Page 97 - Privacy in a Cyber Age Policy and Practice

84 PRIVACY IN A CYBER AGE

rather to carefully crafted yet misleading commitments to privacy that end
up entrapping the consumer. For instance, after public outcry occurred
over the iPhone’s hidden location-tracking capability, Apple released a
statement denying that they tracked users’ locations and saying that they
rather maintained “a database of WiFi hot spots and cell phone towers
around your current location.” As Mark Rotenberg of the Electronic Privacy
Information Center (EPIC) pointed out, this database is precisely how the
58
company tracks locations, even if it is not tracking the device itself. A
study by DoubleVerify surveyed five billion advertisements and found that
an icon explaining the privacy policy was clicked on only 0.002 percent
of the time—and even then, after users reviewed the advertisers’ infor-
59
mation practices, only 1 percent opted out of the targeted advertising.
“That’s an opt-out rate of just 0.00002%,” Crovitz notes. “People seem to
have adjusted to this new technology faster than regulators are willing to
60
admit.” Crovitz argues that the fact few consumers read these statements
shows they do not care; in actuality, data already cited strongly suggests
61
that they do not use them because they find them impenetrable. Another
national survey found that 57 percent of adult Americans were under the
false impression that if a website merely had a privacy policy, then it would
62
not share their information with other companies. Moreover, individuals
cannot protect themselves from corporations that employ covert tools such
as Flash cookies, supercookies, and widgets.
Large corporations—which do business in all fifty states, as well as
overseas—find it in their interests to promote regulation that would provide
some modicum of privacy. This is the case because such corporations incur
considerable costs when they have to adjust their way of doing business to
different state laws and deal differently with various segments of the market,
some of which are more regulated than others under the current patch-
work of privacy laws.
Therefore, some large corporations that were once opposed to legislation
now favor a federal omnibus privacy law that would simplify the patch-
work of federal sector-specific laws and preempt state-specific statutes.
A Microsoft white paper from 2005 advised, “Federal privacy legislation
should pre-empt state laws that impose requirements for the collection,
63
use, disclosure, and storage of personal information.” Such a law would
likely set standards and ceilings (e.g., caps on damages caused by privacy
violations) that states could not exceed. State laws demanding higher pri-
vacy standards than a federally mandated norm would be invalidated or
at least weakened significantly. Indeed, it seems they would accept only
legislation that included preemption. Former eBay CEO Meg Whitman
explicitly testified before Congress that “legislation without preemption
would make the current situation possibly worse, not better, by creating