I just saw this interview with Tim Cooks where he says that privacy is a fundamental right and core to the American identity. With all of my recent ranting and raging about private companies and dystopia, I could start proposing solutions or become real cynical about the Apple CEO’s words. Maybe Apple is desperate to distance itself from Facebook’s recent scandals including news that phone manufacturers reached secret deals with the social media giant to access user data.
Of course, there is also the glaringly stark contrast between the FCC now permitting American ISPs to sell user data to third parties and how the new European data law (the infamous GDPR) — not Americans’ passion for privacy rights — is the primary catalyst for the current public conversation around privacy rights in the digital era.
But instead of complaining, maybe I should look at what Apple is saying as a teachable moment. Likely Apple sees a major marketing opportunity to remind its customers (and promote the fact) that it is not in the data sharing business and that monetizing its customer’s data is contrary to its core values. At a time when companies (for example U.S. ISPs) are licking their fingers at the chance to rake in big bucks by reselling their paying customers’ data, there is a huge niche – analogous to the organic/bio foods business – for privacy-friendly products and technologies.
So taking advantage of this potentially positive turn of events, I should walk-the-walk and do what I keep saying lawyers ought to. Propose solutions! So here it goes:
For lawyers in private practice, I encourage them to continue to play a pivotal and activist role in bringing claims against and putting pressure on companies and governments that misuse our personal data or infringe on our rights. Holding them accountable does not happen by osmosis. You need lawyers leading as change agents (think about the essential role of lawyers in the Civil Rights Movement).
Now as an in-house counsel in a tech company, I would suggest leaving your beret and Che Guevara t-shirt at home. Instead concentrate on how your company can build trust amongst its customers so that they will feel comfortable using your services, and in turn, you will feel comfortable providing them with those services. Here are some basic things, some of which I have mentioned before, that in-house lawyers can propose within their companies:
Privacy by Design (and security by design): Put the end user at the center of your technology’s architecture. Try to minimize the amount of personal data you will need to provide the service, limit what you share with third parties to only what needs to be shared, and give the end user the ability to opt-out of features that share more detailed personal data. Be transparent. If you concentrate on what the end user will be comfortable with and empower her with control over her data, then you are on the right track.
Value Proposition: As the tech giants, especially ones where consumers have little bargaining power (like ISPs, Facebook, and Google), demand more access to their users’ data, companies can use privacy protections as a strong differentiating value proposition. As mentioned above, the market opportunity is huge. For example, if European consumers are not comfortable with the ease at which their data may be swept up and monitored by American spy agencies (as revealed by Edward Snowden), why not offer European-based services that guarantee greater freedom from the intrusion of a foreign government? As with Apple, if you sell sleek, cool, and lifestyle, the minute your customers perceive that you are no longer any of those things – and btw selling customer data is creepy not cool – then game over.
Business Model. Re-think the business model. Propose different fee structures or revenue sharing options that give end users more control and something of value in return for handing over their data. For example, offer customers discounted fees (like Amazon does with the Kindle) if they allow the company to monetize their data. Alternatively, how about a giving a piece of the revenue to the customer when the company makes money off her data? I worked for a WiFi sharing start-up where, keeping true to the company’s value of sharing, we shared revenues with users who shared back. If my ISP is making money off my data, then why not demand something in return?
Product Ethics: Before thinking about the legality of a new product or service, focus on it from an ethical viewpoint. Many companies now have data governance committees, but consider a broader products ethics committee made up of a cross section of the company. Look not just at data use but the potential for a product or service to be misused (even if hacked) with results that are contrary to the company’s values. If you build products that resell or rely on processing large volumes of personal data, put an ethicist on staff. Remember no matter who your CEO is or how much of a celebrity he may be, the last thing you want is for him to have to sit in front of lawmakers struggling to explain why your service was linked to a major human rights violation, political scandal, or massive leak of sensitive personal data.
Data Use as a Corporate Social Responsibility: Include data use and innovation in your company’s CSR policies. Call it your Innovation for Good Policy where you commit to (i) not use the personal data and technology at your disposal in a way that has a negative effect on your community and stakeholders, and (ii) affirmatively use technology and innovation for the good of your community and stakeholders. For example, at my current company, Amadeus, I am very proud to have been involved in two CSR initiatives with UNICEF where we used technology and aggregated travel data to help suffering children and to predict the spread of diseases like Ebola and Zika.
Put all together, the most important thing a company can do is to take the time to have open, internal conversations about the effects that its products and services may have on users and society. That way senior management can make informed decisions in line with the companies core values and identity. Lawyers don’t like surprises, and neither do their clients.
The Entrepre-Lawyer 