## Tag: data protection law

### Autonomy as link between privacy and cybersecurity

A key aspect of the European approach to privacy and data protection regulation is that it’s rooted in the idea of an individual’s autonomy. Unlike an American view of privacy which suggests that privacy is important only because it implies some kind of substantive harm—such as reputational loss or discrimination–in European law it’s understood that personal data matters because of its relevance to a person’s self-control.

Autonomy etymologically is “self-law”. It is traditionally associated with the concept of rationality and the ability to commit oneself to duty. My colleague Jake Goldenfein argues that autonomy is the principle that one has the power to express one’s own narrative about oneself, and for that narrative to have power. Uninterpretable and unaccountable surveillance, “nudging”, manipulation, profiling, social sorting, and so on are all in a sense an attack on autonomy. They interfere with the individual’s capacity to self-rule.

It is more rare to connect the idea of autonomy to cybersecurity, though here the etymology of the words also weighs in favor of it. Cyber- has its root in in Greek kybernetes, for steersman, governor, pilot, or rudder. To be secure means to be free from threat. So cybersecurity for a person or organization is the freedom of their (self-control) from external threat. Cybersecurity is the condition of being free to control oneself–to be autonomous.

Understood in this way, privacy is just one kind of cybersecurity: the cybersecurity of the individual person. We can speak additionally of the cybersecurity of a infrastructure, such as a power grid, or of an organization, such as a bank, or of a device, such as a smartphone. What both the privacy and cybersecurity discussions implicate are questions of the ontology of the entities involved and their ability to control themselves and control each other.

### The diverging philosophical roots of U.S. and E.U. privacy regimes

For those in the privacy scholarship community, there is an awkward truth that European data protection law is going to a different direction from U.S. Federal privacy law. A thorough realpolitical analysis of how the current U.S. regime regarding personal data has been constructed over time to advantage large technology companies can be found in Cohen’s Between Truth and Power (2019). There is, to be sure, a corresponding story to be told about EU data protection law.

Adjacent, somehow, to the operations of political power are the normative arguments leveraged both in the U.S. and in Europe for their respective regimes. Legal scholarship, however remote from actual policy change, remains as a form of moral inquiry. It is possible, still, that through professional training of lawyers and policy-makers, some form of ethical imperative can take root. Democratic interventions into the operations of power, while unlikely, are still in principle possible: but only if education stays true to principle and does not succumb to mere ideology.

This is not easy for educational institutions to accomplish. Higher education certainly is vulnerable to politics. A stark example of this was the purging of Marxist intellectuals from American academic institutions under McCarthyism. Intellectual diversity in the United States has suffered ever since. However, this was only possible because Marxism as a philosophical movement is extraneous to the legal structure of the United States. It was never embedded at a legal level in U.S. institutions.

There is a simply historical reason for this. The U.S. legal system was founded under a different set of philosophical principles; that philosophical lineage still impacts us today. The Founding Fathers were primarily influenced by John Locke. Locke rose to prominence in Britain when the Whigs, a new bourgeois class of Parliamentarian merchant leaders, rose to power, contesting the earlier monarchy. Locke’s political contributions were a treatise pointing out the absurdity of the Divine Right of Kings, the prevailing political ideology of the time, and a second treatise arguing for a natural right to property based on the appropriation of nature. This latter political philosophy was very well aligned with Britain’s new national project of colonialist expansion. With the founding of the United States, it was enshrined into the Constitution. The liberal system of rights that we enjoy in the U.S. are founded in the Lockean tradition.

Intellectual progress in Europe did not halt with Locke. Locke’s ideas were taken up by David Hume, whose introduced arguments that were so agitating that they famously woke Immanuel Kant, in Germany, from his “dogmatic slumber”, leading him to develop a new highly systematic system of morality and epistemology. Among the innovations in this work was the idea that human freedom is grounded in the dignity of being an autonomous person. The source of dignity is not based in a natural process such as the tilling of land. It is rather based in on transcendental facts about what it means to be human. The key to morality is treating people like ends, not means; in other words, not using people as tools to other aims, but as aims in themselves.

If this sound overly lofty to an American audience, it’s because this philosophical tradition has never taken hold in American education. In both the United Kingdom and Britain, Kantian philosophy has always been outside the mainstream. The tradition of Locke, through Hume, has continued on in what philosophers will call “analytic philosophy”. This philosophy has taken on the empiricist view that the only source of knowledge is individual experience. It has transformed over centuries but continues to orbit around the individual and their rights, grounded in pragmatic considerations, and learning normative rules using the case-by-case approach of Common Law.

From Kant, a different “continental philosophy” tradition produced Hegel, who produced Marx. We can trace from Kant’s original arguments about how morality is based on the transcendental dignity of the individual to the moralistic critique that Marx made against capitalism. Capitalism, Marx argued, impugns the dignity of labor because it treats it like a means, not an end. No such argument could take root in a Lockean system, because Lockean ethics has no such prescription against treating others instrumentally.

Germany lost its way at the start of the 20th century. But the post-war regime, funded by the Marshall plan, directed by U.S. constitutional scholars as well as repatriating German intellectuals, had the opportunity to rewrite their system of governance. They did so along Kantian lines: with statutory law, reflecting a priori rational inquiry, instead of empiricist Common Law. They were able to enshrine into their system the Kantian basis of ethics, with its focus on autonomy.

Many of the intellectuals influencing the creation of the new German state were “Marxist” in the loose sense that they were educated in the German continental intellectual tradition which, at that time, included Marx as one of its key figures. By the mid-20th century they had naturally surpassed this ideological view. However, as a consequence, the McCarthyist attack on Marxism had the effect of also purging some of the philosophical connection between German and U.S. legal education. Kantian notions of autonomy are still quite foreign to American jurisprudence. Legal arguments in the United States draw instead on a vast collection of other tools based on a much older and more piecemeal way of establishing rights. But are any of these tools up to the task of protecting human dignity?

The EU is very much influenced by Germany and the German legal system. The EU has the Kantian autonomy ethic at the heart of its conception of human rights. This philosophical commitment has recently expressed itself in the EU’s assertion of data protection law through the GDPR, whose transnational enforcement clauses have brought this centuries-old philosophical fight into contemporary legal debate in legal jurisdictions that predate the neo-Kantian legal innovations of Continental states.

The puzzle facing American legal scholars is this: while industrial advocates and representatives tend to disagree with the strength of the GDPR, arguing that it is unworkable and/or based on poorly defined principle, the data protections that it offer seem so far to be compelling to users, and the shifting expectations around privacy in part induced by it are having effects on democratic outcomes (such as the CCPA). American legal scholars now have to try to make sense of the GDPR’s rules and find a normative basis for them. How can these expansive ideas of data protection, which some have had the audacity to argue is a new right (Hildebrandt, 2015), be grafted onto the the Common Law, empiricist legal system in a way that gives it the legitimacy of being an authentically American project? Is there a way to explain data protection law that does not require the transcendental philosophical apparatus which, if adopted, would force the American mind to reconsider in a fundamental way the relationship between individuals and the collective, labor and capital, and other cornerstones of American ideology?

There may or may not be. Time will tell. My own view is that the corporate powers, which flourished under the Lockean judicial system because of the weaknesses in that philosophical model of the individual and her rights, will instinctively fight what is in fact a threatening conception of the person as autonomous by virtue of their transcendental similarity with other people. American corporate power will not bother to make a philosophical case at all; it will operate in the domain of realpolitic so well documented by Cohen. Even if this is so, it is notable that so much intellectual and economic energy is now being exerted in the friction around a poweful an idea.

References

Cohen, J. E. (2019). Between Truth and Power: The Legal Constructions of Informational Capitalism. Oxford University Press, USA.

Hildebrandt, M. (2015). Smart technologies and the end (s) of law: Novel entanglements of law and technology. Edward Elgar Publishing.

### Economic costs of context collapse

One motivation for my recent studies on information flow economics is that I’m interested in what the economic costs are when information flows across the boundaries of specific markets.

For example, there is a folk theory of why it’s important to have data protection laws in certain domains. Health care, for example. The idea is that it’s essential to have health care providers maintain the confidentiality of their patients because if they didn’t then (a) the patients could face harm due to this information getting into the wrong hands, such as those considering them for employment, and (b) this would disincentivize patients from seeking treatment, which causes them other harms.

In general, a good approximation of general expectations of data privacy is that data should not be used for purposes besides those for which the data subjects have consented. Something like this was encoded in the 1973 Fair Information Practices, for example. A more modern take on this from contextual integrity (Nissenbaum, 2004) argues that privacy is maintained when information flows appropriately with respect to the purposes of its context.

A widely acknowledged phenomenon in social media, context collapse (Marwick and boyd, 2011; Davis and Jurgenson, 2014), is when multiple social contexts in which a person is involved begin to interfere with each other because members of those contexts use the same porous information medium. Awkwardness and sometimes worse can ensue. These are some of the major ways the world has become aware of what a problem the Internet is for privacy.

I’d like to propose that an economic version of context collapse happens when different markets interfere with each other through network-enabled information flow. The bogeyman of Big Brother through Big Data, the company or government that has managed to collect data about everything about you in order to infer everything else about you, has as much to do with the ways information is being used in cross-purposed ways as it has to do with the quantity or scope of data collection.

It would be nice to get a more formal grip on the problem. Since we’ve already used it as an example, let’s try to model the case where health information is disclosed (or not) to a potential employer. We already have the building blocks for this case in our model of expertise markets and our model of labor markets.

There are now two uncertain variables of interest. First, let’s consider a variety of health treatments $J$ such that $m = \vert J \vert$. The distribution of health conditions in society is distributed such that the utility of a random person $i$ receiving a treatment $j$ is $w_{i,j}$. Utility for one treatment is not independent from utility from another. So in general $\vec{w} \sim W$, meaning a person’s utility for all treatments is sampled from an underlying distribution $W$.

There is also the uncertain variable of how effective somebody will be at a job they are interested in. We’ll say this is distributed according to $X$, and that a person’s aptitude for the job is $x_i \sim X$.

We will also say that $W$ and $X$ are not independent from each other. In this model, there are certain health conditions that are disabling with respect to a job, and this has an effect on expected performance.

I must note here that I am not taking any position on whether or not employers should take disabilities into account when hiring people. I don’t even know for sure the consequences of this model yet. You could imagine this scenario taking place in a country which does not have the Americans with Disabilities Act and other legislation that affects situations like this.

As per the models that we are drawing from, let’s suppose that normal people don’t know how much they will benefit from different medical treatments; $i$ doesn’t know $\vec{w}_i$. They may or may not know $x_i$ (I don’t yet know if this matters). What $i$ does know is their symptoms, $y_i \sim Y$.

Let’s say person $x_i$ goes to the doctor, reporting $y_i$, on the expectation that the doctor will prescribe them treatment $\hat{j}$ that maximizes their welfare:

$\hat j = arg \max_{j \in J} E[X_j \vert y]$

Now comes the tricky part. Let’s say the doctor is corrupt and willing to sell the medical records of her patients to her patient’s potential employers. By assumption $y_i$ reveals information both about $w_i$ and $x_i$. We know from our earlier study that information about $x_i$ is indeed valuable to the employer. There must be some price (at least within our neoclassical framework) that the employer is willing to pay the corrupt doctor for information about patient symptoms.

We also know that having potential employers know more about your aptitudes is good for highly qualified applicants and bad for not as qualified applicants. The more information employers know about you, the more likely they will be able to tell if you are worth hiring.

The upshot is that there may be some patients who are more than happy to have their medical records sold off to their potential employers because those particular symptoms are correlated with high job performance. These will be attracted to systems that share their information across medical and employment purposes.

But for those with symptoms correlated with lower job performance, there is now a trickier decision. If doctors are corrupt, it may be that they choose not to reveal their symptoms accurately (or at all) because this information might hurt their chances of employment.

A few more wrinkles here. Suppose it’s true the fewer people will go to corrupt doctors because they suspect or know that information will leak to their employers. If there are people who suspect or know that the information that leaks to their employers will reflect on them favorably, that creates a selection effect on who goes to the doctor. This means that the information that $i$ has gone to the doctor, or not, is a signal employers can use to discriminate between potential applicants. So to some extent the harms of the corrupt doctors fall on the less able even if they opt out of health care. They can’t opt out entirely of the secondary information effects.

We can also add the possibility that not all doctors are corrupt. Only some are. But if it’s unknown which doctors are corrupt, the possibility of corruption still affects the strategies of patients/employees in a similar way, only now in expectation. Just as in the Akerlof market for lemons, a few corrupt doctors ruins the market.

I have not made these arguments mathematically specific. I leave that to a later date. But for now I’d like to draw some tentative conclusions about what mandating the protection of health information, as in HIPAA, means for the welfare outcomes in this model.

If doctors are prohibited from selling information to employers, then the two markets do not interfere with each other. Doctors can solicit symptoms in a way that optimizes benefits to all patients. Employers can make informed choices about potential candidates through an independent process. The latter will serve to select more promising applicants from less promising applicants.

But if doctors can sell health information to employers, several things change.

• Employers will benefit from information about employee health and offer to pay doctors for the information.
• Some doctors will discretely do so.
• The possibility of corrupt doctors will scare off those patients who are afraid their symptoms will reveal a lack of job aptitude.
• These patients no longer receive treatment.
• This reduces the demand for doctors, shrinking the health care market.
• The most able will continue to see doctors. If their information is shared with employers, they will be more likely to be hired.
• Employers may take having medical records available to be bought from corrupt doctors as a signal that the patient is hiding something that would reveal poor aptitude.

In sum, without data protection laws, there are fewer people receiving beneficial treatment and fewer jobs for doctors providing beneficial treatment. Employers are able to make more advantageous decisions, and the most able employees are able to signal their aptitude through the corrupt health care system. Less able employees may wind up being identified anyway through their non-participation in the medical system. If that’s the case, they may wind up returning to doctors for treatment anyway, though they would need to have a way of paying for it besides employment.

That’s what this model says, anyway. The biggest surprise for me is the implication that data protection laws serve this interests of service providers by expanding their customer base. That is a point that is not made enough! Too often, the need for data protection laws is framed entirely in terms of the interests of the consumer. This is perhaps a politically weaker argument, because consumers are not united in their political interest (some consumers would be helped, not harmed, by weaker data protection).

References

Akerlof, G. A. (1970). The market for” lemons”: Quality uncertainty and the market mechanism. The quarterly journal of economics, 488-500.

Davis, J. L., & Jurgenson, N. (2014). Context collapse: theorizing context collusions and collisions. Information, Communication & Society, 17(4), 476-485.

Marwick, A. E., & Boyd, D. (2011). I tweet honestly, I tweet passionately: Twitter users, context collapse, and the imagined audience. New media & society, 13(1), 114-133.

Nissenbaum, H. (2004). Privacy as contextual integrity. Wash. L. Rev., 79, 119.