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Dan Solove on Privacy Regulation

Law professor Dan Solove has a new article on privacy regulation. In his email to me, he writes: “I’ve been pondering privacy consent for more than a decade, and I think I finally made a breakthrough with this article.” His mini-abstract:

In this Article I argue that most of the time, privacy consent is fictitious. Instead of futile efforts to try to turn privacy consent from fiction to fact, the better approach is to lean into the fictions. The law can’t stop privacy consent from being a fairy tale, but the law can ensure that the story ends well. I argue that privacy consent should confer less legitimacy and power and that it be backstopped by a set of duties on organizations that process personal data based on consent.

Full abstract:

Consent plays a profound role in nearly all privacy laws. As Professor Heidi Hurd aptly said, consent works “moral magic”—it transforms things that would be illegal and immoral into lawful and legitimate activities. As to privacy, consent authorizes and legitimizes a wide range of data collection and processing.

There are generally two approaches to consent in privacy law. In the United States, the notice-and-choice approach predominates; organizations post a notice of their privacy practices and people are deemed to consent if they continue to do business with the organization or fail to opt out. In the European Union, the General Data Protection Regulation (GDPR) uses the express consent approach, where people must voluntarily and affirmatively consent.

Both approaches fail. The evidence of actual consent is non-existent under the notice-and-choice approach. Individuals are often pressured or manipulated, undermining the validity of their consent. The express consent approach also suffers from these problems ­ people are ill-equipped to decide about their privacy, and even experts cannot fully understand what algorithms will do with personal data. Express consent also is highly impractical; it inundates individuals with consent requests from thousands of organizations. Express consent cannot scale.

In this Article, I contend that most of the time, privacy consent is fictitious. Privacy law should take a new approach to consent that I call “murky consent.” Traditionally, consent has been binary—an on/off switch—but murky consent exists in the shadowy middle ground between full consent and no consent. Murky consent embraces the fact that consent in privacy is largely a set of fictions and is at best highly dubious.

Because it conceptualizes consent as mostly fictional, murky consent recognizes its lack of legitimacy. To return to Hurd’s analogy, murky consent is consent without magic. Rather than provide extensive legitimacy and power, murky consent should authorize only a very restricted and weak license to use data. Murky consent should be subject to extensive regulatory oversight with an ever-present risk that it could be deemed invalid. Murky consent should rest on shaky ground. Because the law pretends people are consenting, the law’s goal should be to ensure that what people are consenting to is good. Doing so promotes the integrity of the fictions of consent. I propose four duties to achieve this end: (1) duty to obtain consent appropriately; (2) duty to avoid thwarting reasonable expectations; (3) duty of loyalty; and (4) duty to avoid unreasonable risk. The law can’t make the tale of privacy consent less fictional, but with these duties, the law can ensure the story ends well.

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How to Tell If Your Text Message Is Real 

According to reports from the Federal Trade Commission’s Consumer Sentinel database, text message scams swindled $372 million from Americans in 2023 alone. The staggering figure highlights a growing concern for consumers globally, who increasingly interact with brands and service providers via text, email, and even social media. As our reliance on technology continues, it is important for everyone to understand how to spot scam texts amid the real messages they receive.  amid the real messages they receive.

With such frequent communication from brands and organizations, you can be hard-pressed to figure out what is a scam or not. This practical and actionable advice may be able to help you spot the imposters and protect yourself against even the most hard-to-identify scam messages.    

Understand how brands say they’ll contact you  

Most of us probably avoid reading disclaimers and terms of service from brands and organizations. Paying attention to guidelines for how an organization will contact you will help you stay safe from scams. Just take it from entertainment host, Andy Cohen. 

Cohen received an email he thought was from his bank’s fraud department. Later, the scammer texted Cohen claiming to be from the bank, asking for more information. Cohen ended up sending the scammer money because he believed they were a bank representative. These days, many banks and brands have FYIs on their website about how to spot a legitimate text. Like this page from Chase, which goes over what a real Chase text looks like.  

We have a similar disclosure on our site. For example, our customer service teams will never request sensitive information such as social security numbers, PINs, or bank or payment details. As soon as you sign up for a new account, it’s a good idea to check for this sort of disclaimer and familiarize yourself with contact methods and the type of information organizations might request.  

Verify the message’s source 

Scam messages are so successful because scammers make them look real. During the holidays, when shoppers are ready to leap at deals, scam messages can be hard to resist. With an increased volume of scam texts during major shopping seasons, it’s no wonder open rates can be as high as 98%.  

Consumers can protect themselves against realistic-looking scam messages by verifying the source of the message. If an email hits your mobile inbox, click on the sender’s name to expand their full email address. Typical brand emails will have a “do not reply” somewhere in the address or an official “@branddomain.com” email address. Scam email addresses often appear as strings of gibberish.  

If unsure whether a text from a company is real, log into your account directly to see if it reflects the overdue bill or extra store credit that the text message suggests.  

Educate yourself about the latest scam trends 

Knowing about the latest cybersecurity trends is always good practice. Scammers change their tactics constantly. Text scams that were popular one year may be totally out of style the next time you get a scam message.  

Individuals looking for a place to start can check out FTC, FBI, and CISA websites. Those agencies offer valuable insights about fraud trends and recommendations about how people can protect themselves. The Better Business Bureau (BBB) has an interactive scam tracking tool, and AARP provides tips for older Americans who may not be as in tune with the latest tech trends and tools.  

Layer protection with cutting-edge software 

Thankfully, the software designed to protect against scams evolves, as well. Consumers can turn to product suites that offer features like finding and removing personal info from sites that sell it, adjusting social media controls, and even providing alerts about suspicious financial transactions. 

For scam texts, AI is here to help. McAfee Scam Protection uses AI to scan SMS text messages and alert you about unsafe links. Users can delete those messages without opening them, reducing the risk of compromise and removing any question about whether the message is fraudulent or for real.  

Take a proactive approach to prevent text scams  

The $372 million figure is a stark reminder of growing fraud. As we continue into the digital age, the threat of fraudulent communications from scammers looms. To safeguard against bad actors, consumers must be proactive. By paying attention to brand communication guidelines, verifying the source of messages, remaining educated, and using modern privacy and identity products, consumers can avoid scams before they start.  

The post How to Tell If Your Text Message Is Real  appeared first on McAfee Blog.

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How to Spot Dating Scams

For years now, the popularity of online dating has been on the rise—and so have the number of online romance scams that leave people with broken hearts and empty wallets.

In a recent CBS News story, one Texan woman was scammed out of $3,200 by a scammer claiming to be a German Cardiologist.  After months of exchanging messages and claiming to be in love with her, he said that he’d been robbed while on a business trip in Nigeria and needed her help.

According to the U.S. Federal Trade Commission (FTC), the reported cost of online romance scams was $1.14 billion in 2023

How do online dating and romance scams get started? 

Dating and romance scams aren’t limited to online dating apps and sites, they’ll happen on social media and in online games as well. However, the FTC reports that the scam usually starts the same way, typically through an unexpected friend request or a message that comes out of the blue. 

With that initial introduction made, a chat begins, and a friendship (or more) blossoms from there. Along the way, the scammer will often rely on a mix of somewhat exotic yet believable storytelling to lure the victim in, often involving their job and where they’re working. Reports say that scammers will talk of being workers on an offshore oil rig, members of the military stationed overseas, doctors working with an international organization or working in the sort of jobs that would prevent them from otherwise easily meeting up in person. 

With the phony relationship established, the scammer starts asking for money. The FTC reports that they’ll ask for money for several bogus reasons, usually revolving around some sort of hardship where they need a “little help” so that they can pay: 

  • For a plane ticket or other travel expenses. 
  • For medical expenses. 
  • Customs fees to retrieve something. 
  • Gambling debts. 
  • A visa or other official travel documents. 

The list goes on, yet that’s the general gist. Scammers often employ a story with an intriguing complication that seems just reasonable enough, one where the romance scammer makes it sound like they could really use the victim’s financial help. 

Common types of online dating scams 

People who have filed fraud reports say they’ve paid their scammer in a few typical ways.  

One is by wiring money, often through a wire transfer company. The benefit of this route, for the scammer anyway, is that this is as good as forking over cash. Once it’s gone, it’s gone. The victim lacks the protections they have with other payment forms, such as a credit card that allows the holder to cancel or contest a charge. 

Another way is through gift cards. Scammers of all stripes, not just romance scammers, like these because they effectively work like cash, whether it’s a gift card for a major online retailer or a chain of brick-and-mortar stores. Like a wire transfer, once that gift card is handed over, the money on it is highly difficult to recover, if at all. 

One more common payment is through reloadable debit cards. A scammer may make an initial request for such a card and then make several follow-on requests to load it up again.  

In all, a romance scammer will typically look for the easiest payment method that’s the most difficult to contest or reimburse, leaving the victim in a financial lurch once the scam ends. 

How Do You Avoid Getting Tangled Up in an Online Dating or Romance Scam? 

When it comes to meeting new people online, the FTC suggests the following: 

  • Never send money or gifts to someone you haven’t met in person—even if they send you money first. 
  • Talk to someone you trust about this new love interest. It can be easy to miss things that don’t add up. So pay attention if your friends or family are concerned. 
  • Take the relationship slowly. Ask questions and look for inconsistent answers. 
  • Try a reverse-image search of any profile pictures the person uses. If they’re associated with another name or with details that don’t match up, it’s a scam. 

Scammers, although arguably heartless, are still human. They make mistakes. The stories they concoct are just that. Stories. They may jumble their details, get their times and dates all wrong, or simply get caught in an apparent lie. Also, keep in mind that some scammers may be working with several victims at once, which is yet another opportunity for them to get confused and slip up. 

Protecting Yourself Further From Scams on Your Social Media Accounts 

As mentioned above, some romance scammers troll social media and reach out through direct messages or friend requests. With that, there are three things you can do to cut down your chances of getting caught up with a scammer: 

1. Go private

Social media platforms like Facebook, Instagram, and others give you the option of making your profile and posts visible to friends only. Choosing this setting keeps the broader internet from seeing what you’re doing, saying, and posting, which can help protect your privacy and give a romance scammer less information to exploit. 

2. Say “no” to strangers bearing friend requests

Be critical of the invitations you receive. Out-and-out strangers could be more than a romance scammer, they could be a fake account designed to gather information on users for purposes of cybercrime, or they can be an account designed to spread false information. There are plenty of them too. In fact, in Q4 of 2023 alone, Facebook took action on 693 million fake accounts. Reject such requests. 

3. Protect yourself and your devices

Online protection software like ours can help you spot fakes and scams. Features like McAfee Scam Protection use advanced AI to detect scam links in texts, email, and social media messages before you click. Our Personal Data Cleanup can keep you safer still by removing your personal info from sketchy data broker sites — places where scammers go to harvest useful info on their victims. And if the unfortunate happens, we offer $2 million in identity theft coverage and identity restoration support.​

Put an End to it 

If you suspect that you’re being scammed, put an end to the relationship and report it, as difficult as that may feel. 

Notify the FTC at ReportFraud.ftc.gov for support and next steps to help you recover financially as much as possible. Likewise, notify the social media site, app, or service where the scam occurred as well. In some cases, you may want to file a police report, which we cover in our broader article on identity theft and fraud 

If you sent funds via a gift card, the FTC suggests filing a claim with the company as soon as possible. They offer further advice on filing a claim here, along with a list of contact numbers for gift card brands that scammers commonly use.  

Lastly, go easy on yourself. If you find yourself a victim of online dating or romance fraud, know that you won’t be the first or last person to be taken advantage of this way. By reporting your case, you in fact may help others from falling victim too. 

The post How to Spot Dating Scams appeared first on McAfee Blog.

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