Document Type
Article
Abstract
Much of the legal literature on privacy is concerned with the collection and dissemination of consumer information. Advances in technology have made it easier to compile information on our purchases and, partly because of the e-commerce explosion, there is more such information available. Owners of consumer information databases grimly and efficiently collect this information, compiling it into comprehensive consumer profiles that are available for sale to corporations and direct marketers. With few exceptions, permission to divulge or use this information is never asked; the data is collected, repackaged and sold as a matter of course. It is likely that consumer databases will become even more comprehensive because there is virtually no legal regulation of this practice, and the sale of consumer information often provides a new avenue of profits for retailers. Not surprisingly, many legal scholars have deemed these developments an unprecedented threat to privacy.
This Article suggests that a focus on privacy in this context is insufficient. The real effects of consumer information gathering (CIG) are best framed as an exercise of power through surveillance. In other words, legal and scholarly attention must be directed to the broader effects of data collection, as oppose to isolated violations of individual privacy.
Part II of this Article traces the various factors that were essential to the rise of database marketing and suggests that no single factor was decisive in bringing about this new form of marketing. Rather, database marketing was made possible by a confluence of social, technological, and cultural influences. Part III frames CIG within the theoretical framework of surveillance, and argues that the techniques of CIG embody the principles behind so-called “new surveillance.”
The effects of CIG are explored in Part IV, which posits that legal arguments that do not take into account social and cultural effects of CIG are inadequate. The legal discourse needs to conceptualize CIG broadly, not bound by particular legal doctrines, but rather by asking whether the effects of data collection on individuals justify its protection. To the extent that surveillance is an exercise of power, one should consider how it “reaches into the very grain of individuals, touches their bodies, and inserts itself into their actions and attitudes, their discourses, learning processes and everyday lives.” Accordingly, this Article is concerned with the effects of CIG on society and on the slightest modifications it may cause in an individual’s behavior, and not on isolated cases of violations of consumer privacy. The effects of CIG, as Part IV suggests, are varied and diffuse, ranging from a greater sense of vulnerability from the problems of reducing an individual to a set of data, to the troubling unintended consequences.
Part V of the Article highlights the distinctions between the privacy and the surveillance approaches to the problem and suggests some tentative solutions. Part V acknowledges that CIG may not, and should not, be eliminated. Rather, the nature of the practice should be altered to ensure a more equitable balance of power between the collectors of the information and the consumers.
Recommended Citation
Stan Karas,
Enhancing the Privacy Discourse: Consumer Information Gathering as Surveillance,
7 J. Tech. L. & Pol'y
(2002).
Available at: https://scholarship.law.ufl.edu/jtlp/vol7/iss1/2