Five years on, other people’s use of the language of data ethics puts social science at risk. Event after event, we are witnessing the gradual dissolution of the value and meaning of ‘ethics’, into little more than a buzzword.
Companies and organisations are using the language of ‘ethical’ behaviour blended with ‘corporate responsibility’ modelled after their own values, as a way to present competitive advantage.
Ethics is becoming shorthand for, ‘we’re the good guys’. It is being subverted by personal data users’ self-interest. Not to address concerns over the effects of data processing on individuals or communities, but to justify doing it anyway.
An ethics race
There’s certainly a race on for who gets to define what data ethics will mean. We have at least three new UK institutes competing for a voice in the space. Digital Catapult has formed an AI ethics committee. Data charities abound. Even Google has developed an ethical AI strategy of its own, in the wake of their Project Maven.
Lessons learned in public data policy should be clear by now. There should be no surprises how administrative data about us are used by others. We should expect fairness. Yet these basics still seem hard for some to accept.
The NHS Royal Free Hospital in 2015 was rightly criticised – because they tried “to commercialise personal confidentiality without personal consent,” as reported in Wired recently.
“The shortcomings we found were avoidable,” wrote Elizabeth Denham in 2017 when the ICO found six ways the Google DeepMind — Royal Free deal did not comply with the Data Protection Act. The price of innovation, she said, didn’t need to be the erosion of fundamental privacy rights underpinned by the law.
If the Centre for Data Ethics and Innovation is put on a statutory footing where does that leave the ICO, when their views differ?
It’s why the idea of DeepMind funding work in Ethics and Society seems incongruous to me. I wait to be proven wrong. In their own words, “technologists must take responsibility for the ethical and social impact of their work“. Breaking the law however, is conspicuous by its absence, and the Centre must not be used by companies, to generate pseudo lawful or ethical acceptability.
Do we need new digital ethics?
Admittedly, not all laws are good laws. But if recognising and acting under the authority of the rule-of-law is now an optional extra, it will undermine the ICO, sink public trust, and destroy any hope of achieving the research ambitions of UK social science.
I am not convinced there is any such thing as digital ethics. The claimed gap in an ability to get things right in this complex area, is too often after people simply get caught doing something wrong. Technologists abdicate accountability saying “we’re just developers,” and sociologists say, “we’re not tech people.”
These shrugs of the shoulders by third-parties, should not be rewarded with more data access, or new contracts. Get it wrong, get out of our data.
This lack of acceptance of responsibility creates a sense of helplessness. We can’t make it work, so let’s make the technology do more. But even the most transparent algorithms will never be accountable. People can be accountable, and it must be possible to hold leaders to account for the outcomes of their decisions.
But it shouldn’t be surprising no one wants to be held to account. The consequences of some of these data uses are catastrophic.
Accountability is the number one problem to be solved right now. It includes openness of data errors, uses, outcomes, and policy. Are commercial companies, with public sector contracts, checking data are accurate and corrected from people who the data are about, before applying in predictive tools?
Unethical practice
As Tim Harford in the FT once asked about Big Data uses in general: “Who cares about causation or sampling bias, though, when there is money to be made?”
Problem area number two, whether researchers are are working towards a profit model, or chasing grant funding is this:
How data users can make unbiased decisions whether they should use the data? We have all the same bodies deciding on data access, that oversee its governance. Conflict of self interest is built-in by default, and the allure of new data territory is tempting.
But perhaps the UK key public data ethics problem, is that the policy is currently too often about the system goal, not about improving the experience of the people using systems. Not using technology as a tool, as if people mattered. Harmful policy, can generate harmful data.
Secondary uses of data are intrinsically dependent on the ethics of the data’s operational purpose at collection. Damage-by-design is evident right now across a range of UK commercial and administrative systems. Metrics of policy success and associated data may be just wrong.
Home Office reviews wrongly identified students as potentially fraudulent, yet their TOIEC visa cancellations has irrevocably damaged lives without redress.
Some of the most ethical research aims try to reveal these problems. But we need to also recognise not all research would be welcomed by the people the research is about, and few researchers want to talk about it. Among hundreds of already-approved university research ethics board applications I’ve read, some were desperately lacking. An organisation is no more ethical than the people who make decisions in its name. People disagree on what is morally right. People can game data input and outcomes and fail reproducibility. Markets and monopolies of power bias aims. Trying to support the next cohort of PhDs and impact for the REF, shapes priorities and values.
It is still rare to find informed discussion among the brightest and best of our leading data institutions, about the extensive everyday real world secondary data use across public authorities, including where that use may be unlawful and unethical, like buying from data brokers. Research users are pushing those boundaries for more and more without public debate. Who says what’s too far?
The only way is ethics? Where next?
The latest academic-commercial mash-ups on why we need new data ethics in a new regulatory landscape where the established is seen as past it, is a dangerous catch-all ‘get out of jail free card’.
Ethical barriers are out of step with some of today’s data politics. The law is being sidestepped and regulation diminished by lack of enforcement of gratuitous data grabs from the Internet of Things, and social media data are seen as a free-for-all. Data access barriers are unwanted. What is left to prevent harm?
I’m certain that we first need to take a step back if we are to move forward. Ethical values are founded on human rights that existed before data protection law. Fundamental human decency, rights to privacy, and to freedom from interference, common law confidentiality, tort, and professional codes of conduct on conflict of interest, and confidentiality.
Data protection law emphasises data use. But too often its first principles of necessity and proportionality are ignored. Ethical practice would ask more often, should we collect the data at all?
Let’s not pretend secondary use of data is unproblematic, while uses are decided in secret. Calls for a new infrastructure actually seek workarounds of regulation. And human rights are dismissed.
Building a social license between data subjects and data users is unavoidable if use of data about people hopes to be ethical.
The lasting solutions are underpinned by law, and ethics. Accountability for risk and harm. Put the person first in all things.
We need more than hopes and dreams and talk of ethics.
We need realism if we are to get a future UK data strategy that enables human flourishing, with public support.
Notes of desperation or exasperation are increasingly evident in discourse on data policy, and start to sound little better than ‘we want more data at all costs’. If so, the true costs would be lasting.
Perhaps then it is unsurprising that there are calls for a new infrastructure to make it happen, in the form of Data Trusts. Some thoughts on that follow too.
Part 1. Ethically problematic
Ethics is dissolving into little more than a buzzword. Can we find solutions underpinned by law, and ethics, and put the person first?
This Facebook ad was the final straw for me this week.
I’m finally leaving.
When I saw Facebook’s disingenuous appropriation of new data law as-a-good-thing I decided time’s up. While Zuckerberg talks about giving users more control, what they are doing is steering users away from better privacy and putting users outside the reach of new protections rather than stepping up to meet its obligations.
After eleven years, I’m done. I’ve used Facebook to run a business. I’ve used it to keep in touch with real-life family and friends. I’ve had more positive than negative experiences on the site. But I’ve packed in my personal account.
I hadn’t actively used it since 2015. My final post that year was about Acxiom’s data broker agreement with Facebook. It has taken 3 hours to download any remaining data, to review and remove others’ tags, posts and shared content linking me. I had already deactivated 18 apps, and have now used each individual ID that the Facebook-App link provided, to make Subject Access requests (SAR) and object to processing. Some were easy. Some weren’t.
Pinterest and Hootsuite were painful circular loops of online ‘support’ that didn’t offer any easy way to contact them. But to their credit Hootsuite Twitter message support was ultra fast and suggested an email to hootsuite-dpa [at] hootsuite.com. Amazon required a log in to the Amazon account. Apple’s Aperture goes into a huge general page impossible to find any easy link to contact. Ditto Networked Blogs.
Another app that has no name offered a link direct to a pre-filled form with no contact details and no option for free text you can send only the message please delete any data you hold about me — not make a SAR.
Another has a policy but no Data Controller listed. Who is http://a.pgtb.me/privacy ? Ideas welcome.
What about our personal data rights?
The Facebook ad says, you will be able to access, download or delete your data at any time. Not according to the definition of personal data we won’t. And Facebook knows it. As Facebook’s new terms and condition says, some things that you do on Facebook aren’t stored in your account. For example, a friend may have messages from you after deletion. They don’t even mention data inferred. This information remains after you delete your account. It’s not ‘your’ data because it belongs to the poster, it seems according to Facebook. But it’s ‘your’ data because the data are about or related to you according to data protection law.
Rights are not about ownership.
That’s what Facebook appears to want to fail to understand. Or perhaps wants the reader to fail to understand. Subject Access requests should reveal this kind of data, and we all have a right to know what the Facebook user interface limits-by-design. But Facebook still keeps this hidden, while saying we have control.
How will we be notified if we’re not tagged? Presumably Facebook uses previously stored facial images that were tagged, and is matching them using an image library behind the scenes.
In the past I have been mildly annoyed when friends who should know me better, have posted photos of my children on Facebook.
Moments like children’s birthday parties can mean a photo posted of ten fun-filled faces in which ten parents are tagged. Until everyone knew I’d rather they didn’t, I was often tagged in photos of my young children. Or rather my children were tagged as me.
Depending on your settings, you’ll receive a notification when someone tags a photo with your name. Sure I can go and untag it, to change the audience that can see it, but cannot have control over it.
Facebook meanwhile pushes this back as if it is a flaw with the user and in a classic victim-blaming move suggests it’s your fault you don’t like it, not their failure to meet privacy-by-design, by saying, If you don’t like something you’re tagged in, you can remove the tag or ask the person who tagged you to remove the post.
There is an illusion of control being given to the user, by companies and government at the moment. We must not let that illusion become the accepted norm.
Children whose parents are not on the site cannot get notifications. A parent may have no Facebook account. (A child under 13 should no Facebook account, although Facebook has tried to grab those too.) The child with no account may never know, but Facebook is certainly processing, and might be building up a shadow profile about, the nameless child with face X anyway.
What happens next?
As GDPR requires a share of accountability for controller and processing responsibilities, what will it mean for posters who do so without consent of the people in photos? For Facebook it should mean they cannot process using biometric profiling, and its significant effects may be hidden or, especially for children, only appear in the future.
Does Facebook process across photos held on other platforms?
Since it was founded, Facebook has taken over several social media companies, the most familiar of which are Instagram in 2012 and WhatsApp in 2014. Facebook has also bought Oculus VR [VR headsets], Ascenta [drones], and ProtoGeo Oy [fitness trackers].
As TechCrunch summarised, when asked to clear a higher bar for privacy, Facebook has instead delved into design tricks to keep from losing our data.
Facebook needs to axe Face Recognition, or make it work in ways that are lawful, to face up to its responsibilities, and fast.
The Cambridge Analytica scandal has also brought personalised content targeting into the spotlight, but we are yet to see really constructive steps to row back to more straightfoward advertising, and away from todays’s highly invasive models of data collection and content micro-targeting designed to to grab your personalised attention.
Meanwhile policy makers and media are obsessed with screen time limits as a misplaced, over-simplified solution to complex problems, in young people using social media, which are more commonly likely to be exacerbating existing conditions and demonstrate correlations rather than cause.
Children are stuck in the middle.
Their rights to protection, privacy, reputation and participation must not become a political playground.
This is bothering me in current and future data protection.
When is a profile no longer personal?
I’m thinking of a class, or even a year group of school children.
If you strip off enough identifiers or aggregate data so that individuals are no longer recognisable and could not be identified from other data — directly or indirectly — that is in your control or may come into your control, you no longer process personal data.
How far does Article 4(1) go to the boundary of what is identifiable on economic, cultural or social identity?
There is a growing number of research projects using public sector data (including education but often in conjunction and linkage with various others) in which personal data are used to profile and identify sets of characteristics, with a view to intervention.
Let’s take a case study.
Exclusions and absence, poverty, ethnicity, language, SEN and health, attainment indicators, their birth year and postcode areas are all profiled on individual level data in a data set of 100 London schools all to identify the characteristics of children more likely than others to drop out.
It’s a research project, with a view to shaping a NEET intervention program in early education (Not in Education, Employment or Training). There is no consent sought for using the education, health, probation, Police National Computer, and HMRC data like this, because it’s research, and enjoys an exemption.
Among the data collected BAME ethnicity and non-English language students in certain home postcodes are more prevalent. The names of pupils and DOB and their school address have been removed.
In what is in effect a training dataset, to teach the researchers, “what does a potential NEET look like?” pupils with characteristics like Mohammed Jones, are more likely than others to be prevalent.
It does not permit the identification of the data subject as himself, but the data knows exactly what a pupil like MJ looks like.
Armed with these profiles of what potential NEETs look like, researchers now work with the 100 London schools, to give the resulting knowledge, to help teachers identify their children at risk of potential drop out, or exclusion, or of becoming a NEET.
In one London school, MJ, is a perfect match for the profile. The teacher is relieved from any active judgement who should join the program, he’s a perfect match for what to look for. He’s asked to attend a special intervention group, to identify and work on his risk factors.
The data are accurate. His profile does match. But would he have gone on to become NEET?
Is this research, or was it a targeted intervention?
Are the tests for research exemptions met?
Is this profiling and automated decision-making?
If the teacher is asked to “OK” the list, but will not in practice edit it, does that make it exempt from the profiling restriction for children?
The GDPR also sets out the rules (at Article 6(4)) on factors a controller must take into account to assess whether a new processing purpose is compatible with the purpose for which the data were initially collected.
But if the processing is done only after the identifiers are removed that could identify MJ, not just someone like him, does it apply?
In a world that talks about ever greater personalisation, we are in fact being treated less and less as an individual, but instead we’re constantly assessed by comparison, and probability, how we measure up against other profiles of other people built up from historical data.
Then it is used to predict what someone with a similar profile would do, and therefore by inference, what we the individual would do.
What is the difference in reality, of having given the researchers all the education, health, probation, Police National Computer, and HMRC — as they had it — and then giving them the identifying school datasets with pupils’ named data, and saying “match them up.”
I worry that we are at great risk, in risk prediction, of not using the word research, to mean what we think it means.
And our children are unprotected from bias and unexpected consequences as a result.
Peter Riddell, the Commissioner for Public Appointments, has completed his investigation into the recent appointments to the Board of the Office for Students and published his report.
From the “Number 10 Googlers,” that NUS affiliation — an interest in student union representation was seen as undesirable, to “undermining the policy goals” and what the SpAds supported, the whole report is worth a read.
Perception of the process
The concern that the Commissioner raises, over the harm done to the public’s perception of the public appointments process means more needs done to fix these problems, before and after appointments.
This process reinforces what people think already. Jobs for the [white Oxford] boys, and yes-men. And so what, why should I get involved anyway, and what can we hope to change?
Possibilities for improvement
What should the Department for Education (DfE) now offer and what should be required after the appointments process, for the OfS and other bodies, boards and groups et al?
Every board at the Department for Education, its name, aim, and members — internal and external — should be published.
Every board at the Department for Education should be required to publish its Terms of Appointment, and Terms of Reference.
Every board at the Department for Education should be required to publish agendas before meetings and meaningful meeting minutes promptly.
Why? Because there’s all sorts of boards around and their transparency is frankly non-existent. I know because I sit on one. Foolishly I did not make it a requirement to publish minutes before I agreed to join. But in a year it has only met twice, so you’ve not missed much. Who else sits where, on what policy, and why?
In another I used to sit on I got increasingly frustrated that the minutes were not reflective of the substance of discussion. This does the public a disservice twice over. The purpose of the boards look insipid and the evidence for what challenge they are intended to offer, their very reason for being, is washed away. Show the public what’s hard, that there’s debate, that risks are analysed and balanced, and then decisions taken. Be open to scrutiny.
The public has a right to know
When scrutiny really matters, it is wrong — just as the Commissioner report reads — for any Department or body to try to hide the truth.
The purpose of transparency must be to hold to account and ensure checks-and-balances are upheld in a democratic system.
The DfE withdrew from a legal hearing scheduled at the First Tier Information Rights Tribunal last year a couple of weeks beforehand, and finally accepted an ICO decision notice in my favour. I had gone through a year of the Freedom-of-Information appeal process to get hold of the meeting minutes of the Department for Education Star Chamber Scrutiny Board, from November 2015.
It was the meeting in which I had been told members approved the collection of nationality and country of birth in the school census.
“The Star Chamber Scrutiny Board”. Not out of Harry Potter and the Ministry of Magic but appointed by the DfE.
It’s a board that mentions actively seeking members of certain teaching unions but omits others. It publishes no meeting minutes. Its terms of reference are 38 words long, and it was not told the whole truth before one of the most important and widely criticised decisions it ever made affecting the lives of millions of children across England and harm and division in the classroom.
Its annual report doesn’t mention the controversy at all.
After sixteen months, the DfE finally admitted it had kept the Star Chamber Scrutiny Board in the dark on at least one of the purposes of expanding the school census. And on its pre-existing active, related data policy passing pupil data over to the Home Office.
The minutes revealed the Board did not know anything about the data sharing agreement already in place between the DfE and Home Office or that “(once collected) nationality data” [para 15.2.6] was intended to share with the Border Force Casework Removals Team.
Truth that the DfE was forced to reveal, and only came out two years after the meeting, and a full year after the change in law.
If the truth, transparency, diversity of political opinion on boards are allowed to die so does democracy
I spoke to Board members in 2016. They were shocked to find out what the MOU purposes were for the new data, and that regular data transfers had already begun without their knowledge, when they were asked to sign off the nationality data collection.
Their lack of concerns raised was given in written evidence to the House of Lords Secondary Legislation Scrutiny Committee that it had been properly reviewed.
How trustworthy is anything that the Star Chamber now “approves” and our law making process to expand school data? How trustworthy is the Statutory Instrument scrutiny process?
“there was no need for DfE to discuss with SCSB the sharing of data with Home Office as: a.) none of the data being considered by the SCSB as part of the proposal supporting this SI has been, or will be, shared with any third-party (including other government departments);
[omits it “was planned to be”]
and b.) even if the data was to be shared externally, those decisions are outside the SCSB terms of reference.”
Outside the terms of reference that are 38 words long and should scrutinise but not too closely or reject on the basis of what exactly?
Not only is the public not being told the full truth about how these boards are created, and what their purpose is, it seems board members are not always told the full truth they deserve either.
Who is invited to the meeting, and who is left out? What reports are generated with what recommendations? What facts or opinion cannot be listened to, scrutinised and countered, that could be so damaging as to not even allow people to bring the truth to the table?
If the meeting minutes would be so controversial and damaging to making public policy by publishing them, then who the heck are these unelected people making such significant decisions and how? Are they qualified, are they independent, and are they accountable?
If alternately, what should be ‘independent’ boards, or panels, or meetings set up to offer scrutiny and challenge, are in fact being manipulated to manoeuvre policy and ready-made political opinions of the day, it is a disaster for public engagement and democracy.
It should end with this ex- OfS hiring process at DfE, today.
The appointments process and the ongoing work by boards must have full transparency, if they are ever to be seen as trustworthy.
What can Matt Hancock learn from his app privacy flaws?
Note: since starting this blog, the privacy policy has been changed since what was live at 4.30 and the “last changed date” backdated on the version that is now live at 21.00. It shows the challenge I point out in 5:
It’s hard to trust privacy policy terms and conditions that are not strong and stable.
The Data Protection Bill about to pass through the House of Commons requires the Information Commissioner to prepare and issue codes of practice — which must be approved by the Secretary of State — before they can become statutory and enforced.
One of those new codes (clause 124) is about age-appropriate data protection design. Any provider of an Information Society Service — as outlined in GDPR Article 8, where a child’s data are collected on the legal basis of consent — must have regard for the code, if they target the site use at a child.
For 13 -18 year olds what changes might mean compared with current practices can be demonstrated by the Minister for Digital, Culture, Media and Sport’s new app, launched today.
This app is designed to be used by children 13+. Regardless that the terms say, [more aligned with US COPPA laws rather than GDPR] the app requires parental approval 13-18, it still needs to work for the child.
Apps could and should be used to open up what politics is about to children. Younger users are more likely to use an app than read a paper for example. But it must not cost them their freedoms. As others have written, this app has privacy flaws by design.
Children merit specific protection with regard to their personal data, as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data. (GDPR Recital 38).
The flaw in the intent to protect by age, in the app, GDPR and UK Bill overall, is that understanding needed for consent is not dependent on age, but on capacity. The age-based model to protect the virtual child, is fundamentally flawed. It’s shortsighted, if well intentioned, but bad-by-design and does little to really protect children’s rights.
Future age verification for example; if it is to be helpful, not harm, or a nuisance like a new cookie law, must be “a narrow form of ‘identity assurance’ – where only one attribute (age) need be defined.” It must also respect Recital 57, and not mean a lazy data grab like GiffGaff’s.
On these 5 things this app fails to be age appropriate:
Age appropriate participation, privacy, and consent design.
Excessive personal data collection and permissions. (Article 25)
The purposes of each data collected must be specified, explicit and not further processed for something incompatible with them. (Principle 2).
The privacy policy terms and conditions must be easily understood by a child, and be accurate. (Recital 58)
It’s hard to trust privacy policy terms and conditions that are not strong and stable. Among things that can change are terms on a free trial which should require active and affirmative action not continue the account forever, that may compel future costs. Any future changes, should also be age-appropriate of themselves, and in the way that consent is re-managed.
How much profiling does the app enable and what is it used for? The Article 29 WP recommends, “Because children represent a more vulnerable group of society, organisations should, in general, refrain from profiling them for marketing purposes.” What will this mean for any software that profile children’s meta-data to share with third parties, or commercial apps with in-app purchases, or “bait and switch” style models? As this app’s privacy policy refers to.
The Council of Europe 2016-21 Strategy on the Rights of the Child, recognises “provision for children in the digital environment ICT and digital media have added a new dimension to children’s right to education” exposing them to new risk, “privacy and data protection issues” and that “parents and teachers struggle to keep up with technological developments. ” [6. Growing up in a Digital World, Para 21]
Data protection by design really matters to get right for children and young people.
This is a commercially produced app and will only be used on a consent and optional basis.
This app shows how hard it can be for people buying tech from developers to understand and to trust what’s legal and appropriate.
For developers with changing laws and standards they need clarity and support to get it right. For parents and teachers they will need confidence to buy and let children use safe, quality technology.
Without relevant and trustworthy guidance, it’s nigh on impossible.
For any Minister in charge of the data protection rights of children, we need the technology they approve and put out for use by children, to be age-appropriate, and of the highest standards.
This app could and should be changed to meet them.
For children across the UK, more often using apps offers them no choice whether or not to use it. Many are required by schools that can make similar demands for their data and infringe their privacy rights for life. How much harder then, to protect their data security and rights, and keep track of their digital footprint where data goes.
If the Data protection Bill could have an ICO code of practice for children that goes beyond consent based data collection; to put clarity, consistency and confidence at the heart of good edTech for children, parents and schools, it would be warmly welcomed.
Here’s detailed examples what the Minister might change to make his app in line with GDPR, and age-appropriate for younger users.
1. Is the app age appropriate by design?
Unless otherwise specified in the App details on the applicable App Store, to use the App you must be 18 or older (or be 13 or older and have your parent or guardian’s consent).
Children over 13 can use the app, but this app needs parental consent. That’s different from GDPR– consent over and above the new laws as will apply in the UK from May. That age will vary across the EU. Inconsistent age policies are going to be hard to navigate.
Many of the things that matter to privacy, have not been included in the privacy policy (detailed below), but in the terms and conditions.
What else needs changed?
2. Personal data protection by design and default
Excessive personal data collection cannot be justified through a “consent” process, by agreeing to use the app. There must be data protection by design and default using the available technology. That includes data minimisation, and limited retention. (Article 25)
The apps powers are vast and collect far more personal data than is needed, and if you use it, even getting permission to listen to your mic. That is not data protection by design and default, which must implement data-protection principles, such as data minimisation.
If as has been suggested, in the newest version of android each permission is asked for at the point of use not on first install, that could be a serious challenge for parents who think they have reviewed and approved permissions pre-install (and fails beyond the scope of this app). An app only requires consent to install and can change the permissions behind the scenes at any time. It makes privacy and data protection by design even more important.
Here’s a copy of what the android Google library page says it can do. Once you click into “permissions” and scroll. This is excessive. “Matt Hancock” is designed to prevent your phone from sleeping, read and modify the contents of storage, and access your microphone.
Version 2.27 can access:
Location
approximate location (network-based)
Phone
read phone status and identity
Photos / Media / Files
read the contents of your USB storage
modify or delete the contents of your USB storage
Storage
read the contents of your USB storage
modify or delete the contents of your USB storage
Camera
take pictures and videos
Microphone
record audio
Wi-Fi connection information
view Wi-Fi connections
Device ID & call information
read phone status and identity
Other
control vibration
manage document storage
receive data from Internet
view network connections
full network access
change your audio settings
control vibration
prevent device from sleeping
“Matt Hancock” knows where you live
The app makers – and Matt Hancock – should have no necessity to know where your phone is at all times, where it is regularly, or whose other phones you are near, unless you switch it off. That is excessive.
It’s not the same as saying “I’m a constituent”. It’s 24/7 surveillance.
The Ts&Cs say more.
It places the onus on the user to switch off location services — which you may expect for other apps such as your Strava run — rather than the developers take responsibility for your privacy by design. [Click image to see larger] [Full source policy].
[update since writing this post on February 1, the policy has been greatly added to]
It also collects ill-defined “technical information”. How should a 13 year old – or parent for that matter – know what these information are? Those data are the meta-data, the address and sender tags etc.
By using the App, you consent to us collecting and using technical information about your device and related information for the purpose of helping us to improve the App and provide any services to you.
As NSA General Counsel Stewart Baker has said, “metadata absolutely tells you everything about somebody’s life. General Michael Hayden, former director of the NSA and the CIA, has famously said, “We kill people based on metadata.”
If you use this app and “approve” the use, do you really know what the location services are tracking and how that data are used? For a young person, it is impossible to know, or see where their digital footprint has gone, or knowledge about them, have been used.
3. Specified, explicit, and necessary purposes
As a general principle, personal data must be only collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes. The purposes of these very broad data collection, are not clearly defined. That must be more specifically explained, especially given the data are so broad, and will include sensitive data. (Principle 2).
While the Minister has told the BBC that you maintain complete editorial control, the terms and conditions are quite different.
The app can use user photos, files, your audio and location data, and that once content is shared it is “a perpetual, irrevocable” permission to use and edit, this is not age-appropriate design for children who might accidentally click yes, or not appreciate what that may permit. Or later wish they could get that photo back. But now that photo is on social media potentially worldwide — “Facebook, Twitter, Pinterest, YouTube, Instagram and on the Publisher’s own websites,” and the child’s rights to privacy and consent, are lost forever.
That’s not age appropriate and not in line with GDPR on rights to withdraw consent, to object or to restrict processing. In fact the terms, conflict with the app privacy policy which states those rights [see 4. App User Data Rights] Just writing “there may be valid reasons why we may be unable to do this” is poor practice and a CYA card.
4. Any privacy policy and app must do what it says
A privacy policy and terms and conditions must be easily understood by a child, [indeed any user] and be accurate.
Journalists testing the app point out that even if the user clicks “don’t allow”, when prompted to permit access to the photo library, the user is allowed to post the photo anyway.
What does consent mean if you don’t know what you are consenting to? You’re not. GDPR requires that privacy policies are written in a way that their meaning can be understood by a child user (not only their parent). They need to be jargon-free and meaningful in “clear and plain language that the child can easily understand.” (Recital 58)
This privacy policy is not child-appropriate. It’s not even clear for adults.
5. What would age appropriate permissions for charging and other future changes look like?
It should be clear to users if there may be up front or future costs, and there should be no assumption that agreeing once to pay for an app, means granting permission forever, without affirmative action.
Couching Bait-and-Switch, Hidden Costs
This is one of the flaws that the Matt Hancock app terms and conditions shares with many free education apps used in schools. At first, they’re free. You register, and you don’t even know when your child starts using the app, that it’s a free trial. But after a while, as determined by the developer, the app might not be free any more.
That’s not to say this is what the Matt Hancock app will do, in fact it would be very odd if it did. But odd then, that its privacy policy terms and conditions state it could.
The folly of boiler plate policy, or perhaps simply wanting to keep your options open?
Either way, it’s bad design for children– indeed any user — to agree to something that in fact, is meaningless because it could change at any time, and automatic renewals are convenient but who has not found they paid for an extra month of a newspaper or something else they intended to only use for a limited time? And to avoid any charges, you must cancel before the end of the free trial – but if you don’t know it’s free, that’s hard to do. More so for children.
From time to time we may offer a free trial period when you first register to use the App before you pay for the subscription.[…] To avoid any charges, you must cancel before the end of the free trial.
(And on the “For more details, please see the product details in the App Store before you download the App.” there aren’t any, in case you’re wondering).
What would age appropriate future changes be?
It should be clear to parents that what they consent to on behalf of a child, or if a child consents, at the time of install. What that means must empower them to better digital understanding and to stay in control, not allow the company to change the agreement, without the user’s clear and affirmative action.
One of the biggest flaws for parents in children using apps is that what they think they have reviewed, thought appropriate, and permitted, can change at any time, at the whim of the developer and as often as they like.
Notification “by updating the Effective Date listed above” is not any notification at all. And PS. they changed the policy and backdated it today from February 1, 2018, to July 2017. By 8 months. That’s odd.
The statements in this “changes” contradict one another. It’s a future dated get-out-of-jail-free-card for the developer and a transparency and oversight nightmare for parents. “Your continued use” is not clear, affirmative, and freely given consent, as demanded by GDPR.
Perhaps the kindest thing to say about this policy, and its poor privacy approach to rights and responsibilities, is that maybe the Minister did not read it. Which highlights the basic flaw in privacy policies in the first place. Data usage reports how your personal data have actually been used, versus what was promised, are of much greater value and meaning. That’s what children need in schools.
First they came for the lists of lecturers. Did you speak out?
Last week Chris Heaton-Harris MP wrote to vice-chancellors to ask for a list of lecturers’ names and course content, “With particular reference to Brexit”. Academics on social media spoke out in protest. There has been little reaction however, to a range of new laws that permit the incremental expansion of the database state on paper and in practice.
The government is building ever more sensitive lists of names and addresses, without oversight. They will have access to information about our bank accounts. They are using our admin data to create distress-by-design in a ‘hostile environment.’ They are writing laws that give away young people’s confidential data, ignoring new EU law that says children’s data merits special protections.
Earlier this year, Part 5 of the new Digital Economy Act reduced the data protection infrastructure between different government departments. This week, in discussion on the Codes of Practice, some local government data users were already asking whether safeguards can be further relaxed to permit increased access to civil registration data and use our identity data for more purposes.
Now in the Data Protection Bill, the government has included clauses in Schedule 2, to reduce our rights to question how our data are used and that will remove a right to redress where things go wrong. Clause 15 designs-in open ended possibilities of Statutory Instruments for future change.
The House of Lords Select Committee on the Constitution point out on the report on the Bill, that the number and breadth of the delegated powers, are, “an increasingly common feature of legislation which, as we have repeatedly stated, causes considerable concern.”
Concern needs to translate into debate, better wording and safeguards to ensure Parliament maintains its role of scrutiny and where necessary constrains executive powers.
Take as case studies, three new Statutory Instruments on personal data from pupils, students, and staff. They all permit more data to be extracted from individuals and to be sent to national level:
SI 807/2017 The Education (Information About Children in Alternative Provision) (England) (Amendment) Regulations 2017
SI No. 886 The Education (Student Information) (Wales) Regulations 2017 (W. 214) and
SL(5)128 – The Education (Supply of Information about the School Workforce) (Wales) Regulations 2017
The SIs typically state “impact assessment has not been prepared for this Order as no impact on businesses or civil society organisations is foreseen. The impact on the public sector is minimal.” Privacy Impact Assessments are either not done, not published or refused via FOI.
That SI should have been a warning, not a process model to repeat.
From January, thanks to yet another rushed law without debate, (SI 807/2017) teen pregnancy, young offender and mental health labels will be added to children’s records for life in England’s National Pupil Database. These are on a named basis, and highly sensitive. Data from the National Pupil Database, including special needs data (SEN) are passed on for a broad range of purposes to third parties, and are also used across government in Troubled Families, shared with National Citizen Service, and stored forever; on a named basis, all without pupils’ consent or parents’ knowledge. Without a change in policy, young offender and pregnancy, will be handed out too.
Near-identical wording that was used in 2012 to change the law in England, reappears in the new SI for student data in Wales.
The Wales government introduced regulations for a new student database of names, date of birth and ethnicity, home address including postcode, plus exam results. The third parties listed who will get given access to the data without asking for students’ consent, include the Student Loans Company and “persons who, for the purpose of promoting the education or well-being of students in Wales, require the information for that purpose”, in SI No. 886, the Education (Student Information) (Wales) Regulations 2017 (W. 214).
The consultation was conflated with destinations data, and while it all sounds for the right reasons, the SI is broad on purposes and prescribed persons. It received 10 responses.
Separately, a 2017 consultation on the staff data collection received 34 responses about building a national database of teachers, including names, date of birth, National Insurance numbers, ethnicity, disability, their level of Welsh language skills, training, salary and more. Unions and the Information Commissioner’s Office both asked basic questions in the consultation that remain unanswered, including who will have access. It’s now law thanks to SL(5)128 – The Education (Supply of Information about the School Workforce) (Wales) Regulations 2017. The questions are open.
While I have been assured this weekend in writing that these data will not be used for commercial purposes or immigration enforcement, any meaningful safeguards are missing.
More failings on fairness
Where are the communications to staff, students and parents? What oversight will there be? Will a register of uses be published? And why does government get to decide without debate, that our fundamental right to privacy can be overwritten by a few lines of law? What protections will pupils, students and staff have in future how these data will be used and uses expanded for other things?
This is not what people expect or find reasonable. In 2015 UCAS had 37,000 students respond to an Applicant Data Survey. 62% of applicants think sharing their personal data for research is a good thing, and 64% see personal benefits in data sharing. But over 90% of applicants say they should be asked first, regardless of whether their data is to be used for research, or other things. This SI takes away their right to control their data and their digital identity.
It’s not in young people’s best interests to be made more digitally disempowered and lose control over their digital identity. The GDPR requires data privacy by design. This approach should be binned.
Meanwhile, the Digital Economy Act codes of practice talk about fair and lawful processing as if it is a real process that actually happens.
That gap between words on paper, and reality, is a caredata style catastrophe across every sector of public data and government waiting to happen. When will the public be told how data are used?
Better data must be fairer and safer in the future
The new UK Data Protection Bill is in Parliament right now, and its wording will matter. Safe data, transparent use, and independent oversight are not empty slogans to sling into the debate.
To ensure our public [personal] data are used well, we need to trust why they’re collected and see how they are used. But instead the government has drafted their own get-out-of-jail-free-card to remove all our data protection rights to know in the name of immigration investigation and enforcement, and other open ended public interest exemptions.
The pursuit of individuals and their rights under an anti-immigration rhetoric without evidence of narrow case need, in addition to all the immigration law we have, is not the public interest, but ideology.
If these exemptions becomes law, every one of us loses right to ask where our data came from, why it was used for that purpose, or course of redress.
The Digital Economy Act removed some of the infrastructure protections between Departments for datasharing. These clauses will remove our rights to know where and why that data has been passed around between them.
These lines are not just words on a page. They will have real effects on real people’s lives. These new databases are lists of names, and addresses, or attach labels to our identity that last a lifetime.
Even the advocates in favour of the Database State know that if we want to have good public services, their data use must be secure and trustworthy, and we have to be able to trust staff with our data.
As the Committee sits this week to review the bill line by line, the Lords must make sure common sense sees off the scattering of substantial public interest and immigration exemptions in the Data Protection Bill. Excessive exemptions need removed, not our rights.
Otherwise we can kiss goodbye to the UK as a world leader in tech that uses our personal data, or research that uses public data. Because if the safeguards are weak, the commercial players who get it wrong in trials of selling patient data, or who try to skip around the regulatory landscape asking to be treated better than everyone else, and fail to comply with Data Protection law, or when government is driven to chasing children out of education, it doesn’t just damage their reputation, or the potential of innovation for all, they damage public trust from everyone, and harm all data users.
Clause 15 leaves any future change open ended by Statutory Instrument. We can already see how SIs like these are used to create new national databases that can pop up at any time, without clear evidence of necessity, and without chance for proper scrutiny. We already see how data can be used, beyond reasonable expectations.
If we don’t speak out for our data privacy, the next time they want a list of names, they won’t need to ask. They’ll already know.
What is means to be human is going to be different. That was the last word of a panel of four excellent speakers, and the sparkling wit and charm of chair Timandra Harkness, at tonight’s Turing Institute event, hosted at the British Library, on the future of data.
The first speaker, Bernie Hogan, of the Oxford Internet Institute, spoke of Facebook’s emotion experiment, and the challenges of commercial companies ownership and concentrations of knowledge, as well as their decisions controlling what content you get to see.
He also explained simply what an API is in human terms. Like a plug in a socket and instead of electricity, you get a flow of data, but the data controller can control which data can come out of the socket.
And he brilliantly brought in a thought what would it mean to be able to go back in time to the Nuremberg trials, and regulate not only medical ethics, but the data ethics of indirect and computational use of information. How would it affect today’s thinking on AI and machine learning and where we are now?
“Available does not mean accessible, transparent does not mean accountable”
Charles from the Bureau of Investigative Journalism, who had also worked for Trinity Mirror using data analytics, introduced some of the issues that large datasets have for the public.
People rarely have the means to do any analytics well.
Even if open data are available, they are not necessarily accessible due to the volume of data to access, and constraints of common software (such as excel) and time constraints.
Without the facts they cannot go see a [parliamentary] representative or community group to try and solve the problem.
Local journalists often have targets for the number of stories they need to write, and target number of Internet views/hits to meet.
Putting data out there is only transparency, but not accountability if we cannot turn information into knowledge that can benefit the public.
“Trust, is like personal privacy. Once lost, it is very hard to restore.”
Jonathan Bamford, Head of Parliamentary and Government Affairs at the ICO, took us back to why we need to control data at all. Democracy. Fairness. The balance of people’s rights, like privacy, and Freedom-of-Information, and the power of data holders. The awareness that power of authorities and companies will affect the lives of ordinary citizens. And he said that even early on there was a feeling there was a need to regulate who knows what about us.
The third generation of Data Protection law he said, is now more important than ever to manage the whole new era of technology and use of data that did not exist when previous laws were made.
But, he said, the principles stand true today. Don’t be unfair. Use data for the purposes people expect. Security of data matters. As do rights to see the data people hold about us. Make sure data are relevant, accurate, necessary and kept for a sensible amount of time.
And even if we think that technology is changing, he argued, the principles will stand, and organisations need to consider these principles before they do things, considering privacy as a fundamental human right by default, and data protection by design.
After all, we should remember the Information Commissioner herself recently said,
“privacy does not have to be the price we pay for innovation. The two can sit side by side. They must sit side by side.
It’s not always an easy partnership and, like most relationships, a lot of energy and effort is needed to make it work. But that’s what the law requires and it’s what the public expects.”
“We must not forget, evil people want to do bad things. AI needs to be audited.”
Joanna J. Bryson was brilliant her multifaceted talk, summing up how data will affect our lives. She explained how implicit biases work, and how we reason, make decisions and showed up how we think in some ways in Internet searches. She showed in practical ways, how machine learning is shaping our future in ways we cannot see. And she said, firms asserting that doing these things fairly and openly and that regulation no longer fits new tech, “is just hoo-hah”.
She talked about the exciting possibilities and good use of data, but that , “we must not forget, evil people want to do bad things. AI needs to be audited.” She summed up, we will use data to predict ourselves. And she said:
“What is means to be human is going to be different.”
That is perhaps the crux of this debate. How do data and machine learning and its mining of massive datasets, and uses for ‘prediction’, affect us as individual human beings, and our humanity?
The last audience question addressed inequality. Solutions like transparency, subject access, accountability, and understanding biases and how we are used, will never be accessible to all. It needs a far greater digital understanding across all levels of society. How can society both benefit from and be involved in the future of data in public life? The conclusion was made, that we need more faith in public institutions working for people at scale.
But what happens when those institutions let people down, at scale?
The debate was less about the Future of Data in Public Life, and much more about how big data affects our personal lives. Most of the discussion was around how we understand the use of our personal information by companies and institutions, and how will we ensure democracy, fairness and equality in future.
The question went unanswered from an audience member, how do we protect ourselves from the harms we cannot see, or protect the most vulnerable who are least able to protect themselves?
“How can we future proof data protection legislation and make sure it keeps up with innovation?”
That audience question is timely given the new Data Protection Bill. But what legislation means in practice, I am learning rapidly, can be very different from what is in the written down in law.
One additional tool in data privacy and rights legislation is up for discussion, right now, in the UK. If it matters to you, take action.
NGOs could be enabled to make complaints on behalf of the public under article 80 of the General Data Protection Regulation (GDPR). However, the government has excluded that right from the draft UK Data Protection Bill launched last week.
“Paragraph 53 omits from Article 80, representation of data subjects, where provided for by Member State law” from paragraph 1 and paragraph 2,” [Data Protection Bill Explanatory notes, paragraph 681 p84/112]. 80 (2) gives members states the option to provide for NGOs to take action independently on behalf of many people that may have been affected.
If you want that right, a right others will be getting in other countries in the EU, then take action. Call your MP or write to them. Ask for Article 80, the right to representation, in UK law. We need to ensure that our human rights continue to be enacted and enforceable to the maximum, if, “what is means to be human is going to be different.”
For the Future of Data, has never been more personal.
Bird and Bird GDPR Tracker [Shows how and where GDPR has been supplemented locally, highlighting where Member States have taken the opportunities available in the law for national variation.]
DP Bill’s new immigration exemption can put EU citizens seeking a right to remain at considerable disadvantage [09.10] re: Schedule 2, paragraph 4, new Immigration exemption.
On Adequacy: Draconian powers in EU Withdrawal Bill can negate new Data Protection law[13.09]
Queen’s Speech, and the promised “Data Protection (Exemptions from GDPR) Bill” [29.06]
defenddigitalme
Response to the Data Protection Bill debate and Green Paper on Online Strategy [11.10.2017]
Queen’s speech: safeguarding children, data, and digital rights[22.6]
Jon Baines
Serious DCMS error about consent data protection[11.08]
Eoin O’Dell
The UK’s Data Protection Bill 2017: repeals and compensation – updated: On DCMS legislating for Art 82 GDPR. [14.09]
Data Protection Bill Consultation: General Data Protection Regulation Call for Views on exemptions
New Data Protection Bill: Our planned reforms [PDF]952KB, 30 pages
London Economics: Research and analysis to quantify benefits arising from personal data rights under the GDPR [PDF]3.76MB189 pages
ESRC joint submissions on EU General Data Protection Regulation in the UK – Wellcome led multi org submission plus submission from British Academy / Erdos [link]
Minister for Digital Matt Hancock’s keynote address to the UK Internet Governance Forum, 13 September [link].
“…the Data Protection Bill, which will bring our data protection regime into the twenty first century, giving citizens more sovereignty over their data, and greater penalties for those who break the rules.
“With AI and machine learning, data use is moving fast. Good use of data isn’t just about complying with the regulations, it’s about the ethical use of data too.
“So good governance of data isn’t just about legislation – as important as that is – it’s also about establishing ethical norms and boundaries, as a society. And this is something our Digital Charter will address too.”
The Queen’s Speech promised new laws to ensure that the United Kingdom retains its world-class regime protecting personal data. And the government proposes a new digital charter to make the United Kingdom the safest place to be online for children.
Improving online safety for children should mean one thing. Children should be able to use online services without being used by them and the people and organisations behind it. It should mean that their rights to be heard are prioritised in decisions about them.
As Sir Tim Berners-Lee is reported as saying, there is a need to work with companies to put “a fair level of data control back in the hands of people“. He rightly points out that today terms and conditions are “all or nothing”.
There is a gap in discussions that we fail to address when we think of consent to terms and conditions, or “handing over data”. It is that this assumes that these are always and can be always, conscious acts.
For children the question of whether accepting Ts&Cs giving them control and whether it is meaningful becomes even more moot. What are the agreeing to? Younger children cannot give free and informed consent. After all most privacy policies standardly include phrases such as, “If we sell all or a portion of our business, we may transfer all of your information, including personal information, to the successor organization,” which means in effect that “accepting” a privacy policy today, is effectively a blank cheque for anything tomorrow.
The GDPR requires terms and conditions to be laid out in policies that a child can understand.
The current approach to legislation around children and the Internet is heavily weighted towards protection from seen threats. The threats we need to give more attention to, are those unseen.
Our lives as measured in our behaviours and opinions, purchases and likes, are connected by trillions of sensors. My parents may have described using the Internet as going online. Today’s online world no longer means our time is spent ‘on the computer’, but being online, all day every day. Instead of going to a desk and booting up through a long phone cable, we have wireless computers in our pockets and in our homes, with functionality built-in to enable us to do other things; make a phonecall, make toast, and play. In a smart city surrounded by sensors under pavements, in buildings, cameras and tracking everywhere we go, we are living ever more inside an overarching network of cloud computers that store our data. And from all that data decisions are made, which adverts to show us, on which network sites, what we get offered and do not, and our behaviours and our conscious decision-making may be nudged quite invisibly.
Data about us, whether uniquely identifiable or not, is all too often collected passively, IP Address, linked sign-ins that extract friends lists, and some decide if we can either use the thing or not. It’s part of the deal. We get the service, they get to trade our identity, like Top Trumps, behind the scenes. But we often don’t see it, and under GDPR, there should be no contractual requirement as part of consent. I.e. agree or don’t get the service, is not an option.
As yet, we have not had debate in the UK what that means in concrete terms, and if we do not soon, we risk it becoming an afterthought that harms more than helps protect children’s privacy, and therefore their digital identity.
I think of five things needed by policy shapers to tackle it:
In depth understanding of what ‘online’ and the Internet mean
Consistent understanding of what threat models and risk are connected to personal data, which today are underestimated
A grasp of why data privacy training is vital to safeguarding
Confront the idea that user regulation as a stand-alone step will create a better online experience for users, when we know that perceived problems are created by providers or other site users
Siloed thinking that fails to be forward thinking or join the dots of tactics across Departments into cohesive inclusive strategy
If the government’s new “major new drive on internet safety” involves the world’s largest technology companies in order to make the UK the “safest place in the world for young people to go online,” then we must also ensure that these strategies and papers join things up and above all, a technical knowledge of how the Internet works needs to join the dots of risks and benefits in order to form a strategy that will actually make children safe, skilled and see into their future.
When it comes to children, there is a further question over consent and parental spyware. Various walk-to-school apps, lauded by the former Secretary of State two years running, use spyware and can be used without a child’s consent. Guardian Gallery, which could be used to scan for nudity in photos on anyone’s phone that the ‘parent’ phone holder has access to install it on, can be made invisible on the ‘child’ phone. Imagine this in coercive relationships.
If these technologies and the online environment are not correctly assessed with regard to “online safety” threat models for all parts of our population, then they fail to address the risk for the most vulnerable who need it.
What will the GDPR really mean for online safety improvement? What will it define as online services for remuneration in the IoT? And who will be considered as children, “targeted at” or “offered to”?
An active decision is required in the UK. Will 16 remain the default age needed for consent to access Information Society Services, or will we adopt 13 which needs a legal change?
As banal as these questions sound they need close attention paid, and clarity, between now and May 25, 2018 if the UK is to be GDPR ready for providers of online services to know who and how they should treat Internet access, participation and age [parental] verification.
How will the “controller” make “reasonable efforts to verify in such cases that consent is given or authorised by the holder of parental responsibility over the child”, and “taking into consideration available technology”.
These are fundamental questions of what the Internet is and means to people today. And if the current government approach to security is anything to go by, safety will not mean what we think it will mean.
It will matter how these plans join up. Age verification was not being considered in UK law in relation to how we would derogate GDPR, even as late as in October 2016 despite age verification requirements already in the Digital Economy Bill. It shows a lack of joined up digital thinking across our government and needs addressed with urgency to get into the next Parliamentary round.
In recent draft legislation I am yet to see the UK government address Internet rights and safety for young people as anything other than a protection issue, treating the online space in the same way as offline, irl, focused on stranger danger, and sexting.
The UK Digital Strategy commits to the implementation of the General Data Protection Regulation by May 2018, and frames it as a business issue, labelling data as “a global commodity” and as such, its handling is framed solely as a requirements needed to ensure “that our businesses can continue to compete and communicate effectively around the world” and that adoption “will ensure a shared and higher standard of protection for consumers and their data.”
The Digital Economy Bill, despite being a perfect vehicle for this has failed to take on children’s rights, and in particular the requirements of GDPR for consent at all. It was clear if we were to do any future digital transactions we need to level up to GDPR, not drop to the lowest common denominator between that and existing laws.
It was utterly ignored. So were children’s rights to have their own views heard in the consultation to comment on the GDPR derogations for children, with little chance for involvement from young people’s organisations, and less than a monthto respond.
We must now get this right in any new Digital Strategy and bill in the coming parliament.
What would it mean for you to trust an Internet connected product or service and why would you not?
What has damaged consumer trust in products and services and why do sellers care?
What do we want to see different from today, and what is necessary to bring about that change?
These three pairs of questions implicitly underpinned the intense day of #iotmark discussion at the London Zoo last Friday.
The questions went unasked, and could have been voiced before we started, although were probably assumed to be self-evident:
Why do you want one at all [define the problem]?
What needs to change and why [define the future model]?
How do you deliver that and for whom [set out the solution]?
If a group does not agree on the need and drivers for change, there will be no consensus on what that should look like, what the gap is to achieve it, and even less on making it happen.
So who do you want the trustmark to be for, why will anyone want it, and what will need to change to deliver the aims? No one wants a trustmark per se. Perhaps you want what values or promises it embodies to demonstrate what you stand for, promote good practice, and generate consumer trust. To generate trust, you must be seen to be trustworthy. Will the principles deliver on those goals?
The Open IoT Certification Mark Principles, as a rough draft was the outcome of the day, and are available online.
Here’s my reflections, including what was missing on privacy, and the potential for it to be considered in future.
I’ve structured this first, assuming readers attended the event, at ca 1,000 words. Lists and bullet points. The background comes after that, for anyone interested to read a longer piece.
Many thanks upfront, to fellow participants, to the organisers Alexandra D-S and Usman Haque and the colleague who hosted at the London Zoo. And Usman’s Mum. I hope there will be more constructive work to follow, and that there is space for civil society to play a supporting role and critical friend.
The mark didn’t aim to fix the IoT in a day, but deliver something better for product and service users, by those IoT companies and providers who want to sign up. Here is what I took away.
I learned three things
A sense of privacy is not homogenous, even within people who like and care about privacy in theoretical and applied ways. (I very much look forward to reading suggestions promised by fellow participants, even if enforced personal openness and ‘watching the watchers’ may mean ‘privacy is theft‘.)
Awareness of current data protection regulations needs improved in the field. For example, Subject Access Requests already apply to all data controllers, public and private. Few have read the GDPR, or the e-Privacy directive, despite importance for security measures in personal devices, relevant for IoT.
I truly love working on this stuff, with people who care.
And it reaffirmed things I already knew
Change is hard, no matter in what field.
People working together towards a common goal is brilliant.
Group collaboration can create some brilliantly sharp ideas. Group compromise can blunt them.
Some men are particularly bad at talking over each other, never mind over the women in the conversation. Women notice more. (Note to self: When discussion is passionate, it’s hard to hold back in my own enthusiasm and not do the same myself. To fix.)
The IoT context, and risks within it are not homogenous, but brings new risks and adverseries. The risks for manufacturers and consumers and the rest of the public are different, and cannot be easily solved with a one-size-fits-all solution. But we can try.
Concerns I came away with
If the citizen / customer / individual is to benefit from the IoT trustmark, they must be put first, ahead of companies’ wants.
If the IoT group controls both the design, assessment to adherence and the definition of success, how objective will it be?
The group was not sufficiently diverse and as a result, reflects too little on the risks and impact of the lack of diversity in design and effect, and the implications of dataveillance .
Critical minority thoughts although welcomed, were stripped out from crowdsourced first draft principles in compromise.
More future thinking should be built-in to be robust over time.
What was missing
There was too little discussion of privacy in perhaps the most important context of IoT – inter connectivity and new adversaries. It’s not only about *your* thing, but things that it speaks to, interacts with, of friends, passersby, the cityscape , and other individual and state actors interested in offense and defense. While we started to discuss it, we did not have the opportunity to discuss sufficiently at depth to be able to get any thinking into applying solutions in the principles.
One of the greatest risks that users face is the ubiquitous collection and storage of data about users that reveal detailed, inter-connected patterns of behaviour and our identity and not seeing how that is used by companies behind the scenes.
What we also missed discussing is not what we see as necessary today, but what we can foresee as necessary for the short term future, brainstorming and crowdsourcing horizon scanning for market needs and changing stakeholder wants.
Future thinking
Here’s the areas of future thinking that smart thinking on the IoT mark could consider.
We are moving towards ever greater requirements to declare identity to use a product or service, to register and log in to use anything at all. How will that change trust in IoT devices?
Single identity sign-on is becoming ever more imposed, and any attempts for multiple presentation of who I am by choice, and dependent on context, therefore restricted. [not all users want to use the same social media credentials for online shopping, with their child’s school app, and their weekend entertainment]
Is this imposition what the public wants or what companies sell us as what customers want in the name of convenience? What I believe the public would really want is the choice to do neither.
There is increasingly no private space or time, at places of work.
Limitations on private space are encroaching in secret in all public city spaces. How will ‘handoffs’ affect privacy in the IoT?
There is too little understanding of the social effects of this connectedness and knowledge created, embedded in design.
What effects may there be on the perception of the IoT as a whole, if predictive data analysis and complex machine learning and AI hidden in black boxes becomes more commonplace and not every company wants to be or can be open-by-design?
Ubiquitous collection and storage of data about users that reveal detailed, inter-connected patterns of behaviour and our identity needs greater commitments to disclosure. Where the hand-offs are to other devices, and whatever else is in the surrounding ecosystem, who has responsibility for communicating interaction through privacy notices, or defining legitimate interests, where the data joined up may be much more revealing than stand-alone data in each silo?
Define with greater clarity the privacy threat models for different groups of stakeholders and address the principles for each.
What would better look like?
The draft privacy principles are a start, but they’re not yet aspirational as I would have hoped. Of course the principles will only be adopted if possible, practical and by those who choose to. But where is the differentiator from what everyone is required to do, and better than the bare minimum? How will you sell this to consumers as new? How would you like your child to be treated?
The wording in these 5 bullet points, is the first crowdsourced starting point.
The supplier of this product or service MUST be General Data Protection Regulation (GDPR) compliant.
This product SHALL NOT disclose data to third parties without my knowledge.
I SHOULD get full access to all the data collected about me.
I MAY operate this device without connecting to the internet.
My data SHALL NOT be used for profiling, marketing or advertising without transparent disclosure.
Yes other points that came under security address some of the crossover between privacy and surveillance risks, but there is as yet little substantial that is aspirational to make the IoT mark a real differentiator in terms of privacy. An opportunity remains.
It was that and how young people perceive privacy that I hoped to bring to the table. Because if manufacturers are serious about future success, they cannot ignore today’s children and how they feel. How you treat them today, will shape future purchasers and their purchasing, and there is evidence you are getting it wrong.
The timing is good in that it now also offers the opportunity to promote consistent understanding, and embed the language of GDPR and ePrivacy regulations into consistent and compatible language in policy and practice in the #IoTmark principles.
User rights I would like to see considered
These are some of the points I would think privacy by design would mean. This would better articulate GDPR Article 25 to consumers.
Data sovereignty is a good concept and I believe should be considered for inclusion in explanatory blurb before any agreed privacy principles.
Goods should by ‘dumb* by default’ until the smart functionality is switched on. [*As our group chair/scribe called it] I would describe this as, “off is the default setting out-of-the-box”.
Privact by design. Deniability by default. i.e. not only after opt out, but a company should not access the personal or identifying purchase data of anyone who opts out of data collection about their product/service use during the set up process.
The right to opt out of data collection at a later date while continuing to use services.
A right to object to the sale or transfer of behavioural data, including to third-party ad networks and absolute opt-in on company transfer of ownership.
A requirement that advertising should be targeted to content, [user bought fridge A] not through jigsaw data held on users by the company [how user uses fridge A, B, C and related behaviour].
An absolute rejection of using children’s personal data gathered to target advertising and marketing at children
Background: Starting points before privacy
After a brief recap on 5 years ago, we heard two talks.
The first was a presentation from Bosch. They used the insights from the IoT open definition from 5 years ago in their IoT thinking and embedded it in their brand book. The presenter suggested that in five years time, every fridge Bosch sells will be ‘smart’. And the second was a fascinating presentation, of both EU thinking and the intellectual nudge to think beyond the practical and think what kind of society we want to see using the IoT in future. Hints of hardcore ethics and philosophy that made my brain fizz from Gerald Santucci, soon to retire from the European Commission.
The principles of open sourcing, manufacturing, and sustainable life cycle were debated in the afternoon with intense arguments and clearly knowledgeable participants, including those who were quiet. But while the group had assigned security, and started work on it weeks before, there was no one pre-assigned to privacy. For me, that said something. If they are serious about those who earn the trustmark being better for customers than their competition, then there needs to be greater emphasis on thinking like their customers, and by their customers, and what use the mark will be to customers, not companies. Plan early public engagement and testing into the design of this IoT mark, and make that testing open and diverse.
To that end, I believe it needed to be articulated more strongly, that sustainable public trust is the primary goal of the principles.
Trust that my device will not become unusable or worthless through updates or lack of them.
Trust that my device is manufactured safely and ethically and with thought given to end of life and the environment.
Trust that my source components are of high standards.
Trust in what data and how that data is gathered and used by the manufacturers.
Fundamental to ‘smart’ devices is their connection to the Internet, and so the last for me, is therefore key to successful public perception and it actually making a difference, beyond the PR value to companies. The value-add must be measured from consumers point of view.
All the openness about design functions and practice improvements, without attempting to change privacy infringing practices, may be wasted effort. Why? Because the perceived benefit of the value of the mark, will be proportionate to what risks it is seen to mitigate.
Why?
Because I assume that you know where your source components come from today. I was shocked to find out not all do and that ‘one degree removed’ is going to be an improvement? Holy cow, I thought. What about regulatory requirements for product safety recalls? These differ of course for different product areas, but I was still surprised. Having worked in global Fast Moving Consumer Goods (FMCG) and food industry, semiconductor and optoelectronics, and medical devices it was self-evident for me, that sourcing is rigorous. So that new requirement to know one degree removed, was a suggested minimum. But it might shock consumers to know there is not usually more by default.
Customers also believe they have reasonable expectations of not being screwed by a product update, left with something that does not work because of its computing based components. The public can take vocal, reputation-damaging action when they are let down.
While these are visible, the full extent of the overreach of company market and product surveillance into our whole lives, not just our living rooms, is yet to become understood by the general population. What will happen when it is?
The Internet of Things is exacerbating the power imbalance between consumers and companies, between government and citizens. As Wendy Grossman wrote recently, in one sense this may make privacy advocates’ jobs easier. It was always hard to explain why “privacy” mattered. Power, people understand.
That public discussion is long overdue. If open principles on IoT devices mean that the signed-up companies differentiate themselves by becoming market leaders in transparency, it will be a great thing. Companies need to offer full disclosure of data use in any privacy notices in clear, plain language under GDPR anyway, but to go beyond that, and offer customers fair presentation of both risks and customer benefits, will not only be a point-of-sales benefit, but potentially improve digital literacy in customers too.
The morning discussion touched quite often on pay-for-privacy models. While product makers may see this as offering a good thing, I strove to bring discussion back to first principles.
Privacy is a human right. There can be no ethical model of discrimination based on any non-consensual invasion of privacy. Privacy is not something I should pay to have. You should not design products that reduce my rights. GDPR requires privacy-by-design and data protection by default. Now is that chance for IoT manufacturers to lead that shift towards higher standards.
We also need a new ethics thinking on acceptable fair use. It won’t change overnight, and perfect may be the enemy of better. But it’s not a battle that companies should think consumers have lost. Human rights and information security should not be on the battlefield at all in the war to win customer loyalty. Now is the time to do better, to be better, demand better for us and in particular, for our children.
Privacy will be a genuine market differentiator
If manufacturers do not want to change their approach to exploiting customer data, they are unlikely to be seen to have changed.
Today feelings that people in US and Europe reflect in surveys are loss of empowerment, feeling helpless, and feeling used. That will shift to shock, resentment, and any change curve will predict, anger.
“The poll of just over two thousand British adults carried out by Ipsos MORI found that the media, internet services such as social media and search engines and telecommunication companies were the least trusted to use personal data appropriately.” [2014, Data trust deficit with lessons for policymakers, Royal Statistical Society]
In the British student population, one 2015 survey of university applicants in England, found of 37,000 who responded, the vast majority of UCAS applicants agree that sharing personal data can benefit them and support public benefit research into university admissions, but they want to stay firmly in control. 90% of respondents said they wanted to be asked for their consent before their personal data is provided outside of the admissions service.
In 2010, a multi method model of research with young people aged 14-18, by the Royal Society of Engineering, found that, “despite their openness to social networking, the Facebook generation have real concerns about the privacy of their medical records.” [2010, Privacy and Prejudice, RAE, Wellcome]
When people use privacy settings on Facebook set to maximum, they believe they get privacy, and understand little of what that means behind the scenes.
Are there tools designed by others, like Projects by If licenses, and ways this can be done, that you’re not even considering yet?
What if you don’t do it?
“But do you feel like you have privacy today?” I was asked the question in the afternoon. How do people feel today, and does it matter? Companies exploiting consumer data and getting caught doing things the public don’t expect with their data, has repeatedly damaged consumer trust. Data breaches and lack of information security have damaged consumer trust. Both cause reputational harm. Damage to reputation can harm customer loyalty. Damage to customer loyalty costs sales, profit and upsets the Board.
Where overreach into our living rooms has raised awareness of invasive data collection, we are yet to be able to see and understand the invasion of privacy into our thinking and nudge behaviour, into our perception of the world on social media, the effects on decision making that data analytics is enabling as data shows companies ‘how we think’, granting companies access to human minds in the abstract, even before Facebook is there in the flesh.
Governments want to see how we think too, and is thought crime really that far away using database labels of ‘domestic extremists’ for activists and anti-fracking campaigners, or the growing weight of policy makers attention given to predpol, predictive analytics, the [formerly] Cabinet Office Nudge Unit, Google DeepMind et al?
Had the internet remained decentralized the debate may be different.
I am starting to think of the IoT not as the Internet of Things, but as the Internet of Tracking. If some have their way, it will be the Internet of Thinking.
Considering our centralised Internet of Things model, our personal data from human interactions has become the network infrastructure, and data flows, are controlled by others. Our brains are the new data servers.
In the Internet of Tracking, people become the end nodes, not things.
And it is this where the future users will be so important. Do you understand and plan for factors that will drive push back, and crash of consumer confidence in your products, and take it seriously?
Companies have a choice to act as Empires would – multinationals, joining up even on low levels, disempowering individuals and sucking knowledge and power at the centre. Or they can act as Nation states ensuring citizens keep their sovereignty and control over a selected sense of self.
Look at Brexit. Look at the GE2017. Tell me, what do you see is the direction of travel? Companies can fight it, but will not defeat how people feel. No matter how much they hope ‘nudge’ and predictive analytics might give them this power, the people can take back control.
What might this desire to take-back-control mean for future consumer models? The afternoon discussion whilst intense, reached fairly simplistic concluding statements on privacy. We could have done with at least another hour.
Some in the group were frustrated “we seem to be going backwards” in current approaches to privacy and with GDPR.
But if the current legislation is reactive because companies have misbehaved, how will that be rectified for future? The challenge in the IoT both in terms of security and privacy, AND in terms of public perception and reputation management, is that you are dependent on the behaviours of the network, and those around you. Good and bad. And bad practices by one, can endanger others, in all senses.
If you believe that is going back to reclaim a growing sense of citizens’ rights, rather than accepting companies have the outsourced power to control the rights of others, that may be true.
There was a first principle asked whether any element on privacy was needed at all, if the text was simply to state, that the supplier of this product or service must be General Data Protection Regulation (GDPR) compliant. The GDPR was years in the making after all. Does it matter more in the IoT and in what ways? The room tended, understandably, to talk about it from the company perspective. “We can’t” “won’t” “that would stop us from XYZ.” Privacy would however be better addressed from the personal point of view.
What do people want?
From the company point of view, the language is different and holds clues. Openness, control, and user choice and pay for privacy are not the same thing as the basic human right to be left alone. Afternoon discussion reminded me of the 2014 WAPO article, discussing Mark Zuckerberg’s theory of privacy and a Palo Alto meeting at Facebook:
“Not one person ever uttered the word “privacy” in their responses to us. Instead, they talked about “user control” or “user options” or promoted the “openness of the platform.” It was as if a memo had been circulated that morning instructing them never to use the word “privacy.””
In the afternoon working group on privacy, there was robust discussion whether we had consensus on what privacy even means. Words like autonomy, control, and choice came up a lot. But it was only a beginning. There is opportunity for better. An academic voice raised the concept of sovereignty with which I agreed, but how and where to fit it into wording, which is at once both minimal and applied, and under a scribe who appeared frustrated and wanted a completely different approach from what he heard across the group, meant it was left out.
This group do care about privacy. But I wasn’t convinced that the room cared in the way that the public as a whole does, but rather only as consumers and customers do. But IoT products will affect potentially everyone, even those who do not buy your stuff. Everyone in that room, agreed on one thing. The status quo is not good enough. What we did not agree on, was why, and what was the minimum change needed to make a enough of a difference that matters.
I share the deep concerns of many child rights academics who see the harm that efforts to avoid restrictions Article 8 the GDPR will impose. It is likely to be damaging for children’s right to access information, be discriminatory according to parents’ prejudices or socio-economic status, and ‘cheating’ – requiring secrecy rather than privacy, in attempts to hide or work round the stringent system.
In ‘The Class’ the research showed, ” teachers and young people have a lot invested in keeping their spheres of interest and identity separate, under their autonomous control, and away from the scrutiny of each other.” [2016, Livingstone and Sefton-Green, p235]
Employers require staff use devices with single sign including web and activity tracking and monitoring software. Employee personal data and employment data are blended. Who owns that data, what rights will employees have to refuse what they see as excessive, and is it manageable given the power imbalance between employer and employee?
What is this doing in the classroom and boardroom for stress, anxiety, performance and system and social avoidance strategies?
A desire for convenience creates shortcuts, and these are often met using systems that require a sign-on through the platforms giants: Google, Facebook, Twitter, et al. But we are kept in the dark how by using these platforms, that gives access to them, and the companies, to see how our online and offline activity is all joined up.
Any illusion of privacy we maintain, we discussed, is not choice or control if based on ignorance, and backlash against companies lack of efforts to ensure disclosure and understanding is growing.
“The lack of accountability isn’t just troubling from a philosophical perspective. It’s dangerous in a political climate where people are pushing back at the very idea of globalization. There’s no industry more globalized than tech, and no industry more vulnerable to a potential backlash.”
If your connected *thing* requires registration, why does it? How about a commitment to not forcing one of these registration methods or indeed any at all? Social Media Research by Pew Research in 2016 found that 56% of smartphone owners ages 18 to 29 use auto-delete apps, more than four times the share among those 30-49 (13%) and six times the share among those 50 or older (9%).
Does that tell us anything about the demographics of data retention preferences?
In 2012, they suggested social media has changed the public discussion about managing “privacy” online. When asked, people say that privacy is important to them; when observed, people’s actions seem to suggest otherwise.
Does that tell us anything about how well companies communicate to consumers how their data is used and what rights they have?
There is also data with strong indications about how women act to protect their privacy more but when it comes to basic privacy settings, users of all ages are equally likely to choose a private, semi-private or public setting for their profile. There are no significant variations across age groups in the US sample.
Now think about why that matters for the IoT? I wonder who makes the bulk of purchasing decsions about household white goods for example and has Bosch factored that into their smart-fridges-only decision?
Do you *need* to know who the user is? Can the smart user choose to stay anonymous at all?
The day’s morning challenge was to attend more than one interesting discussion happening at the same time. As invariably happens, the session notes and quotes are always out of context and can’t possibly capture everything, no matter how amazing the volunteer (with thanks!). But here are some of the discussion points from the session on the body and health devices, the home, and privacy. It also included a discussion on racial discrimination, algorithmic bias, and the reasons why care.data failed patients and failed as a programme. We had lengthy discussion on ethics and privacy: smart meters, objections to models of price discrimination, and why pay-for-privacy harms the poor by design.
Smart meter data can track the use of unique appliances inside a person’s home and intimate patterns of behaviour. Information about our consumption of power, what and when every day, reveals personal details about everyday lives, our interactions with others, and personal habits.
Why should company convenience come above the consumer’s? Why should government powers, trump personal rights?
Smart meter is among the knowledge that government is exploiting, without consent, to discover a whole range of issues, including ensuring that “Troubled Families are identified”. Knowing how dodgy some of the school behaviour data might be, that helps define who is “troubled” there is a real question here, is this sound data science? How are errors identified? What about privacy? It’s not your policy, but if it is your product, what are your responsibilities?
If companies do not respect children’s rights, you’d better shape up to be GDPR compliant
For children and young people, more vulnerable to nudge, and while developing their sense of self can involve forming, and questioning their identity, these influences need oversight or be avoided.
In terms of GDPR, providers are going to pay particular attention to Article 8 ‘information society services’ and parental consent, Article 17 on profiling, and rights to restriction of processing (19) right to erasure in recital 65 and rights to portability. (20) However, they may need to simply reassess their exploitation of children and young people’s personal data and behavioural data. Article 57 requires special attention to be paid by regulators to activities specifically targeted at children, as ‘vulnerable natural persons’ of recital 75.
Human Rights, regulations and conventions overlap in similar principles that demand respect for a child, and right to be let alone:
(a) The development of the child ‘s personality, talents and mental and physical abilities to their fullest potential;
(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations.
A weakness of the GDPR is that it allows derogation on age and will create inequality and inconsistency for children as a result. By comparison Article one of the Convention on the Rights of the Child (CRC) defines who is to be considered a “child” for the purposes of the CRC, and states that: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.”<
Article two of the CRC says that States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind.
CRC Article 16 says that no child shall be subjected to arbitrary or unlawful interference with his or her honour and reputation.
Article 8 CRC requires respect for the right of the child to preserve his or her identity […] without unlawful interference.
Article 12 CRC demands States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
That stands in potential conflict with GDPR article 8. There is much on GDPR on derogations by country, and or children, still to be set.
What next for our data in the wild
Hosting the event at the zoo offered added animals, and during a lunch tour we got out on a tour, kindly hosted by a fellow participant. We learned how smart technology was embedded in some of the animal enclosures, and work on temperature sensors with penguins for example. I love tigers, so it was a bonus that we got to see such beautiful and powerful animals up close, if a little sad for their circumstances and as a general basic principle, seeing big animals caged as opposed to in-the-wild.
Freedom is a common desire in all animals. Physical, mental, and freedom from control by others.
I think any manufacturer that underestimates this element of human instinct is ignoring the ‘hidden dragon’ that some think is a myth. Privacy is not dead. It is not extinct, or even unlike the beautiful tigers, endangered. Privacy in the IoT at its most basic, is the right to control our purchasing power. The ultimate people power waiting to be sprung. Truly a crouching tiger. People object to being used and if companies continue to do so without full disclosure, they do so at their peril. Companies seem all-powerful in the battle for privacy, but they are not. Even insurers and data brokers must be fair and lawful, and it is for regulators to ensure that practices meet the law.
When consumers realise our data, our purchasing power has the potential to control, not be controlled, that balance will shift.
“Paper tigers” are superficially powerful but are prone to overextension that leads to sudden collapse. If that happens to the superficially powerful companies that choose unethical and bad practice, as a result of better data privacy and data ethics, then bring it on.
I hope that the IoT mark can champion best practices and make a difference to benefit everyone.
While the companies involved in its design may be interested in consumers, I believe it could be better for everyone, done well. The great thing about the efforts into an #IoTmark is that it is a collective effort to improve the whole ecosystem.
I hope more companies will realise their privacy rights and ethical responsibility in the world to all people, including those interested in just being, those who want to be let alone, and not just those buying.
“If a cat is called a tiger it can easily be dismissed as a paper tiger; the question remains however why one was so scared of the cat in the first place.”
Further reading: Networks of Control – A Report on Corporate Surveillance, Digital Tracking, Big Data & Privacy by Wolfie Christl and Sarah Spiekermann
