EU Perspectives

There’s no such thing as a free lunch, Alan Friedman

It’s free and we always will be, FB front-page

In the final part of The EU v Palo Alto we come to the crux of the current tussle between Little Brother and Europe. As far as Palo Alto is concerned privacy is a proprietary right to be bought, sold and licensed at will. As far as the EU is concerned privacy is a human right which trumps proprietary rights and which can and must be protected from under-hand profiteering.

A license to Sell

“Your privacy means a lot to us,” states the privacy policy on all “free” on-line service providers. You bet it does. Your private life is what pays for the whole shebang. Although many are vaguely aware of Palo Alto’s sale of their personal data, many still do not fully grasp the extent to which Palo Alto manipulates that data to their own profitable ends and how exactly it is that they can own the personal data we generate. Particularly, teen-agers, the elderly and the uninformed.

Under the current, incomplete, regulatory system in the EU many of those who happily post, share and like their personal details on-line do not own their own lives. Palo Alto does and anyone who denies them the right to own our privacy are stealing their profits, hence the “Privacy is Theft” slogan in the fictional Circle. Where governments seek to protect the personal data of private persons the government is literally, not figuratively, stealing the profits of the big on-line commercial operators.

Say “no” to cookies and you’re not allowed to use the site. Say “no” to the sharing of your data to unknown third parties and you have to delete the whole account or refrain from using the internet. Refuse to license your copyright and it’s the high-way. User’s are in effect given only two options “in” or “out”. There is no option to pay for privacy through old-fashioned hard cash because that would destroy the myth Palo Alto has built up that their services are for free.

Go to the terms of service of any “free” on-line service provider, be it FB, Google, Instagram, Snapchat, What’s App and they all specify that “you own your own data.” Then comes the hard deal:

you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook

you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content

you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods, Twitter

The moment users agree to the terms of service, they license their copyright to Palo Alto who in turn have the legal right to change it, manipulate it – best of all sell it on to unknown third parties for a profit … pass it onto the NSA (though Palo Alto strenuously denies this claim). Millions in the EU are sleep-walking into handing over personal details and all facets of their private lives to Silicon Valley without fully grasping what it is they are handing over. The “free” message has hypnotised us all into gifting the family silver without regard to the consequences of this pact.

On-line services categorically are not free. Were they to be genuinely “free” under English contract law they would not even be a business and would have no right to legal redress in a court of law. Alan Friedman, in a modern context, may be minded to say “There’s not such thing as a free on-line service provider”.

Even for those who appreciate the sale of their data to third party advertisers the long-term effect of surrendering our personal lives to faceless parties remains unclear. Can we assume that Little Brother will always remain a well-intentioned, cheerful kid-brother?

What can be said for certain is that data leads to information which leads to knowledge and knowledge is power. Ownership of our personal information has given Little Brother an awful lot of power over each and every on of us. In the absence of clearly defined laws and the possibility of legal redress in a court of law the most individual users can hope for is that Little Brother will remain a cheerful, youthful kid-brother with his subscriber’s best interests at heart. But what happens when subscriber’s best interest clashes with that of Little Brother’s business interests? Which side of the line will our cheerful-chapy kid-brother then fall on?

Palo Alto set the business model – the EU has set out to regulate the terms of the contract

The EU had little or no say in the business model developed by Palo Alto in the early days of on-line commerce. The existing on-line data protection Directive was devised in 1996 – years before the emergence of internet giants such as Google, Apple, FB or Amazon. For this reason in 2012 the EU proposed a new on-line data Regulation that seeks to limit the extent to which on-line commercial operators can process user’s personal data.

Whilst the proposed new law does not expressly forbid the sale of personal data to third party advertisers it certainly strangles the assumption that Palo Alto can harvest user’s personal data with impunity through owning EU citizens’ data. New concepts such as the “right to be forgotten” will be enshrined in law. The proposed law assumes that personal data is private and not proprietary. As such on-line companies must seek user’s explicit consent, in simple unambiguous language, before they can process user’s data. Last but not least any breach of user’s personal on-line data can result in hefty fines amounting to 2% of world-wide profits.

Palo Alto is worried. Not only will EU regulation complicate their business model it could set a global standard that other regions may wish to emulate. Up until June last year when Snowden spilled the beans on how the US government is spying on European citizens through sites such as Google, Apple and FB, Palo Alto had begun a very effective lobbying campaign designed to scupper EU attempts to regulate personal data and our privacy. Washington was more than happy to help their kid brother out even threatening a “trade war” between the EU and the States if Europe went ahead with its intended regulations.

Since the Snowden revelations in 2013 both Palo Alto and Washington have been a touch more circumspect in their criticism of the EU preferring instead to lobby individual Member States to try and prevent the EU from putting a break on their highly profitable business model.

To conclude, as a society our perception of privacy is very different to those of our grandparents. Many may, or may not, be a lot more relaxed about sharing intimate details of their private lives in return for the fleeing attention it generates within our personal network. What can be said for certain is that knowledge of our private lives gives faceless corporations a huge amount of power over us as individuals. Unless that is we develop rigorous laws that prevent Palo Alto from assuming EU citizens’ private lives are up for grabs. That surely has to be something worth supporting?

 

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