Lisa Austin on Privacy, Social Identity, and Manipulation

At the Seminar in Private Law on April 9, 2019, Professor Lisa Austin, Chair in Law and Technology, Faculty of Law, University of Toronto, led the session titled “Privacy, Social Identity and Manipulation.” Austin discussed excerpts from her forthcoming book on the subject.

We should focus on social and structural aspects of corporate data usage, Austin argued. She pointed out that many scholars and activists presently argue for individual control over data, a regime similar to what the European Union put in place with the GDPR. However, what actually troubles society in cases like the Cambridge Analytica scandal, or the Sidewalk Labs Project, are the societal effects of using big data by private companies. The “social turn” would help us both better to understand these concerns and better to respond to them.

There are many challenges of the so-called data economy other than privacy, Austin pointed out. Examples include questions about manipulation and control and using data for purposes contrary to individual and societal beliefs. Moreover, she said, even when considering individual privacy and control over data, granting persons more rights to control their data might not be the best means to achieve these goals.

Austin presented her theory of privacy, built around the concept of self-presentation. In the analog world, she argued, we understand the informational consequences of our actions. When walking down the sidewalk, dressing in a particular way, or engaging in other day-to-day activities, we generally know who might learn what about us. However, with technological advancements like big data analytics, this understanding gets blurred. With the privatization of means of communication, commercial context powered by machines replaces the social context constructed by humans. This is at the core of the data economy transformation.

Austin surveyed the range of possible legal and policy responses to this transformation. Concentrating on processes, by advocating for transparency and accountability, is important but insufficient in her view. Substantive norms that establish what types of data can be used and by whom are necessary as well. Moreover, she said, we would benefit from shifting from the individualist concept of “personal information” to a more social understanding of data as “information about persons,” even if individuals are not directly identifiable. Finally, Austin suggested ways of thinking about governance in collective modes.

Each spring, the Seminar in Private Law brings speakers from academia and practice to Yale Law School to present papers addressing a common theme. The 2019 Seminar is devoted to asking how technological change restructures the fundamental concepts and categories of private law. The Seminar is organized by Daniel Markovits, Guido Calabresi Professor of Private Law, and the Yale Law School Center for Private Law, which promotes teaching and research in contracts, property, and torts at Yale Law School and in the broader legal community.