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Illustration: Eniola Odetunde/Axios

Tech companies appear to be bowing to new privacy rules springing up in Europe, California and elsewhere, putting in place processes to show they're complying.

Yes, but: Some of these moves are smokescreens that allow the companies to avoid making big, painful changes, some legal experts argue — enabled by a legal system that offloads enforcement onto the very companies being regulated.

The big picture: Companies are painting over existing practices with a veneer of rule-following, argues NYU law professor Ari Waldman in an upcoming article for the Washington University Law Review.

  • "Mere symbols of compliance are standing in for real privacy protections," he writes.
  • Companies that are meant to be constrained by privacy law are able to "recast and reframe it to benefit themselves," Waldman tells Axios.

The stand-ins, according to Waldman, include privacy policies, impact assessments, trainings, audits and paper trails.

  • "These things have all the trappings of systems but instead are really just window dressing," he says.
  • In surveys and interviews with privacy professionals, Waldman turned up a check-the-boxes approach to privacy.

What's happening: As privacy laws in Europe and California kick in, companies are setting up new internal structures to comply with them, says Dominique Shelton Leipzig, a privacy attorney at Perkins Coie.

The other side: "To conclude that assessments aren't working, I think, is a false conclusion," says Al Gidari, a longtime privacy lawyer now at the Stanford Center for Internet and Society.

  • "Those processes work really well in companies because if they don't, people go to jail, employees get fired, companies get prosecuted," he tells Axios. But it's up to companies to prioritize privacy and implement effective systems.
  • Gidari argues that internal assessments are necessary at big tech companies like Google, which he represented when it was investigated by the Federal Trade Commission in 2011. It's not possible to formally audit dozens of products and services on a regular basis, he says.

The bottom line: The offloading of enforcement to companies is a result of vague, toothless laws and weakened agencies like the FTC that would otherwise be in charge of enforcement.

  • "Procedure is not enough," says Waldman. Laws should require a substantive change like a ban on sharing certain data, rather than a process like assessments of whether or not the data is being dealt with correctly.
  • And penalties should be much higher for wrongdoing, Gidari argues. When the FTC fined Facebook $5B for a privacy violation earlier this year, the company's stock went up. "It's awfully hard to see how that alone is sufficient," Gidari says.

"When you have companies setting the rules, my biggest concern is that it's just going to be streamlined toward the most efficient process for them — but not necessarily the most efficient process for users or the fairest process for users," says Frank Pasquale, a law professor at the University of Maryland.

Go deeper: The global shortage of privacy experts

Go deeper

Wall Street braces for more turbulence ahead of Election Day

Illustration: Eniola Odetunde/Axios

Wall Street is digging in for a potentially rocky period as Election Day gets closer.

Why it matters: Investors are facing a "three-headed monster," Brian Belski, chief investment strategist at BMO Capital Markets, tells Axios — a worsening pandemic, an economic stimulus package in limbo, and an imminent election.

Dave Lawler, author of World
2 hours ago - World

How Biden might tackle the Iran deal

Photo illustration: Aïda Amer/Axios. Photo: Drew Angerer/Getty Images

Four more years of President Trump would almost certainly kill the Iran nuclear deal — but the election of Joe Biden wouldn’t necessarily save it.

The big picture: Rescuing the 2015 Joint Comprehensive Plan of Action (JCPOA) is near the top of Biden's foreign policy priority list. He says he'd re-enter the deal once Iran returns to compliance, and use it as the basis on which to negotiate a broader and longer-lasting deal with Iran.

Kamala Harris, the new left's insider

Photo illustration: Eniola Odetunde/Axios. Photo: Joe Buglewicz/Getty Images     

Progressive leaders see Sen. Kamala Harris, if she's elected vice president, as their conduit to a post-Biden Democratic Party where the power will be in younger, more diverse and more liberal hands.

  • Why it matters: The party's rising left sees Harris as the best hope for penetrating Joe Biden's older, largely white inner circle.

If Biden wins, Harris will become the first woman, first Black American and first Indian American to serve as a U.S. vice president — and would instantly be seen as the first in line for the presidency should Biden decide against seeking a second term.

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