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California Attorney General Kamala Harris Talks Mobile Innovation, Privacy, and the Law

BY Sarah Lai Stirland | Wednesday, April 10 2013

California Attorney General Kamala Harris on Wednesday urged mobile software developers to explain to users how their products work as clearly as possible so that there are no nasty surprises -- both on the part of the end users, and the developers who may hear from her office for privacy violations.

"Let’s not stop the innovation. I don’t want to shut it down," she told a roomful of developers and businesspeople at the startup co-working office space Runway Workspace in the South of Market area of San Francisco. "But what we do have to do is to give the user information, and let the user, not anyone else, make the choice about the tradeoff."

Harris spoke at an event organized by her own office, the University of California Hastings (her alma mater) and the Association for Competitive Technology, an association in Washington, D.C. that represents individual software developers who often can't afford to hire their own in-house privacy counsel. Her remarks come as the Obama administration itself is struggling to work with all kinds of stakeholders on how to best protect consumers in a world where their devices are always on, and using the attributes of personal information and location to build their businesses.

Harris' office published a 20 page-plus booklet of checklists and recommendations for app developers to be mindful of when creating their products this January. The Electronic Frontier Foundation, a digital rights group, praised the recommendations, but several advertising associations, including the American Association of Advertising agencies, called them "unworkable."

Her office established a special privacy enforcement and protection unit last July, staffed with some high-powered lawyers, such as Travis LeBlanc, formerly a lawyer at the white-shoe law firms of Williams & Connelly in Washington, D.C., and Keker & Van Nest in San Francisco.

How state attorneys general approach privacy in the digital world is of great interest to practitioners in political technology. San Francisco-based Organizer, for example, enables campaigns to track their field canvassers with GPSes on their mobile phones as they knock on doors and updates information in its voter database in real-time as volunteers collect new data. As users do more and more from their phones, mobile advertising has gained increasing attention from political campaigns. And one of the biggest innovations to come from the Obama campaign in 2012 was software that avoided potential Federal Election Commission roadblocks against collecting mobile donations by allowing donors to authorize, by text message or otherwise, a gift from their credit card account already on file.

The terms of service governing these and many other applications are breaking new legal ground, and consumers are just beginning to understand how their data is shared, used, bought and sold — in politics and otherwise.

Harris is an apt character to follow in the privacy debate. She may be the only attorney general in the country to have made privacy policies a campaign issue when, in 2010, she accused her then-Democratic rival Chris Kelly, Facebook's former chief privacy officer, of giving Facebook's users' information away, a charge that Kelly's campaign denied.

"Some people might not mind giving up their contact list to get that mobile app, because they only have four people in it, and they don’t like them anyway," Harris joked at the event. "Me, not so much. I don’t want to give up my contact list. Let the user figure out what the benefit is before they give it up."

Harris urged developers to tell their users as much as possible about how they use their information, and to give them 'tools' to let them make their choices. The Association for Competitive Technology is working on such tools, like a privacy dashboard that would tell app users, through icons, what information is being collected.

"I am a career prosecutor. I know the great power that we have," Harris told the audience. "I learned at a very young age in my career that with a swipe of my pen, I could charge someone with a misdemeanor, the lowest level of crime possible, and by virtue of doing that, that person would have to pick out of their pockets to hire a lawyer. They may be arrested, they may spend a couple of hours or days in jail, they’ll be embarrassed in the context of their family and community, probably have to miss time from work for court appearances – all because I charged him with a crime. It’s an incredible amount of power that we have, and we’re well aware of that."

Some developers at the meeting Wednesday morning said that they weren't aware of all of the legal requirements they had to fulfill when building their apps, and some even suggested that Google wouldn't have been possible as a company had all these rules on privacy been in place at its founding, a notion that LeBlanc contested during a later panel.

Jerome Starch, a developer who attended a NASA hackathon in March and who is developing an app with information from NASA to get kids interested in science, stood up after Harris left, and said her words "terrified" him.

Morgan Reed, ACT's executive director, re-assured him, saying that NASA uses Privo, a service that ensures app compliance with the Children's Online Privacy Protection Act.

Jonathan Nelson, another entrepreneur who spoke that morning, drew cheers when he said, "What I really want is privacy as a service for $5 a month."