The Value-and Limits-of Distributive Justice in Information Privacy
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Transcript of The Value-and Limits-of Distributive Justice in Information Privacy
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
[email protected]@the_other_jeff
Full paper available at http://ssrn.com/abstract=2747177