Balancing the data privacy debate: The benefits of big (and little) data

by Thompson Coburn LLP
Contact

Big data - data privacy

Comments to the White House's recent request for comments on "big data" and how it affects Americans were due April 4, but even before all the comments have been reviewed, we can be pretty sure that, as usual, most business comments will run along these lines: (1) We understand and respect privacy rights, and (2) They can be protected by industry best practices and self-regulation, so there’s no need for new government regulation.

What we are likely to find missing in the comments is a full defense of data collection, use, and transfer. Privacy advocates like the Center for Democracy and Technology have so far effectively won the agenda-setting contest on privacy, and the so-called Big Data industry is on the defensive. The data privacy policy discussion, however, needs to hear more from data use advocates. Theirs is an essential and largely neglected voice in policy debate on this important issue.

As Professor Don Corrigan of Webster University and I recently noted in a paper we presented on April 4 at Webster's fifth annual Media Trends conference at its Geneva campus, "Big Data: Orwellian Abuses Versus Benign Benefits," there are two sides to the privacy debate. And both sides need attention.

It’s about balance
Even though, as shown by Edward Snowden's revelations, business data gathering falls far short of the intrusiveness of government data collection, data collection by advertising, marketing and data research firms may also be unsettling to individuals because of techniques like behavioral advertising and data brokerage. Without proper controls and disclosures, such techniques could lead to Orwellian abuses. That is the side of the issue that’s relentlessly pounded by CDT and other consumer advocacy groups.

Privacy policy, however, is inherently about balance. Almost every aspect of modern civilization interferes with personal privacy to some extent — requirements for drivers' licenses, Social Security registration, license plates, tax returns, disclosure of addresses and phone numbers, and even, in today's world, walking on the sidewalk in a city with surveillance cameras.

The real privacy policy question, in almost all cases, is not whether a privacy interest exists in a particular situation, but whether, in that situation, privacy interests trump the benefits of the use of the information. Put simply, what are the benign benefits of data collection, and how do they weigh against the perceived privacy problems?

Balance is always the key issue. The NSA surveillance debate pits claims of security against claims of privacy, and resolution of that issue will ultimately depend on how those two competing interests are resolved. Chancellor Angela Merkel of the Federal Republic of German, in response to the Snowden revelations, called for “proportionality" between danger and the means we choose to counter that danger.

Business data collection and use also raises “proportionality” issues. Consumers have concerns about how their data are collected, and the uses to which the collected data can or will be put. But business data collectors assert that their practices bring benefits to society, and even to those from whom data is collected. Some studies do confirm that consumers recognize the benefits in certain situations. While these benefits have often been neglected, or assumed not to exist, they deserve serious study by academics and policy makers when considering privacy issues.

Data builds a better society
Data are information, and information is the building-block of any knowledge-based society. In fact, it’s essential to our increasingly knowledge-based economy. Data collection is particularly relevant to those who work in or study the news media, because news-gathering (a form of data collection) is the most basic and essential task of the media business. At many levels, the collection, study, use, and transfer of data involving individuals carry significant benefits for society.

The collection and study of population data, in national censuses and social science research, for example, helps us understand our world and its needs, and allow us to effectively tailor political, social, and economic action to those needs. Aggregate economic data, maintained at national, regional, and industry levels, supports millions of political, social and economic decisions every day.

Journalists, academics, and public interest researchers similarly rely on data collection all the time. One of the greatest advances in journalism in recent decades has been the blossoming of computer-assisted reporting, in which investigative reporters obtain, correlate, and analyze databases, and report on circumstances that they could not have uncovered without detailed electronic data and modern computer analysis.

For many in the trenches of organizational management, a suggestion that they forgo the collection and analysis of data is akin to a command for poor or suboptimal efforts to accomplish their organization’s mission. The Dallas Museum of Art, for example, recently began offering free memberships to those willing to share some data. The program reportedly tripled the museum’s membership, and delivered about two million records showing how visitors use the museum. The museum is learning which galleries are most popular, which events attract visitors from neighborhoods underrepresented in the membership, and the rate of repeat visitors. The data, all voluntarily and knowingly provided, can help the museum better accomplish its mission.

Whether the user is a government, an academic researcher, a journalist, or a business, data collection and analysis can bring many benefits. As Justice Anthony Kennedy noted in the U.S. Supreme Court’s 2011 decision, Sorrell v. IMS Health Corp., even “dry information” such as that found in electronic databases is an essential ingredient in the communications that the First Amendment to the United States Constitution protects. Data are facts, and Justice Kennedy stressed that “Facts … are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs.”

The benefits of disclosure
That we should look at both sides of data collection and disclosure is no revolutionary proposition. Indeed, in his March 2014 testimony submitted to LIBE, the European Parliament’s civil liberties committee that has actively sought to protect privacy rights of European citizens, Edward Snowden stated, at the beginning of his statement, “The first principle any inquiry must take into account is that despite extraordinary political pressure to do so, no western government has been able to present evidence showing that such programs are necessary.” Thus, even Snowden, the international face of privacy advocates, implicitly acknowledges that a proven necessity could justify intrusions, and that privacy laws must recognize a balance.

It is surprising that the current data privacy debate focuses so myopically on consumer privacy interests, and often neglects or glosses over the benefits of data collection. Some business groups, including the U.S. Chamber of Commerce and the Software and Information Industries Association, have submitted studies focusing on the benefits to innovation and progress brought about by data collection and use. Submissions like this cannot help but enhance and help the privacy policy debate.

Recognition of benefits in data collection and use will not necessarily mean that privacy interests cannot be addressed. But understanding those benefits can help legislators strike the right balance. In particular, it could influence the debate between the European model of privacy protection, which imposes blanket prohibitions on certain kinds of data processing, absent express consent (i.e., opt-in), and the United States model, which generally allows collection on an opt-out basis, and focuses more on addressing the misuse of information that is collected.

Put simply, the facts regarding the benefits of commercial data collection and use need to be more rigorously examined and analyzed, and balanced fairly with personal privacy interests.

The privacy debate needs to hear about the benefits of information use as it considers restrictions on information collection. Those who invoke Louis D. Brandeis’ seminal 1890 law review article on “The Right of Privacy” should not forget that Brandeis also recognized benefits of information disclosure in his 1923 article, “What Publicity Can Do.”

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thompson Coburn LLP | Attorney Advertising

Written by:

Thompson Coburn LLP
Contact
more
less

Thompson Coburn LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.