The Right to Know Act has a great ring to it. Even if you don’t care to read the substance of the legislation—sponsored by state Sen. Michael Hastings, D-Tenley Park—it’s good retail politics. It wouldn’t be as compelling if it were called the “Next Great App Killer Act” or “Helping Lawyers Sue Tech Companies Act.” Unfortunately, the latter titles are probably closer to accurate.
The proposed legislation boldly declares “all individual have a right to privacy in information pertaining to them” that is “protected by the United States Constitution.” That’s absolutely true, if we’re talking about the Constitution’s Fourth Amendment limitations on what government may do with our private information. The Constitution’s privacy protections do not extend to private exchanges of information. In fact, those generally are protected as “speech” by the First Amendment.
When it comes to commercial consumer data, conceptions of data privacy continue to evolve, as they require balancing what consumers reasonably expect to be kept confidential with what consumers want in terms of convenience and performance. Currently, we have a patchwork of federal laws that cover the topic, including the Health Insurance Portability and Accountability Act, the Gramm-Leach-Bliley Act and the Children’s Online Privacy Protection Rule. A smattering of state-based consumer information laws form another layer of privacy rules.
Most of these laws outline rules for how to treat specific kinds of nonpublic information, such as health or credit information. They also require any number of consumer notifications when data security has been breached. When it comes to items like our financial transactions, phone records and health information disclosed to a physician, most of us have a reasonable expectation of privacy.
But that’s not necessarily the case when we use social media, search engines and GPS-based apps like Uber and Yelp. Unless you’ve been living under a rock, you probably recognize the reason many technology companies develop free applications isn’t out of a sense of philanthropy—it’s because the treasure trove of user data is so valuable. That’s a strong incentive for new market entrants to create the next generation of technologies and apps we want.
For example, I know my information is collected to improve how various app and website services perform for me. The trade-off is that companies I patronize have a massive amount of data about my habits, purchases and location. That information is extremely valuable to companies that want my business, politicians who want my vote and charities that want my support. But that’s the deal. When I breeze through those boilerplate legal declarations while installing the software, I’m essentially agreeing that my use of the app or website is worth the trade-off and the associated risks. If I don’t want to take the risk, I forfeit the convenience of the technology.
The problem with the Right to Know Act is that it puts the judgment of legislators and the financial interests of lawyers ahead of consumers. The proposed legislation modifies that boilerplate agreements you’re already ignoring to give Illinois consumers a right to request information about which categories of personal information are disclosed to which third parties. Most notably, it creates a right to sue for $10 in liquidated damages (where actual damages are less than that total), injunctive relief and, of course, attorneys’ fees.
Since most consumers would rather simply use the technology in question than file a lawsuit for $10, this legislation appears custom built enterprising politicians for attorneys interested in putting together class-action lawsuits. Nothing says “thank you” to the plaintiff’s bar for supporting your campaign quite like inventing a new cause of action.
In addition to empowering lawyers, this bill also burdens commercial website and other online services with new compliance costs, in the form of information-disclosure, data-collection and data-retention requirements. This can mean the difference between a technology company adding a new feature to an app, or spending more on legal counsel. While politicians and lawyers line their pockets, consumers will bear the cost in the form of less effective apps.
Image by RRuntsch