Privacy and the F.T.C.: Go Get 'Em, Tiger!
December 19, 2012 - 9:39pm
Most folks don't pay much attention to administrative law. It is not an area of law taught at any level of school except law; it is hardly mentioned in 7th grade civics, for example, too busy with the tripartite form of republican democracy. If you take American history as an undergraduate it shows up most prominently in a discussion of the New Deal and the alphabet soup of federal agencies that emerged with Roosevelt's social policy from the first 100 days through to the establishment of the Social Security Administration and National Labor Relations Board in the second administration. Its history began much earlier, however, with the Interstate Commerce Commission of 1887 formed to regulate railroads. In 1914, Congress passed the Federal Trade Commission Act, which was the statutory basis of the Federal Trade Commission.
The Federal Trade Commission has been going great guns of late in the area of privacy. A year or so ago it brought Google up short on its myriad privacy policies that did not harmonize with its myriad applications that for the user move seamlessly from one to the other. It forced Facebook to sign an agreement that it would notify users of changes to its privacy settings. More recently, it has been leading the charge against "data brokers." That term, used by the New York Times, http://www.nytimes.com/2012/12/19/technology/ftc-opens-an-inquiry-into-data-brokers.html?emc=eta1&_r=0, understandably because their scope is so enormous, nonetheless understates the activities in which these companies are engaged and the impact that these companies have on essential practical aspects of our lives (getting a loan … ) as well as sociological "expectations of privacy" being reshaped by the technology every minute in our day and age of rapid, disruptive change. Type 5 of my privacy cheat sheet.
There are many good resources on what these companies are, what they do, and what it means to you and me. My favorite remains the legal expert Dan Solove's analysis in The Digital Person. Using the Kafka metaphor, he describes the manner in which "data brokers" gather, disaggregate, recombine information into "profiles" of individuals that can be sold to a wide variety of secondary business such as marketers, advertisers, banks, credit card and other loan agencies, and, not least: government. Yes, government. What you cannot get through a narrowly tailored warrant conditioned by Fourth Amendment jurisprudence can be purchased without Constitutional complications from a "data broker." In fact, the largest of them all, Acxiom of Little Rock, Ark., offered its services free of charge to the federal government in the immediate aftermath of the events of September 11, 2001. The national security part of me, which is not insignificant, thinks that is great, but the private citizen part of me can't help but go "whoa!" because I don't know where the buck stops before we are exactly where Dan Solove suggests we are already: in a panopticon.
If I had a perfect answer to the challenges that technology brings to the culture, law and politics of the Internet, I would not hide the light under a bushel. I am still so grateful, in this holiday season in which we count our blessings, to be a part of this Inside Higher Education community of bloggers, I would give the rights as to my editors! Alas, I am more gadfly that sage on the stage, and in that mode I compliment the Obama Administration to be directing the Federal Trade Commission to keep the heat up on these questions of privacy. It is the best we can do in an imperfect world. The F.T.C. speaks for the user, the consumer, the man on the street who spits in the wind to voice his objections to any one of these "data brokers" to have accumulated so much information about him, her or me. As either Democratic or Republican, but especially Republican, it is not fashionable to compliment the government. But in this season of unbridled enthusiasm, I can only put on a short, pleaded skirt and grab my pom, poms. F.T.C., go get 'em Tiger!