- From: Lorrie Cranor <lorrie@research.att.com>
- Date: Wed, 27 Aug 2003 09:50:48 -0400
- To: public-p3p-spec@w3.org
Dave is on vacation with limited Internet access right now but he sent the following proposals for changes to the spec definitions of disputes and remedies elements and subelements for me to pass on to everyone. We can discuss some today if there is time but will plan on having a longer discussion next week. DISPUTES PROPOSAL: The service-provider offers or acknowledges the following ways for a user to resolve disputes about the service-provider's privacy practices or alleged protocol violations. COMMENT 1: I stil have trouble understanding what "protocol violations" is supposed mean to users. COMMENT 2: I agree with the position that, as a general matter, users and websites can elect a dispute resolution procedure by contract. But I don't think the DISPUTES element & subelements should purport to create such a contract. REASONS: It seems to me that P3Pstatements constitute unilateral assertionsby a website on how the site agrees to be bound. P3P statements are not well suited to serve as assertions by a website on how its visitors will be bound. A website's statements about rules that it asserts will bind its visitors usually appear in a Terms & Conditions section (e.g., "By using this site you agree that any disputes will be submitted tobinding arbitrations...; any legal actions will be subject to the exclusive jurisdiction of the state andfederal courts in the State of California..." etc.). I propose that the DISPUTES & REMEDIES subelements: (a) Allow a site to express its unilateral commitment to honor the indicated dispute resolution & redress mechanisms. Saying that the site "agrees to" a given resolution method is clearer than the current wording that the user "may" avail herself of a given procedure. or (b) Allow a site to express its opinion of what it is required to do to fulfill a given legal obligation. Both of these concepts avoid putting the site in the position of presuming to express exclusive options or to offer legal advice-- both of which are perilous for the site. "service" PROPOSAL: The service-provider's customer service reprseentativei s available to help resolve users' disputes regarding the use of collected data. The description MUST include information about how to contact customer service. QUESTION: Is there a different bewteen "web site," "service," "service-provider," and "company" in the vocabulary? "independent" PROPOSAL: The service-provider is willing to be bound by the authority of an independent organization for resolution of disputes regarding the use of collected data. Thedescription MUST include information about how to contact the third-party organization. "court" PROPOSAL: [Strike this subelement] COMMENT: As noted above, I believe the spec should enable sites to disclose what they bring to the table as opposed to encouraging them to interpret for users the rights that other authorities grant to the users. I propose that this subelement be stricken. "law" PROPOSAL: The service-provider acknowledges or expresses its opinion that the indicated laws may affect users' rights or options for resolving disputes about the collected data. Indicated laws MUST be referenced in the description. COMMENT: In the original wording, from a corporate counselor persepct, I would advise a client to avoid usingthe DISPUTES element. From an AAG perspective, if I saw that a company had listed a value for a DISPUTES subelement and omitted a material consumer alternative, I would have to question whether the company had committed consumer fraud by misleading consumers, even if unintentionally. The proposed language permits an expression thatI would be willing to endorse if I were representinga web-facing company. Under current laws, for example, it is not a stretch to say that universities, banks, loan companies, mortgage lenders, loan brokers, some travel agents, sellers and manufacturers of vehicles, boats, RVs, etc. should anticipate including the following laws in "DISPUTES:law": Gramm-Leach-Bliley Financial Services Modernization Act (and the related Federal Trade Commission or other federal agency Privacy & Safeguards Rules); HIPAA; Fair Credit Reporting Act; Personal Information Protection and Electronic Documents Act (Canada, eff. 1/1/04); USA Patriot Act secs. 326, 352; Office of Foreign Asset Control transaction reporting regulations; Cailfornia SB 1386 (consumer notification of unauthorized access); federal and state Drivers Privacy Protection Acts; federal and state telemarketing laws; federal and state Unfair and Deceptive Acts & Practices laws; European Union Data Protection Directive; US Department of Commerce Safe Harbor; and the Telephone Consumer Protection Act. REMEDIES PROPOSAL: The service-provider offers or acknowledges that the following remedies may apply in case of the service-provider's breach of its privacy policy or in case of a protocol violation; users may also be legally entitled to pursue remedies not listed here. COMMENT: I agree that a company's commitment to redress (provided it is not presented as an exclusive remedy) can add value to a privacy policy. But I respectfully disagree with the position that, without an expression of redress, a P3P policy is not meaningful. Redress exists whether or not it is acknowledged in a privacy policy. The fact that privacy policies have served as the chief exhibits in enforcement efforts to date demonstrates that privacy policies have meaning without specifying redress. From an enforcement point of view, I wouldn't blame a company for avoiding the REMEDIES element if the spec's wording increased the likelihood that the company could unwittingly perpetrate a material omission, as I noted in comments on the DISPUTES element. From a corporate counsel point of view, I think most corporate counselors would consider themselves duty-bound to advise their clients against specifying REMEDIES, since prospectively binding the company to redress without some other legal mandate or business incentive might constitute a disservice to shareholders. "correct" PROPOSAL: The service-provider will attempt to rectify errors or consequences arising from a breach of the privacy policy. QUESTION: Has any company indicated that it would actually be willing to make the broad, prospective commitment expressed in the current spec language? "money" PROPOSAL 1: [Change the subelement name to "compensate."] PROPOSAL 2: If the service-provider violates its privacy policy, it will compensate the individual according to the terms specified in the human-readable privacy policy. "law" PROPOSAL: [For reasons cited above for "DISPUTES:court", and because "REMEDIES:law" would duplicate the values assigned to "DISPUTES:law," I propose that the "law" subelement be stricken. If retained, I propose use of language similar to that proposed for "DISPUTES:law".]
Received on Wednesday, 27 August 2003 09:47:34 UTC