Page 96 - Privacy in a Cyber Age Policy and Practice

THE PRIVACY MERCHANTS 83

people are indeed willing to trade information, such as their locations and
consumption habits, that was once considered private for certain benefits.
According to one survey, the coupon reward systems on these sites were
the main incentive for users to join. 53
One must take into account, however, that it is very likely that those
who have relatively little concern about privacy are unaware that their less
sensitive information can be used for PVT and that privacy is a right that
is not subject to majority rule. Even if only a minority cherishes it, it is still
a birthright of all Americans.

2. The Self-Regulation Option

The prevailing system in the United States—and the de facto prevailing
system in the European Union—relies to a significant degree on self-
regulation and individual choice. That is, it relies on the assumption that
consumers will choose the services and products of those corporations that
protect privacy at the level the consumers seek, that users can set their pri-
vacy controls to the level they prefer, and that, as a result, corporations that
provide less privacy protection than the public seeks will lose business and
be incentivized to enhance their privacy protection. (Additionally, some
scholars have argued that marketing in this vein is protected as free speech
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under the First Amendment, an argument not addressed in this chapter. )
These ideas are founded on the standard libertarian argument, as noted by
Susanna Kim Ripken: “Respect for individual autonomy, responsibility, and
decision-making is deeply entrenched in our culture and law. We believe
that people can order their own economic affairs and, given sufficient
information, can make their own personal assessments of the risks and
benefits of transactions.” 55
None of these assumptions withstand sociological scrutiny. The thesis
that consumers are rational actors who make decisions in their best interests
and in line with their personal preferences and available information has
been disproven beyond reasonable doubt by the studies of behavioral
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economists. For this very reason, transparency does not work. That
is, the suggestion that if corporations simply declare their privacy stan-
dards consumers could choose those that suit them is erroneous if not
misleading. Privacy statements are written in legalese, in terms few can
penetrate; the privacy settings provided are complex, cumbersome, and
frequently revised after the users have posted information on the site that
they cannot erase.
Furthermore, without regulation, there is no assurance that corpora-
tions will adhere to their privacy declarations, or at least to their implied
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promises. This does not refer necessarily to outright false statements but