How online privacy notices can achieve informed user consent

The Balancing the Rights of Web Surfers Equally and Responsibly Act, or the Browser Act, has been dormant in Congress since it was introduced last spring. Its most salutary provisions deal with online privacy policies, including a requirement under federal law that users be provided with “clear and conspicuous notice” of the consumer data privacy policies of a communications or technology company, an ability for users to opt in for the collection of sensitive information, and a prohibition on companies denying service to anyone who refuses to waive privacy rights.

The thorniest of these mandates in the Browser Act is the first one, since “clear and conspicuous” is too ambiguous a term. For companies, their main interest is to protect themselves from legal liability, hence the seemingly endless pages of dense text aimed at supporting a claim of a liability waiver if the matter was brought to court. They cannot be faulted for protecting their business interests by having detailed legal language presented before their users accept the terms and conditions.

But a recent survey by Pew Research Center found about 80 percent of Americans said that they are asked to agree to an online privacy policy at least monthly, and 25 percent are asked to do so daily. Not surprisingly, fewer than 20 percent say they read these privacy policies in full before clicking to agree to the terms and conditions. Here are three suggestions for improving the “clear and conspicuous” privacy notice standard in the bill, reflecting marketplace realities and enabling better enforcement by any government agency charged with carrying out this responsibility.

First, the provision should cover not just websites but also apps. That is because the main online touchpoint in the United States is now a mobile smartphone, rather than a desktop or laptop computer with a hardwired broadband connection, according to the research firm Com Score. A law that is aimed at web surfing seems to be as outmoded as dialup service.

Second, online privacy notices should have multiple language capability. Census data shows that at least 15 percent of adult Americans speak a language other than English at home. It is likely that a significant number never have had a chance to read and understand an online privacy notice at all, since there is no requirement that versions other than English be made available. Technology provides an ability for such translations.

Finally, in a world where video is increasingly a main source for online content, privacy notices should be required to be offered in video format as well as text. According to research firm Forrester, a one minute video could contain the equivalent of 3,600 pages of text, which is far more than anything needed to secure meaningful consent. Video privacy notices are more likely to stick and could tap into boundless creative elements to enhance attractiveness and greater understanding.

Cynics may argue that even with these modest modifications, companies still are likely to offer opaque or confusing online privacy notices. But one need not look further than turning on an iPhone to see that it is possible to provide more privacy protection with less verbiage. Apple lets its users know what consumer information the company is not collecting, such as location history, credit and debit card numbers, health records, and news content access. By being upfront with simple language, this modern approach should serve as a benchmark for how consumers will reward those who are providing “clear and conspicuous” privacy notices.

The needs of communications and technology companies can be met while ensuring greater privacy protection for a better informed public. A revised Browser Act can achieve widespread bipartisan acceptance in Congress by being more inclusive and innovative in its approach.

Stuart Brotman is a former government official and fellow in digital privacy policy issues with the Science and Technology Innovation Program at the Woodrow Wilson International Center for Scholars based in Washington.