Consumers in West Virginia and nationally are concerned about their digital data privacy, and there are few and often inconsistent laws to protect them—these are the findings of new research funded by the Center for Consumer Law and Education, a joint program between the West Virginia University College of Law and Marshall University.
WVU law professor Jena Martin is the author of “Data Privacy Issues in West Virginia and Beyond,” which is available online at SSRN. Martin has also adapted her paper for an article on the West Virginia Law Review Online that focuses primarily on how these issues affect West Virginians.
As a result of Martin’s research, the CCLE is calling for new data privacy laws that include:
- treating data as a property right that applies to individual consumers and considering all the actors involved in potentially violating data privacy, including big tech and lesser-known data brokers.
- making privacy issues easy to understand for consumers so they can make more informed decisions
- letting consumers have a voice in how the law that will affect them is shaped by convening hearings that are specifically focused on the consumer’s experience.
In both the paper and the article, Martin explores the various legal issues that affect data privacy collection and the different ways that consumers’ data are being used with and without their knowledge. Using a survey and focus groups, Martin and a team of WVU Law students also gathered information on what West Virginians felt were their most pressing data privacy concerns and what they would like to see in regulations.
“The Center commends Professor Martin’s in-depth research and practical recommendations to preserve the personal privacy of West Virginia citizens and agree wholeheartedly that legislation is necessary to protect our citizens from abuse and fraud in this burgeoning area of the law,” said attorney David Romano, chairman and founder of the CCLE.
Martin and her team found that many people are unaware of the role that data brokers secretly play in creating individual consumer profiles. They operate behind the scenes on the internet, gathering “cookies” and other bits of information that they sell to corporations who use it in targeted marketing and advertising. There is currently no law that requires the data broker or their clients to share what is in a data set about individual consumers.
“West Virginians expressed concerns with companies using their data without their knowledge and consent; collecting inaccurate data and sharing their data with third parties with little information provided to consumers regarding who had access to their information,” Martin said. “Most of these data brokers and companies would argue that it is proprietary information, even though the proprietary information they have is all about you.”
A common example of how data is shared between digital players is the partnership between Amazon and Facebook. As a regular practice the online retail giant shares consumer browsing data with the social media giant, resulting in relevant Amazon ads appearing in a consumer’s Facebook and Instagram feed.
According to Martin, a more ominous example of the abuse of private consumer data is weblining, where vast amount of data generated by consumers using smartphones and other technology is gathered and analyzed to create a consumer’s profile, with many data points having the potential to be used to discriminate based on race or socioeconomic status.
“Weblining takes its name from the historical system of redlining (policies that were created during the segregation era designed to exclude African Americans from home ownership),” she said. “The modern incarnation of weblining is at once more sinister and harder to detect — companies use algorithms and other forms of data collection to classify applicants and consumers based on ZIP codes rather than individual creditworthiness.”
For example, weblining can be used to give someone in a major metropolitan area a far cheaper car loan than an equally or better qualified person in a rural area, Martin said.
Martin conducted research on data privacy as the inaugural recipient of the Ralph C. Young Fellowship awarded by the CCLE. The late Ralph Young was a personal injury, insurance and consumer lawyer with the firm Hamilton, Burgess, Young & Pollard in Fayetteville.
CCLE is sharing the paper and its recommendations to protect consumer data privacy with state and national legislators. Currently, only three states — California, Nevada and Virginia — have comprehensive consumer data laws. Legislative efforts on consumer data privacy have stalled in West Virginia.
WVU Law students Cheryl Brown, Allyson Burgess, Trista Campbell, Jeremy Cook, Jayda Guidry, Shawn Hogbin, Ashton Meyers and Julia Parillo contributed to the data privacy research.
About the Center for Consumer Law and Education
The CCLE was founded in 2019 and is directed by Jonathan Marshall at the WVU College of Law and Damien Arthur at Marshall University. CCLE’s mission is to coordinates the development of law, policy, and education research to support and serve consumers, bringing together scholars, practitioners, and students to empower, lead and transform communities. The donations to Marshall and WVU that established the CCLE were spearheaded by consumer attorney David J. Romano of Clarksburg, West Virginia. Romano attended Marshall in the early 1970s and graduated from the WVU College of Law in 1977.
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