Re: Third parties should not pretend to be first parties

I did not write this particular section, so I cannot speak to drafting 
intent.  I believe that the language was drafted very narrowly 
specifically to apply only to those situations where it makes sense to 
consider the service provider as essentially an extension of the first 
party.  Otherwise, the vendor should logically be treated as a third 
party.  Note however, that third parties still have the potential to do 
many of the things you express concern about --- those operational use 
cases for third parties are all provided for in 4.4.1.  The parameters 
of both exceptions (outsourcing and operational use) are still very much 
in play (as is the exception for unidentifiable data), and I hope the 
group will focus closely on these issues after the release of the Second 
Public Working Draft next week.

Justin Brookman
Director, Consumer Privacy
Center for Democracy&  Technology
1634 I Street NW, Suite 1100
Washington, DC 20006
tel 202.407.8812
fax 202.637.0969
justin@cdt.org
http://www.cdt.org
@CenDemTech
@JustinBrookman


On 3/1/2012 1:21 PM, Vinay Goel wrote:
>
> Hi Justin,
>
> I have a few concerns over the exception for outsourcing as I don't 
> think it fairly captures the service provider relationship.  I'm new 
> to the working group, so I want to make sure I understand the drafting 
> intent.
>
> In particular, my concerns over the definition are:
>
>         - Sub-clause (2) states that the company providing outsourced 
> services has absolutely no independent right to use the data for its 
> own purposes. This includes using the data for product improvement 
> purposes.  A service provider does not use the data for its own 
> customization or profiling purposes; but the service provider needs to 
> understand how the data is flowing and how consumers (users) and 
> customers (websites) areusing our services.  At a minimum, we need to 
> use the data to ensure the products are working properly (and honoring 
> DNT).  But also, if the service provider is not allowed to use the 
> information toimprove its products and services, there is little 
> motivation for our customers to agree to honor DNT.  They want more 
> features; not less.  And, if we are limited in the features we offer 
> our customers (websites), the websites have less motivation to honor DNT.
>
>         - Sub-clause (2) also states that these service providers 
> cannot provide to the industry highly aggregated industry reports that 
> show usage and web trends.  Preventing service providers from doing 
> this isdetrimental to our customers (helping dissuade DNT adoption) 
> and to us. For example, aggregated industry reports on consumer DNT 
> adoption rates by browser/market could be useful in helping understand 
> consumer understanding of DNT and if it is more understood based on a 
> particular browser's implementation.  This definition would prevent 
> these reports from being generated.  I understand that aggregate 
> industry reports are being discussed elsewhere in the document.  Can 
> you help clarify how this relates to those other sections?
>
>         - Sub-clause (3) suggests that the outsourcing provider is 
> required to delete the data once the legal enforceability of our 
> contracts end.  While I agree with the principal of data minimization, 
> I don't think we should tie retention dates to contract expiration 
> dates.  As stated further in the document, there are a few reasons 
> (financial, auditing, legal, fraud) the outsourcing provider may 
> retain data past legal enforceability of the contract.  I understand 
> the intent of this section, but I would suggest we would bebetter off 
> setting limits on how the 3rd party can use (and cannot use) the data 
> instead of forcing deletion.
>
>         - The 'Note' within the non-normative section states that any 
> data collected by the service provider that 'may be used’ is subject 
> to the requirements for third parties.  That 'may be used' portion of 
> the sentence seems to counter (4) where it states that so long as the 
> 3rd party has reasonable technical precautions to prevent the 
> co-mingling.  In particular, the 'may be used' portion suggests that 
> even the 3rd party has reasonable technical precautions, if there is 
> at all any chance the data can be co-mingled, its a 3rd party and not 
> a service provider.
>
> Can you help me understand the reasoning behind the language as 
> currently proposed?  I fear that it would actually prevent DNT 
> adoption and set unrealistic (or unachievable requirements as it 
> relates to co-mingling) upon companiestrying to act on behalf of the 
> 1st party.
>
> -Vinay
>
> ------------------------------------------------------------------------
>
> *Vinay Goel* | Privacy Product Manager | Adobe Systems | Office: 
> 917.934.0867
>
> From: Justin Brookman <jbrookman@cdt.org <mailto:jbrookman@cdt.org>>
> Date: Wed, 29 Feb 2012 19:53:51 -0800
> To: "public-tracking@w3.org <mailto:public-tracking@w3.org>" 
> <public-tracking@w3.org <mailto:public-tracking@w3.org>>
> Subject: Re: Third parties should not pretend to be first parties
>
> There is already an entire section of the compliance spec on this 
> exact issue --- 4.4.2 Exception for Outsourcing.  Is there any reason 
> that exception does not address everyone's concerns, rather than 
> resorting to the fiction that service providers are the same entity as 
> the first party (despite an earlier definition of party that says 
> otherwise)?
>
> If the current exception for outsourcing is not sufficient, I would 
> suggest just revising that to address the problem instead of torturing 
> the definition of "party."
>
>     ------------------------------------------------------------------------
>     *From:* Joanne Furtsch [mailto:jfurtsch@truste.com]
>     *To:* Shane Wiley [mailto:wileys@yahoo-inc.com], Roy T. Fielding
>     [mailto:fielding@gbiv.com], Jonathan Mayer
>     [mailto:jmayer@stanford.edu]
>     *Cc:* Tom Lowenthal [mailto:tom@mozilla.com],
>     public-tracking@w3.org <mailto:public-tracking@w3.org>
>     [mailto:public-tracking@w3.org]
>     *Sent:* Wed, 29 Feb 2012 22:24:07 -0500
>     *Subject:* Re: Third parties should not pretend to be first parties
>
>     Agree Service Provider should be defined since they would show up as a
>     third party but are acting on behalf of a first party in essence
>     making
>     them a first party. It is a special category of third party. Here is a
>     proposed Service Provider definition as a starting point.
>
>     "Service Provider" is anyone other than the First Party that
>     performs, or
>     assists in the performance of a function or activity that may
>     involve the
>     collection, use, and disclosure of data. Such use must only be on
>     behalf
>     and at the instruction of the First Party, and only for the purpose of
>     performing or assisting in that specific function or activity as
>     agreed to
>     by the First Party.
>
>
>     On 2/29/12 6:41 PM, "Shane Wiley" <wileys@yahoo-inc.com
>     <mailto:wileys@yahoo-inc.com>> wrote:
>
>     >I agree with both sides and suggest we set forth the definition of a
>     >Service Provider as a separate and distinct, "special" kind of 3rd
>     party
>     >that is able to be treated as a 1st party if the appropriate
>     conditions
>     >are met (contractual relationship, data segregation, etc.). This will
>     >meet the reality of online business operations today AND provide a
>     >construct such that Service Providers are not confused in language
>     >directed at actual 3rd parties. Fair?
>     >
>     >1st Party
>     >3rd Party
>     >Service Provider (3rd Party acting as a 1st Party)
>     >Widget (1st Party on 3rd Party sites)
>     >
>     >- Shane
>     >
>     >-----Original Message-----
>     >From: Roy T. Fielding [mailto:fielding@gbiv.com
>     <mailto:fielding@gbiv.com>]
>     >Sent: Wednesday, February 29, 2012 7:29 PM
>     >To: Jonathan Mayer
>     >Cc: Tom Lowenthal; public-tracking@w3.org
>     <mailto:public-tracking@w3.org>
>     >Subject: Re: Third parties should not pretend to be first parties
>     >
>     >On Feb 29, 2012, at 6:00 PM, Jonathan Mayer wrote:
>     >
>     >> The provisions on outsourcing are not "overly simplistic" in the
>     >>slightest. The group worked through them at Santa Clara, on the list,
>     >>and on multiple calls. We've talking through myriad hypotheticals,
>     >>including service providers like a cloud computing platform.
>     >>
>     >> Unless you have a new use case, I think this is all long since
>     closed.
>     >
>     >Those sections are marked as PENDING REVIEW in the document, and the
>     >particular issue we are talking about now (ISSUE-123) is still OPEN.
>     >
>     >Since neither of you are on the hook to implement this, I suggest
>     >you pay attention to my concerns: I object to this wording if it
>     >includes third parties acting as a first party. A third-party acting
>     >as a first-party may present itself as the first-party because it is
>     >already constrained by the section defining "acting as a first-party".
>     >
>     >....Roy
>     >
>     >
>     >
>
>
> ------------------------------------------------------------------------
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