Manipulation, Choice, and Privacy

61 Pages Posted: 9 Dec 2019 Last revised: 16 Sep 2020

Date Written: September 15, 2020

Abstract

As individuals navigate their lives on websites and apps, their movements, searches, and actions are silently tracked. Streams of consumer data are then pooled by data aggregators and mined to identify potential vulnerabilities of consumers. These potential weaknesses, e.g. whether someone is in financial distress, having a health crisis, or battling an addiction, are valuable to marketers and ad networks in order to silently steer consumers’ market actions towards the manipulator’s interests. While identified early on as problematic within the economics of information broadly, the use of hyper-targeting to manipulate consumers is underappreciated as a threat to not only the autonomy of individuals but also the efficiency and legitimacy of markets.

The phenomenon of interest in this article is targeted manipulation as the covert leveraging of a specific target’s vulnerabilities to steer their decisions to the manipulator’s interests. I position online targeted manipulation as undermining the core economic assumptions of authentic choice in the market. I then explore how important choice is to markets and economics, how firms gained positions of power to exploit vulnerabilities and weaknesses of individuals without the requisite safeguards in place, and how to govern firms in the position to manipulate. The power to manipulate is the power to undermine choice in the market. As such, firms in the position to manipulate threaten the autonomy of individuals, diminish the efficiency of transactions, and undermine the legitimacy of markets.

The goal of this paper is to argue that firms merely in the position to manipulate, with knowledge of individual’s weaknesses and access to their decision making, should be regulated to ensure their interests are aligned with the target. The economic oddity is not that firms have data that render another market actor vulnerable, rather the oddity is that so many firms have data to covertly manipulate others without safeguards in place. Market actors regularly share information about their concerns, preferences, weaknesses, and strengths within contracts or joint ventures or within a relationship with professional duties. Online, companies have collected preferences and concerns without such safeguards in place.

The point of manipulation is to covertly steer a target’s decision towards the manipulator’s interests and away from the target’s; as such, manipulation impedes a market actor’s ability to enact preferences through choice. This undermining of choice – rather than harms to the consumer – is the basis for additional safeguards on those in the position to manipulate. Governing targeted manipulation online will require additional safeguards on those firms in the position manipulate rather than attempting to identify each instance of targeted manipulation. First, additional safeguards are needed limiting data aggregators and ad networks – specifically any data trafficker without any relationship with consumers – to ensure the use of information is in the interests of the consumer. These obligations of care do not rely on any harm to be quantified or for a consumer to negotiate or enforce the obligation. Instead, internal and external governance structures will be required to ensure the duty of care is enforced including external auditing to ensure the data trafficker abides by standards of care and data integrity.

Second, customer facing websites and apps act as gatekeepers by luring consumers in to have their data tracked by third parties and later to be targeted with manipulative content. In so doing, consumer facing companies should be responsible to ensure all third parties that access their users – either for the collection of data or for the targeting of content – abide by a standards of care that are audited. Companies are regularly held responsible for how third parties treat their customers, users, or employees; and, websites and apps should be held responsible for the third party ad networks, trackers, and data traffickers they invite to surveille and manipulate their users. Where scholarship has focused on identifying instances of manipulation to regulate, I argue that firms merely in the position to manipulate, with knowledge of the individual and access to their decision making, should be regulated to ensure their interests are aligned with the target.

Keywords: privacy, manipulation, choice, economics, ethics

Suggested Citation

Martin, Kirsten E. M., Manipulation, Choice, and Privacy (September 15, 2020). Albany Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3491696 or http://dx.doi.org/10.2139/ssrn.3491696

Kirsten E. M. Martin (Contact Author)

University of Notre Dame ( email )

South Bend, IN 46530
United States

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