This week, the Indiana Law Review released my short article on privacy and big data that I prepared after the journal’s spring symposium. Law and policy appear on the verge of redefining how they understand privacy, and data collectors and privacy advocates are trying to present a path forward. The article discusses the rise of big data and the role of privacy in both the Fourth Amendment and consumer contexts. It explores how the dominant conceptions of privacy as secrecy and as control are increasingly untenable, leading to calls to focus on data use or respect the context of collection. I quickly argue that the future of privacy will have to be built upon a foundation of trust—between individuals and the technologies that will be watching and listening. I was especially thrilled to see the article highlighted by The New York Times’ Technology Section Scuttlebot.
This week, the Pew Research Center released a new report detailing Americans’ attitudes about their privacy. I wrote up a few thoughts, but my big takeaway is that Americans both want and need more control over their personal information. Of course, the challenge is helping users engage with their privacy, i.e., making privacy “fun,” which anyone will tell you is easier said than done. Then again, considering we’ve found ways to make everything from budgeting to health tracking “fun,” I’m unsure what’s stopping industry from finding some way to do it. // More on the Future of Privacy Forum blog.
As part of my day job, I recently recapped the Federal Trade Commission’s workshop on “Big Data” and discrimination. My two key takeaways were that regulators and the advocacy community wanted more “transparency” into how industry is using big data, particularly in positive ways, and second, that there was a pressing need for industry to take affirmative steps to implement governance systems and stronger “institutional review board”-type mechanisms to overcome the transparency hurdle the opacity of big data present.
But if I’m being candid, I think we really need to start narrowing our definitions of big data. Big data has become a term that gets attached to a wide-array of different technologies and tools that really ought to be addressed separately. We just don’t have a standard definition. The Berkeley School of Information recently asked forty different thought leaders what they thought of big data, and basically got forty different definitions. While there’s a common understanding of big data as more volume, more variety, and at greater velocity, I’m not sure how any of these terms is a foundation to start talking about practices or rules, let alone ethics.
At the FTC’s workshop, big data was spoken in the context of machine learning and data mining, the activities of data brokers and scoring profiles, wearable technologies and the greater Internet of Things. No one ever set ground rules as to what “Big Data” meant as a tool for inclusion or exclusion. At one point, a member of the civil rights community was focused on big data largely as the volume of communications being produced by social media at the same time as another panelist was discussing consumer loyalty cards. Maybe there’s some overlap, but the risks and rewards can be very different.
After a three year dry spell, OkCupid’s fascinating OkTrends blog roared to life on Monday with a post by Christian Rudder, cofounder of the dating site. Rudder boldly declared that his matchmaking website “experiment[s] on human beings.” His comments are likely to reignite the controversy surrounding A/B testing on users in the wake of Facebook’s “emotional manipulation” study. This seems to be Rudder’s intention, writing that “if you use the Internet, you’re the subject of hundreds of experiments at any given time, on every site. That’s how websites work.”
Rudder’s announcement detailed a number of the fascinating ways that OkCupid “plays” with its user’s information. From removing text and photos from people’s profiles to duping mismatches into thinking they’re excellent matches for one another, OkCupid has tried a lot of different methods to help users find love. Curiously, my gut reaction to this news was that it was much less problematic that the similar sorts of tests being run by Facebook – and basically everyone involved in the Internet ecosystem.
After all, OkCupid is quite literally playing Cupid. Playing God. There’s an expectation that there’s some magic to romance, even if it’s been reduced to numbers. Plus, there’s the hope these experiments are designed to better connect users with eligible dates, while most website experiments are to improve user engagement with the service itself. Perhaps all is fair in love, even if it requires users to divulge some of the most sensitive personal information imaginable.
Whatever the ultimate value of OkCupid’s, or Facebook’s, or really any organization’s user experiments, critics are quick to suggest these studies reveal how much control users have ceded over their personal information. But I think the real issue is broader than any concern over “individual control.” Instead, these studies beg the question of how much technology – fueled by our own data – can shape and mediate interpersonal interactions.
OkCupid’s news immediately brought to mind a talk by Patrick Tucker just last week at the Center for Democracy & Technology’s first “Always On” forum. Tucker, editor at The Futurist magazine and author of The Naked Future, provided a firestarter talk that detailed some of the potential of big data to reshape how we live and interact with each other. At a similar TEDx talk last year, he posited that all of this technology and all of this data can be used to give individuals an unprecedented amount of power. He began by discussing prevailing concerns about targeted marketing: “We’re all going to be faced with much more aggressive and effective mobile advertising,” he conceded, ” . . . but what if you answered a push notification on your phone that you have a 60% probability of regretting a purchase you’re about to make – this is the antidote to advertising!”
But he quickly moved beyond this debate. He proposed a hypothetical where individuals could be notified (by push notification, of course) that they were about to alienate their spouse. Data can be used not just to set up dates, but to manage marriages! Improve friendships! For an introvert such as myself, there’s a lot of appeal to these sorts of applications, but I also wonder when all of this information becomes a crutch. As OkCupid explains, when its service tells people they’re a good match, they act as if they are “[e]ven when they should be wrong for each other.”
Occasionally our reliance on technology crosses not just some illusory creepy line, but fundamentally changes our behavior. Last year, at IAPP’s Navigate conference, I met Lauren McCarthy, an artist researcher in residence at NYU, who discussed how she used technology to augment her ability to communicate. For example, she demoed a “happy hat” that would monitor the muscles in your face and provide a jolt of physical pain if the wearer stopped smiling. She also explained using technology and crowd-sourcing to make her way through dates. She would secretly video tape her interactions with men in order to provide a livestream for viewers to give her real time feedback on the situation. ”He likes you.” “Lean in.” “Act more aloof,” she’d be told. As part of the experiment, she’d follow whatever directions were being beamed to her.
I asked her later whether she’d ever faced the situation of feeling one thing, e.g., actually liking a guy, and being directed to “go home” by her string-pullers, and she conceded she had. “I wanted to stay true to the experiment,” she said. On the surface, that struck me as ridiculous, but as I think on her presentation now, I wonder if she was forecasting our social future.
Echoing OkCupid’s results, McCarthy also discussed a Magic 8 ball device that a dating pair could figuratively shake to direct their conversation. Smile. Compliment. Laugh, etc. According to McCarthy, people had reported that the device had actually “freed” their conversation, and helped liberate them from the pro forma routines of dating.
Obviously, we are free to ignore the advice of Magic 8 balls, just as we can ignore push notifications on our phones. But if those push notifications work? If the algorithmic special sauce works? If data provides “better dates” and less alienated wives, why wouldn’t we use it? Why wouldn’t we harness it all the time? From one perspective, this is the ultimate form of individual control, where our devices can help us to tailor our behavior to better accommodate the rest of the world. Where then does the data end and the humanity begin? Privacy, as a value system, pushes up against this question, not because it’s about user control but because part of the value of privacy is in the right to fail, to be able to make mistakes, and to have secret spaces where push notifications cannot intrude. What that spaces looks like, however, when OkCupid is pulling our heartstrings.
Been spending more and more time at work trying to get a handle on the politics (and definition) of de-identification. De-identification, in short, are processes designed to make it more difficult to connect information with one’s identity. While industry and academics will argue over what exactly that means, my takeaway is that de-identification battles have become proxies for a profound lack of trust and transparency on both sides. I tried to flesh out this idea a bit, and in the process, made the mistake of wading into the world of statistics. // Read more on the Future of Privacy Forum Blog.
Information is power, as the saying goes, and big data promises the power to make better decisions across industry, government, and everyday life. Data analytics offers an assortment of new tools to harness data in exciting ways, but society has been slow to engage in a meaningful analysis of the social value of all this data. The result has been something of a policy paralysis when it comes to building consensus around certain uses of information.
Advocates noted this dilemma several years ago during the early stages of the effort to develop a Do Not Track (DNT) protocol at the World Wide Web Consortium. DNT was first proposed seven years ago as a technical mechanism to give users control over whether they were being tracked online, but the protocol remains a work in progress. The real issue lurking behind the DNT fracas was not any sort of technical challenge, however, but rather the fact that the ultimate value of online behavioral advertising remains an open question. Industry touts the economic and practical benefits of an ad-supported Internet, while privacy advocates maintain that targeted advertising is somehow unfair. Without any efforts to bridge that gap, consensus has been difficult to reach.
As we are now witnessing in conversations ranging from student data to consumer financial protection, the DNT debate was but a microcosm of larger questions surrounding the ethics of data use. Many of these challenges are not new, but the advent of big data has made the need for consensus ever more pressing.
For example, differential pricing schemes – or price discrimination – have increasingly become a hot-button issue. But charging one consumer a different price than another for the same good is not a new concept; in fact, it happens every day. The Wall Street Journal recently explored how airlines are the “world’s best price discriminators,” noting that what an airline passenger pays is tied to the type of people they’re flying with. As a result, it currently costs more for U.S. travelers to fly to Europe than vice versa because the U.S. has a stronger economy and quite literally can afford higher prices. Businesses are in business, after all, to make money, and at some level, differential pricing makes economic sense.
However, there remains a basic concern about the unfairness of these practices. This has been amplified by perceived changes in the nature of how price discrimination works. The recent White House “Big Data Report” recognized that while there are perfectly legitimate reasons to offers different prices for the same products, the capacity for big data “to segment the population and to stratify consumer experiences so seamlessly as to be almost undetectable demands greater review.” Customers have long been sorted into different categories and groupings. Think urban or rural, young or old. But big data has made it markedly easier to identify those characteristics that can be used to ensure every individual customer is charged based on their exact willingness to pay.
The Federal Trade Commission has taken notice of this shift, and begun to start a much-needed conversation about the ultimate value of these practices. At a recent discussion on consumer scoring, Rachel Thomas from the Direct Marketing Association suggested that companies have always tried to predict customer wants and desires. What’s truly new about data analytics, she argued, is that it offers the tools to actually get predictions right and to provide “an offer that is of interest to you, as opposed to the person next to you.” While some would argue this is a good example of market efficiency, others worry that data analytics can be used to exploit or manipulate certain classes of consumers. Without a good deal more public education and transparency on the part of decision-makers, we face a future where algorithms will drive not just predictions but decisions that will exacerbate socio-economic disparities.
The challenge moving forward is two-fold. Many of the more abstract harms allegedly produced by big data are fuzzy at best – filter bubbles, price discrimination, and amorphous threats to democracy are hardly traditional privacy harms. Moreover, few entities are engaging in the sort of rigorous analysis necessary to determine whether or not a given data use will make these things come to pass.
According to the White House, technological developments necessitate a shift in privacy thinking and practice toward responsible uses of data rather than its mere collection and analysis. While privacy advocates have expressed skepticism of use-based approaches to privacy, increased transparency and accountability mechanisms have been approached as a way to further augment privacy protections. Developing broad-based consensus around data use may be more important.
Consensus does not mean unanimity, but it does require a conversation that considers the interests of all stakeholders. One proposal that could help drive consensus are the development of internal review boards or other multi-stakeholder oversight mechanisms. Looking to the long-standing work of institutional review boards, or IRBs, in the field of human subject testing, Ryan Calo suggested that a similar structure could be used as a tool to infuse ethical considerations into consumer data analytics. IRBs, of course, engage in a holistic analysis of the risks and benefits that could result from any human testing project. They are also made up of different stakeholders, encompassing a wide-variety of diverse backgrounds and professional expertise. These boards also come to a decision before a project can be pursued.
Increasingly, technology is leaving policy behind. While that can both promote innovation and ultimately benefit society, it makes the need for consensus about the ethics at stake all the more important.
With the White House’s Big Data and Privacy Review anticipated any day now, I figured it was long past time to put together a quick #bigdataprivacy bingo card. If you go to enough privacy (or big data) events and workshops, you’ll quickly realize how many of the same buzzwords and anecdotes get cited over and over . . . and over again. In the battle between privacy and innovation, bingo may be the only thing that wins.
Happy to report that Truthout today published my quick op-ed entitled “Big Data’s Big Image Problem.” Not only does this piece expand on comments the Future of Privacy Forum submitted as part of the White House’s Big Data Review, but it also riffs on my favorite part of the latest Marvel movie, Captain America: The Winter Soldier. As a privacy wonk, I took great pleasure in discovering that ::minor spoilers:: Captain America’s chief villain was actually “The Algorithm.” When Captain America doesn’t like you, you know you’ve got an image problem, and frankly, big data has an image problem.
Speaking for everyone snowed-in in DC, White House Counselor John Podesta remarked that “big snow trumped big data,” while on the phone to open the first of the Obama Administration’s three big data and privacy workshops. This first workshop, which I was eager to attend (if only to continue my streak of annual appearances in Beantown), focused on advancing the “start of the art” in technology and practice. For a mere lawyer such as myself, I anticipated a lot of highly technical jargon, and in that regard I was not disappointed. // Full recap on the Future of Privacy Forum Blog.
The biggest takeaway from Common Sense Media’s School Privacy Zone Summit was, in the words of U.S. Secretary of Education Arne Duncan, that “privacy needs to be a higher priority” in our schools. According to Duncan, “privacy rules may be the seatbelts of this generation,” but getting these rules right in sensitive school environments will prove challenging. As the Family Educational Rights and Privacy Act (FERPA), one of the nation’s oldest privacy laws, turns forty this year, what seems to be apparent is that are schools lack both the resources and training necessary to even understand today’s digital privacy challenges surrounding student data.
Dr. Terry Grier, Superintendent of the Houston Independent School District, explains that his district of 225,000 students is getting training from a 5,000 student district in North Carolina. The myriad of different school districts, varying sharply in wealth and size, has made it impossible for educators to define rules and expectations when it comes to how student data can be collected and used.
Moreover, while privacy advocates charge that schools have effectively relinquished control over their students’ information, several panelists noted that we haven’t yet decided who the ultimate custodian of student data even is. One initial impulse might be to analogize education records to HIPAA health records, which belong to a patient, but Cameron Evans, CTO of education at Microsoft, suggested that it might be counterproductive to think of personalized education data as strictly comparable to individual health records. On top of this dilemma, questions about how to communicate and inform parents have proven difficult to answer as educational technology shifts rapidly, resulting in a landscape that one state educational technology director described as the “wild wild west.”
There was wide recognition by both industry participants at the summit and policymakers that educational technology vendors need to establish best practices – and soon. Secretary Duncan noted there was a lot of energy to address these issues, and that it was “in the best interest of commercial players to be self-policing.” The implication was clear: begin establishing guidelines and helping schools now or face government regulation soon.