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Re: ACTION-255: Work on financial reporting text as alternative to legal requirements

From: Rob van Eijk <rob@blaeu.com>
Date: Tue, 02 Oct 2012 10:42:53 +0200
To: <public-tracking@w3.org>
Message-ID: <9a28ad3ec020f3708616434bcf3ef517@xs4all.nl>
Alan,

You wrote:
>>> There are going to be legitimate exceptions for the use
>>> of data. And each exception should be weighed on the merits -
>>> benefit to creating the exception vs risks of keeping the
>>> exception. My issue with your approach is that you aren't really
>>> explaining what you think the harm is to allowing my specific
>>> exception.

Let me make the smoking gun more explicit: asking for motivated 
arguments to show harm does make sense. The logical fallacy however is 
that without prove for harm, the data collection would be a legitimate 
exception.

Although many arguments for permitted uses have been put forward by 
stakeholders to make clear that the collection of data is necessary, in 
the EU the need for data collection is not equal to legal compliance. A 
permitted use under DNT compliance will still have to have to pass the 
legal test, i.e. a business still needs a legal ground for the 
collection of the data, for example consent (Directive 7a), contract 
(Directive 7b) or legitimate business interest (Directive 7f).

Since a permitted use bypasses the consent of the user, the legal 
ground for legitimate business interest is interesting to look at in 
detail. This legal ground balances the need for collection by a business 
with the impact on the privacy for a user. In other words, the motivated 
argument would have to balance A. proportionality of the data collection 
(how big is your gun, why is it necessary) in combination with 
subsidiarity (what are the privacy friendly alternatives) against C. the 
impact of the collection of data on the privacy of the user.

Since Rigo addressed the history of privacy in this discussion, I would 
like to add 2 cents. The latter, the impact of the collection of data on 
the privacy of the user may be seen as the US-concept of harm, but in 
the EU it stems from article 8 of the European Convention on Human 
Rights and article 17 of the International Covenant on Civil and 
Political rights. Obligations with regard to the protection of personal 
data also follow from the OECD Guidelines on the Protection of Privacy 
and Transborder Flows of Personal Data (1980) and the UN Guidelines 
concerning computerized personal data files (1990).

Rob

Alan Chapell schreef op 2012-10-02 01:49:
> The only thing you and I agree upon here is that you can't provide 
> the
> smoking gun. (:
>
>
> More belowŠ
>
>
> On 10/1/12 7:01 PM, "Rigo Wenning" <rigo@w3.org> wrote:
>
>>Alan,
>>
>>On Monday 01 October 2012 16:51:45 Alan Chapell wrote:
>>> I appreciate your taking the time - and the willingness to engage
>>> in dialog. However, you really did not directly answer my
>>> questions. You are providing high level examples of privacy
>>> issues - most of which will not be addressed by DNT unless we
>>> radically change our approach.
>>
>>If DNT would not address some of those issues, you wouldn't see me
>>engaged. :)
>
>>But this IMHO. I also know that I can't provide the
>>smoking gun. I guess, Ninja and Rob could. W3C as a community is a
>>pretty good indication whether something is going on. People are
>>afraid. This can kill the entire market. That's why we are
>>discussing here.
>>
>>more inline
>>
>>> On 10/1/12 4:27 PM, "Rigo Wenning" <rigo@w3.org> wrote:
>>> >blocking tools. I can show you how easy it is. If this is still
>>> >an issue in 5 years, this may even be more damaging to the
>>> >industry than DNT ever could be.
>>>
>>> How is DNT going to stop this practice? If I'm buying my tickets
>>> via Delta.com, Delta is a 1st party and would not be subject to a
>>> DNT signal for these purposes.
>>
>>Oh, Airline XYZ can only do so because they have bought the profile
>>that tells them I can afford the higher price... - just as an
>>example - That we do not address first parties is irrelevant for the
>>EU and a sign of careful nudging of the US community.
>
> In my experience, it would be unlikely (at best) that airline XYZ.com
> would operate in the way that you're suggesting. We need to 
> distinguish
> what is POSSIBLE in theory from what is PRACTICAL. Going back to your
> initial hypo:  you explained that a) you went to XYZ.com in the 
> afternoon
> and got one price and b) you re-visited that site later in the 
> evening and
> got a different price. And you believe that XYZ.com had purchased a
> profile between your afternoon and evening visits to XYZ.com resulted 
> in
> your seat price increasing???? A MUCH more likely scenario is that 
> the
> airline has booked some additional seats on that flight and is now
> charging more for each incremental seat. Or perhaps the airline just
> charges more for flights at night than during the day.
>
> So if this is your example of harm, you may want to keep looking (:
>
>
>
>>>
>>> >2/ Democratic values
>>> >In confirmation of Godwin's law let me tell you that I think that
>>> >totalitarianism doesn't need computers. But it makes life easier
>>> >for them. The concentration of high amounts of personal data in
>>> >few hands is a risk in the power balance.
>>>
>>> I agree - concentration of data in a small number of players is
>>> problematic. How do you see DNT addressing this issue? In fact, I
>>> think one can make a plausible argument that DNT will concentrate
>>> data in a smaller number of entities. I believe that's a horrible
>>> outcome that many in this group may be missing and/or choosing to
>>> ignore.
>>
>>You fail to give an argument for your assertion. While one can make
>>a plausible argument, you'll have to make that argument to
>>contradict me. Why should the number of players be smaller if I can
>>refuse collection? Note: a first party -by definition- can't collect
>>cross site. Leaves you the 2-3 big fish. Those have a different
>>incentive: They are targets.
>>>
>>[...]
>
> If you put the third party intermediaries out of business - by 
> definition
> the marketplace will be smaller.
>
>
>>> My point - There are going to be legitimate exceptions for the use
>>> of data. And each exception should be weighed on the merits -
>>> benefit to creating the exception vs risks of keeping the
>>> exception. My issue with your approach is that you aren't really
>>> explaining what you think the harm is to allowing my specific
>>> exception.
>>
>>Because there is a fundamental transatlantic divide. We have that
>>even internally. While the eastern part believes that the
>>availability of organized personal data is very prone to abuse, the
>>western part believes that it is all about use limitations. Give the
>>data to the junkie but say: "do not use!". Some believe, some don't.
>>Note that those legitimate exceptions are law in EU. Self regulation
>>has to re-invent those. For the unregulated, this is a test whether
>>we can find a reasonable compromise without the formal democratic
>>process.
>
> I have no idea what you mean hereŠ But while we're on the subject of
> providing arguments for your assertions, I'd invite you to provide a
> specific argument of harm that addresses the request for exemptions. 
> If
> the XYZ.com is the best you can do, well...
>
>>
>>>
>>> >It is therefore essential that somebody can just indicate to the
>>> >system not to be recorded. And that the system just does not
>>> >record, or at least throws away after a very short time. So DNT
>>> >is just a tiny tool, a little aspect in this overall picture.
>>> >But it could be a useful tool. Now you may understand that
>>> >recording the same information for accounting or PCMCP (a pure
>>> >use limitation that is) is not sufficient for most people.
>>>
>>> What are these people you cite? Are you representing the interests
>>> of consumers in the same way that Jeff and John are?
>>
>>People just meant my grandma. I neither represent consumers nor
>>industry nor W3C Team. Because the answer given here are not
>>coordinated with the W3C Team. I'm just talking to you from my ivory
>>tower of 15 years of privacy research. This is my second exercise
>>after P3P, XACML privacy extensions and the like... But I see the
>>polls that indicate that over 56% of Europeans erase _all_ their
>>cookies at least once a month. 25% weekly (from the top of my head,
>>search for eurobarometer).
>>
>>2002, the industry thought: "danger banned, no privacy provisions in
>>the US, move on". And the browsers thought: "we manage cookies by
>>blocking tools". Ten years after, we are back to the core semantic
>>problem: "Can I trust your assertions?". What does that tell me?
>>Everybody has to optimize in some direction. That's what this effort
>>is all about. I have to optimize in the direction of excellence...
>>And putting in question the bases of the effort for financial
>>reporting is against my optimization target. And there, your wording
>>was much better (and stronger) than mine.
>
> Thank you. Its interesting that you reference P3P. Do you believe 
> that P3P
> was a success?
>
>>
>>Rigo
>>
Received on Tuesday, 2 October 2012 08:43:27 UTC

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