Bob Barr

If one were to read the Federal Trade Commission’s recent staff report discussing ways to protect consumer privacy in mobile apps, one might conclude the federal government genuinely was concerned about consumer privacy.

Among other recommendations, the report supports safeguards such as making data collection more transparent for consumers, requiring affirmative express consent in real-time before data is collected, and adding “Do Not Track” (DNT) mechanisms for mobile users. The agency goes on to give itself a hearty pat on the back for endorsing such processes. In the words of Commission Chairman Jon Leibowitz, “[t[hese best practices will help to safeguard consumer privacy and build trust in the mobile marketplace.”

Caveat emptor.

Taking privacy cues from the federal government is – to say the least --ironic, considering today’s Orwellian level of surveillance. At virtually any given time outside of one’s own home, an American citizen can reasonably assume his movements and actions are being monitored by something, by somebody, somewhere.

Traffic and crime surveillance cameras record your whereabouts on the streets. Police department license plate scanners record where and when you park. Mysterious black boxes located in vehicles track your driving. And, thanks to a recent rare display of congressional bipartisanship that renewed amendments to the Foreign Intelligence Surveillance Act (FISA) a little over a month ago, civilians cannot even be certain their phone calls and emails are not being read and monitored by government snoops.

Once we factor in third-party monitoring via mobile apps, which can continuously track a cell phone’s geo-location even without the user’s knowledge or consent, the very concept of “privacy” becomes virtually irrelevant. There is, however, a major difference between the snooping undertaken by mobile apps, and such actions by government officials: civilians can decide to delete an app if they believe the privacy risks are too great; we cannot simply opt-out of government-sponsored surveillance.

Thus, it is curious the federal government would be making suggestions to private app developers that it won’t apply to itself. In Uncle Sam’s view, “transparency” may be good for the commercial world, but not for himself. For example, efforts simply to find out how many U.S. citizens have been wiretapped under FISA are routinely and repeatedly rebuffed by federal officials. Even an amendment requesting nothing more than an explanation of just why the government believes it has the power to electronically surveil citizens without court order, and what it is snooping for, was killed on the Senate floor.

Numerous private watchdog groups monitor privacy issues within the advertising community, and apply pressure for reform where needed. Therefore, it is not as if privacy breaches by third parties are a more pressing matter than those by the government.

Advertisers want information on users to make them more efficient at selling products to them; products each of us are free to choose to buy or not. Government, on the other hand, wants more information on citizens to make it more efficient at controlling the citizenry. Facebook may track where you are whenever you access their app, but the company is not secretly building a case against you, which could lead to your arrest and possible incarceration.

There is certainly no shortage of horror stories about innocent civilians mistakenly targeted by government surveillance. As I wrote back in December, changes to the way the National Counterterrorism Center (NCTC) collects and analyzes data put citizens at risk of unreasonable surveillance, because innocuous behavior patterns could trigger the government’s secret, predictive pattern-matching.

To be sure, there are many steps private companies could -- and should -- take to protect consumer data and privacy; and suggestions in this regard by the government are a good start. However, before the Uncle Sam starts criticizing app developers for sloppy privacy protocols, it should look to the state of its own house; in which virtually every effort in recent years to provide meaningful reform has been deep-sixed. We are not likely to see a “Do Not Track” option for warrantless government surveillance anytime soon.


Bob Barr

Bob Barr represented Georgia’s 7th district in the U.S. House of Representatives from 1995 -2003 and as U.S. Attorney for the Northern District of Georgia from 1986-1990.