FCC Broadband Plan and Privacy

The FCC presented this week its much-awaited National Broadband Plan.

Parts of the plan deal with online privacy, as broadband makes collection of personal data easier.

The FCC notes (Chapter 4, p.53) that “the emergence of broadband and the growing use of the Internet make aggregation of detailed personal data much easier and more valuable.” Since it is now easy to collect data from Internet site visitors, even single companies have the power to collect, aggregate and analyze massive amounts of personal data, allowing them to create a “digital identity,” that is, a very detailed picture of an individual, from his geographic location, his health, his eating and entertainment tastes, and so on.

This data is of great value to marketers, allowing them to target specific ads based on these digital identities, making it six times more likely, according to the FCC, that a consumer thus targeted will click on an ad.

The FCC is concerned about the impact that the ability of gathering these digital identities will have on competition. On one hand, companies already in the market have collected this massive amount of data over the years, allowing them to fine tune their marketing strategy. Indeed, according to the plan, this data is so valuable that these companies “increasingly offer their products and services free of any monetary charges. Consumers gain access to a valuable service, and businesses gain valuable information.”

In exchange for giving companies access to our personal data, consumers gain free products and services: I have a lot of problem with that statement. Let’s consider that personal data has a market value, allowing us to trade it for free products. Well, personal data does not have a sustainable value. The scenario "trade it once, lose it for ever" is a real possibility, as it is very easy to copy digital data. Like copyright pirates, we could see the emergence of data pirates. So, increasingly, as I trade more and more of my personal information, I will have less and less info to trade for these free products, and that may prevent me from dealing effectively in the market.

True, we evolve constantly as human beings, and new data is added to our digital identify every day. However, not every new data has the same value: the fact that Jane discovered that indeed Strawberry Swirl is her favorite ice cream flavor is not as important for her, nor as important for a marketer, as the fact that she will give birth to triplets in the Fall.

New firms without access to these detailed “digital identities” face competive challenges: The report goes on by noting that since new firms have not yet gathered these digital identities, they cannot monetize their audience through advertising and thus are facing competitive challenges.

The solution, according to the plan, is giving individuals control of their digital profiles: “Giving consumers control of their digital profiles and personal data, including
the ability to transfer some or all of it to a third party of their choice, may enable the development of new applications and services, and reduce barriers to entry for new firms.”

But is it really possible to transfer data to a third party without that data loosing some of its value? Our data has already been traded by Firm number 1 to an advertiser. If Firm number 2 comes later and proposes the same product, our digital identity, to the same advertisers, isn’t the value of our data then lower? Just as a digital photograph, digital personal information can be copied and stored instantly. True, Firm number 2 may have gathered more information on us, but if individuals keep “reselling” their digital profiles to every company in the open market, these profiles will lose their value, as every advertiser will be able to gain access to them, and thus none of them will have any longer the competitive advantage of knowing its target audience with such precision. Every firm will have that power, and the value of our digital identity will be diluted, thus impairing our own ability to trade it.

French Assembly Voted HADOPI 2

The French Assemblée Nationale passed yesterday the HADOPI 2 bill by 285 votes to 225. Opponents to the bill already announced that they will ask the Conseil Constitutionnel to review it.

Article 2 of the adopted text would insert an article 495-6-1 in the French IP Code and authorize the use of an ordonnance pénale (criminal order) procedure, in order to prosecute Internet users using their connection to download protected material.

Pursuant to article 525 of the French criminal procedure Code, no preliminary hearing is necessary in this case: “The judge rules without a prior hearing by making a criminal order; this either provides for a discharge, or imposes a fine together with, where necessary, one or more of supplementary penalties applicable. If he considers that an adversarial hearing would be useful, the judge returns the case file to the public prosecutor for it to be prosecuted with the ordinary procedural formalities.”

Article 3 ter A (nouveau) of the HADOPI 2 text also adds an article L. 335-7-2 to the French IP Code: “In order to impose the suspension penalty provided for in Articles L. 335-7 and L. 335-7-1 and to determine its duration, the court takes into account the circumstances and severity of the offence and the personality of its author, and in particular his occupation or social position, and his socio-economic situation. The length of the sentence must balance the protection of rights of intellectual property and respect the right to express himself and communicate freely, especially from his home. "

Will it really be possible to find out who is the perpetrator of the illegal downloading? I am not my IP address! I do not block access to my computer with a lock! Whoever used my computer and/or my Internet access is not necessarily me… Digital Identity and Real World Identity are not always the same... Using the criminal order procedure, in cases where one is not even sure who the criminal is? The French legislators may be a trifle too optimistic.