Privacy & Information Monopolies
posted by Frank Pasquale
First Monday recently published an issue on social media monopolies. These lines from the introduction by Korinna Patelis and Pavlos Hatzopolous are particularly provocative:
A large part of existing critical thinking on social media has been obsessed with the concept of privacy. . . . Reading through a number of volumes and texts dedicated to the problematic of privacy in social networking one gets the feeling that if the so called “privacy issues” were resolved social media would be radically democratized. Instead of adopting a static view of the concept . . . of “privacy”, critical thinking needs to investigate how the private/public dichotomy is potentially reconfigured in social media networking, and [the] new forms of collectivity that can emerge . . . .
I can even see a way in which privacy rights do not merely displace, but actively work against, egalitarian objectives. Stipulate a population with Group A, which is relatively prosperous and has the time and money to hire agents to use notice-and-consent privacy provisions to its advantage (i.e., figuring out exactly how to disclose information to put its members in the best light possible). Meanwhile, most of Group B is too busy working several jobs to use contracts, law, or agents to its advantage in that way. We should not be surprised if Group A leverages its mastery of privacy law to enhance its position relative to Group B.
Better regulation would restrict use of data, rather than “empower” users (with vastly different levels of power) to restrict collection of data. As data scientist Cathy O’Neil observes:
There are very real problems in the information-gathering space, and we need to address them, but one of the most important issues is that the very people who can’t afford to pay for their reputation to be kept clean are the real victims of the system. . . . [T]hrough using the services from companies Reputation.com and because of the nature of the personalization of internet usage, the very legislators who need to act on behalf of their most vulnerable citizens won’t even see the problem since they don’t share it.
On the other hand, Patelis and Hatzopolous should not be taken to imply that neoliberal, individualist conceptions of privacy are the only version of fair data practices on offer. Both Julie Cohen and Neil Richards have provided rich, holistic accounts of “what privacy is for” and the “dangers of surveillance.” Neither sees data collection as a purely economic transaction isolated from social context. Both recognize the power of governments and corporations to use data collection (and the threat of classification based on it) to not only limit freedom, but also to promote certain ways of life and ideological orientations.
When a service collects information about a user, the situation is so far from the usual arms-length market transaction that neo-classical economic approaches tend to mislead. We need to look to other approaches to equalize the power relationship that surveillance entails, and to stop trying to characterize lack of surveillance as a product that individuals have varying preferences for and purchase accordingly. As James Rules has observed,
Consider the achievements of today’s systems for tracking and evaluating the so-called credit-worthiness of American consumers. This country’s consumer credit reporting industry ascribes to the great majority of adult Americans a three-digit score epitomizing their potential profitability as charge-account customers, credit card users, or mortgage applicants. As in virtually all systems of mass surveillance, credit tracking and scoring enables institutions to make ever-finer distinctions in their treatment of the people they deal with.
But note that American consumers have no remotely comparable monitoring system to help them choose among retailers, products, and services. . . .[S]uch a system would require manufacturers and sellers to provide crucial data. They will, of course, insist that such information is proprietary–that is, they own it, and they’re not giving it up. The reasons for such resistance are obvious: Better information for consumers spells potential disadvantage for sellers. The dramatic discrepancies between these two surveillance potentials—one an ultra-sophisticated reality, the other grossly underdeveloped—are by no means imposed by technology. They reflect sponsorship.
No one should assume that “transparent citizens” and black box corporations are the natural outcome of market processes. The discrepancy reflects and reinforces the ever-growing power of the latter vis a vis the former. There may be no way to stop that trend. But we can at least identify it honestly, rather than mystifying or rationalizing it to reduce cognitive dissonance.