Happy 4th of July

What we celebrate today is the win for humankind that the United States of America embodies in its founding documents.  The ideals and principles that secured liberty and a land of opportunity.  Was it perfect? No.  Is it perfect now? No.  It was and is, however, a grand experiment of We the People governing ourselves.

This unique experiment was not a stab in the dark, but a principled and well thought out assessment of man and government.  It rested on 3 main principles contained in the Declaration of Independence.  First, there is a God who created all men free with certain unalienable rights of personhood.  Second, that there were laws of Nature that governed the world of which were given by Nature’s God.   Third, that men must govern themselves if a government based on the rule of law were to succeed.  By governing themselves, we mean here that men exercised self-control in governing their own persons as guided by the laws of Nature and of Nature’s God.

While Europe was busy colonizing the rest of the world, the American colonies rebelled and threw off the colonial crown of Great Britain because they were being denied their unalienable rights endowed by their Creator.

The Declaration of Independence – In Congress, July 4, 1776.

“The unanimous Declaration of the thirteen united States of America, When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

From the Constitution

The Founding Fathers assessed that man was easily corrupted by power and prone to wield that power in ways that jeopardized other’s liberty.  They established a separation of powers to check this human flaw to ensure continued liberty and prevent the Tyranny they saw in other forms of government.  They established checks and balances between the executive, the legislative, and the judicial branches of government set forth in the U.S Constitution.  The purpose is stated below in the beginning of the Constitution.

 “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

From the Bill of Rights

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

James Maddison summed up these two crown jewels of the Bill of Rights in showing the relationship between the 1st and 4th Amendments.

“A man has a property in his opinions and the free communication of them.
He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.
He has a property very dear to him in the safety and liberty of his person.
He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”  James Madison

Abraham Lincoln on the Declaration of Independence – 1858

The evils of slavery do not diminish the principles on which this nation was founded.  These grand principles were in fact the basis for abolishing slavery.  Abraham Lincoln referenced the founding documents as why slavery must be abolished in a debate with Stephen Douglas where he declares below:

“The Declaration of Independence (said Mr. L.) was formed by the representatives of American liberty from thirteen States of the confederacy—twelve of which were slaveholding communities. We need not discuss the way or the reason of their becoming slaveholding communities. It is sufficient for our purpose that all of them greatly deplored the evil and that they placed a provision in the Constitution which they supposed would gradually remove the disease by cutting off its source. This was the abolition of the slave trade.

So general was conviction—the public determination—to abolish the African slave trade, that the provision which I have referred to as being placed in the Constitution, declared that it should not be abolished prior to the year 1808. A constitutional provision was necessary to prevent the people, through Congress, from putting a stop to the traffic immediately at the close of the war.

Now, if slavery had been a good thing, would the Fathers of the Republic have taken a step calculated to diminish its beneficent influences among themselves, and snatch the boon wholly from their posterity? These communities, by their representatives in old Independence Hall, said to the whole world of men: “We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.” This was their majestic interpretation of the economy of the Universe. This was their lofty, and wise, and noble understanding of the justice of the Creator to His creatures. [Applause.]

Yes, gentlemen, to all His creatures, to the whole great family of man. In their enlightened belief, nothing stamped with the Divine image and likeness was sent into the world to be trodden on, and degraded, and imbruted by its fellows.

They grasped not only the whole race of man then living, but they reached forward and seized upon the farthest posterity.

They erected a beacon to guide their children and their children’s children, and the countless myriads who should inhabit the earth in other ages.

Wise statesmen as they were, they knew the tendency of prosperity to breed tyrants, and so they established these great self-evident truths, that when in the distant future some man, some faction, some interest, should set up the doctrine that none but rich men, or none but white men, were entitled to life, liberty and the pursuit of happiness, their posterity might look up again to the Declaration of Independence and take courage to renew the battle which their fathers began—so that truth, and justice, and mercy, and all the humane and Christian virtues might not be extinguished from the land; so that no man would hereafter dare to limit and circumscribe the great principles on which the temple of liberty was being built. [Loud cheers.]

Now, my countrymen (Mr. Lincoln continued with great earnestness,) if you have been taught doctrines conflicting with the great landmarks of the Declaration of Independence; if you have listened to suggestions which would take away from its grandeur, and mutilate the fair symmetry of its proportions; if you have been inclined to believe that all men are not created equal in those inalienable rights enumerated by our chart of liberty, let me entreat you to come back. Return to the fountain whose waters spring close by the blood of the Revolution.

Think nothing of me—take no thought for the political fate of any man whomsoever—but come back to the truths that are in the Declaration of Independence. You may do anything with me you choose, if you will but heed these sacred principles. You may not only defeat me for the Senate, but you may take me and put me to death. While pretending no indifference to earthly honors, I do claim to be actuated in this contest by something higher than an anxiety for office. I charge you to drop every paltry and insignificant thought for any man’s success. It is nothing; I am nothing; Judge Douglas is nothing. But do not destroy that immortal emblem of Humanity—the Declaration of American Independence.” [4]

Katharine Lee Bates – 1913 – from the song America the Beautiful

America! America! God mend thine ev’ry flaw,
Confirm thy soul in self-control,
Thy liberty in law!

O Beautiful for patriot dream
That sees beyond the years
Thine alabaster cities gleam,
Undimmed by human tears!
America! America! God shed His grace on thee,
And crown thy good with brotherhood
From sea to shining sea!

Martin Luther King Jr. 1963 taken from I Have A Dream

“I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident: that all men are created equal.”

I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today.

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; one day right there in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today.

I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.

This is our hope.”

Secondhand Lions GDPR Cookie Consent Privacy Taste Test

I was challenged by readers in my previous post “Real World Consent Translated to Digital” to describe a digital experience that follows the seven key factors derived from the traveling salesman in Secondhand Lions (SHL).

We are weeks past the start of GDPR (+4) and in addition to being flooded with emails trying to keep you on mailing lists, you have probably noticed some changes in cookie consent banners on web sites.  I’ve mocked up a privacy taste test, if you will, by looking at 4 examples of post GDPR cookie consent to illustrate how well companies are following the SHL traveling salesman’s 7 keys to successful digital interactions.

Cookie Consent is not the end all be all of evaluating a company’s privacy stance, but it is the most immediately visible and why it was chosen to illustrate keys 1-5.  If you are not identified, cookies are mostly collecting semi-pseudonymous data based on your internet browsing.

Official Rules of the SHL Cookie Consent Privacy Taste Test

Below are the seven SHL key factors to advertising digital interactions:

  1. Respecting privacy
  2. Being transparent
  3. Asking for consent, realizing that consent can be withdrawn at any time
  4. Being clear about what he was asking consent for
  5. Earning trust
  6. Offering value – consent and trust got the brother’s “off the porch” and value determined further interaction
  7. Personalizing value and tailoring convenience

The goal of these seven keys is to win consumer trust to begin a conversation in which the advertiser can present something of value to the consumer.  Ultimately, brands and advertisers want to get to a two way conversation with consumers at Key 7.  Brands will be evaluated on how well keys 1-4 earned trust, key 5.  Keys 6 and 7 are for another day and another post that evaluates personally identifiable information.

Key 1 – Respecting privacy:  We need a working definition to evaluate Key 1.  Combining two definitions of privacy from Westin and Wolfe (see post discussing what we mean by the right to privacy) we can define digital privacy as:

The right to control who watches or learns about you and maintaining that control over your personal information.

Key 2 – Being transparent:  I would call this the Hub McCann test after the encounter where Hub tells the traveling salesman hiding behind the car “to come out where we can see you”.  Does the brand show us what they are doing with our data?

Key 3 – Asking for consent that can be withdrawn at any time

Key 4 – Being clear about what you are asking consent for.

The approach and execution of Keys 1-4 will determine the level of trust earned – key 5.  Brands will be scored in each category using the following scale:  0 = Fail; 1 = Low; 2 = Medium; 3 = High

Brand A

Landing on the site of Brand A shows a cookie consent banner on the bottom of the screen on 5/29/2018 seen in figure 1 below.

Figure 1

The site informs you that they use cookies for your experience benefit.  Then they ask you to accept the cookie blindly or choose a cookie preference.  This notice fails in the Key 4 criteria which is why they changed it as of 6/7/2018 to the following notice in figure 2 below.  It really wasn’t clear what they were using the cookies for.

Figure 2

They are now giving us some examples from which we can make an informed decision to “Accept All Cookies”.  This is an improvement on the clear and understandable language of transparency from their original attempt.

You can choose to control how your data is collected and used by clicking on “Cookie Preferences” and a pop up sidebar on the left hand side of the screen appears illustrated in figure 3 below.

Figure 3

Brand A has divided their cookie preferences into 3 categories:

  1. Necessary Cookies –no control
  2. Functional Cookies – You have a choice of all on or all off for functional cookies. It however lacks full control and transparency.  It is one thing to analyze general website usage.  It is another to tell me you are going to suit my needs and improve my user experience.  This sounds like personalization that requires profiling me, but it is unclear.  If I want good website performance, I have to also accept personalization which is implied but not disclosed.
  3. Marketing Cookies – I understand I am going to be profiled if I accept these cookies. Intent is there, but it is not transparent who is going to get my data.  This statement lacks the clarity required by transparency, and the choice is all or nothing based on insufficient information.  Are they sending my data to 5 ad agencies or 250 ad agencies?  It is too general to be transparent, what are they hiding?

Brand A is a good example of doing the minimum to achieve compliance.  They do have a link for more information where we can visit their Privacy Policy which was effective the night before GDPR in clear and understandable language vs. legalese.

Brand B

Brand B’s cookie consent banner below (figure 4) gives the cookie intent with examples and data sharing activity along with a link to a cookie specific policy.  You have the choice to accept the cookie, or visit the cookie settings.

Figure 4

Clicking on Cookie settings opens a Privacy Preference Center (figure 5) with 4 categories of cookies to opt-in to and 2 information tabs.  They are transparent and clear with the intent, and they list the specific cookies used for each category.  I have control of each category, and I don’t have to accept profiling to get good site performance.  This site had 49 targeting cookies which had to be accepted all or nothing.

Figure 5
Brand C

Brand C’s cookie consent banner is brief, but straight forward (Figure 6).   They list 3 ways cookies are used and offer a link to their more detailed cookie notice.  If you don’t agree to the cookies, you can click on manage and a cookie control box pops up (Figure 7).

Figure 6
Figure 7

Brand C gives full control to check which of the 5 cookie categories you opt into or in this case out of.  They also allow you to opt out of each of their 265 cookies spread over 61 screens averaging 4.3 partners per screen.

Brand D

Brand D has really done nothing more than meet the pre-GDPR EU cookie notice pictured below (figure 8) with a link to a privacy policy and an accept button.

Figure 8

They give no real control, and they are not transparent about what is being done.  Your only choice is to accept or deny the cookie – all or nothing.

Taste Test Results

Brand D is not respecting privacy or being transparent and is likely not compliant.  Brand A is the example of doing the minimal for compliance.  As such, Brand A fails to meet the SHL transparency test of “coming out where we can see you” as we have no idea what 3rd parties are getting our data.  Choice and control are also limited.  Overall, Brand A is compliant, but is not respecting privacy or being transparent enough to warrant much trust.

Brands B and C are both respecting privacy and being transparent.  Brand B has the better UX design and is clearer, but Brand C gives more control.  Brand B could use more control as it prevents me from having personalization from say Google but not Facebook.  Both have moved beyond compliance and are winning trust.

Companies who actually respect privacy will make it easy to choose and maintain control of personal information.  Their efforts will be rewarded with greater trust.

Advertising Implications

The take away of this taste test is that compliance with no change in respecting privacy, transparency, control, and consent loses out to those who go beyond compliance.  The foundation of successful digital interactions is trust and merely complying doesn’t win that trust.

Smart companies will respect privacy before they are compelled to do so.  In a Post-GDPR world, this means that people outside of the EU are not treated with less respect for their privacy than EU citizens.  Companies may want to consider the messages they are sending about who they are if they are complying with EU citizens’ data privacy but continue business as usual for those outside the EU.  Respecting privacy wins in the new era of Advertising and Analytics done correctly.  What you waiting for?  Get your audience off the porch with transparent privacy and engage on the level of personalization (SHL Key 7) that leads to higher value relationships.

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The Useful Sanctuary of Privacy

I once was in a two day debate with my college roommate where we knew that we were probably close to agreement, but mentally, we couldn’t establish what our points of departure and agreements were with any precision.

We finally sat down and defined our terms and realized that we were arguing with the same set of terms, but with different definitions attached to those terms.  No wonder we couldn’t reach any agreement.  The lesson learned was to define your terms at the beginning of the debate, and you can probably save some time and anguish in the process.

It just recently dawned on me that I have been designing, advocating, and discussing privacy issues in preparation for GDPR with no real working definitions of what privacy is.  With that lesson learned, what do we really mean by the right to privacy?

The Current State of Understanding Privacy

It is tough to respect privacy if you only have a vague notion of what it is.  I think that this lack of a common working definition contributes to an approach to GDPR and privacy that only sees privacy as a compliance box to be checked instead of something to be valued and protected.

Many of us who live in countries with a history of respecting personal privacy have forgotten its importance.  What was once self-evident has been clouded by the immediate benefits of relative freedoms we now enjoy.  Compound this forgetfulness with social media’s constant blurring between private and public, the paparazzi press, and the politics of personal destruction, and it is no wonder we are unclear about what privacy is and the value of it.

It would be beneficial to step back and define some basics of privacy.  If we don’t, we may again be facing some self-evident truths about privacy with painful reminders of Nazi Germany and the Stasi.  Those who lived through those oppressions understand the value and self-evident nature of the need for privacy.

The Essence of Privacy

Allen Westin, the modern pioneer of electronic privacy, wrote

“The essence of solitude, and all privacy, is a sense of choice and control. You control who watches or learns about you. You choose to leave and return.”

Your right to privacy is about controlling the boundaries you set in different relationships to know you.  We do this every day in the physical world as we relate differently to different people and organizations in different settings and contexts.

Anne Wolfe, a global privacy consultant, defines privacy in an article ‘What is Privacy and Why Should I Care About it’.  In translating this concept of privacy to the digital world, she says

“Privacy is the right of the individual to maintain control over their personal information.”

Instead of thinking that we are merely processing data, we should look at our data for what it really is – the digital representation of ourselves.  The data that you and your devices produce create this Digital You.   If we looked at how we treat Digital You instead of just data processing, a lot of the ambiguity in the GDPR would resolve itself, and the appropriate use of data would be closer to self-evident than it currently is.

With the definitions of privacy given by Westin and Wolfe, we need to look at some false equivalencies that exist in the public conversation about privacy.

Confusing Privacy with Secrecy

One common sentiment that is often voiced is “I don’t worry about privacy because I have nothing to hide”.  A similar expression was captured in 2009 by the now famous statement of then Google CEO Eric Schmidt who said “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”

Both of these statements on the surface seem to carry a tone of moral righteousness which sounds like a reasonable approach to digital privacy.  Yet, on the other hand, there is something in these statements that provokes our intuitive sense of what privacy is.

Again, the poignant thoughts of Allen Westin clarify what is happening in this seemingly Zen tension.  He states in his book Privacy and Freedom

“Don’t destroy privacy. Terrorists of all sorts destroy privacy both by corrupting it into secrecy and by using hostile surveillance to undo its useful sanctuary.”

Both of the prior statements in reality destroy privacy by corrupting it into secrecy and undo privacy’s useful sanctuary.  They both bait and switch the word privacy with the definition of secrecy.  The former is an unalienable right while the latter is a cover for wrong doing.  In so doing, these prior statements devalue privacy and confuse any discussion about the need and preservation of privacy in the digital realm.

Dave Krueger quipped appropriately “The Fourth Amendment wasn’t written for people with nothing to hide any more than the First Amendment was written for people with nothing to say.” John Adams observed that it was this right to privacy that the crown trespassed on that sparked the American Revolution.  The Colonists were ready to die for rights of privacy.  What are some of these useful sanctuaries of privacy?

The Usefulness of Intimate Relationships

Thoughts and relationships are intertwined in privacy.  We all have blind spots, prejudices, wrong assumptions and even mixed motives and wrong inclinations.

The privacy of thoughts have to be allowed to be shared in private conversation with others in our intimate circles without fear of exposure. These relationships allow for our foibles to be corrected, our thoughts to be refined, and weaknesses to be exposed without personal injury or public harm.

Everyone needs the feedback of honest and good friends to be done in private so that we grow and bring forth better ideas.  This is one useful sanctuary of privacy that Allen Westin speaks of that is of benefit to both the individual and society as a whole.

Privacy Protects Against Hostile Surveillance

Mark Rotenberg, the Executive Director of the Electronic Privacy Information Center, commented on Westin’s seminal book saying “Part of ‘Privacy and Freedom’ is the argument that privacy enables freedom.”

Privacy enables the First Amendment rights of freedom of speech and freedom of religion as it protects the individual from hostile surveillance.

John W. Whitehead writes “… encroachments on individual privacy undermine democratic institutions by chilling free speech. When citizens–especially those espousing unpopular viewpoints–are aware that the intimate details of their personal lives are pervasively monitored by government, or even that they could be singled out for discriminatory treatment by government officials as a result of their First Amendment expressive activities, they are less likely to freely express their dissident views.”

This chilling effect occurs because privacy is an unalienable right and an essential component of our humanity.  It is tied up with our personality and freedom so much so that it takes priority over free speech.  We reflexively retreat from public expression to maintain this freedom of thought, personhood, and the big three pursuits of life, liberty, and happiness.

Privacy Protects Our Psychological Wellbeing

It is self-evident when natural privacy boundaries are crossed in social media that psychological well-being is impacted.  Look at our kids and the damage social media can cause in the case of bullying or over sharing.

Allen Westin wrote on the importance of privacy to individuals saying

“Safe privacy is an important component of autonomy, freedom, and thus psychological well-being, in any society that values individuals.”

It is not without reason that the Germans have the most strict data privacy laws after the Nazi and Communist rule.  Sloan and Warner write in the Minnesota Journal of Law, Science & Technology  “The 1950 to 1990 East German Stasi illustrates the threat to self-realization. The hidden, but for every citizen tangible omni-presence of the Stasi, damaged the very basic conditions for individual and societal creativity and development:  Sense of oneself, Trust, Spontaneity.”  The importance and value of privacy are still self-evident to the Germans and their privacy laws reflect their awareness of its value.

Westin and Wolfe have provided good working definitions of what privacy is, and it has been distinguished from secrecy.  Privacy enables intimacy, freedom of speech and religion, and self-realization.   These definitions and usage should provide a baseline to guide future discussions on data usage with more clarity.  I hope they will lead us to the right use of our data, we could all use some  sanctuary.

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