Advertising and Privacy: No Right to Control What You Give Away

by on August 12, 2009 · 27 comments

In my last post, I touted an often-ignored benefit of targeted ads: that they directly enhance the browsing experience, compared to seeing dumb ads. This post argues that no one has a “right to her data” that ad-targeting takes away.

“Privacy” is a word of many meanings. The best explanation of the myriad ways the word has been used I’ve seen came from TLF’s own Jim Harper five years ago. People have a right to privacy in some senses, but not in others. They have a justice-based right (a political moral right) to freedom from government intrusion – the broad sense of privacy espoused in cases like Lawrence v. Texas. And they have a justice-based right to not have to give up information about themselves to the government, the sort of right violated by NSA wiretapping and that should be protected by the Fourth Amendment – the kind of right espoused in cases like Katz v. United States.

We do not have any justice-based right, however, to control what is done with those things we voluntarily give away to private individuals. If I sell you or give you my laptop, without any restrictions on your use, I have no rights-based complaint if you use it to do something I find objectionable, such as reading Perez Hilton. Nor do I have a rights-based complaint if you take the information I left on it and use it for your purposes. Even if that information is about me.

Of course, depending on the information and how you use it, you may be a bad person for using it; it may even in a sense be immoral for you to use it in that way. But it’s not immoral in the justice-based way, in the political-moral sense, as government rights-violations are. You do not deserve to be fined (have your property, to which you have rights, taken from you) or thrown in jail (have your liberty, to which you have rights, taken from you) for such actions. Perhaps you deserve to be denounced, boycotted, ostracized, etc. But, unless you have violated my rights, you do not deserve to have your rights violated in return.

Voluntarily selling or giving away a laptop with information on it is the same thing as voluntarily sending that information through data pipes that someone else owns, but you’ve contracted to use, to a third party such as a website. If you give your data away to Google, Google can use them as it sees fit. Perhaps not without being evil (though, if the company – with your consent – anonomizes the information and uses it to enhance your browsing experience, that doesn’t really seem evil to me), but definitely without violating your rights. Sending your data to a website is giving it away. If you do not want to give it away, don’t. Some websites may not let you access them, or not let you access certain features on them, unless you give them your data. (Indeed, the Internet is structured so that if you want to access any website you have to transfer some data, unless you’re using one of the clever tricks we discuss here.) Too bad. You make the call. If you decide that the benefits of Gmail outweigh the “privacy” costs, you don’t have any complaint that Google has violated your rights.

When government takes your data, they do it without your consent. You don’t “give it away”; it is taken from you. (More often, the government takes data about you from another source that actually posseses the data, either directly by theft or by a coerced agreement. Whether your rights or the possessors’ rights were the ones violated is another matter, and irrelevant for these purposes.)

But what websites do with “your” data (the data that you voluntarily gave them in exchange for accessing their sites) is a matter you may be concerned about, but it is not a matter for government intervention. Talk to your content providers, not to your Congressperson.

  • http://srynas.blogspot.com/ Steve R.

    The right to privacy seldom appears to be clearly articulated. The right to privacy belongs to the recipient not the instigator. In your post, you state “They have a justice-based right (a political moral right) to freedom from government intrusion”. I would rephrase this as a right of freedom from both corporate and government intrusion. Please see my post “Misplaced Regulatory Blame II”.

    When a telemarketer calls you up or your mailbox is full of junk mail these are unwarranted intrusions into your privacy. True, you can hang up and throw the junk mail into the garbageman, but that is not the point. Why should I be inconvenienced for unwanted contact that I did not request? (The default request for any information should be “NO”. If the yes box is check, that represents a voluntary commitment to receive solicitations so let the mail fly!)

    In terms of targeted advertising, I have no aversion to it. Additionally, if I go out on the internet it is acceptable for advertising to be presented. Even most cookies are acceptable since they facilitate logging into websites. My point is that this we have a schizophrenic attitude towards privacy. If the government invades it, bad. But if a corporation does the very same thing, good?!?!?!?!

    Anyway, I see that Adam & Berin will be taking up the privacy issue in their paper “Cyber-Libertarianism: The Case for Real Internet Freedom”. I hope that they will recognize that privacy belongs to the recipient not the instigator be it the government or someone else.

  • http://www.openmarket.org/author/alex-harris/ AlexHarris

    Consent, consent, consent!

    The spam/unsolicited phone calls issue is entirely different than the one I'm dealing with, targeted ads. Spam is not an invasion of your informational privacy. It does not take information from you. It dumps unwanted messages in your inbox. One can legitimately argue whether or not these are an invasion of your property, in the same way as dumping garbage on your lawn would be. If not, it's hard to see why a denial of service attack would be rights-violating. I tend to lean toward the side that these are rights-violating, because you have not consented to receive just ANY message/phone call, just as you don't consent to receive just ANY visitor into your house or business.

    This post is about the data you give away when you visit websites. You decide to visit the website, you have decided to give up the data. You have consented to give away your information, thereby EXERCISING one of the rights you have over it (namely, the right to share it with others). The government does NOT get your consent. The government takes your information, such as by ordering you to give it up or face fines or contempt of court charges and then jail – or just by breaking into your data pipes and taking it directly. It's ridiculous that we lump both of these together as “privacy” concerns and act as if they are the same. If I tell you my medical history, I have no “privacy” complaint that you have it – you have it because I gave it to you!

  • http://srynas.blogspot.com/ Steve R.

    Correct, I am not disputing what you are saying and I understand the focus of your position. You are correct that when you visit a website, you have consented to give up some data. My intent was to note a bigger issue that is lamentably “ignored” in these types of “focused” presentations.

  • http://www.openmarket.org/author/alex-harris/ AlexHarris

    I should also clarify that the issue is not who the supposed privacy-violator is, but how she got the data. If a corporation were to wiretap your house or lock you in a cell for refusing to give up your information, that would be just as bad as the government doing those things.

    And, indeed, people can – and do – make contracts about how the data will be used before they give them away. That's what privacy policies are all about. Corporations that violate their agreements with their users about how they'll treat their data are rights-violating as well. An appropriate role for government is to provide a remedy (now in the form of civil suits for damages) for those violations. I've been talking about the case where a person gives information away with no prior restrictions on its use, or where the website receiving the information actually follows the agreement, but the user complains and demands government action anyway.

    But, Steve, you are right about spam. We should have a conversation about the cyber-libertarian view on it. It's one of those areas, like IP, where libertarians disagree about what counts as “property” and what it means to violate it.

  • KenMagill

    This debate is missing a much larger point. When two private entities interact with one another, both own the information surrounding that interaction.

    For example, if I sell you a car and we both write the details of that transaction down, both I and you own that information.

    If I sell 10 cars to 10 people and we all write the details of the transactions down, we all own the information surrounding the transactions in which we took part.

    Suddenly, though, as the seller of all 10 cars, I have a database of car buyers that has commercial value. And that database is rightly mine.

    If I sell those 10 names to an insurance broker for five bucks a piece, I have violated no one's privacy. I have used information I rightly own for a perfectly legitimate personal gain.

    When you visit a Web site, you aren't giving information away, you are engaged in a value-for-value transaction with another private entity that has as much right to the information surrounding that visit as you do.

    As a result, the whole privacy debate is based on a massively flawed premise: that people somehow own the information surrounding their interactions with other private entities.

    If I buy a generator from Tractor Supply, Tractor Supply is an equal owner of the details of that transaction.

  • KenMagill

    This debate is missing a much larger point. When two private entities interact with one another, both own the information surrounding that interaction.

    For example, if I sell you a car and we both write the details of that transaction down, both I and you own that information.

    If I sell 10 cars to 10 people and we all write the details of the transactions down, we all own the information surrounding the transactions in which we took part.

    Suddenly, though, as the seller of all 10 cars, I have a database of car buyers that has commercial value. And that database is rightly mine.

    If I sell those 10 names to an insurance broker for five bucks a piece, I have violated no one's privacy. I have used information I rightly own for a perfectly legitimate personal gain.

    When you visit a Web site, you aren't giving information away, you are engaged in a value-for-value transaction with another private entity that has as much right to the information surrounding that visit as you do.

    As a result, the whole privacy debate is based on a massively flawed premise: that people somehow own the information surrounding their interactions with other private entities.

    If I buy a generator from Tractor Supply, Tractor Supply is an equal owner of the details of that transaction.

  • http://www.openmarket.org/author/alex-harris/ AlexHarris

    Consent, consent, consent!

    The spam/unsolicited phone calls issue is entirely different than the one I'm dealing with, targeted ads. Spam is not an invasion of your informational privacy. It does not take information from you. It dumps unwanted messages in your inbox. One can legitimately argue whether or not these are an invasion of your property, in the same way as dumping garbage on your lawn would be. If not, it's hard to see why a denial of service attack would be rights-violating. I tend to lean toward the side that these are rights-violating, because you have not consented to receive just ANY message/phone call, just as you don't consent to receive just ANY visitor into your house or business.

    This post is about the data you give away when you visit websites. You decide to visit the website, you have decided to give up the data. You have consented to give away your information, thereby EXERCISING one of the rights you have over it (namely, the right to share it with others). The government does NOT get your consent. The government takes your information, such as by ordering you to give it up or face fines or contempt of court charges and then jail – or just by breaking into your data pipes and taking it directly. It's ridiculous that we lump both of these together as “privacy” concerns and act as if they are the same. If I tell you my medical history, I have no “privacy” complaint that you have it – you have it because I gave it to you!

  • http://srynas.blogspot.com/ Steve R.

    Correct, I am not disputing what you are saying and I understand the focus of your position. You are correct that when you visit a website, you have consented to give up some data. My intent was to note a bigger issue that is lamentably “ignored” in these types of “focused” presentations.

  • http://www.openmarket.org/author/alex-harris/ AlexHarris

    I should also clarify that the issue is not who the supposed privacy-violator is, but how she got the data. If a corporation were to wiretap your house or lock you in a cell for refusing to give up your information, that would be just as bad as the government doing those things.

    And, indeed, people can – and do – make contracts about how the data will be used before they give them away. That's what privacy policies are all about. Corporations that violate their agreements with their users about how they'll treat their data are rights-violating as well. An appropriate role for government is to provide a remedy (now in the form of civil suits for damages) for those violations. I've been talking about the case where a person gives information away with no prior restrictions on its use, or where the website receiving the information actually follows the agreement, but the user complains and demands government action anyway.

    But, Steve, you are right about spam. We should have a conversation about the cyber-libertarian view on it. It's one of those areas, like IP, where libertarians disagree about what counts as “property” and what it means to violate it.

  • KenMagill

    This debate is missing a much larger point. When two private entities interact with one another, both own the information surrounding that interaction.

    For example, if I sell you a car and we both write the details of that transaction down, both I and you own that information.

    If I sell 10 cars to 10 people and we all write the details of the transactions down, we all own the information surrounding the transactions in which we took part.

    Suddenly, though, as the seller of all 10 cars, I have a database of car buyers that has commercial value. And that database is rightly mine.

    If I sell those 10 names to an insurance broker for five bucks a piece, I have violated no one's privacy. I have used information I rightly own for a perfectly legitimate personal gain.

    When you visit a Web site, you aren't giving information away, you are engaged in a value-for-value transaction with another private entity that has as much right to the information surrounding that visit as you do.

    As a result, the whole privacy debate is based on a massively flawed premise: that people somehow own the information surrounding their interactions with other private entities.

    If I buy a generator from Tractor Supply, Tractor Supply is an equal owner of the details of that transaction.

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