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New Laws Needed on Capturing Data Collection From Mixed Reality, Experts Say

Benjamin Kahn



Screenshot from the webinar

March 8, 2021—Experts are concerned about the privacy implications emanating from the use of virtual and cross reality devices, which they say could collect user data without consent, and are clamoring for new laws to keep up.

While most Americans are already familiar with virtual reality popularized by devices like Oculus Rift and Sony’s PlayStation VR, cross reality, or XR, is technology that incorporates both physical and digital components that further blur the lines in a user’s brain between what is “real” and what is simply simulated.

As these technologies continue to become more common place, legislators need to catch up and address some of the implications for them, according to experts discussing these mixed reality on Thursday.

Brittan Heller, an attorney who specializes in technology and human rights with Foley Hoag, coined the term “biometric psychography” to describe the way that data is collect in an VR/XR environment.

“It is like a ‘Like’ button on steroids,” she said. Heller explained that while a “Like” button allows a consumer to deliberately inform advertisers what they like, VR/XR tech collects data that a user might not even be conscious of.

“If you go to play [a video game in VR/XR], you really consent to having somebody know whether or not you’re telling the truth, or whether or not you have a proclivity towards neurological ailments like Alzheimer’s schizophrenia or ADHD or we are sexually attracted,” Heller said. “It’s the closest thing to reading you mind.”

Joseph Jerome, a privacy and technology attorney and information privacy professional in Washington, said America’s current privacy standards are not sufficient to address this new technology. When something seemingly as innocuous and unconscious as pupil dilation can be used by advertisers to exploit a consumer’s subconscious desires, a whole new level of privacy legislation is required.

“We’re moving to a universe where you’re going to need more consents for all of this type of information,” Jerome said. He argued that far more time will need to be invested in not only informing consumers what kind of data will be collected from them but educating them on the significance of what they are agreeing to.

Jerome said that privacy advocates and other experts that work in proximity to Big Data need to do more to educate legislators and regulators on the implications of VR/XR technology. He elaborated by saying that the walls of text found in user consent forms and terms of service will be woefully insufficient to inform consumers on what they are precisely agreeing to.

Heller was not just concerned about private corporations, however.

“I’m concerned about the day when I go back and work with the government again and they put a headset on me and ask me questions related to security clearances.”

Editor’s Correction: A previous version of this article erroneously stated that Brittan Heller of Foley Hoag coined the term “biometrics iconography.” In fact, the term he coined is “biometric psychography.”


National Plan Required For Consumer Privacy, Congresswoman says

Samuel Triginelli



Screenshot of Suzan DelBene from C-Span

April 1, 2021 — A Congresswoman from Washington State, who introduced federal legislation that would be the first national consumer privacy law if adopted, says the federal government is being outpaced by some states that are implementing their own consumer privacy legislation.

“There is a significant problem with consumer privacy in the US,” said Representative Suzan Delbene on Tuesday during a New Democratic Network event. Delbene introduced her Information Transparency, and Personal Data Control Act, a wide ranging federal privacy legislation, on March 10. Delbene is the vice chair of the Ways and Means Committee, and is the chair of the House New Democrat Coalition caucus.

There is no federal data privacy law, which has forced some states to pursue their own consumer data policies. That includes California and, recently, Virginia. Some have said the concern is that there will be a patchwork of different privacy legislation that may end up just confusing Americans.

“We need a uniform set of rights for consumers and businesses standards to follow in the digital world,” DelBene said.

The bill states that companies must provide privacy polies in plain language, must allow users to opt-in for personal information gathering, must disclose who personal information is being shared with, and must submit to privacy audits every two years. The federal law would also give the government the ability to preempt existing state laws.

Simon Rosenberg, president of New Democrat Network, said about the bill that, “together, we have a lot of work to do in the coming years to restore the promise of the Internet. One of the areas of greatest need is creating a single working privacy standard for the United States.

“In her bill, the approach Representative DelBene takes to protecting Americans’ privacy is smart, measured, and will undoubtedly be highly influential in shaping the approach Congress takes in the days ahead. It is a very welcome addition to the vital debate underway about our digital future,” Rosenberg added.

The purpose of this bill is to ensure that privacy policies are transparent and clear. “Many consumers are given lots of information with lots of legal terms, that leads them to click the accept button without knowing what they have signed up for,” DelBene said.

“There is an urgent need for consumers to understand what data is being shared,” she added. “We want to make sure there is enforcement. The law says that this will be the responsibility of the Federal Trade Commission, so the FTC must have the resources to do this.

“I think my bill is focused on privacy specifically because I think it is foundational. We build on important things, such as AI, facial recognition, and all the other issues we need to address. If we don’t start addressing the issues of data privacy, it will be hard to imagine how it will the expansion of laws to address a broader set of issues that need to get ahead of.”

Congresswoman DelBene believes the bill can be bipartisan, but she wants to make sure Congress understands its importance. “I’m not sure Congress understands these issues, so it takes a collective effort to push it forward.”

DelBene says she’s confident that Congress will follow the bill, despite many congresspeople who she said are hesitant to take that first step.

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Attach Strings To Data Collection To Combat Surveillance Capitalism, Experts Suggest

Samuel Triginelli



Photo of Marietje Schaake from the European Parliament

March 29, 2021 – Laws addressing how much data can be collected should be among new regulations that must ensure data collection from big technology companies doesn’t harm Americans, according to a March 17 panel of academics at the South by Southwest conference.

The era of corporate self-regulation is now up, said Marietje Schaake of the Standford University Cyber Policy Center and panelist at SXSW conference discussing the “techno-democratic” approach to Big Tech, including what to do about surveillance capitalism.

Surveillance capitalism is an economic system centered on commodifying personal data with the core purpose of profit-making.

“We have heard many pledges, many promises, and good intention offers for solutions for self-regulatory initiatives. And the time is out for those,” she said.

Schaake said it is time the government attach consequences to data collection to the detriment of the public and to set clear limits on collection practices.

“We have tried for too long, and it has led to several distractions and lost time to make sure that the rule of law is leading and that there are enforceable accountable, transparent expectations placed on these companies,” she said.

Joan Donovan, a social scientist at the Harvard Kennedy School, said what’s critical is how much data tech companies should be allowed to collect and under what conditions should they sell it to ensure rights aren’t violated.

“The tech sector as it is built now, relies on harvesting so much data about an individual that their products and the entire economy they are built on could not exist” if there were robust rights and privacy protections in place, Donovan said.

She said the discussion about regulating these businesses should include moving from a focus on protecting enterprise to protecting human rights.

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House Energy and Commerce Chairman Frank Pallone Calls for Update to Children’s Privacy Legislation

Derek Shumway



March 11, 2021 – House Energy and Commerce Committee Chairman Frank Pallone, D-N.J., on Thursday called for an update to the Children’s Online Privacy Protection Act at subcommittee hearing on “Kids Online During COVID: Child Safety in an Increasingly Digital Age.”

“The challenges children face online existed before the pandemic, but it’s only gotten worse,” he said.

Visiting in person with extended family and friends have so far become a thing of the past as the COVID-19 pandemic continues. Many other in-person activities have been replaced with video games, social media, and other video services.

Kids’ screen time has doubled during the pandemic, said Pallone. The effects of too much screen time can increase instances of anxiety, sleep deprivation, obesity, and cyber bullying, he said.

The increased screen time due to the pandemic has turned consumers into victims of what he called harassment and dark pattern manipulation led by advertisers. Children cannot defend themselves like adults in managing these predatory practices, he said.

“Despite laws to protect children’s privacy, data collection and tracking of children is disturbingly prevalent.” He went on to criticize many apps targeting children on mobile devices are notorious for collecting personal information, which is then bought and sold, resulting in advertising meant to manipulate children.

He said that digital ad spending specifically targeting children was expected to reach $1.7 billion this year. COPPA, which hasn’t been updated since 2013, needs to be updated because, he said, internet companies have since continued to target children.

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