While traditionally privacy has referred to our ability to decide what to disclose and what to keep secret, it also entails the right to self-presentation. In Europe, this right is considered so important that members of the European Parliament have proposed enshrining a “right to be forgotten” in new privacy legislation. Such a right would allow parties to demand that their personal data be deleted. While
the passage of such legislation remains uncertain, the very idea highlights a broad divide between the trajectory of personal privacy in the United States and Europe. While in Europe, citizens have responded to privacy threats with legislative action, in the United States, citizens turn to market-based solutions. This is the narrative of privacy rights in the 21st century.
Instead of embracing the “right to be forgotten” of their European counterparts, wealthy Americans continue to fight for increased control over their online presence through firms like International Reputation Management. IRM is a boutique firm that handles privacy concerns for the rich and powerful
by suppressing negative search results. Founders Nino Kader and Dr. Christine Schiwietz explained to the HPR that the first couple of pages of search results a person generates are increasingly viewed as an extension of that person’s presence. Thus, for a couple thousand dollars, IRM marshals a team of writers and tech experts to create positive web content. Another team contacts the owners of sites containing critical information and negotiates with them to have key posts removed. While Kader and Schiwietz are emphatic that their organization has rigorous ethical criteria for approving clients, wealth is the only obvious prerequisite for the service. For the vast majority of Americans, online reputation management is not an affordable option and as a result their control over self-presentation are severely diminished. The very existence of firms like IRM indicates a tacit agreement that unauthorized sharing of information is here to stay.
The vast gulf between the ways the wealthy and the disadvantaged control information online is only a small part of the story of privacy and inequality in America. Similar disparities exist in the way Americans interact with government, employers, and even vendors. In the short run, these disparities in information control benefit the wealthy and middle class, but in the long run all segments of society are more vulnerable to privacy violations.
Private Property
The Fourth Amendment to the Constitution guarantees “The right of the people to be secure in their persons, houses, papers, and effects.” While over the past two centuries, the Supreme Court has interpreted the Amendment to apply to a variety
of modern contexts that the framers could not have foreseen including use of night-vision goggles and GPS tracking, these decisions have always been limited by the assumptions of property enshrined in the letter of the law.
According to Amanda Conley, a former fellow at NYU’s Information Law Institute, the courts have interpreted the Fourth Amendment to provide strong protection to items and information within one’s house, drawing a bright line around the home as the seat of privacy. The result of a bright line protecting those who have houses is that items or information residing outside the home are entitled to significantly less protection. Additionally, the Supreme Court has taken a rather narrow view of what constitutes a home. In the 1925 decision, Carroll v. United States, the Court found that the government could search cars without warrants because motor vehicles carry a “lower expectation of privacy.” Over time, the court has expanded the list of motor vehicles that carry this exception to privacy to include motor homes, trailers, and houseboats. By denying those who can’t afford houses the same level of privacy as they would have had otherwise, the Supreme Court has effectively attached a price tag to Constitutional protections.
Selling Secrets: Privacy and the Poor
As problematic as inequalities in access to constitutional protections are, they pale in comparison to the structural choices that force the poor to give up their privacy in exchange for basic resources. Writer Heather Denkmire has suggested that workers who are paid by their time have access to far less privacy than salaried workers. Having grown up in a white, college-educated, relatively affluent family, Denkmire described her experiences with poverty to the HPR as a culture shock. Hourly-wage workers are expected to practice constant self-surveillance and report to their employers before when they choose to eat, drink water, or use the bathroom, as well as how long each of these functions takes. Because there are few laws regulating what information employers may demand of employees, those who need entry-level work are forced to consent to the surveillance of their employers. Similar forces of surveillance are marshaled against the poor who receive federal or state assistance. In many states, the poor must submit to drug tests, consent to warrantless searches, and report to social workers about their child rearing tactics in order to receive aid.
John Gilliom, a professor of political science at Ohio University, has observed in his research that the poor and vulnerable have traditionally served as testing grounds for more invasive technologies. Mandatory drug testing was first instituted against GIs seeking benefits after the Vietnam War before being expanded over the decades to apply to prisoners, the workforce, and finally high school populations. In Gilliom’s analysis, vulnerable populations provide the path of least resistance to both the state and private companies who expand the use of technology to ever-larger contexts.
The Dangers of Data
While the above examples illustrate how inequality is helping to fuel a decline in privacy, the decline in privacy also fuels inequality. As corporations learn more and more about the populations they employ and serve, they also become better able to exploit the most vulnerable in those populations. Conley and Laura Moy, a former fellow at Georgetown Law’s Institute for Public Representation, illustrate this principle with reference to the current trend toward personalized customer sales cards. Many stores have begun to shift their focus from providing general sales to loading specific sales onto each customer’s card based on their shopping habits. Based on Conley and Moy’s research into industry-wide practices, groceries tend to rely on wealthy, big-ticket spenders who purchase foods like halibut and caviar for their bottom line. They attempt to avoid attracting “grazers,” the usually less affluent shoppers who follow sales from store to store. Conley and Moy theorize that with personalized sales cards, groceries will be able to lure loyal, wealthy shoppers to sample new merchandise that is temporarily marked down while avoiding sales that would attract grazers.
The decline of privacy has a similar exploitive benefit to employers. Since Frederick Taylor developed the theory of scientific management in the late 1890s, employers have sought to coordinate the activities of their workers to optimize production. Especially for wageworkers, this has usually resulted in longer hours, tighter scheduling, and higher production demands. Admitting the right of employers to collect such large amounts of personal information on their employees’ personal choices could be opening the door to the right of employers to similarly manipulate those choices in the name of efficiency and productivity.
A Firmer Foundation
The decline of inequality in the “free market” is generally accepted because individuals give their consent, but market inequalities render such consent meaningless. According to a study by the Pew Research Center, 94 percent of American teenagers have an account with Facebook, by far the leading social networking site. A mere three percent of teens have accounts with Google+, Facebook’s most similar social networking competitor. As a result, when Facebook expands its privacy policies, users must either consent or risk losing access to an unparalleled network of contacts and information.
A better system could draw upon the efforts of the EU to formulate a comprehensive system of privacy protections that apply against government and corporations alike. In the EU, the Data Protection Directive has defined the right to privacy with respect to the processing of personal data as a fundamental right of European citizens since 1995. In 2012, the EU began further efforts to update their privacy apparatus in response to changes in technology. America could adopt parallel legislation and establish once and for all that privacy rights are attached to individuals—not property. To do so would be to use European methods to protect uniquely American conceptions of freedom and liberty. If we do not act decisively, the forces of technology and inequality may continue to eat away at the privacy of all of us, rich and poor alike.