OPINION: Tech Companies Want to Write Their Own Rules on Data Privacy. Don't Let Them.

by Brianna Auffray and Hillary Haden

The collection and processing of personal data is what makes many of our digital interactions possible. It's what allows you to search your Gmail inbox or get personalized recommendations for movies. But the practice has also brought us what Harvard business professor Shoshana Zuboff has termed "surveillance capitalism." An entire industry now exists to collect and sell your data to companies, which in turn use it to learn more about you and determine how you're likely to behave in the future.

This new industry is enormous and rose to prominence almost overnight. By 2017, user data had surpassed oil to become the most valuable resource in the world.

We're all familiar with the eerie feeling of being flooded with advertisements based on the websites and social media we visit, but it's important to understand that collecting personal information is about more than just ads. Surveillance-based data collection has become an integral part of nearly every economic sector: healthcare, automobiles, education, finance, insurance, and nearly every consumer product or service described as "smart" or "personalized."

While the sale of such data could mean more conveniences for consumers, civil rights advocates are quick to point out that the lack of regulation in these markets leaves users open to extreme abuse by corporations and even governments.

In the vast majority of U.S. states, for example, the maker of your smartwatch could sell your sleep, exercise, and heart-rate data to your health insurance carrier without ever telling you, let alone asking for your consent. Law enforcement and government agencies can likewise bypass Fourth Amendment privacy protections to track protestors and immigrants. In many countries, such data is also used to perpetuate the abuse of workers and carry out the genocide of religious minorities.

Outside the European Union, few laws exist that govern the collection, processing, and sale of data in this digital economy, and most are too weak to adequately protect the public.

In the U.S., the sale of data without consent has already put historically marginalized and surveilled communities at greater risk. Late in 2020, Vice revealed how apps designed specifically for Muslim users were selling personal data to private brokers who shared it with the American military as well as U.S. Immigration and Customs Enforcement (ICE). The apps in question were downloaded more than 150 million times, giving the U.S. government access to sensitive information that would otherwise require a warrant.

Why aren't more people aware of the extreme abuses happening right under our noses? Why is there no collective uproar, no major attempts to stop it? The answer is because Big Tech has worked hard to keep users in the dark. Companies like Google understand that consumers generally don't want them to mine their private email and online activity, so they simply didn't ask. Instead, they created data collection systems that are largely undetectable.

As consumers and regulators begin to catch on, Big Tech has worked to improve its public image. Companies now say they want to help write laws to "regulate" themselves on the local, national, and global stage. But their proposals are often self-serving. Industry lobbyists are currently pushing proposed digital trade rules that would further allow them to extract and control data from individuals, groups, and businesses around the world and prevent state and local governments from passing stronger data-privacy laws.

In Washington state, tech companies are backing SB 5062, a weak privacy bill that protects the exploitative status quo. If this watered-down, corporate-friendly bill is passed, it will become far more difficult to pass privacy laws that meaningfully protect people, both here and across the country.

Spearheaded by Sen. Reuven Carlyle (D), the bill has been promoted by industry as the "gold standard" of privacy. However, a coalition of privacy experts, consumer rights organizations, and civil rights advocates strongly disagree. We argue that the bill's loopholes, opt-out approach to consent, and weak enforcement measures will allow industry to continue doing business as usual. Notably, it even prevents local governments from passing stronger protections.

Another privacy bill, HB 1850, is an improvement on Sen. Carlyle's plan but still contains many of its fundamental problems. It doesn't require companies to get permission before collecting, using, or sharing our data; it contains loopholes, including one that allows warrantless data sharing with law enforcement; and it prevents the passage of stronger privacy laws in the future.

Washington State has the opportunity to push for something much stronger, such as the People's Privacy Act, a proposal championed by the ACLU of Washington and other civil liberties groups. The legislation would force companies to get permission before they collect, use, sell, or share your data. If passed, it would make Washington a model for data privacy nationwide. We shouldn't squander that opportunity.

It's clear we're in a pivotal moment, where key decisions made about digital rules will have long-term repercussions on our everyday lives. These consequences will be felt most by the communities that are already marginalized, whose movements and habits are already preyed on by corporations, and who are already disproportionately and wrongfully surveilled by public and private entities. Companies shouldn't receive blanket protections for technologies that put people's privacy at risk. It's time to call on lawmakers and demand that our privacy be protected.

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Brianna Auffray, Esq., is the legal and policy manager at CAIR Washington, where she uses legal and grassroots advocacy to effect change on behalf of discriminated individuals and communities.

Hillary Haden is the former executive director of the Washington Fair Trade Coalition and organizes for trade policy that works for people and the planet.

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