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May 19, 2010

Shopping for Privacy

My colleague, Professor Vic Hansen, has written in this space about the problem of protecting privacy in our increasingly interconnected digital age. He noted the ease with which third parties can gather information about us from our online activities, including the use of social networking sites like Facebook, and questioned how this phenomenon would affect judicial determinations of reasonable expectations of privacy under the Fourth Amendment.

If privacy is understood as the control we have over information about ourselves, this is no idle inquiry. Even for those of us who eschew social networking sites and online shopping, expectations of privacy are being recalculated daily. Natasha Singer, writing in the New York Times, recently reported that retail stores now employ camera arrays designed to follow your every movement while in the store, and mobile marketers can use information about you and your cell phone’s GPS capability to send you ads specifically geared toward what appear to be your expressed interest in all manner of goods and products. For retailers, this kind of technology improves the ability to determine what to sell, and to whom.

There is a price, of course: diminished expectations of privacy. And it is a price we all pay—not just those of us who have cell phones and go the mall.

Singer suggests we have become a “post-privacy society, where we have lost track of how many entities are tracking us.” In her article, she identifies the larger issue as the industrialization of the collection of information. Information, as the saying goes, is power, and information about consumer preferences and habits may be critical to improving a retailer’s quarterly earnings report.

The Federal Trade Commission is working on new privacy guidelines, but the forces pushing for more and better information will be difficult to deter. Part of the reason is the collective action problem: we generally like our own privacy, but we are less interested in the privacy of others. And if, on the other hand, we generally don’t care about our privacy, we’re likely to sell it cheaply.

As Professor Hansen observes, courts tend to rely upon a descriptive understanding of personal privacy in evaluating claims against the government under the Fourth Amendment. The same is true, of course, in the case of a claim against a party under consumer protection laws. Either way, courts attempt to gauge whether a protectable privacy interest exists, rather than whether such an interest ought to be recognized, in a given instance. When, without serious objection, cameras follow us while we shop, recording our every move for later evaluation, and retailers know whether we are standing in front of the shirts or the ties, it becomes increasingly difficult to argue that any consequential loss of privacy ought to count as harm worthy of legal notice.

Lawrence Friedman

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