Privacy Tradeoffs: Who Should Make Them, and How?

14 Pages Posted: 16 Aug 2021

See all articles by Jane R. Bambauer

Jane R. Bambauer

University of Arizona - James E. Rogers College of Law

Date Written: August 13, 2021

Abstract

Privacy debates are contentious in part because we have not reached a broadly recognized cultural consensus about whether interests in privacy are like most other interests that can be traded off in utilitarian, cost-benefit terms, or if instead privacy is different—fundamental to conceptions of dignity and personal liberty. Thus, at the heart of privacy debates is an unresolved question: is privacy just another interest that can and should be bartered, mined, and used in the economy, or is it different?

This question identifies and isolates a wedge between those who hold essentially utilitarian views of ethics (and who would see many data practices as acceptable) and those who hold views of natural and fundamental rights (for whom common data mining practices are either never acceptable or, at the very least, never acceptable without significant participation and consent of the subject).

This essay provides an intervention of a purely descriptive sort. First, I lay out several candidates for ethical guidelines that might legitimately undergird privacy law and policy. Only one of the ethical models (the natural right to sanctuary) can track the full scope and implications of fundamental rights-based privacy laws like the GDPR.

Second, the project contributes to the field of descriptive ethics by using a vignette experiment to discover which of the various ethical models people actually do seem to hold and abide by. The vignette study uses a factorial design to help isolate the roles of various factors that may contribute to the respondents’ gauge of what an ethical firm should or should not do in the context of personal data use as well as two other non-privacy-related contexts. The results can shed light on whether privacy-related ethics are different and distinct from business ethics more generally. They also illuminate which version(s) of "good" and “bad” share broad support and deserve to be reflected in privacy law or business practice.

The results of the vignette experiment show that on balance, Americans subscribe to some form of utilitarianism, although a substantial minority subscribe to a natural right to sanctuary approach. Thus, consent and prohibitions of data practices are appropriate where the likely risks to some groups (most importantly, data subjects, but also firms and third parties) outweigh the benefits.

Suggested Citation

Yakowitz Bambauer, Jane R., Privacy Tradeoffs: Who Should Make Them, and How? (August 13, 2021). Available at SSRN: https://ssrn.com/abstract=3905024 or http://dx.doi.org/10.2139/ssrn.3905024

Jane R. Yakowitz Bambauer (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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