To be effective, regulation has to be about acts and omissions – not disclosure.  We don’t charge people for the crime of failing to disclosure their intention to steal.  We charge them for stealing. 

California’s alleged effort to “promote greater transparency” is pointless if the result is a clearer picture of privacy practices that are unacceptable.  The same goes for “education programs” about privacy.  (Something the California Attorney General is big on.)  Snap out of it.  Regulate the unacceptable practices. 

If the purpose of mandated disclosures is to make it easier for people to make meaningful choices, then mandate that choices be available – and don’t accept take it or leave it as the only choices.  An example of the Attorney General’s failure in this regard is in Privacy on the Go; Recommendations for the Mobile Ecosystem – found here:

            http://oag.ca.gov/sites/all/files/pdfs/privacy/privacy_on_the_go.pdf

In Privacy on the Go, the Attorney General recommends that individuals receive disclosures that give them “control over data practices that are not related to an app’s basic functionality….”  Why don’t we make it unlawful for an app to collect information that isn’t necessary for the app’s function?  That would be meaningful.

No doubt regulating is hard.  Perhaps that’s why the Attorney General is taking the easy way out.   Rather than clearly defining what is impermissible, we have recommendations intended to “encourage businesses to adopt best practices.” 

If there is good news in this, it’s that some people are unhappy.  For example, these guys don’t like it:

• American Association of Advertising Agencies
• American Advertising Federation
• Association of National Advertisers
• Direct Marketing Association
• Interactive Advertising Bureau
• National Business Coalition on E-Commerce and Privacy
• Association of Magazine Media

They got together and wrote a letter to the California Attorney General

You can find their letter here:

            http://gaia.adage.com/images/bin/pdf/TradeGroupLettertoCA1.10.13.pdf

Among other things their letter says:

We are concerned that these recommendations, if implemented, will chill innovation in the marketplace, cost jobs, harm California’s economy, and deprive consumers of the benefits of mobile applications, products, and services.

I don’t see the reason for such hyperbole.  I don’t think anything has changed.  But there you have it. 

At least it makes good theater.

On Tuesday we’ll make one more visit to California and see if someone else in the Golden State is better at this.  Here’s a hint – yes.