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Roger Clarke **
Version of 20 January 2006
Presented at the 19th Bled eCommerce Conf., Slovenia, 5-7 June 2006
© Xamax Consultancy Pty Ltd, 2006
Available under an AEShareNet licence or a Creative Commons licence.
This document is at http://www.rogerclarke.com/EC/PPSE0601.html
This paper adds to the growing research literature on PPS by developing a research design involving comparison of an organisation's PPS against a normative template. A pilot study of six B2C sites was undertaken, in order to assess the practicability of the design, and provide some initial substantive insight into the contributions that PPS currently make to consumer trust.
PPS emerged in the U.S.A. in the mid-to-late 1990s. The U.S. has no generic private sector privacy legislation, with its Congress clinging to the belief that business should remain as unfettered as possible. The idea of self-regulation has been put forward as an alternative to genuine regulation of business activities. PPS were intended to be an element in that framework. Their use has spread, however. They have come to be used in jurisdictions where data protection laws exist and the statement's impacts and purposes are rather different.
PPS have been studied from a number of perspectives. The research on which this paper is based adopts an approach different from prior studies. A pilot study was undertaken to evaluate a number of PPS against a normative template, in order to assess the extent to which they were likely to represent effective protection for consumers' privacy.
This is a further project in a long-running research program undertaken by the author in the area of privacy and information technology generally, in the context of the Internet in particular, and in B2C eCommerce specifically. 15 of the c. 70 citations are accordingly to prior refereed papers by the author. These provide fuller analyses and arguments supporting various points made in this paper, and many further references to the relevant literature.
According to the Theory of Reasoned Action (TRA) of Ajzen & Fishbein (1980), trust and risk are major determinants of attitude towards purchasing, and hence of intention to purchase. In the context of Internet-based B2C eCommerce, trust is usefully defined as confident reliance by one party about the behaviour of other parties.
The concept of trust originates in familial and social settings, where parties have considerable mutual understanding, mutual interests, and mutual dependence. These are difficult to replicate in merely economic relationships. In B2C eCommerce, trust is little more than what the consumer is forced to depend on when no other form of risk amelioration strategy is available.
The strongest sources of trust arise from a pre-existing direct relationship between the parties, primarily kinship and mateship, but also to some extent in such commercial forms as principal-agent relationships, contract and multiple prior transactions (Clarke 2002a). A less strong source is direct experience, as arises from a prior transaction, or perhaps prior exposure to the organisation concerned, e.g. by watching a trusted friend conduct a transaction. Weaker again is referred trust, such as 'word-of-mouth' and reputation. Still weaker are mere symbols of trust, which are often nothing more than contrived images, in the form of brands. The weakest form of all is 'meta-brands', such as accreditation and 'seals of approval', especially from industry associations that lack the power to regulate even their members let alone non-members (Clarke 2001b).
Trust is not easy to achieve in Internet contexts. The parties have little knowledge about one another, and cannot depend on such confidence-engendering measures as physical proximity, handshakes, body language, a common legal jurisdiction, or even necessarily any definable jurisdiction (e.g. Lee & Turban 2001, Clarke 2001c).
When business interests finally discovered the Internet in the mid-1990s, it was assumed that electronic commerce would explode. In fact, adoption was far slower than most Internet growth metrics, because business failed to address the trust gap. This was examined in Clarke (1999b).
Trust issues are many and varied. Some are related to the terms of trade, especially their non-negotiability, their imbalance in favour of the vendor, the location of the contract in a jurisdiction that suits the vendor rather than the customer, and the lack of consumer protections that the consumer normally enjoys when purchasing goods and services in their home jurisdiction. Further concerns arise in relation to default by the vendor or by the carrier selected by the vendor. Yet more are security issues, relating to the consumer's identity and personal data, including the person's location and contact-points.
This paper is concerned with the particular cluster of impediments to the adoption of B2C eCommerce that are associated with privacy. Privacy is the interest that individuals have in sustaining a 'personal space', free from interference by other people and organisations. There are many dimensions of privacy. The one most relevant to the present context is personal data privacy. Key requirements include the individual's ability to prevent data about themselves being available to other individuals and organisations, and, where data is available, the ability to control its quality, use and further disclosure.
The role that privacy plays in the achievement of trust has been examined by various researchers (e.g. Palmer et al. 2000, Clarke 2001c, Belanger et al. 2002, Xu et al. 2003). The fundamental requirements are that the amount of personal data available to the marketer must be minimised, and such data as is available must be and be perceived by consumers to be protected against abuse by the marketer and others. This may be achieved through substantive measures combined with effective communication of their existence to consumers; or by effective communication based on as limited an actual set of constraints as the organisation can get away with. There are significance cultural differences in the importance placed on privacy, and its role in trust (e.g. Dinev et al. 2005, Kim 2005).
Several different approaches are taken to privacy protection. This section briefly reviews ways in which online marketers can design their business processes to be privacy-sensitive, and can use technology as an antidote as well as a threat. It culminates in a summary of the ways in which the law can be used to protect privacy.
Until the early-to-mid twentieth century, most consumer transactions were conducted in physical marketplaces. Judgements were made based on the information available at the time the decision was made, and little data was stored. Progressively, as managerial rationalism took hold, as labour became more efficient through specialisation, and as consumer marketing businesses became larger, more personal data came to be captured. During the second half of the twentieth century, enormous advances in information technology resulted in the capacity for marketers to depend more and more on data as a substitute for knowledge of their customers, and to become more and more remote from them.
But businesses can choose the appropriate degree of dependence on intensive personal data. They can enable anonymous and pseudonymous purchasing, by denying themselves the opportunity to consolidate data about each customer, to use it, and to pass it on to others. Even where they transact with known identities, they can limit the data that they retain (as some vendors do, for example, by not retaining credit-card details). Businesses that hold identified data need to implement appropriate organisational security measures to protect it.
It was suggested in Clarke (1998) that direct marketing using electronic channels would be more successful if the following principles were applied:
Information technology has been primarily harmful to the privacy interest, resulting in increasingly widespread use of the term Privacy-Invasive Technologies, or 'the PITs' (Clarke 2001a).
A movement has been in train for a decade now, intended to apply information technology in support of privacy rather than against it. This goes under the name Privacy-Enhancing Technologies (PETs), a term which appears to have originated in IPCR (1995). See also EPIC (1996-) and Burkert (1997). Specialist PET Workshops have been held annually since 2001.
(Clarke 2001a) distinguishes three broad kinds of PETs:
There are several heads of law which may provide privacy protections. The common law torts of confidence and passing off are of limited relevance in the present context. Those that are focussed on here are explicit data protection statutes, contract, and laws relating to misleading statements.
Since the first data protection statute, passed in 1970 in the German Land of Hesse, most 'advanced western' nations have enacted such laws. These all reflect the 'fair information practices' (FIPs) movement, which originated in American business and government circles in the late 1960s, but flowered in Europe during the 1970s (Flaherty 1989, Bennett 1992). FIPs was codified in the OECD Guidelines (1980).
The FIPs notion has proven to be utterly inadequate, with narrow scope, manifold exemptions and exceptions, and missing control mechanisms (Clarke 2000). Moreover, laws in most jurisdictions reflect the technology of the 1970s rather than that of the new century. FIP has become so engrained, however, and the dominance of economic over social needs so strong, that the focus of public policy is very difficult to shift away from the nominal protection of data, back to the protection of people's privacy.
Almost alone among leading nations, the U.S. Congress has failed to enact comprehensive consumer privacy legislation. An exception is a statute relating to the privacy of children, the Children's Online Privacy Protection Act (COPPA). Such provisions are largely redundant in most countries with data protection laws, and COPPA is not a primary focus in this paper.
The U.S. Federal Trade Commission (FTC) has sought to roll back the protections that have emerged under the FIPs movement, by issuing its own, even more inadequate set of a mere four 'widely accepted fair information principles' - 'notice', 'choice', 'access' and 'security', to which it later added 'accountability' (FTC 2000).
This brought the U.S. into conflict with the E.U., because many U.S. consumer marketing corporations are active there. After a period of uncertainty, the E.U. chose to ignore the concerns of its advisory group (Art.29 2000), and backed down on key requirements. It permitted the U.S. to devise a so-called 'Safe Harbor' program (DOC 2000). This is an extension to the FTC's cut-down version of FIPs - with the original four principles supplemented by 'onward transfer', 'data integrity' and 'enforcement'; but despite the name of the principle, the scheme is not subject to effective enforcement.
Meanwhile, the U.S. Administration, through the Department of Commerce, has sought to undermine the OECD Guidelines by exerting its influence on members of the Asia-Pacific Economic Cooperation (APEC), in order to achieve publication of an alternative, much weaker set of principles (APEC 2004).
Contract law may also provide a basis for privacy protections. Vendors may offer explicit terms that the courts will treat as part of the contract binding vendor and consumer alike. Assurances about privacy protection may be embedded into those terms. Even where they are not, it is open to the courts, at least in common law jurisdictions, to find conditions to be implied in contracts. A PPS can form part of the terms of contract that the vendor and consumer enter into, either by the vendor's terms expressly reading in the PPS, or by the courts regarding the PPS as being an implied term of the contract.
The effectiveness of contract as a privacy protection is very limited, however. There is often vast disparity between the resources and market power of the parties, and the jurisdiction in which an action must be brought is often distant from and foreign to the consumer.
A further head of law of potential significance is provisions that make misrepresentation an illegal act. In common law countries, torts may exist that render misrepresentation a breach of the offended party's civil rights. Many countries have created statutory obligations of a similar nature, and some recognise criminal misrepresentation. Examples include the U.K. Misrepresentation Act 1967, the Australian Trade Practices Act 1974 s.52, and Fair Trade Practices and Misrepresentation statutes in the various Australian States and Territories. Provided that the PPS takes the form of an undertaking by the vendor (rather than just a vague description or inherently untrustworthy advertisement), it is capable of being used as the basis for an action under such laws.
In the U.S., the Fair Trade Commission Act s.5(a) renders illegal an unfair or deceptive act or practice. This has been claimed to provide a similar restraint on privacy-abusive practices by American business (e.g. FTC 2005?). But the failure of the FTC to enforce under those provisions (having pursued only 15 cases in 7 years, in the world's largest and most dynamic economy) has shown the claims to be hollow. The FTC has even gutted the child protection law (the COPPA). It did this by determining that Amazon.com's Toy Store web site is "not directed at children" (EPIC 2004). Any organisation can now unilaterally declare itself outside the scope of the Act simply by stating that it "does not sell products for purchase by children".
The U.S. self-regulatory scheme has proven completely inadequate (Hoofnagle 2005), and is a much poorer deal for consumers than the inadequate FIPs-inspired laws in other countries. The longstanding calls for FIPs legislation (e.g. Clarke 1999a), which were temporarily quietened in the years immediately following the terrorist strikes of September 2001, have been resumed recently, with American business reported to be in support of regulation (Economist 2005).
In the mid-to-late 1990s, it became fashionable in the U.S. for corporations to publish statements on their web-sites about their privacy practices (FTC 1998a, 1998b, Hoffman et al. 1999). The notion has been adopted in other countries as well. In many countries it is primarily symbolic, because a data protection statute that regulates the private sector is far more likely to be effective than a mere statement by the organisation itself.
This paper adopts the view that, although a mere statement can only be a small part of a comprehensive approach to privacy protection and hence consumer trust in B2C eCommerce, there is nonetheless potential value in PPS. The reasons are as follows:
A variety of researchers have examined various aspects of web-site privacy statements. Foundation works included Culnan (1993) and Smith et al. (1996). Important among the analyses and empirical investigations have been Wang et al. (1998), Anton & Earp (2001), Earp et al. (2002), Lichtenstein et al. (2002), Milne & Culnan (2002), Earp & Baumer (2003), Lichtenstein et al. (2003), Culnan & Bies (2003), Jensen & Potts (2004), Gauzente (2004), and Kobsa & Teltzrow (2005).
This 'disconnect' reflects the highly situational nature of privacy. Most of the time, most consumers are only vaguely concerned about privacy, and lack the motivation to seek out and read carefully phrased, turgid 'legalese'. But even vague concerns represent an impediment to the adoption of eCommerce. Moreover, once an individual consumer's concerns are triggered, the person may easily become an active avoider of web-commerce. In response to the limited use of PPS by consumers, the concept of 'layered notices' has been developed "to provide an easy to read one-page summary of a company's online privacy practices while conforming to all regulatory requirements and giving links to full legal statements and other relevant information" (Fleischer 2005. See also Crompton 2004).
Only limited guidance is available in the literature as to what constitutes an appropriate form for a PPS. One important exception is the linked documents OECD (2000a and 2000b). The Committee of European Data Protection Commissioners, meeting as the EU's Article 29 Working Group on Data Protection, has been reported as having published guidelines on corporate privacy notices in late 2004 (e.g. Pruitt 2005). But a search on the Article 29 Committee's web-site failed to provide access to a copy. A preliminary document is visible on the site of the German Federal Data Protection Commissioner (ICDCP 2003).
The web-sites of the various privacy protection agencies provide almost no assistance, although a publication of the U.K. Commissioner is of some relevance (ICO 2001). There are no guidelines apparent on the sites of the U.S. FTC, or even of the leading U.S. advocacy group EPIC and the more business-aligned groups CDT and EFF. Some guidance is provide by TRUSTe (2004 and 2005), and BBB (2003). But these documents are seriously limited, because they merely advise compliance with the FTC's minimalist FIPs model and a few U.S. sector-specific laws. Guidance intended for government agencies may also be of assistance, such as OFPC (2000?), AGIMO (2003) and TSB (2004).
As a prelude to the project reported on in this paper, this author drew on the above sources and his prior research, and compiled a Privacy Statement Template, at Clarke (2005a), with accompanying comments in Clarke (2005b). That Template is applied in the research that is described below, as a basis for evaluating the PPS published by B2C vendors. The Template stipulates requirements in the areas of data collection, data security, data use, data disclosure, data retention and destruction, access by data subjects to personal data, information about data handling practices, the handling of enquiries, general concerns and complaints, enforcement, and changes to privacy undertakings.
The purpose of the research is to consider the effectiveness of PPS from the perspective of the consumer. The research focusses on contexts in which vendors are seeking to implement substantive rather than merely image-based privacy protections. It also leaves to one side the need for effective marketing communications, to ensure that consumers understand that the protections are in place.
The vendor population is defined as those B2C services that are accessible on the World Wide Web. For simplicity, it does not encompass other forms of B2C eCommerce, such as emergent mobile services accessed through means other than web-browsers.
This is a highly diverse set of services. It is therefore important to analyse the population into meaningful segments, and probably important to over-sample from some of those segments. Exhibit 2 suggests a two-dimensional segmentation model that would appear to be appropriate to the research question.
|Dimension 1 – The Company||Patterns in these categories may be materially different, because
consumer trust is easier to achieve in an organisation with physical presence|
|A: 'Pure Internet' B2C||Corporations that do not have a separate physical operation|
|B: 'Clicks and Mortar' B2C||Corporations that do have a separate physical operation|
|Dimension 2– The Business||Patterns in these two categories may be materially different, due to various characteristics of the business and its context|
|A: Leaders||Businesses acknowledged as trend-setters in this field||It would be valuable to over-sample this category, because it offers an indication of future directions|
|B: Aggressive Marketers||Businesses recognised as being strong and direct in their approach to consumers||These businesses could be expected to be either disdainful of privacy, or manipulative and image-conscious|
|C: Marketers of Sensitive Products||Businesses that sell goods and services whose purchasers are likely to be particularly concerned about privacy||These businesses could be expected to be highly subject to, and very well aware of, the need for effective privacy and visible privacy protections|
|D: Regional Marketers||Businesses primarily active in particular jurisdictions||Companies that are subject to data protection laws could be expected to adopt different approaches to those that are not subject to such laws|
|E: 'Ethical' / Not For Profit Marketers||Businesses run by organisations that espouse strong values in relation to privacy||These operations could be expected to have adopted positive approaches to privacy protection|
For each segment, a sampling frame is needed. Examples include, for Market Leaders, businesses that receive frequent mentions in the media in relation to their privacy statements and terms of trade. For Aggressive Marketers, those organisations could be considered that have won awards for their B2C operations from such organisations as the (U.S.) Direct Marketing Association (DMA), or for whom Harvard case studies have been prepared. For Marketers of Sensitive Products, directories of on-line sex-shops and on-line gambling services could be consulted. Regional directories would provide links to marketers subject to the laws of particular jurisdictions. For 'Ethical' Marketers, directories of not-for-profit B2C operations, including charities, could be consulted.
Audit of the organisation's compliance with its PPS, and contact with the organisation to seek any clarifications are highly desirable. Such procedures are highly resource-intensive, however, and long delays and refusals might be anticipated. It is therefore envisaged that all judgements will be based on the PPS review, supplemented by experiments with the relevant service.
A pilot survey was conducted. The primary purpose was to gain insight into the efficacy and practicability of the design, preparatory to its wider application. A secondary purpose was to gather information of relevance to policy discussions. The assessments were performed in January 2006.
A small set of organisations was selected, in order to test the application of the Template to the PPS published by a manageably small list of organisations. These were selected in order to ensure some diversity, and to provide some prospect of results with some policy value.
The organisations selected for evaluation are listed in Exhibit 3. The two market-leaders are very apparent from media and popular discussions. The choice of a German company was based partly on the fact that the country has the longest history of data protection laws, and partly on the pragmatic grounds that German is the only language other than English that the author can read, and that he has more familiarity with data protection laws in German-speaking countries than with those in other parts of Europe.
This section provides a brief summary of the outcomes. The detailed assessment sheets are available on the Web, and the archived copies of the PPS that were evaluated are available from the author on request.
National Geographic and Google both implement the 'layered notice' notion by offering a 'highlights' page as well as a PPS. Google provides further PPS in respect of some of its services. The other organisations in the sample offer a single web-page, ranging from an equivalent 1-1/2 pages of A4 (Adultshop.com) to 4-6 pages (Amazon, Autoteile-Meile.de and National Geographic).
Amazon has declared for itself extraordinary latitude in its handling of personal data. The effect of the statements is essentially that it collects personal data from wherever it wants to, uses it however it wants to, and discloses it to whomever it wants to. It provides minimal information on data security, none on data retention and destruction, little on amendment, and none on deletion of personal data.
In common with other organisations, it provides no access to previous version of its PPS. Amazon has previously changed its PPS, reneging on previous undertakings, and providing itself with additional latitude (e.g. Rosencrance 2000a, 2000b). It has also been accused of breaches of the Children's Online Privacy Protection Act (EPIC 2003), but the FTC found a way to ensure that the breach was only of the spirit rather than of the letter of the law (EPIC 2004).
Testing of the Sears site was made more difficult by its non-standard or bug-laden code, which caused malfunctions of the mainstream Mac Mozilla 1.7.8 browser being used. The PPS was found to have a wide array of deficiencies, not unlike Google's, but in some respects worse. For example, the concept of 'voluntary provision' of personal data was used in relation to data whose provision appears to be a condition of dealing; collection from and disclosure to third parties is undertaken on a non-consensual basis; the company appears to have no concept of data destruction on expiry of use; and no information is evident about any complaints process. This is consistent with a consumer-arrogant operation rather than a privacy-sensitive stance.
It is possible that the site's privacy-sensitivity reflects the fact that the organisation is subject to a data protection law (the Australian Privacy Act's private sector provisions, enacted in 2000). That is, however, a very weak implementation of the OECD FIPs model, and it is reasonable to infer that the needs of its customers were a significant factor in determining the company's approach.
The PPS published by National Geographic is remarkable in two ways:
The privacy terms are arguably far worse even than those of Sears, Roebuck and Co. They fail dismally in relation to all of data collection, security, use, disclosure, retention and destruction, personal access and complaints-handling. They impose opt-out where consent (opt-in) is the norm. They provide no means to communicate complaints to the company. Perhaps the PPS has been designed by a very clever lawyer so that it complies with the letter of the FTC's suggestions (although probably not with the additional requirements of the 'Safe Harbor' program). But it would appear to be non-compliant, at the very least with the basic choice and access principles, and the additional onward transfer and enforcement principles. Perhaps large U.S. not-for-profit organisations have become imbued with the aggressive ethos of American corporations. National Geographic was included in the pilot as a member of the 'ethical' segment, but its ethicality seems to be limited to honesty about the organisation's privacy-hostile stance.
The PPS of the German company, Autoteile-Meile, is subject to the German data protection law, the Bundesdatenschutzgesetz ss. 1-11 and 27-46. Remarkably, however, the document is to a very considerable extent a German translation of the current Amazon PPS (to the extent that it appears that it may be in breach of Amazon's copyright). It therefore inherits a large proportion of the weaknesses of that document.
A number of modifications are apparent, to reflect the provisions of the German law. Others that might have been expected have not been made, however. It could be that the document is merely experimental, because it would seem to have little or no status under German law. Amazon has successfully opted out of the U.S. child privacy regulatory scheme merely by putting some well-chosen words on its web-site; but such corporation-friendly looseness is not a feature of European laws.
Observations arising from the pilot evaluations are as follows:
One outcome of surprise was that it was not always as easy as it should be to discover the PPS. This identified the need to add an accessibility requirement into the Template. In most cases, the PPS was accessible from the home-page and from pages typically used during a consumer transaction. But Google does not have a link on its main pages at www.google.com, nor in country-specific services such as www.google.com.au nor even www.google.de. It is necessary to follow the link to 'About Google' to find the link. All of the others offer the link in the page-footer, and some also draw it to attention at a relevant point in the purchasing process.
Other omissions from the template that became apparent during the course of the evaluations were:
Some doubt was thrown on the segmentation used in the research design. In particular:
Complementary research is needed, to address aspects of the research question that were intentionally left to one side. In particular, studies are needed of the extent to which consumers understand the degree of privacy-protectiveness that they do and do not enjoy when using different companies' services, and the extent to which their adoption and non-adoption decisions reflect that understanding.
Except as otherwise noted, all URLs were most recently accessed 7-9 January 2006.
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Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., a Visiting Professor in the E-Commerce Programme at the University of Hong Kong, and a Visiting Professor in the Department of Computer Science at the Australian National University.
The content and infrastructure for these community service pages are provided by Roger Clarke through his consultancy company, Xamax.
From the site's beginnings in August 1994 until February 2009, the infrastructure was provided by the Australian National University. During that time, the site accumulated close to 30 million hits. It passed 50 million in early 2015.
Sponsored by Bunhybee Grasslands, the extended Clarke Family, Knights of the Spatchcock and their drummer
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Created: 7 January 2006 - Last Amended: 20 January 2006 by Roger Clarke - Site Last Verified: 15 February 2009
This document is at www.rogerclarke.com/EC/PPSE0601.html