Faculty Blog, Friedman

Against the Commodification of Information Privacy

Back in May, the New York Times published a piece by the technology entrepreneur, Heidi Messer, in which she argued that the time has come to “stop fetishizing privacy,” understood as control over one’s personal information. Her basic contention is that the modern narrative about information privacy – that is, control over information about ourselves – is outdated. She notes that we live in “a networked world,” and that the internet “is built for sharing things at little to no cost.” And tech companies not only provide valuable services, but income to millions of employees—all because they have access to the fuel that allows them to drive “growth for the world’s economy.”

That fuel is data—it is your personal information, mine, everyone’s. Sacrificing our personal information is the price we pay for the convenience of living in our networked world—for whatever pleasures and convenience we derive from platforms like Facebook, Uber and YouTube. But every business development fueled by our data should not necessarily be considered progress. And privacy, despite Messer’s protestations to the contrary, is not “a relatively modern idea.”

Messer’s plea to accept reduced privacy as the price of progress appeared shortly before Senators Mark Warner and Josh Hawley introduced a bipartisan privacy bill that would mandate data valuation. The law would compel tech companies literally to put a price on the personal information we give up when agreeing to terms of use. As Charlie Warzel, also writing in the Times, observed, not only does this approach “ignore the way most users approach privacy trade-offs,” it is not at all clear how to calculate the value of our personal information. Indeed, Warzel’s “back-of-the-envelope” math puts the sum of our digital lives as “worth roughly half of a yearly subscription to the Cheese of the Month club.”

But that can’t be right. Both Messer’s claim and the Warner-Hawley bill start from the wrong place. Information privacy is not simply a good that can be bought and sold, and we should resist efforts to commodify it.

To understand why, let’s first clear up the misperception that privacy is a modern development. In his book, Privacy: A Short History, David Vincent notes that as early as the mid-seventeenth century, there had developed a line between that information which should be considered public and that which should be considered private. He writes:

The decline of the great hall and the increasing tendency of elite families to dine and relax apart from both their poorer neighbours and the household servants disrupted the sense of a local society constituted by a shared discussion of local affairs. … [At the same time, the] rise of Puritanism forced a reconsideration of the legitimacy of domestic privacy. … Zealous reformers … demanded public accountability for what was done and thought inside the household, and for how its members behaved as they went about their business or pleasure. … What contained the threat of surveillance, then and in later centuries by other means and agencies, was the largely unacknowledged nature of intimate communications. … Those … whose mutual knowledge was based on time and trust, had at their disposal a range of means for exchanging information that diluted the effect of overheard or retold conversation.

To recap: nearly four hundred years ago, groups segregated themselves from others in order to maintain a sense of privacy, and in the face of increased surveillance developed the means to continue to exchange information without sacrificing that sense of privacy. So much for information privacy being a “relatively modern idea.”

More importantly, at a basic level it’s inaccurate to describe information privacy exclusively as a mere commodity, like fuel. As I recently put it in a review of Sarah Igo’s book, The Known Citizen: A History of Privacy in Modern America:

[P]rivacy is a medium, like air: we live within its embrace, to varying degrees, from our earliest days until our last. Its existence allows us to negotiate and contextualize our political and personal connections—in our relationship with the state as citizens, and with each other in our day-to-day dealings. It is a barrier that mediates the extent to which each of us is known or unknown to those around us.

Air can be commodified, of course—as anyone knows who has had to pay to fill automobile tires at a service station. But clean air, an environmental good, resists commodification, as do other environmental goods. As the philosopher, Elizabeth Anderson, has reasoned:

Because market prices and willingness to pay statistics generally reflect individuals’ valuations of things only as satisfying their private wants and interests, they do not capture all the ways people value environmental goods. The preferences people express in their roles as consumers therefore do not capture all the concerns they have. So people in their roles as citizens debating public policy do not and should not take the preferences they express in their market choices as normative for public purposes.

Environmental goods have intrinsic, as well as instrumental, value—that is, they have value in and of themselves, apart from their practical use to us. It is in this way that information privacy is like air: it is fuel for our automobile tires, yes, and for that we will pay; but it is also necessary to our very existence, and in that sense is literally priceless.

Warzel has argued that information privacy is “too big to understand.”  “Privacy,” he continues:

is an impoverished word—far too small a word to describe what we talk about when we talk about the mining, transmission, storing, buying, selling, use and misuse of our personal information. … When technology governs so many aspects of our lives – and when that technology is powered by the exploitation of our data – privacy isn’t just about knowing your secrets, it’s about autonomy.

Information privacy is connected to autonomy in this way: it allows us to decide for ourselves who we are and will be, by creating a necessary space in which we can protect our intimate thoughts and relationships, whether they be romantic, professional or commercial. In this light, personal data are more than just bits of fuel for corporate data aggregators. Indeed, to contend that the modern narrative fetishizes information privacy is to misconceive the very nature, and worth, of privacy—it is to diminish its value in the face of interests that, even taken together, cannot be information privacy’s equal.

Lawrence Friedman teaches courses in constitutional law and information privacy at New England Law | Boston.