interviewed or why the player is searching the database. However, by finding and watching the clips, the player gains clues that allow new searches. This cycle of searching and information is the core mechanic of the game.

Hacking to Learn

Hacking can mean a lot of things, but it is broadly about investigation (sometimes, it is an investigation that is against some laws). It can be done for a wide range of reasons and can take many different forms, many of them legal– or even a legitimate business. Regardless of the specific details, hacking always involves exploring the possibilities and limits of a system in order to learn or discover something. In “Her Story,” the hacking is learning what the in-game database can find that will help the player piece together a coherent string of events and characters.

The Limits of Hacking

Even after hacking together all of “Her Story,” something about the picture is incomplete. Why is the player watching these interviews? The game gives the player this answer after piecing together enough of “Her Story,” but hacking a person’s data doesn’t necessarily answer all of the questions about that person. For most criminal hackers, the pieces of data have enough of the story: credit card numbers, bank accounts, social security numbers, addresses, birth dates, etc. Sometimes we need more than a collection of data about a person, and those are often cases where believing data too blindly can cause problems, from legal decisions in courts or policies to judgments in our interpersonal relationships. As mountains of data pile up for each of us, the temptation to describe and explain people using that data also grows. This data has a lot of appeal because it can measure and evaluate some things very effectively. This effort to make life more efficient comes brings at least two potential drawbacks: First, the data can be misleading in myriad ways, and second, the data seems so powerfully scientific and sound that questioning it (or its interpretation) can become almost taboo.

Her Story

There will always be hackers trying to steal financial information and identities. But that threat is known and recognized, so experts fight against it and consumers take protective measures. The data we give to companies and employers and government is riddled with pitfalls, and blind faith in big data will amplify those problems. In “Her Story,” twists emerge as the player pieces the plot together. After enough of the story is pieced together, the game asks the player if “you understand why [the woman] did what she did.” I’m not sure any collection of data can ever really answer that.

Keep Data Secret, Keep Data Safe.

Privacy and Security are two different words, so it is reasonable to ask if there is a difference between “Data privacy” and “Data Security.” The terms seem to be used interchangeably a lot, but I think there is a difference that affects how we think about the issues and that guides how we approach solutions to protecting information.

The standard industry analysis is that Data Security is “confidentiality, integrity, and availability,” while Data Privacy is about the “appropriate use” of the data (I think this is better understood as asking “are only the right people seeing the data?”).

If you’ve seen the movie (and you should have), you remember this moment:

When Gandalf leaves Frodo with the One Ring, he admonishes him: “Keep it Secret. Keep it Safe.” Is this one instruction, or two? Are safety and security of a thing the same thing, or two different dimensions of protection?

  1. Secrecy as Privacy.

One of the most interesting discussions I had in law school began with a professor asking “What good is Privacy?” Some academics and jurists, like Judge Posner, have challenged privacy as inefficient; it is the right of criminals to hide their activities and avoid detection or evade conviction by concealing evidence. Advocates of this position assert that non-criminals do not need privacy, while privacy greatly advances the efforts of criminals.

However, privacy is also how we keep information away from criminals. In the digital world, information is everything, so keeping information away from criminals prevents harm. While non-criminals might not fear other non-criminals accessing financial information, certainly they would not want criminals to have the tools to access their bank accounts.

Privacy is an element of security, but it is not the same thing as security. One of the best ways to keep a secret is for people to not know you have a secret; people don’t rob vaults they don’t know exist. However, you wouldn’t leave your valuables unguarded and rely solely on the hope that no one ever finds out about them. Security is always a prudent consideration. (Though there might be interesting strategic choices in minimizing security to maximize secrecy…)

  1. Safety as Security.

I thought it was a little odd that the US government considers “integrity” one of three prongs of data security. “Confidentiality” makes sense (see the point on secrecy), and “availability” is an often over-looked part of security. Your money would be very safe if you shot your life savings into space, but that’s the kind of security plan we might call “not thought through to step two.” But why would the reliability and accuracy of the data be part of the security of the data? We don’t evaluate the security of a bank value on the basis of whether the currency it protects is undermined by inflation or monetary policy decisions.

I think this prong shows one of the dissimilarities between physical security and cybersecurity. We are rarely concerned about the sabotage of physical things we protect, just as we are not often concerned about physical objects being copied (as data can be copied). Data is subject to minor alterations that can corrupt it to render it unreadable or unsafe to use. In some cases, the fact of the data being shared might render the data less valuable (particularly for military intelligence).

  1. So, Gandalf has a pretty good privacy policy. By keeping a Ring secret, it is easier to keep safe; by recognizing the difference between safety and secrecy, he is able to give Frodo a more robust policy to guard the fate of Middle Earth.

Of course, if Gollum yelps out “SHIRE! BAGGINS!” the data will be compromised and new measures and methods will become necessary… But “The Fellowship of Data Protection” is a blog post for another day.