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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

14 mins ago - Health

White House says Obamacare sign-ups hit record

Health and Human Services Secretary Xavier Becerra speaking in the White House in December 2021. Photo: Jim Watson/AFP via Getty Images

The White House said Thursday that a record 14.5 million Americans have signed up for health insurance through Obamacare marketplaces since Nov. 1, including more than 10 million enrollments through HealthCare.gov.

Why it matters: Last year's stimulus bill contained substantial investments in the program, including increased subsidies for people who don't receive health insurance from an employer or through Medicare or Medicaid.

35 mins ago - World

Kremlin says U.S. written responses ignored Russia's main NATO demand

Sergey Lavrov. Photo: Dimitar DilkoffI/AFP via Getty Images

Russian Foreign Minister Sergey Lavrov said Thursday that the United States' written answers to Russia's security demands do not contain a "positive response" to the Kremlin's top priority, which is a freeze on NATO expansion, according to Russian state media.

Why it matters: A spokesperson for the Kremlin stressed that no conclusions will be drawn until Russian President Vladimir Putin has time to analyze the papers, but a lack of movement on Russia's core concerns means the crisis over Ukraine is unlikely to de-escalate.

How your plumber could lead the electric vehicle revolution

Ford Pro Intelligence gives farmers access to important data on every vehicle – whether gas-powered or electric. Image courtesy of Ford.

Businesses like farmers, contractors and delivery companies — not individual consumers — will lead America into the electric vehicle era, judging from how demand is currently shaping up.

Why it matters: While consumers are waiting on the sidelines to see if the charging infrastructure improves and prices come down, commercial businesses see EVs as a way to boost their productivity and improve operations.

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