Unraveling Privacy: The Personal Prospectus and the Threat of a Full-Disclosure Future
2011; Northwestern University School of Law; Volume: 105; Issue: 3 Linguagem: Inglês
ISSN
0029-3571
Autores Tópico(s)Privacy, Security, and Data Protection
Resumothrough categorization and social ordering . . . .”). But see Karas, supra note 114, at 627–28 (“[F]or some, submission to surveillance may enable a sharper, more stable sense of self.”). This concern is not new. For a discussion of historical concern about the “invention of disembodied financial identity” in the nineteenth century, see Lauer, supra note 44, at 302. 120 Ramasastry, supra note 57, at 757–60 (arguing that a “giant game of telephone is going on with our personal data” and discussing how different the final information in a dossier can be from how it began). 121 See Kim Zetter, Bad Data Fouls Background Checks, WIRED (Mar. 11, 2005), http://www. wired.com/politics/security/news/2005/03/66856 (discussing problems of error-filled databases). 122 Slobogin, supra note 61, at 324 (stating that one in four credit reports contain serious enough errors to deny credit, employment, or housing, and that fifty-four percent contain outdated or otherwise inaccurate information or information about other people); see Elizabeth D. De Armond, Frothy Chaos: Modern Data Warehousing and Old-Fashioned Defamation, 41 VAL. U. L. REV. 1061, 1076 (2007) (stating that nearly eighty percent of credit reports contain errors); Zetter, supra note 121 (stating that seventy-nine percent of credit reports contain errors). 105:1153 (2011) Unraveling Privacy 1179 another person altogether, particularly when one has a common name like John Smith. In short, the digital dossier is noisy. The personal prospectus offers obvious advantages over the dossier on this score. If an individual can aggregate verified information about herself to share with others, the individual knows that the information is accurate and that it is indeed her information. This, again, empowers the individual to assert herself in the world by portraying herself accurately. The third objection to the dossier is that one has no recourse against it. There is no phone number to call to inspect one’s digital dossier and no website to check. Instead, one is being represented by a vague cloud of information that one cannot control. The prospectus, in contrast, can be reviewed. Although an individual could not necessarily change the information in her prospectus, she would at least know what information it contained. Finally, the fourth and most fundamental concern is discrimination. As we have seen, sorting is the essential function of the digital dossier, and thus the dossier threatens to spawn new forms of unwanted discrimination. Consider a local bank trying to determine how to serve two customers, Alice and Bob. Through its data mining efforts, the bank determines that Alice is a likely high-value customer whereas Bob is not. And Alice is likely to be susceptible to offers from other banks that would pull her away whereas Bob is not. The local bank decides to offer Alice an attractive interest-bearing checking account and a reduced loan rate to induce her to stay loyal. Bob, on the other hand, receives no such benefits and may even be burdened with higher fees and other measures meant to induce him to 123 See De Armond, supra note 122, at 1075 (“A certain amount of information attributed to any one individual may be false.”). 124 Although the personal prospectus offers the individual the ability to represent herself accurately to others, it also introduces the possibility of misrepresentation. I assume here that the personal prospectus is verified by tying its contents digitally to their sources. There is some possibility, of course, of individuals attempting to hack this process to falsify their personal records. 125 See Corey Ciocchetti, Just Click Submit: The Collection, Dissemination, and Tagging of Personally Identifying Information, 10 VAND. J. ENT. & TECH. L. 553, 576–84 (2008) (discussing benefits and risks of the spread of digital dossiers, including the lack of real verification or recourse); see also SOLOVE, supra note 17, at 96 (“[T]he growing use and dissemination of personal information creates a Kafkaesque world of bureaucracy, where we are increasingly powerless and vulnerable, where personal information is not only outside our control but also is subjected to a bureaucratic process that is itself not adequately controlled.”). 126 Because the information within a personal prospectus would be verified information linked back to its source for easy verification, an individual could not simply enter the prospectus and edit the information. 127 This example is drawn from Anthony Danna & Oscar H. Gandy, Jr., All That Glitters Is Not Gold: Digging Beneath the Surface of Data Mining, 40 J. BUS. ETHICS 373, 375 (2002). N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W 1180 take his business elsewhere. Some have labeled this “weblining” to evoke the pejorative connotations of “redlining.” The personal prospectus would not so much counter economic discrimination as make it more accurate—more fair, so to speak, if not more just. The increased accuracy of the information in the personal prospectus would allow an individual consumer to ensure that she was sorted properly—if she had to be sorted. In other words, by signaling, individuals could ensure that they were treated according to their actual characteristics, not according to the potentially inaccurate caricature found in the digital dossier. This may be small consolation, but it is likely to be the reality of a signaling economy. In an economy with robust signaling, those with strong reputations, valuable credentials, clean medical records, impressive credit scores, and big pocketbooks will want to signal those characteristics in hopes of receiving preferential treatment by other economic actors. 2. Stigma and Unraveling.—Now we come to the heart of the matter. In addition to these self-interested reasons for availing oneself of the personal prospectus, a different motivation for self-disclosure may creep into the economy as well. As the personal prospectus becomes more accepted, it will give rise to its own stigma: when disclosure becomes low-cost and routine, those who hold out are suspect. This is the privacy threat of the personal prospectus. Failure to make one’s personal prospectus available to the bank, the credit card company, the insurance agent, or the potential employer may carry with it the presumption that one is hiding information. You can be sorted because you do not signal. This is the core insight of the unraveling effect in economics. Early work by Paul Milgrom and Sanford Grossman independently explored the unraveling process that occurs as those who can certify their quality do so to distinguish themselves from the larger pool of lower-grade labor, 128 See David Lyon, Surveillance as Social Sorting: Computer Codes and Mobile Bodies, in SURVEILLANCE AS SOCIAL SORTING: PRIVACY, RISK, AND DIGITAL DISCRIMINATION, supra note 119, at 13, 14 (“In processes known variously as ‘digital redlining’ or ‘weblining’, customers are classified according to their relative worth.” (citations omitted)); Janet Dean Gertz, Comment, The Purloined Personality: Consumer Profiling in Financial Services, 39 SAN DIEGO L. REV. 943, 961 (2002) (“[P]rofiling may simply be a new and insidious legal form of discrimination that merely automates old-fashioned redlining practices.”). 129 See Strahilevitz, supra note 115, at 1676 (“Often, the choice is not between sorting and not sorting; the economic and social gains from sorting are simply too great, while banning sorting in many contexts will be simultaneously costly and not terribly effective. Rather, the real choice is between sorting on the basis of uncomfortable criteria and sorting on the basis of obnoxious and distasteful criteria.”). 130 See Paul R. Milgrom, Good News and Bad News: Representation Theorems and Applications, 12 BELL J. ECON. 380, 388 (1981) (discussing the salesman’s incentive to fully disclose product quality because of similar unraveling effect). 131 See Sanford J. Grossman, The Informational Role of Warranties and Private Disclosure About Product Quality, 24 J.L. & ECON. 461 (1981); Grossman & Hart, supra note 14, at 323 (“[I]f there is no transactions cost then it will always be in the seller’s interest to disclose the quality of [an] item volunta-
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