CFP: Opening Plenary Privacy and Free Speech

The opening plenary of this year's Computers Freedom and Privacy Conference (CFP) had a decidedly business orientation.  Titled "Privacy and Free Speech: It's Good for Business," the panel was moderated by Nicole A. Ozer, Technology and Civil Liberties Policy Director, at the ACLU of Northern California.  

Ozer introduced the panel by sharing with CFP attendees the Northern California ACLU's primer for businesses, emphasizing that "Privacy and Free Speech AREN'T JUST good for people but good for the bottom line."

Panelists each took a moment introduce themselves by discussing their roles in protecting e

Raman Khanna, a partner at ONSET Ventures, began by describing the current trend among

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entrepreneurs as leaning toward paying more attention to privacy.  He suggested that privacy and security policies are just important as patents. 

Lauren Gelman, founder of Blurry Edge Strategies, picked up the conversation to describe that most small companies don't feel they have the time to devote to thinking about privacy issues.  Over the last two months (post Facebook blow-up) start-ups have shown an increased concern about messaging about privacy and data-collection, in order to avoid the potential backlash.

Ozer then introduced Ebele Okobi- Harris, Director of Business & Human Rights Program, Yahoo! to weigh in from the side of more established businesses, such as Yahoo.  She emphasized that businesses need to reach out to stake-holders before problems have a chance to take hold.

Francoise Gilbert, Managing Director of IT Law Group, speaking from a more consumer oriented position, described the tension between her role as a privacy advocate and that of a company's desire to gather as much information as possible.  A key concept that start-ups need to consider is that when companies use information as the fuel for their business, then that business is only viable as long as people are willing to give the information.  Another layer of complexity that she often deals with is that privacy laws and concepts differ internationally, both for information collected about consumers but also for employees across jurisdictions.

Litigator Andrew Bridges, a partner at Winston & Strawn, deals with these problems once they've blown up, said "it's all about the brand."  He explained his theory that the reputation of a company flows from the expectations a company has built and how those expectations have or haven't been met.  Consumers online right now want convenience, choice and control, he theorised that companies many compaines have to balance convenience with trust.

After these introductions Ozer began the group discussion by asking how these principles can move from paper to practice.

Okobi-Harris began by describing that what she felt was one of Yahoo!'s biggest advantages came from the placement of her Business and Ruman Rights department within the legal department to help prevent problems before implementation of new programs.  She stated that before Yahoo! enters a new venture, a human rights assessment is conducted.  She gave the example of the company's expansion into Vietnam.  She noted that expansion into the Vietnamese market, made a lot of sense from a human rights and free expression point of view given that online spaces in that country have become a surrogate for a hampered press, but that expanision should include ways to protect user data and anonymity, ultimately leading to storing said data out of country.  She also emphasized that often, when these issues are discussed, it's easy to focus on China as a but that is a mistake– countries all over the world have proposed potentially restrictive filtering systems, etc.  She said that "there is not a single contry in the world where the internet is completely free and unfettered" and that these issues are very very complex and it is impossibl to come up with a single company solution, saying again the importance of other stakeholders being brought in.

Ozer asked Gilbert what adivce he gives start-ups, and what mistakes had he seen companies make.  Gilbert answered that the major problem concerning privacy is that it is often an afterthought when designing a product and privacy programs are often underfunded.  He emphasized that the CEO and CFO must be convinced that privacy is important, or "you won't get anywhere."  He said that there needs to be privacy awareness throughout the company through employee training or education.  He sited as example of global privacy challenges, the "adventures" of Google and Facebook.  In both cases there is an apparent disconnect between information gathering and privacy.

Ozer then turned the discussion from privacy to free speech, asking what companies should do to protect free speech.

Bridges suggested that comanies must answer three questions:

Who's side are you on?  Companies need to decide if they're on the "side" of users (for example, companies that sell music have a higher stake in staying on the side of content providers and record labels than they have in satisfying customers.) 

Will you stand up for the rule of law?  Free speech gets protected in the copyright arena through "fair use."  It is messy and risky to build a business around fair use because the law is so fuzzy.

Are you willing to be a cop?  Service providers need to decide what they value.– they don't legally need to be defamation cops but some times they decide that it's important.

He suggested that most companies want their settings at "zero involvement." 

As a side note, Bridges expressed a worry that Communications Decency Act (that protects providors against culpability when their users committ offenses) might be threatened by the prostitution issues related to Craig's List.

Gelman then weighed in, saying that privacy has to be built into product design rather than future legal risk from the very beginning.  Businesses need to decide how to communicate about the choices and compromises that they've made for their products to work.

The discussion then turned to transparency.  Ozer asked how a company can transparency that people understand.  Answers ranged from Khanna's suggestion that people shoould be able to use their "common sense" to somewhat glib point of view from Okobi-Harris.  She referenced old pictures she had seen of vans from the 70s

 

that said "Cash, Grass, or [expitive for sex], No one rides for free," saying that the same applies to internet services that users can opt out of.  She quickly added that there should be ethical boundries, but "notice" should be enough. 

 

Gelman quickly repsonded to Okobi-Harris with the example that, "there's no way that all the people playing Farmville on Facebook know what they're giving up."  She said that that's notregime we're living in and there's no insentive to go there.  Even though users are given notice, it is not a 'knowing transaction.'

Okobi-Harris then agreed that notice should be given in "plain English."

There was a short question and answer period following the panel which began in classic CFP fashion with a listener disputing the very premise of the panel.  He had not been convinced that Privacy and Free Speech were indeed good for business, because if they were, companies would be in the business of protecting them, and that is clearly not the current trend.