Data collection, privacy, and being “un-personed”

In a pre-internet era, I worried mostly about losing privacy — and therefore losing face — locally; now, individuals lose privacy and face nationally.

In 1986, I attended a lecture by Arthur R. Miller. The lawyers among you might recognize him as one of the two authors of Wright and Miller’s Federal Practice and Procedure. For the non-lawyers among you, Federal Practice and Procedure is (or at least was then) the single most important treatise on practicing law in the federal court system.

(As an aside, Charles Alan Wright, the other author, taught at my law school, although I was not in his Civil Procedure class. Rumor had it that he was an indifferent teacher, but that he kept students entertained with his photographic memory, which included being able to cite with perfect accuracy to every single page in his multi-volume treatise.)

I’m digressing a bit, but my point is that this was a lecture from one of the finest judicial minds in the country. The topic Miller chose to address was privacy. The obvious things to raise in the lecture would have been seminal Supreme Court cases about privacy, such as Griswold v. Connecticut, 381 U.S. 479 (1965), which held that states had no business interfering in a married couple’s contraception decisions because of the inherent constitutional right to privacy; Eisenstadt v. Baird, 405 U.S. 438 (1972), which extended the Griswold privacy right to unmarried couples; or Katz v. United States, 389 U.S. 347 (1967), which held that the 4th Amendment’s ban on unreasonable searches and seizures applied to places in which someone has a reasonable expectation of privacy. I don’t remember Miller addressing any of those subjects.

Instead, what I remember him talking about was the fact that the computer age (which was over 30 years less developed then than it is now) meant that corporations were compiling databases about consumers through customer loyalty cards and general credit card use. Corporations, he said, learned our every purchase and this, he argued, was itself a violation of our privacy. I don’t think Miller could have been at all surprised to read in 2012 that Target figured out that a teen girl was pregnant before her father did:

Every time you go shopping, you share intimate details about your consumption patterns with retailers. And many of those retailers are studying those details to figure out what you like, what you need, and which coupons are most likely to make you happy. Target, for example, has figured out how to data-mine its way into your womb, to figure out whether you have a baby on the way long before you need to start buying diapers.

I won’t quote from the article at length, but if you missed it the first time around, back in 2012, I suggest you check it out now just to see how deeply corporations can pry into our lives to try to figure out our shopping needs.

Of course, nowadays, with browser cookies and targeted ads, every time we interact with the internet, we get carefully calibrated advertisements placed before us based upon our browsing history. If you have Gmail, as I do, you know that the price you pay for this “free” service is that Google’s systems troll through your emails, figure out what interests you, and put targeted ads at the top of your inbox.

All of it is what Miller predicted 33 years came true, although with a reach and specificity nobody in 1986 could have imagined. And yet that really doesn’t bother me.

A friend of mine who had Glenn Reynolds as an instructor in the early 1990s told me that Glenn Reynolds had noticed the same trend that Miller had; namely, that corporations were using loyalty cards and credit card information to target customers with specific mailings and other store offers. However, as my friend remembers it, Reynolds didn’t necessarily see this as a bad thing. Instead, he said it turned every American into royalty. Just as, in olden times, merchants would try desperately to please royals by offering to them things they were sure would satisfy the royals’ very specific tastes, nowadays merchants go out of their way to figure out what we want and to offer it to us.

I would go further than that. We do not have to use either credit cards or loyalty cards. Doing so is a voluntary act on our part. We can opt out of those systems (although with the loyalty cards we’ll leave money on the table) and choose not to be tracked and analyzed. We can continue to shop without them — and, indeed, I know many people who do. We can be royal or not, as we please.

The other thing is something I thought back at the time I heard Miller’s speech, which is that a large part of privacy is that we don’t want the people in our immediate world to know things about us. In other words, a woman probably doesn’t care that Target knows when she’s having her period because of the regularity with which she buys sanitary products but she would be bothered if creepy, old Mr. Smith down the block were paying attention to her body’s menstrual cycles. In the same way, back in the old days, men didn’t mind buying Playboy or Penthouse from the newspaper stand, where the sales guy didn’t know them from Adam, but they might not have wanted the people in their church to know those magazines were hidden in their sock drawer.

It seemed to me then that privacy is largely about hiding parts of ourselves from those whom we actually know. This is true whether we want them to think well of us or we don’t want them to think badly of us. (Those two sound identical but, if you think about it, you’ll realize that they’re not.) After all, for years I hid from my neighbors my political leanings. I had a life there that revolved around children and school, and it would have made my life quite difficult if people had treated me like the anti-Christ, especially after Trump’s election.

Fundamentally, I did not want to be “un-personed” in my own community. Or maybe, to use a more familiar expression, this one from Japan, I didn’t want to “lose face” before people whom I knew personally and whose good opinion (or lack of bad opinion) mattered to me, whether practically or emotionally.

What no one imagined back when Messrs. Miller and Reynolds were thinking about corporate data mining was the rise of an internet that had most of its power concentrated in Leftist hands. These Leftists, moreover, have convinced themselves that they are altruists who care nothing for power, but only care about the public good. Those are often the most dangerous people around.

Neither Reynolds, nor Miller, nor I, whatever our views on corporate data harvesting back in the 1980s and 1990s, envisioned “de-platforming,” which is essentially “un-personing” for “wrong think.” Whatever Macy’s was doing with the information it gathered about my shopping habits back in 1986, it wasn’t going to bar me from its store if I didn’t shop in the correct way. Likewise, the fact that Safeway knew that I preferred apples to bananas did not make me persona non grata in the store. It simply meant that Safeway sent me coupons for apples to encourage me to shop in its stores and, it hoped, to buy more things than just discounted apples.

Moreover, as I said, loyalty cards were voluntary. One can voluntarily function without the internet, but it’s hard. Paper mail is dying as people’s written communications flow solely through email. Even if you refuse to have a private email address, you can’t do business in today’s world without email and a good website.

Newspapers are dying because they’re losing the ad revenue from the old classified ads. Instead, today people spill their lives on Craigslist, where they sell or look to buy everything from cars to personal services to used scissors. Some people choose to keep their identity private (which means trusting that Craigslist is an honest broker), but other naive souls put their info out there for all to see.

Our free email providers scrutinize our email, our almost obligatory interactions with our friends on social media are constantly subject to review for wrong-think by those “benevolent” Leftists in charge. Our online shopping is still scanned so that the merchant can encourage us to buy more, but is also scrutinized to make sure we’re not buying the “wrong” products.

On the streets, too, we’re being scrutinized, not by our neighbors, but by the whole world. Take just one recent example:

I admit to having a huge burst schadenfreude while watching a singularly larcenous little feminist get arrested by a polite campus cop for stealing a pro-Life sign. At the larger level, it was refreshing to see someone, even one lone police officer, step up to the anarchy that Leftists view as their unimpeded right. As I’ve often noted over the years, what these Leftists are doing isn’t principled civil disobedience. It is, instead, a cross between a toddler’s temper tantrum and a tyrant’s terrorism.

Nevertheless, a small part of me was disturbed that one young woman’s acting-out on a college campus is now fodder for the entire nation — and something, moreover, that will follow her for her entire life. I recall reading an article last year (but can’t find the darn thing), in which the author discussed the life-destroying horrors of twitter infamy. I did find this article about someone who was almost instantly destroyed by an internet-spread false rape accusation. Neighborhood infamy or community based infamy has become nationalized.

Indeed, perhaps the best statement about the ruination of reputation and personhood that is the modern internet came from Matt Taibbi, writing in Rolling Stone about the way in which Russiagate represented the debasement of American journalism. A paragraph he wrote about the media’s inability to distinguish accusations from proof stuck me with special force:

Russiagate institutionalized one of the worst ethical loopholes in journalism, which used to be limited mainly to local crime reporting. It’s always been a problem that we publish mugshots and names of people merely arrested but not yet found guilty. Those stories live forever online and even the acquitted end up permanently unable to get jobs, smeared as thieves, wife-beaters, drunk drivers, etc.

With Russiagate the national press abandoned any pretense that there’s a difference between indictment and conviction.

Even if you try to avoid the internet and the loss of privacy it brings, that doesn’t mean it won’t come after you and destroy your life, not just in the eyes of your neighbors, but in the eyes of the world. Once upon a time, if you were wrongly arrested, your neighbors would also know when you were vindicated. Nowadays, though, as Taibbi points out, you forever bear the misplaced Mark of Cain no matter where you go. How’s that for a loss of privacy, face, and personhood.

The young woman in the video deserved to be arrested because she committed a crime, but I’m not sure she deserved to have her humiliation broadcast around the world. (Although I’m sure that a substantial segment of Americans consider her a hero, so maybe it’s not all bad. She’ll get awards and speaking fees, so perhaps my schadenfreude about her arrest isn’t too morally wrong.)

I guess that the way to wrap up this post is to say that, back in 1986, I thought that privacy mattered to the extent we did not want to be “de-personed” within the community of people who knew us and whom we knew right back. I would have been horrified then, and am certainly horrified now, to know that we have a system in which functioning as part of the modern world (that is, functioning without going into the woods and living off the grid) means that we run the risk that major corporations will “de-person” us or that our failings, large or small, will become nationwide fodder.

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