Y simply to reveal facts about X (such as his cell phone calls), and (3) collecting data about X to better market to X. (1) and (2) make X worse off, though if we believe the crime is properly a crime, then with (1), X is not worse off relative to where he should be. (3) in principle could make you better off — it facilitates advertising that is better targeted and better designed to encourage voluntary transactions. I say “in principle” because even though it’s possible that the ads are better targeted, there are also more of them. On balance, X might be worse off with the flood of well-targeted offers than with a few less well-targeted offers. But despite that possibility, the motive of (3) is different from (1) and (2), and that might well affect how we should respond.
So let’s begin with the focus on (3): What is the harm from this sort of “invasion”? Arguments rage on both sides of this question.
The “no harm” side assumes that the balance of privacy is struck at the line where you reveal information about yourself to the public. Sure, information kept behind closed doors or written in a private diary should be protected by the law. But when you go out in public, when you make transactions there or send material there, you give up any right to privacy. Others now have the right to collect data about your public behavior and do with it what suits them.
Why is that idea not troubling to these theorists? The reasons are many:
• First, the harm is actually not very great. You get a discount card at your local grocery store; the store then collects data about what you buy. With that data, the store may market different goods to you or figure out how better to price its products; it may even decide that it should offer different mixes of discounts to better serve customers. These responses, the argument goes, are the likely ones, because the store’s business is only to sell groceries more efficiently.
• Second, it is an unfair burden to force others to ignore what you show them. If data about you are not usable by others, then it is as if you were requiring others to discard what you have deposited on their land. If you do not like others using information about you, do not put it in their hands.
• Third, these data actually do some good. I do not know why Nike thinks I am a good person to tell about their latest sneakers, and I do not know why Keds does not know to call. In both cases, I suspect the reason is bad data about me. I would love it if Nike knew enough to leave me alone. And if these data were better collected and sorted, it would.
• Finally, in general, companies don’t spend money collecting these data to actually learn anything about you. They want to learn about people like you. They want to know your type. In principle, they would be happy to know your type even if they could not then learn who you are. What the merchants want is a way to discriminate — only in the sense of being able to tell the difference between sorts of people.
The other side of this argument, however, also has a point. It begins, again, by noticing the values that were originally protected by the imperfection of monitoring technology. This imperfection helped preserve important substantive values; one such value is the benefit of innocence. At any given time, there are innocent facts about you that may appear, in a particular context or to a particular set, guilty. Peter Lewis, in a New York Times article called “Forget Big Brother”, puts the point well:
Surveillance cameras followed the attractive young blond woman through the lobby of the midtown Manhattan hotel, kept a glassy eye on her as she rode the elevator up to the 23rd floor and peered discreetly down the hall as she knocked at the door to my room. I have not seen the videotapes, but I can imagine the digital readout superimposed on the scenes, noting the exact time of the encounter. That would come in handy if someone were to question later why this woman, who is not my wife, was visiting my hotel room during a recent business trip. The cameras later saw us heading off to dinner and to the theater — a middle aged, married man from Texas with his arm around a pretty East Village woman young enough to be his daughter.
“As a matter of fact”, Lewis writes, “she is my daughter [23]”.
One lesson of the story is the burden of these monitored facts. The burden is on you, the monitored, first to establish your innocence, and second to assure all who might see these ambiguous facts that you are innocent. Both processes, however, are imperfect; say what you want, doubts will remain. There are always some who will not believe your plea of innocence.
Modern monitoring only exacerbates this problem. Your life becomes an ever-increasing record; your actions are forever held in storage, open to being revealed at any time, and therefore at any time demanding a justification.
A second value follows directly from this modern capacity for archiving data. We all desire to live in separate communities, or among or within separate normative spaces. Privacy, or the ability to control data about yourself, supports this desire. It enables these multiple communities and disables the power of one dominant community to norm others into oblivion. Think, for example, about a gay man in an intolerant small town.
The point comes through most clearly when contrasted with an argument advanced by David Brin[24]. Brin argues against this concern with privacy — at least if privacy is defined as the need to block the production and distribution of data about others. He argues against it because he believes that such an end is impossible; the genie is out of the bottle. Better, he suggests, to find ways to ensure that this data-gathering ability is generally available. The solution to your spying on me is not to block your spying, but to let me spy on you — to hold you accountable, perhaps for spying, perhaps for whatever else you might be doing.
There are two replies to this argument. One asks: Why do we have to choose? Why can’t we both control spying and build in checks on the distribution of spying techniques?
The other reply is more fundamental. Brin assumes that this counter spying would be useful to hold others “accountable.” But according to whose norms? “Accountable” is a benign term only so long as we have confidence in the community doing the accounting. When we live in multiple communities, accountability becomes a way for one community to impose its view of propriety on another. Because we do not live in a single community, we do not live by a single set of values. And perfect accountability can only undermine this mix of values.
The imperfection in present monitoring enables this multiplication of normative communities. The ability to get along without perfect recording enables a diversity that perfect knowledge would erase.
A third value arises from a concern about profiling. If you search within Google for “mortgage” in a web search engine, advertising for mortgages appears on your computer screen. The same for sex and for cars. Advertising is linked to the search you submit. Data is collected, but not just about the search. Different sites collect just about every bit of personal information about you that they can[25]. And when you link from the Google search to a web page, the search you just performed is passed along to the next site.
