By Kyle Steenland, Feature Editor
The contemporary Wild West pans for its gold not through the streams of Mother Nature, but rather through the streams of internet connections created in the 1990s. This panning has yielded a New Age commodity: data. The value of this digital data rush rivals that of the 1800s gold rush but is now comprised of personal information linked to the veins themselves.[1] [2]
Permission to “mine” this consumer-created digital gold is often buried in the hundreds of pages of terms and conditions or privacy policies of service providers, revealed only to those few who wade through these documents.[3] Personal data reveals an individual’s online activity, and the mining of such information exposes consumer’s behavior to the highest bidder.
“Data” or “consumer data” is information consumers create when they use internet services or otherwise engage with digital technologies.[4] Think of “data” like trails of fingerprints left on the surfaces of the internet. These fingerprints can range from one’s shopping habits to search queries to anything else individuals do while connected to the internet.[5] And just like a fingerprint, this form of information can be used to identify its owner.[6]
Companies dust for these digital fingerprints directly and indirectly.[7] Companies and service providers can indirectly collect this data by tracking consumer behavior through processes like evaluating sales records or similar data.[8] Direct collection occurs, often explicitly mentioned in the service provider’s privacy policy, whenever an individual uses that company’s services.[9]
The value of these digital fingerprints lies in the very essence of what the commodity is: information. Data presents another avenue for organization to access and connect with their consumer. It provides a window into the consumer’s brain and can be used to predict everything from the consumer’s desires to their next purchase.[10] This in turn creates an endless number of ways in which this data can provide value to its possessor.
For instance, Google states that whenever an individual uses one of its products, it collects their data trail.[11] Google then ties the generated information to either an account the individual is signed in to, or, if no account is used, to a “unique identifier.”[12] Google then uses this data to “provider better services” as well as to deliver more relevant advertisements.[13] Other companies use this data to develop products consumers are more likely to be interested in, to offer consulting services to companies,[14] achieve company goals, or even to refine political campaigns to better target specific demographics.[15] Data use has become an integral part of contemporary business so much that a 2018 PricewaterhouseCoopers study found that 86% of company executives believed their ability to compete in 2019 depended on “their ability to exploit data.”[16]
With such a range of uses, it becomes difficult to quantify the value of data collections or utilization as an industry. However, researchers at the University of Texas estimated that if Fortune 1000 businesses improved data use, it would translate to an increased $2 billion annually.[17] For reference, the entire valuation of the California gold rush is valued at $2 billion, and that spanned several years.[18]
This valuation begs the question: where is the compensation for gold-creators themselves? Consumers typically receive no compensation for their part in generating this commodity, and the commodity mirrors the consumer themselves.
If a company paid an agent to follow around consumers and take notes on the consumer’s behaviors, there would be societal outrage. The inconvenience would be too tangible to consent to. Digitally, however, that agent exists. We charge it every night before bed and use it for our alarms in the morning. We use to answer our most intimate health questions and to navigate streets to unfamiliar destinations. And in doing so, we share our lives with any party with enough financial interest to look.
This form of data collection is an intangible invasion in our lives and done for the “free” use of a company’s service – a consumer’s “compensation” for the use of our data.[19] This exchange is the contemporary status quo, creating immense leverage for corporations and an unfair bargaining situation for consumers. With companies in every industry capitalizing on data – from car manufacturers,[20] to cell phone companies,[21] to online retailers,[22] to a near-infinite list of others – the collection of your data is inescapable if you want to participate in or avail yourself of the technology of modern society.
The consequence is pressure on the individual to conform with current data practices or risk carrying a significant inconvenience to every societal interaction. Some scholars liken consumers to “data laborers” that are ripe for exploitation when paired with the current lack of representation and protection.[23] So where can consumers turn to shelter their personal data from exploitative practices? Or to at least control the exploitation?
Few protections exist for our digital identities. Whereas our medical identity receives protections under the Health Insurance Portability and Accountability Act (HIPAA)[24] and our physical fingerprints are safeguarded by the Fifth Amendment, our digital prints are left vulnerable.[25] The General Data Protection Regulation (GDPR) in the European Union established some control over an individual’s data use; however the United States lacks any analogous regulation.[26] This leaves US citizens without any comprehensive federal regulations and forces them to rely on state legislation that often varies state to state.[27] The only single unifying theme amongst state legislation are mandatory notices for individuals if their information has been “compromised.”[28]
Individuals now sacrifice what privacy expectations previous generations fought for as compensation for convenient services presenting themselves as without cost. But there is an intangible price affixed to these services – the erosion of privacy. In this era where the consumer has unwittingly become the product, is that a fair trade?
Sources
[1] California Gold Rush, History Channel, https://www.history.com/topics/westward-expansion/gold-rush-of-1849 (last visited April 8, 2019).
[2] Anitesh Barau, Deepa Mani, & Rajiv Mukherjee, Measuring Business Impacts of Effective Data, University of Texas, http://www.datascienceassn.org/sites/default/files/Measuring%20Business%20Impacts%20of%20Effective%20Data%20I.pdf (last visited April 12, 2019).
[3] Caroline Cakebread, You’re not alone, no one reads terms of service agreements, Business Insider (Nov. 15, 2017), https://www.businessinsider.com/deloitte-study-91-percent-agree-terms-of-service-without-reading-2017-11
[4] Consumer Data, TechTarget, https://searchcio.techtarget.com/definition/consumer-data (last visited April 12, 2019).
[6] Why your online privacy matters, Norton by Symantec, https://us.norton.com/internetsecurity-privacy-why-your-online-privacy-matters.html (last visited April 12, 2019).
[7] Adam C. Uzialko, How Businesses Are Collecting Data (And What They’re Doing with It), Business News Daily (August 3, 2019, 2:25 PM), https://www.businessnewsdaily.com/10625-businesses-collecting-data.html.
[10] Amazon: Using Big Data to understand customers, Bernard Marr & Co., https://www.bernardmarr.com/default.asp?contentID=712 (last visited April 12, 2019)
[11] Privacy and Terms, Google, https://policies.google.com/privacy (last visited April 12, 2019).
[12] Id.
[13] Id.
[14] See Capgemini, Big & Fast Data: The Rise of Insight-Driven Business, https://www.capgemini.com/wp-content/uploads/2017/07/big_fast_data_the_rise_of_insight-driven_business-report.pdf (last visited April 12, 2019).
[15] Alex Hern, Cambridge Analytica: how did it turn clicks into votes?, The Guardian (May 6, 2018), https://www.theguardian.com/news/2018/may/06/cambridge-analytica-how-turn-clicks-into-votes-christopher-wylie.
[16] PricewaterhouseCoopers, Why trusted data optimization is a priority in 2019, PwC, https://www.pwc.com/us/en/services/consulting/cybersecurity/Trusted-data-optimazation-2019.pdf (last visited April 12, 2019).
[17] Barau, Mani, & Mukherjee supra, note 2 at 3.
[18] California Gold Rush, History Channel, https://www.history.com/topics/westward-expansion/gold-rush-of-1849 (last visited April 12, 2019).
[19] Google, supra note 11.
[20] Jeff Plungis, Who Owns the Data Your Car Collects, Consumer Reports (May 2, 2018) https://www.consumerreports.org/automotive-technology/who-owns-the-data-your-car-collects/
[21] See, e.g., Jonathan Buckley, How Apple is Using Big Data, socPub, https://www.socpub.com/articles/how-apple-is-using-big-data-13719; Bernard Marr, The Amazing Ways Samsung Is Using Big Data, Artificial Intelligence And Robots To Drive Performance, Forbes (May 30, 2018), https://www.forbes.com/sites/bernardmarr/2018/05/30/the-amazing-ways-samsung-is-using-big-data-artificial-intelligence-and-robots-to-drive-performance/#727ab68e2b8d (last visited April 26, 2019).
[22] Amazon: Using Big Data to understand customers, Bernard Marr & Co., https://www.bernardmarr.com/default.asp?contentID=712 (last visited April 12, 2019).
[23] Imanol Arrieta Ibarra et al, Should We Treat Data as Labor? Moving Beyond “Free”, 108 American Economic Association 38, 41-42 (2018).
[24] Cameron Kerry, Why protecting privacy is a losing game today – and how to change the game, Brookings (July 12, 2018) https://www.brookings.edu/research/why-protecting-privacy-is-a-losing-game-today-and-how-to-change-the-game.
[25] Nowell D. Bamberger, Melissa Gohlke & Sameer Jaywant, Court Holds That 5th Amendment Self-Incrimination Privilege Precludes Compelling Fingerprint or Facial Recognition Access to Digital Devices, Cleary Enforcement Watch (January 23, 2019), https://www.clearyenforcementwatch.com/2019/01/court-holds-5th-amendment-self-incrimination-privilege-precludes-compelling-fingerprint-facial-recognition-access-digital-devices/.
[26] Margot Kaminski, Toward defining privacy expectations in an age of oversharing, The Economist (August 16, 2018) https://www.economist.com/open-future/2018/08/16/toward-defining-privacy-expectations-in-an-age-of-oversharing.
[27] Nuala O’Connor, Reforming the U.S. Approach to Data Protection and Privacy, Council on Foreign Relations (January 30, 2018) https://www.cfr.org/report/reforming-us-approach-data-protection
[28] Id.
