Chances are, if you have paid attention to the privacy space over the years, you have seen some form of "data is the new oil" comparison. Plenty of articles have been written with some variation of that headline.
In Canada, Minister of Innovation, Science and Economic Development Navdeep Bains tweeted "data is like the new electricity" ahead of the announcement of the country's Digital Charter. In a proposal to modernize the Personal Information Protection and Electronic Documents Act, the federal government called data "the fuel to grow the Canadian data-driven economy."
There is a growing sense data has become essential to Canada's economic prosperity, according to University of Toronto Professor and Chair in Law and Technology Lisa Austin. During her keynote speech at the IAPP Privacy Symposium in Toronto, Austin said she is concerned that there is pressure on policy to open up data flows in the country to unlock the aforementioned economic prosperity.
Many of the ways to do so centered around the model of individual control, but perhaps given the state of the data economy in 2019, it may be time to take a different approach.
"We should stop talking about individual control start talking about meaningful choice," Austin said. "And they are not the same thing."
Individual control was born from a time when the only relationship was between an individual and an organization. Nowadays, there are third parties and developers that touch information, as well. With such a complex ecosystem mounted by a simple principle of individual control, Austin worries the data ecosystem may begin to strain.
A way to remedy that is to switch to a model in which data subjects can make meaningful choices with their information. Austin likened it to only having a choice between a chocolate chip cookie and Doritos. A person may have a choice of what they can consume, but there are no healthy options on the table.
"How do we create a state of affairs where people can choose apples?" Austin said.
It might not be as simple as trying to find apples but perhaps also combating methods to make people pick more chocolate chip cookies. "Dark pattern" tactics have been incorporated into designs in order to entice users to share more information than they originally sought. These methods may interfere with the meaningful choice Austin would like to see become the norm. The subterfuge tactics may alter the choice before a person can decide whether it is meaningful or not.
There have been efforts to combat "dark patterns," whether its research from the Electronic Frontier Foundation, reports from France's data protection authority, the CNIL, or proposed bills from U.S. senators. If "dark patterns" are a hurdle on the road to true meaningful choice, then a global effort is already underway to try and remedy the problem.
Should Canada decide to put more emphasis on meaningful choice as Austin suggests, the country could turn to its global brethren as a north star. The EU General Data Protection Regulation and Brazil's General Data Protection Law, for example, empower data subjects through meaningful choice.
Both rules require data subjects to be informed about any processing of their personal data in a clear manner. Any entity that processes information must make sure data subjects can exercise control over their data.
"In few words, the GDPR and the LGDP allocate consent as just one of the phases by which data subjects can control their personal information. A holistic and systematic interpretation of both legislations demonstrates that there should be effective decision-making from data subjects with regarding their personal information flow," wrote Bruno Bioni, CIPP/E, Maria Cecília Oliveira Gomes and Renato Leite Monteiro, CIPP/E, CIPM, in a piece for Privacy Tracker.
Meaningful choice is not an unprecedented concept in privacy, and as the Canadian government begins to reform its privacy laws via its Digital Charter, perhaps now is the time meaningful choice can be baked into the future of the Great White North.
It also touched upon a theme in Privacy Commissioner of Canada Daniel Therrien's keynote speech a day earlier. Members of the Canadian privacy scene want to see the country move toward a more rights-based approach the laws of the land.
Austin believes meaningful choice can help Canada not only reach that point, but also discover the economic prosperity in a way that respects citizens' rights and opens up a wider definition of privacy.
"There is a rights perspective there that has to be front and center," Austin said. "If we think about privacy only in terms of harms, that’s a very narrow view. If we think about privacy in terms of preferences, that is a very narrow view."
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