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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

17 mins ago - Health

World surpasses 200 million COVID cases

A woman in Gurugram, India get a COVID-19 vaccine dose. Photo: Vipin Kumar/Hindustan Times via Getty Images

The number of COVID-19 infections worldwide topped 200 million on Wednesday, according to the Johns Hopkins Coronavirus Resource Center.

Why it matters: The milestone highlights the effect of the highly contagious Delta variant. It took about a year for the world to reach 100 million cases, and only six months to double that, the New York Times reported.

Ohio special election win cements Jim Clyburn’s kingmaker status

Jim Clyburn. Photo by Tasos Katopodis/Getty Images

Rep. Jim Clyburn is cementing his Biden-era kingmaker status with Shontel Brown's win in Ohio,  showing progressives he has a finger on the pulse of Democratic Party politics in a way they must acknowledge.

Driving the news: "I was going to stay right here in South Carolina minding my business until I got called stupid,” Clyburn told Axios in an interview Wednesday.

Manhattan, Westchester prosecutors request evidence from Cuomo investigation

Gov. Cuomo during a press conference in New York City on Aug. 2. Photo: Lev Radin/Pacific Press/LightRocket via Getty Images

The district attorneys for Manhattan and Westchester County on Wednesday requested evidence related to New York Attorney General Letitia James' investigation into sexual harassment allegations against Gov. Andrew Cuomo (D), according to a letter obtained by NBC News.

Why it matters: The district attorneys are investigating if alleged conduct highlighted in an independent report published by James' office that occurred in their jurisdictions was criminal in nature.

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