The Trial Lawyer Summer 2018 - Page 69

Facebook takes all the information you give them , which they then use to create profiles to sell advertising to people who want your money or your vote . Your Internet service provider ( ISP ), with former Verizon lawyer and now head of the FCC Ajit Pai having destroyed net neutrality , will soon begin ( if they haven ’ t already started ) tracking every single mouse click , reading every email , and checking out every one of your online purchases to get information they can sell for a profit .
Your “ smart ” TV is tracking every show you watch , when and for how long and selling that information to marketers and networks . And even your credit card company is now selling your information — what have you bought that you ’ d rather not have the world know ? To paraphrase Dwight Eisenhower ’ s Cross of Iron speech , this is not a real economy at all , in any true sense . It ’ s a parody of an economy , with a small number of winners and all the rest of us as losers / suckers /” product .”
While it ’ s true that Facebook ’ s malignant business model may well provide a huge opportunity for a competitor to offer a “$ 3 per month and we don ’ t track you , spy on you , or sell your data ” plan ( or even for Facebook to shift to that ), it still fails to address the importance of privacy in the context of society and law / rule-making .
We cannot trust corporations in America with our personal information , as long as that information can make them more and more money . Even your doctor or hospital will now require you sign a form allowing them to sell your information to third parties . It ’ s been decades since we ’ ve had a conversation in America about privacy . What does the word mean ? How should it be applied ?
Much like the NFL provides solid rules for how football games are to be played , government sets the rules for how business is played . The Facebook crisis may well provide us with a great opportunity to again discuss privacy , and what should and shouldn ’ t be considered “ private information .”
While the Fourth Amendment protects us from snooping and spying by the government without due process , nothing in the Constitution protects us from our ISPs or Facebook or our banks or supermarkets spying on (“ tracking ”) us and selling our private information . But lawmakers can easily set the “ rules ” of business to establish new privacy guidelines for the 21st century . So , what should be private information that ’ s worthy of protection ? Where are the boundaries ? And what rules should be set ?
At the very least , government should mandate “ transparency in spying .” When Facebook , your supermarket , or your credit card company sells information about you , they should be required to tell you exactly what information they sold , and to whom . Just this simple transparency requirement would solve a lot of these problems .
Business , of course , will scream that they can ’ t afford compliance with such an onerous requirement . Every time they sell the fact that you love dogs but have a cat allergy and buy anti-allergy medications , they ’ ll only make a few cents per sale , but it ’ ll cost them more than that to let you know what part of you and your collective body of information they sold to the allergy medicine manufacturers .
And that may well be true . It will decrease the profitability of companies like Facebook whose primary business model is spy-and-sell , and will incrementally reduce the revenue to medical groups , credit card companies , and websites / ISPs who make money on the side doing spy-and-sell .
But we have a long history in America of saying to business , “ If that business model is destructive to our society , you can ’ t do it .” We did it with slavery , we did it with child labor , we ’ re doing it with financially lucrative discriminatory practices from redlining to the race- and gender-pay-gap . Other examples include the minimum wage law , bans on predatory loan practices , and requiring companies not to pollute . Just because a company can make money doing something doesn ’ t mean it should be legal and / or unregulated .
The Internet has , indeed , turned into a “ thing ” every bit as powerful and profitable as manufacturing once was . But we had several centuries of trialand-error experience with regulating industrial manufacturing , from wages to pollution to product safety standards . It ’ s time to develop real and meaningful standards for the Internet economy and to get our personal data under control .
The Founders wrote the Fourth Amendment because they were concerned about an oppressive government that couldn ’ t be fought or changed because it knew everything about us . They never envisioned a day when a few billionaires could do the same , even to the point of using mistruths in a data-targeted way to change an entire government .
We need a serious discussion of privacy : what it is , what the appropriate parameters of it are , and the role of government in protecting our privacy from predatory corporate actors . And , at the very least , we need a “ transparency in corporate spying ” law right now .
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