Former CIA and NSA employee source of intelligence leaks

[Iormlund]

If monopoly status is what defines your indicator for a issue, then surely the cellular phone market is in good shape - I have MANY choices when it comes to what cellular phone I want to purchase.

At least here you have 3 choices in the OS market: Google, Apple and Microsoft. Guess how many of those will protect your privacy ...

[Bluebook]

The Berkut-Yi objection is sound: "unfair advantage" is very vague and elastic; how does it not default to simply being whatever you subjectively think is wrong?

Through the wordings of the legislation and the practice by the courts.

The touchstone for consumer protection should be an analysis of the market and evidence of market failure.

But then you would not adress the Wendy example-type situations, right?

So my question would be - what is the evidence for market failure in the apparent weakness of privacy policies for phones and tablets? 

There are two answers to this question. One, I do not agree that only market faliure can justify consumer protection laws. Two, if I would have to argue for a market faliure I would argue that the consumer cannot make an informed choise regarding the privacy policies for phones and tablets. This because the user agreement is written in such a language and presented in such a fashion (massive block of legal text that invites the reader to skip reading it by providing an easily accessible box to click without even needing to scroll through the entire text before the box becomes active) that it is not reasonable to expect that an average consumer can fully understand the contract and its implications.

One of two things could be going on here: either the (1) evil tech companies are conspiring to undermine privacy and duping gullible consumers, or (2) each of these companies is making a separate decision in calibrating their policies that their ability to use data to lower cost and improve the reliability and feature set of their products is more attractive to consumers than a stronger privacy regime.  And if (2) is true, than having the government step in and force the companies to change their policies leaves both producer and consumers worse off.  So the case for intervention depends on showing that (1) is more likely than (2).  I don't see the evidence for that.  Indeed, it seems to me the evidence is the contrary - because barriers to entry are relatively low, if (1) were true, and a strong demand for more robust privacy policies existed, a new entrant would exploit that demand with a product-service offering that fulfills it, complete with a big advertising campaign lambasting the competion.  And yet we do not see that.

We dont see that because up until recently, most end-users of smartphones were not aware of the extent of the monitoring going on. Also, most end-users, of for example Google, believed that the company was telling the truth when it was saying they only logged search-patterns that were not tied to individuals.

This part of your post is a false dichtonomy (I think that is the correct term in english) because it rests on flawed premises.

[Bluebook]

For example, you go to Wendys and order a burger for $10. On the back side on the bottom of the menu there is a block of small-print writing that you didnt read. You get your burger, eat it, but when the bill arrives, you are charged with $110. What is this? You ask, it said $10 on the menu. Yes, is the reply, but the service fee is $100 on a wednesday after 5pm, it says so right there on the back of the menu in the small-print. But I didnt see that and I did not accept that, you say. Oh, but it is not our fault that you do not read the entire offer we made you through our menu, is it?

Good example.
What the example suggests is the need of a contract regime where parties are required to be explicit and clear about the terms and conditions.
In the data privacy context that would mean requiring the seller to state their privacy policy in reasonably clear terms.
But of course that already exists.  That is the very thing that you and DGuller find insufficient.
What you are proposing instead is that the government set the substantive terms for the contract of the sale of the burger, not just the disclosure.  So to take your example, let's say Wendys does charge a premium price at particular times of the day to reflect peak demand.  The appropriate analogy here would be a government rule forbidding the premium pricing as unfairly exploitative to consumers who have only a limited choice of fast food burgers.

But that is not how the consumer protection laws work over here.

To use this example, by our law, Wendys would not be allowed to charge the consumer $110 because they had given the impression that the price was $10, and the hidden fees would just be ignored by the court. So, Wendys would be perfectly allowed to serve burgers at $110, but they would have to put the entire cost of the product/service together in one place where it is not easy to miss it or missunderstand it.

I am not arguing for some socialistic nightmare where the government dictates what price a product can be sold for. What our consumer protection law means is that you protect the consumer from being exploited in an unfair way, like the Wendys example.

[The Minsky Moment]

Wait what? Barriers are low to become an ISP or develop a phone OS? If it's that easy to dethrone Google as a search engine how do you explain its de facto monopoly status? Or Microsofts in the PC OS market?

Seriously?

ISPs - there are still hundreds of these in the US, despite consolidation

Phone OS - I don't see the relevance of this category.  As it happens, there is a very popular open source OS for mobile devices, which therefore makes it very easy for new entrants.  If for some reason a company wanted to develop its own phone OS, it would be well within the capability of a decent sized tech company.  Although it would be easier just to buy one - for example LG just bought the Palm OS from Hewlett-Packard.

Search engines - your comment actually acknowledges the ease of entry and widespread competition.  The source of Google's market strength I think is pretty clear and has nothing to do with barriers to entry which are virtually non-existent.

PC OS - comments above apply here as well. 

[The Minsky Moment]

At least here you have 3 choices in the OS market: Google, Apple and Microsoft. Guess how many of those will protect your privacy ...

There is no Google OS.  There is Android, which is available by open source licensing and whose license permits modifications.  Including providing whatever strength privacy and security regime the developer wishes to offer.

[The Minsky Moment]

Through the wordings of the legislation and the practice by the courts.

So what's the wording of the legislation?
And if were are talking about the EU - the practice of the courts is not that helpful because the court rulings are not precedential.

But then you would not adress the Wendy example-type situations, right?

Your Wendy's hypo is dealt with by contract law - there is no contract because buyer was never informed of the terms and thus there was no meeting of the mind.
of course I don't have any problem with a disclosure regime that requires clear notification of material terms of the contract.
Those protections already exist and yet they are not sufficient for you.

[Iormlund]

More later, gonna tell NSA that I need a haircut.

[derspiess]

More later, gonna tell NSA that I need a haircut.

They already know

[The Minsky Moment]

We dont see that because up until recently, most end-users of smartphones were not aware of the extent of the monitoring going on. Also, most end-users, of for example Google, believed that the company was telling the truth when it was saying they only logged search-patterns that were not tied to individuals.

If the problem is consumer ignorance, then a competitor could have made a mint with an advertising campaign revealing the perfidy of Big Tech and promoting their own alternative, privacy-protecting service.  It's not like competitive advertising is unknown in this space.  Samsung has attacked iPhone for its speed, battery life, and screen size.  They have even mocked the "Apple culture".  If there was money to be made offering a superior data privacy option, I doubt highly competitors would be shy about making sure customers found out the relevant facts.

[Bluebook]

So what's the wording of the legislation?

Well, its a law, so I cant really go into all the specifics. But basically there is one consumer protection law dealing with the purchase of goods, and one dealing with the purchase of services, and another dealing with acquiring loans etc. They state roughly the same that the "normal" purchase of goods-law and purchase of services-law, with some changes to the benefit of the buyer. For example what constitutes a defect in the goods. Say you buy a car. If you are a company buying a car, and the car turns out to be defect in some way, caveat emptor applies. But if you are a consumer buying a car, and the car turns out to be defect in some way, you can either cancel the purchase or demand that the seller fixes the problem without cost to you. Etc, its lots of things really, but basically, the consumer protection laws tilts the balance between the contracting parties in the favor of the consumer.

And if were are talking about the EU - the practice of the courts is not that helpful because the court rulings are not precedential.

God no. This is national law.

Your Wendy's hypo is dealt with by contract law - there is no contract because buyer was never informed of the terms and thus there was no meeting of the mind.

Ok, there you have your argument that invalidates the privacy agreements with tablets and smartphones then.

of course I don't have any problem with a disclosure regime that requires clear notification of material terms of the contract.
Those protections already exist and yet they are not sufficient for you.

That they are not sufficient in their current form and regarding this situation should not be in dispute. No?

[frunk]

If the problem is consumer ignorance, then a competitor could have made a mint with an advertising campaign revealing the perfidy of Big Tech and promoting their own alternative, privacy-protecting service.  It's not like competitive advertising is unknown in this space.  Samsung has attacked iPhone for its speed, battery life, and screen size.  They have even mocked the "Apple culture".  If there was money to be made offering a superior data privacy option, I doubt highly competitors would be shy about making sure customers found out the relevant facts.

That data is incredibly valuable to phone providers for marketing purposes.  I'm pretty sure they aren't interested in publicizing it any more than they have to.

[Admiral Yi]

That data is incredibly valuable to phone providers for marketing purposes.  I'm pretty sure they aren't interested in publicizing it any more than they have to.

Joan's obvious point is that if demand existed, a competitor should be very interested in publicizing it.

[Maximus]

I am not sure where I stand on the regulation issue. There do not seem to be any good options.

Same goes for my job.

[alfred russel]

On a slightly related topic: just saw pics of Snowden's dancer girlfriend. Holy crap!

Going from banging that girl on a regular basis to (at best) a life on the run. Now that's commitment to freedom.

In general I agree with the point of view that this program is bullshit. I also think it is counterproductive to US interests, regardless of the freedom angle.

However, I tend to take a suspicious view toward whistleblowers even if they are working for a good cause. This guy is now an international celebrity with a large number of people considering him a hero. He probably can capitalize on that notoriety. His life on the run may consist of living in some really nice places (or he may expect that at least).

He could have made the calculation that this is better than punching a timeclock in anonymity until he turns 65.

[Valmy]

If my doctor wanted to sell my data, I would find another doctor. So these is a classic false dilemma - there is not "go without healthcare" repercussion.

Oh dear, allowing me to make a choice! Can't have that! I might make the wrong one!

Basically I agree except...well if he is doing that secretly how exactly would you know to do that?  What if he had been doing that for years without your knowledge?  Get in your time machine and go make a different choice?