An interesting post by Rebecca Bowe yesterday discusses a lawsuit heard last week in the Supreme Court which will determine the rights of individuals to sue corporations based on the data collected about them.
Thomas Robins claimed that Spokeo collected and sold incorrect information about him, hurt his chances to get a job and caused him damages. Spokeo claimed that Mr Robins was “in his 50s, had obtained a master’s degree and earned an annual six-figure income. In reality, when he discovered the false online profile several years ago, he was in his mid-20s and unemployed. The case was filed in 2010.” Robins claimed he couldn’t find a job because, he assumed, he was applying for positions that matched his relatively modest experience and employers assumed he was vastly overqualified for these positions, and rejected his application offhand. It’s interesting to see that Google, Facebook, eBay and Yahoo are supporting Spokeo in this lawsuit to support not just data collection but the lack of transparency surrounding its use and sale.
Curious, I searched myself on Spokeo and got my precise location, age, and husband’s name right away. To access anything else I would need to pay for a subscription, at least $13.95. But I was told not to worry, that my search was private and that “Hagit Katzenelson” would never find out that you searched for her. If I agreed to buy the information, I would also check a box to make sure that I agree that I will not use Spokeo to determine an individual’s eligibility for credit, insurance, employment, housing, or any other purpose covered under the Fair Credit Reporting Act.”
This leads me to agree with Mr. Robins analogy to the Fair Credit Reporting Act: Spokeo is storing information about individuals that they don’t have access to and cannot correct if errors exist. The Fair Credit Reporting Act (FCRA) was “intended to protect consumers from the willful and/or negligent inclusion of inaccurate information in their credit reports. To that end, the FCRA regulates the collection, dissemination, and use of consumer information, including consumer credit information.” Credit reports and scores have a major impact on financial and employment decisions, and consumers have a chance, once a year, to get a free copy of their report from each of the three credit bureaus. The FCRA also requires that consumers be given their credit score every time it is accessed to make a financial decision and how it influenced their terms. Spokeo doesn’t offer such access at all, providing consumers even know about it, and has the potential for influencing the exact same decisions.
How harmful can these decisions be?
In Mr Robins’ case, he was denied jobs for a very long time. In fact, with all the talk of eliminating bias in hiring in tech at the moment and the exploration of blind hiring procedures, this kind of information is a step back, even when it is correct. Maybe the applicant is living in a city with a long commute? Maybe a single candidate is prefered over a married one? Maybe age becomes a factor in the hiring decision? All these factors can be damaging enough when right, but what happens when they’re wrong?
In my personal case, a few months ago the internet’s advertising algorithms decided I was pregnant (I’m not, but a close friend was) and from that moment on I have been targeted with baby products galore. It’s amusing until a potential employer thinks I’m pregnant, decides that I won’t be able to balance a new baby and a new job and rejects my application offhand. At that point I won’t even know the reason for my rejection and won’t have an opportunity to correct the wrong assumption.
Spokeo is just the tip of the iceberg. This ad tech company tracks, via inaudible sounds, what mobile devices users use and when they use them. The same company also listens and tracks the TV commercials that users are hearing and makes that data available to advertisers. Likewise Facebook tracks and makes available the physical location of its users to allow local businesses to target them. These are just two examples I have encountered in the past week.
Going back to the comparison to the FCRA, users are clearly at an unfair disadvantage. They don’t know what part of their lives is being tracked, they don’t know who tracks them, they don’t know who has this information and who can ask for it, they don’t know what decisions it influences, they cannot easily (if at all) opt out of tracking, and they cannot correct mistaken assumptions. In Robins vs Spokeo, the issue of damages seems to be the main point of contention. But in many cases, consumers won’t even know what data was used as a factor in denying them a job or credit. At this point in data collection it seems that social media and ad tech companies are way ahead of both consumer’s understanding and the government watchdogs whose job it is to protect them. This will be an interesting case to watch.
Finally, don’t be surprised when users use ad, tracking and cookie blockers whenever they can. It’s industry practices such as these that make users paranoid. To end with a bit of Catch-22 wisdom: “Just because you’re paranoid doesn’t mean they aren’t after you.”