The Value—and Limits—of Distributive Justice in Information Privacy

Digi ta l Soc io logy Mini -conferenceEastern Socio logica l Society

March 19, 2016

JEFFREY ALAN JOHNSONINTERIM DIRECTOR

INSTITUTIONAL EFFECTIVENESS & PLANNINGUTAH VALLEY UNIVERSITY

Justice and Information

Privacy

@the_other_jeff

“The findings and the theories that emerged have often relied on overlapping constructs nestled within loosely bounded nomological networks. This has resulted in a suboptimal cumulative contribution to knowledge.” (Smith, Dinev, & Xu 2011)

Justice and Information

Privacy

@the_other_jeff

“The findings and the theories that emerged have often relied on overlapping constructs nestled within loosely bounded nomological networks. This has resulted in a suboptimal cumulative contribution to knowledge.” (Smith, Dinev, & Xu 2011)

Privacy, however, is a concept in

disarray. Nobodycan articulate

what it means.(Solove 2008)

Justice and Information

Privacy

@the_other_jeff

The question behind this paper is whether we can bring coherence by viewing information privacy as a question of justice. David Schlosberg, for example, made important strides in environmental justice by taking the underlying theory of justice seriously. The underlying theory of justice is even more implicit in information privacy, and thus stands to gain even more from analysis.

Privacy as an

Instrument of Justice

@the_other_jeff

“That social norm is just something that has evolved over time.”

“Privacy as we knew it in the past is no longer feasible.”

“I trade my privacy for the convenience.”

Title IV or ADEA: Case law protections on

information collection.

ADA or GINA: Statutory protections

but with exceptions for legitimate uses.

Privacy as an

Instrument of Justice

@the_other_jeff

Privacy can be dead—it can be traded for convenience, abandoned because it is impractical, evolve out of existence—because it is not justice in itself; rather it simply contributes to the pursuit of justice in other areas. If information privacy is no longer feasible or has evolved out of existence, then one simply looks elsewhere for such protections—a belief that one’s own virtue upholds a system of perfect meritocracy, perhaps? But this does not undermine the value of privacy; e.g., the privacy of GitHub contributors clearly supports more equitable outcomes. We want to study this but we need more that just instrumental theories.

Most privacy theoriesprotect privacy by

controlling the flowof information to

other parties, i.e.,by distributing it.

Information Privacy as a Distributive

Question

@the_other_jeff

“Access to individually identifiable personal information”

“The ability of the individual to protect information about himself “

Information Privacy as a Distributive

Question

@the_other_jeff

If the purpose of privacy is to distribute information, then justice in information privacy must be to distribute it well. From the perspective of most theories of information privacy, then, privacy is a question of distributive justice. Hence if we can build a coherent theory of distributive justice in information then that would protect privacy.

Process-Oriented

Distributive Justice

@the_other_jeff

“A distribution is just if it arises from another just distribution by legitimate means.”

—Robert Nozick

Justice in Original Acquisition

Justice in Transfer

Justice in Transfer(Rinse)

Justice in Transfer(Repeat)

Consent in Process-

Distributive Privacy

@the_other_jeff

Justice in transferrequires a morerobust principle of consentthan “caveat emptor.”

Privacy Policies and Terms of Service

Agreements

Consent in Process-

Distributive Privacy

@the_other_jeff

The Apple iTunes Terms of Service (2015) agreement, for example, runs nearly 21,000 words, suggesting a reading time of between 98 and 136 minutes without accounting for the difficulty of the text. It has a Flesch-Kincaid Grade Level score of 16—a college graduate—and a Flesch Reading Ease score of 31.4, putting it above the reading comprehension level of the more than 70% of Americans without a bachelor’s degree.

Consent in Process-

Distributive Privacy

@the_other_jeff

Justice in transferrequires a morerobust principle of consentthan “caveat emptor.”

Privacy Policies and Terms of Service

Agreements

FERPAHIPAA Privacy Rule

Consent in Process-

Distributive Privacy

@the_other_jeff

Process-distributiveprivacy requires aprinciple of justice in originalacquisition.

Educational Data Creation and

Collection

Pattern-Oriented

Distributive Justice

@the_other_jeff

A distribution is just if it conforms to a just pattern of distribution.

𝐷𝐼𝑆𝑇 𝑗 ({𝑑𝑖𝑟𝑒𝑐𝑡𝑙𝑦 𝑟𝑒𝑙𝑒𝑣𝑎𝑛𝑡 h𝑒𝑡 𝑖𝑐𝑎𝑙 𝑣𝑎𝑟𝑖𝑎𝑏𝑙𝑒𝑠 })Rawls’ Difference Principle:

Pattern-Oriented

Distributive Justice

@the_other_jeff

While process is important to some pattern theories of distributive justice, in those theories the process is usually instrumental to either reach or justify a particular pattern of distribution. Rawls’ original position and veil of ignorance are well-known procedural solutions to the problem of how to ensure that individuals choosing principles of justice will do so without regard for their own interests. But Rawls is clear that the original position is intended to justify a set of distributive principles.

Distributing Rights to

Information Privacy

@the_other_jeff

Distributive “rights” are usually legally protected flow controls.

HIPAA “gives you rights over your health

information.”

European Data Protection Directive

Distributing Rights to

Information Privacy

@the_other_jeff

In order for information privacy rights to work distributively, you already need a theory of information privacy to operationalize and delineate, e.g., how to interpret Riley v. California beyond the search incident to arrest rule?

Distributing Rights vs.

Distributing Information

@the_other_jeff

Process and Pattern suggest different solutions to privacy vs. open data challenge.

Just transfer of a universal & inalienable

right is trivial.

Distributive justice for a non-scarce good

that must be restricted is a novel problem.

Beyond Distributive

Privacy

@the_other_jeff

Distributive justice misses the structural conditions of distribution

Target operates (in) a political economy of

information marked by inequality.

Information is itself constituted by

translation regimes.

Beyond Distributive

Privacy

@the_other_jeff

Clearly, the exchange of information between consumers and suppliers is not equitable, as large corporations do not in the same transaction generally reveal to customers detailed information regarding their internal structure or operations. . . . [I]t is this very inequality in the relationship between consumers and suppliers of goods and services in the marketplace that compels individuals to provide personal information. The ability of the producer or supplier to set the terms of the contract that the consumer can only accept or decline defines the transaction as inherently inequitable. . . . The consumer is ultimately a “contract taker, rather than a contract maker,” and thus provides the information in the belief that it represents a reasonable transaction cost. . . . [I]ndividuals are not necessarily aware of the degree of inequalities in their relationship with suppliers because marketers and advertisers have effectively concealed the consumerist Panopticon. (Campbell and Carlson 2002, 591–592)

Beyond Distributive

Privacy

@the_other_jeff

Non-material goods are relations that shape action, not things.

Greene, 2010:A person enjoys political obscurity when she can go about her day as she so chooses without others perceiving or otherwise determining the nature of her political views. The politically obscure person is able to control and manage the extent of disassociation from the political views she holds (or once held) or political actions taken in the present and in the past.

Beyond Distributive

Privacy

@the_other_jeff

When Greene translates this concept into a right that can be distributed, the language of action, and in fact the actors involved, disappear. Rather than controlling and managing, the person simply “exist[s]”; the others actively trying to know and influence her political views become a passive, impersonal occurrence that happens to a person. A right that is possessed gives no consideration to what one might do with such a right; it is merely passed out and its recipients wished the best of luck.

Political obscurity therefore describes a broader right than anonymity: it is the fundamental right to exist without one's political preferences being continuously recorded and, consistent with the right articulated in Reporters Committee, a right against state-facilitated cataloguing of one's political preferences.

Beyond Distributive

Privacy

@the_other_jeff

Non-material goods are relations that shape action, not things.

Greene, 2010:

Structural Privacy and Gamergate

@the_other_jeff

The problem in Gamergate is not unequal privacy but silencing and power.

Anita Sarkeesian is everything wrong with the

feminist woman, and she is going to die screaming like the craven little whore that she is if you let her come to

USU. I will write my manifesto in her spilled

blood, and you will all bear witness to what feminist lies and poison have done to the

men of America.

Structural Privacy and Gamergate

@the_other_jeff

The threats directed toward Quinn, Wu, and Sarkeesian were not just insults meant to hurt their feelings. Gamergate depends critically on the structure of gender relations. It began when Quinn’s ex-boyfriend, in a lengthy diatribe, accused her of being sexually unfaithful, it peaked when someone still unidentified threatened to massacre “the craven little whore” who has poisoned the men of America. Doxing them was a threat intended to silence them and maintain a system of structural power that favors men, one that was, due to the legally enshrined hyper-masculine culture of Utah that treats carrying a gun as the sine qua non of manhood, successful in at least Sarkeesian’s case. These three women’s information privacy was violated not simply in that personal information was distributed improperly but because information about them was used as a tool of domination and oppression.

Toward Structural

Information Justice

@the_other_jeff

What if the real (and much more difficult to document) harm befell those who did not—or would not—sign the petition? What if the harm in releasing petition names is not to activists being mooned or shouted at as they advocate publicly for their cause? What if the real privacy victim is a mother of two, passing a petition circulator entering the grocery store, fearful that signing a petition—even for a cause in which she very much believes—might create a lifelong indelible association with that cause on her Internet record? (Greene 2010)

Further Information

@the_other_jeff

Jeffrey Alan Johnson Interim Director,Institutional Effectiveness & PlanningUtah Valley University

jeffrey.johnson@uvu.edu@the_other_jeff

Full paper available at http://ssrn.com/abstract=2747177