Correction

-- By MatthewEckman - 15 May 2009

I made a mistake in class one day. Professor Moglen, as I recall, was speaking in ominous tones about the fact that grocery stores use supersaver discount cards to track customer purchases. He noted that they presumably they do this in order to market products more efficiently and increase profit. The professor was also alarmed about the fact that gmail looks for keywords in email messages sent and received so that firms that advertise on gmail can more accurately target their market. When Professor Moglen finished I leapt to my feet.

"Oh NO!" I cried, in mock horror. "THE END OF DAYS IS COME, JUST AS THE ANCIENTS PREDICTED!"

I didn't really, but I wanted to. Instead I said something like, "but isn't perfect information necessary for a well-functioning market?" Though I may not have articulated my point very well, that wasn't the mistake that’s bothering me. My mistake was in not shutting up. After I asked the question Professor Moglen seemed suddenly and strangely reticent and so I, already somewhat embarassed and increasingly nervous, answered my own question. I said something like, "Oh I see. It's a one-sided well-functioning market." I didn't know then what I meant, and I still don't. But Professor Moglen seemed to approve of my answer and I acquiesced in it. Maybe he was doing me a favor, or thought that he was. Maybe his intention was to spare me further embarassment. Throughout the course it has often occurred to me that there is something—something important, something fundamental but not terribly difficult to understand—that much of the class "gets" whereas I do not.

In a term paper the internal barriers to free expression are lower than they are in a classroom setting. Even when that paper is posted on a publicly accessible wiki, the opportunity to embarass oneself is relatively limited. So I will ask my question again and attempt to provide a more satisfactory answer. Anyone who wants to chime in is welcome.

The point that I tried to make in class isn't subtle or profound. I was simply asking: "And what's wrong with that? Don’t consumers obviously benefit?" (I had the same reaction to certain passages from "No Place to Hide.") The simple answer seems to be: "There's nothing wrong with it per se, but it's somewhat alarming. We need to ensure that the information collected is used for good and not evil." I might add that the People need to know that and how technology is being used to gather information about them and what sort of information is being gathered. Then we can have a public discussion about what safeguards are appropriate, and of course this will be eminently debatable. I don't have a very definite idea about the kinds of safeguards that need to be in place--and that because I am for the most part still one of the naive People--but the path down which to proceed I see clearly enough, and I imagine that just about everyone would agree that it's the proper path. (Or at least they would, behind a veil of ignorance in which no one knows whether or not she is an executive or director of a telecom company--or similarly situated in a position in which her profit motive might overwhelm her civic scruples--in our information society.) I trust that people who are very much concerned with privacy issues have my best interests at heart, more or less. They provide or work to provide the necessary ensurance. I am glad they are there to play the roles of privacy advocate and industry watchdog, but for whatever reason I simply do not feel compelled to join them. I am able to sleep through the wake-up calls that some privacy advocates seem to consider so urgent. (I sometimes seem to hear them shouting: "Wake up, Sheeple!") My spidey-sense is tingling, but it isn't ringing off the hook. Maybe it's not that there is something I don't "get" but rather that I lack a certain temperament.

All this strikes me as painfully platitudinous. It boils down to a simple admonition to be smart about all this privacy and technology stuff. Obviously there is no algorithm for how to proceed "smartly," but I am confident that the general direction and appropriate methods are clear enough and that there is widespread agreement on what they are. Hashing out the specifics of what to do in response to any particular privacy concern will require an informed public debate. I trust that a well-functioning democracy (or well-enough) will reach a satisfactory and largely rational concensus. And I trust that there are sufficiently influential lobbies, litigators, judges, legislators, etc. who effectually (more-or-less) act as my proxy in the democratic process.

In his book O’Harrow discusses the case of James Turner. Turner rented a car and paid for it using a debit card. On his trip he sometimes drove 80 mph, and eventually he came to find that the car rental company, Acme, had taken the unusual measure of charging speeding fines to his debit card. Acme had been using the GPS system installed on the car to monitor Turner’s position and velocity at all times. This is of course outrageous. I expect most anyone would agree that this kind of thing cannot stand, even if Turner’s rental agreement included a waiver. And of course it did not stand:

Turner sued, charging Acme with invading his privacy. Included in the court records were maps that showed the exact longitude and latitude of Turner's Voyager, down to six decimal places, and the exact time he was speeding, down to the second. "Said surveillance by Defendant seriously interfered with the Plaintiff's solitude, seclusion and in his private affairs," said the papers his attorney filed in Connecticut Superior Court. The trial date was set for the spring of 2004. "The Defendant knew or should have known the use of a 'GPS' system would be offensive to persons of ordinary sensibilities."

Turner also submitted a claim to the state Department of Consumer Protection. After an investigation, the department ordered Acme to stop fining people, and to return the speeding fees. Turner wasn't the only one watched and tagged by the company. "It's horrible. It's like I was some sort of an animal that was tagged by scientists so they could observe my mating habits," another driver told Wired.

Privacy violations, just like torts, should be addressed as they arise. Is there some general reason for thinking that they cannot or will not be addressed? Is there something inherently evil about putting a GPS system in a rental car or using electronic data to target consumers? If there is, I really don't get it. We did alright by Turner.

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