Privacy Bill of Rights establishes device identifiers as PII

In my view the Commercial Privacy Bill of Rights drafted by US Senators McCain and Kerry would significantly strengthen the identify fabric of the Internet through its proposal that “a unique persistent identifier associated with an individual or a networked device used by such an individual” must be treated as personally identifiable information (Section 3 – 4 – vii).   This clear and central statement marks a real step forward.  Amongst other things, it covers the MAC addresses of wireless devices and the serial numbers and random identifiers of mobile phones and laptops.

From this fact alone the bill could play a key role in limiting a number of the most privacy-invasive practices used today by Internet services – including location-based services.  For example, a company like Apple could no longer glibly claim, as it does in its current iTunes privacy policy, that device identifiers and location information are “not personally identifying”.  Nor could it profess, as iTunes also currently does, that this means it can “collect, use, transfer, and disclose”  the information “for any purpose”.  Putting location information under the firm control of users is a key legislative requirement addressed by the bill.

The bill also contributes both to the security of the Internet and to individual privacy by unambiguously embracing “Minimal Disclosure for a Constrained Use” as set out in Law 2 of the Laws of Identity.  Title III explicitly establishes a “Right to Purpose Specification; Data Minimization; Constraints on Distribution; and Data Integrity.”

Despite these real positives, the bill as currently formulated leaves me eager to consult a bevy of lawyers – not a good sign.  This may be because it is still a “working draft”, with numerous provisions that must be clarified. 

For example, how would the population at large ever understand the byzantine interlocking of opt-in and opt-out clauses described in Section 202?  At this point, I don&#39t.

And what does the list of exceptions to Unauthorized Use in Section 3 paragraph 8 imply?  Does it mean such uses can be made without notice and consent?

I&#39ll be looking for comments by legal and policy experts.  Already, EPIC has expressed both support and reservations:

Senators John Kerry (D-MA) and John McCain (R-AZ) have introduced the “Commercial Privacy Bill of Rights Act of 2011,” aimed at protecting consumers’ privacy both online and offline. The Bill endorses several “Fair Information Practices,” gives consumers the ability to opt-out of data disclosures to third-parties, and restricts the sharing of sensitive information.

But the Bill does not allow for a private right of action, preempts better state privacy laws, and includes a “Safe Harbor” arrangement that exempts companies from significant privacy requirements.

EPIC has supported privacy laws that provide meaningful enforcement, limit the ability of companies’ to exploit loopholes for behavioral targeting, and ensure that the Federal Trade Commission can investigate and prosecute unfair and deceptive trade practices, as it did with Google Buzz. For more information, see EPIC: Online Tracking and Behavioral Profiling and EPIC: Federal Trade Commission.

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