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Abstract

When you chat online, there is a space of time between when you type out your message and when you decide to send it. During this time, you might assume that you have the chance to read over your message, edit it, or even delete it if you don’t like what you’ve written- all without the other person seeing it. However, this is frequently not the case when consumers chat with customer service representatives, thanks to ‘chat preview.’ ‘Chat preview,” which goes be several different names throughout the chat software industry, is a feature that allows the person on end of a chat conversation to see what the other person is typing in real time, even before it is sent. While the data on how and where chat preview is currently being used is scant, the chat software companies that advertise chat preview boast an impressive list of clients, from small companies to industry giants like IKEA and McDonalds. This feature helps customer service representatives figure out what you are going to say before you’ve said it and respond accordingly. However, it also represents a unique type of privacy issue- should someone be able to see not just what somebody else has said, but also what they are about to say, or even what they have decided at the last minute not to say?

Chat preview carries with it the potential for serious breaches not just of data privacy but of thought privacy. It doesn’t take much effort to come up with any number of potentially scary applications of the ability to see messages a customer has decided not to send: these messages could be saved, stored, sold, or even held as leverage by a rogue customer service agent. This is to say nothing of what the government could do given access to what are basically unexpressed thoughts. Yet, as a relatively new innovation, there is no substantial regulatory regime to govern its use. Furthermore, the most analogous legislative area- wiretapping, is not adequate to address the unique features and risks of chat preview. Both Washington State and federal wiretapping statutes are written in such a way that they offer little if any protection for the potentially harmful uses of chat preview technology. For this reason, some additional legislation or amendment to the existing statutes is necessary to protect consumer privacy. Specifically, chat preview should be allowed only with the notice and in-the-moment, revokable consent of the previewed party. This would allow consumers to make informed decisions about whether they wish to be subject to this type of monitoring and would prevent companies from circumventing the consent requirement by burying notice and implied consent inside lengthy terms of service agreements that will most likely go unread.

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