THE RESIGNATION CURVE: PROFILES IN PRIVACY
Across the landscape of themes that surfaced during our focus groups, certain patterns emerged that may offer some broader explanatory power in deciphering people’s overall attitudes toward privacy. As mentioned, we initially hypothesized that a person’s age might be influential in organizing individuals’ opinions on privacy relative to one another. Despite the rejection of our age hypothesis, attitudes about privacy were not homogenous. They could still be roughly organized into a loose typology according to their perceived ability to control their personal privacy, and according to their overarching opinions on the current (and future) state of privacy throughout society.
85 See Auxier et al., supra note 49. Our methodology for gauging the trust of focus group participants was similar to the Pew Privacy Survey’s construction of survey questions for gauging the feelings of respondents as related to the sharing of information with government and private organizations. See id. Participants in the Pew Privacy Study responded overwhelmingly that they did not feel the benefits of sharing their personal information with the government or private companies outweighed the possible risks. In more in-depth questions, however, there was significant variation in the participants’ responses when asked about their feelings toward sharing specific types of personal information with the government and private companies. See id. Additionally, there were also significant differences in the participants’ responses when asked about their feelings toward sharing personal information with specific types of government and private organizations. See id.
86 Focus Group 4 (Seniors), Rutgers University (Sept. 20, 2019) (on file with author).
87 Id.
88 Apple Privacy Policy, APPLE (Dec. 14, 2020), https://www.apple.com/legal/privacy/en-ww.
Throughout our various topics of discussion, one feeling guided nearly every respondent’s attitude—resignation. Specifically, almost all focus group respondents agreed that the value society places on privacy today is historically lower than at any other point in history.89 Nearly all focus group respondents also believed—for better or worse—that little could be done to change society’s values as they pertain to privacy, due in large part to the various competing interests (convenience, security, etc.) for which privacy is often exchanged.
What did vary among respondents, however, was the extent to which they perceived their ability to maintain agency over their personal privacy. In other words, despite the belief that new technology has pushed society away from privacy writ large, certain respondents expressed the idea that technology could also be proactively used—if individuals chose to do so—as a safeguard in protecting privacy through such practices as private browsing, virtual private networks (VPNs), and encryption.90 Moreover, individuals’ general attitudes toward society given the current state of privacy also varied, as even certain respondents resigned to a world devoid of privacy believed that this was not necessarily problematic. Rather than being consumed with worry over the future of privacy, these individuals instead choose to enjoy the comfort of warm water, so to speak.
In reviewing the different attitudes among focus group respondents, each respondent could be arranged relative to one another based on both their perceived ability to influence their personal privacy and their general attitude toward society given the current state of privacy. We call this arrangement the “Resignation Curve,” as respondents who possessed extremely negative attitudes or who possessed extremely positive attitudes toward society—given the current state of privacy—both generally believed there was little that could be done to safeguard personal privacy. A smaller group of respondents, who represent the center of the Resignation Curve, expressed neither extremely positive nor extremely negative views toward the state of privacy but believed there were pragmatic measures that individuals could take to safeguard their personal privacy if they chose to do so over a competing interest.
89 See Auxier et al., supra note 49. Similar to this finding from our focus groups, data from the Pew Research Center’s 2019 Privacy Study showed that 70 percent of participants responded that their personal information is less secure than compared to five years ago. Id.
90 Focus group notes, Rutgers University (Sept. 13–Oct. 6, 2019) (on file with author).
Respondents could therefore be loosely placed into one of three groups along the Resignation Curve: the Defeatists, the Pragmatists, and the Futurists. Respondents do not fit neatly into only one of these groups. Instead, the groups are meant to represent sections of a spectrum. Where respondents fell on this spectrum indicates a rough approximation of their attitudes toward privacy. It is important to note that the curve depicted below does not depict the frequency with which focus group respondents could be labeled as members of each of these groups. Instead, the Resignation Curve is meant to represent a relationship between two categories of attitudes (represented by its axes), and whose extremes mark the most typical attitudes of certain typologies as outlined below.
A. The Defeatists: Privacy Is an Illusion!
The Defeatists’ attitudes were defined by complete and total resignation—not just to an individual’s inability to maintain agency over his or her privacy but also to the guaranteed negative consequences of a society that does not value privacy. Individuals on the left side of the Resignation Curve, where most focus group participants could be placed, were specifically resigned to the belief that society was now structured such that avoiding incentives to trade privacy in exchange for a variety of competing interests (security, convenience, financial gain, etc.)91 would impose a burden on individuals far outside what is now considered normal given the advancement of technology.
Consider visual surveillance, for example.92 On a very basic level, it is hard to argue against the security that cameras afford over streets, university parking lots, and so many other public—and sometimes private—locales. Though one can argue about their deterrent value, few argue that the information they provide is not important to identifying culprits and so on.93 Similarly, there is an addictive attractiveness to the use of Google’s search engine. The ease, accessibility, and convenience are a brew almost impossible to resist ingesting. Related are the unbelievable efficiency rewards of technology: speed of locating accounts, storage of information, and myriad other benefits that accrue from electronic collection and storage of data.94 Although privacy implications of different social policies have been present throughout our history,95 the scope of the changes of the past fifty years far exceeds anything experienced in our past. The impossible has become not just possible, but a reality, and in some instances, commonplace.
Many Defeatists largely view this “new normal” as an existential threat to democracy and to the United States’ ability to maintain a free and open society in which individuals retain their autonomy without the auspices of Big Brother or Big Technology watching over them.96 Some Defeatists expressed fears that, without privacy, the country was now more vulnerable to authoritarianism, given the notion that people now fundamentally lack choice in deciding what, where, and to whom to divulge information. Any “choice” concerning whether or not to use a service or product (i.e., smartphones, search engines, mapping
91 See Stacy-Ann Elvy, Paying for Privacy and the Personal Data Economy, 117 COLUM. L. REV. 1369, 1371–78 (2017) (discussing privacy as a commodity).
92 See Neil M. Richards, The Dangers of Surveillance, 126HARV. L.REV. 1934, 1936–45 (2013) (providing a broader discussion of surveillance).
93 See generally Milton Heumann et al., Privacy and Surveillance: Public Attitudes on Cameras on the Street, in the Home, and in the Workplace, 14 RUTGERS J.L.& PUB. POL’Y 37, 60–74 (2016).
94 See Mike Shaw, Why Google is the Best Search Engine (and Why Businesses Should Care), TOWER MARKETING (June 15, 2020), https://www.towermarketing.net/blog/google-best-search-engine.
95 See generally LAWRENCE CAPPELLO,NONE OF YOUR DAMN BUSINESS 6 (2019) (exploring the history of conflicts surrounding technological advancements that arguably conflicted with privacy values).
96 See generally Jonathon W. Penney, Chilling Effects: Online Surveillance and Wikipedia Use, 31 BERKELEY TECH. L.J. 117 (2016) (exploring the public’s interest in privacy topics around the time of Edward Snowden’s disclosure of National Security Agency surveillance in 2013).
applications), as one Defeatist noted, is simply an “illusion,”97 because the cost imposed by declining to use such services places a burden on the individual outside what is now commonly deemed acceptable. While entities may not necessarily force individuals to disclose private information, the normalization of using certain technology has nevertheless forced individuals to trade their privacy.
The following is a quote from an individual near the Defeatist end of the Resignation Curve: “[N]othing I can do [about Google keeping search history] . . . . It is what it is. The individual is powerless. I’m just one person.”98 Another Defeatist summarized their feelings by asserting the following: “Privacy is an illusion. I am not sure there is a definition of privacy anymore. It is too late to make material changes in our behavior when it comes to using services like Google. We are already hooked.”99 Other Defeatists similarly reported, “I have no privacy and I can’t expect it to get any better soon,”100 and, “If you don’t sign [the TOS agreement], you don’t get to use the service.”101 Finally, on surveillance generally, yet another respondent stated, “There is surveillance all the time, all privacy is gone, but nothing to be done. Barring a catastrophe, there is no privacy, it’s almost like a Pandora’s box . . . . Get used to the new world. What can I do as an individual?”102
B. The Futurists: Embrace the New World!
Focus group respondents at both ends of the Resignation Curve shared a key characteristic: when it comes to new norms of information sharing, both Defeatists and Futurists believed that resistance is futile. Both groups are generally accepting of the “this is the way it is” mentality regarding privacy, given the advancement of technology in the 21st century. The defining difference between Defeatists and Futurists, however, is that the latter tend to believe that this new society is trending in a positive direction rather than a negative one. Futurists, unlike Defeatists, generally embrace the technology that Defeatists believe to be responsible for the decline of privacy. Of the three groups herein defined, Futurists represent the smallest number of focus group participants. They tend to not only accept the idea that society now
97 Focus Group 1 (Seniors), Rutgers University (Sept. 13, 2019) (on file with author).
98 Focus Group 3 (Young Adults), Rutgers University (Sept. 15, 2019) (on file with author).
99 Focus Group 1 (Seniors), Rutgers University (Sept. 13, 2019) (on file with author).
100 Focus Group 6 (Middle Age), Rutgers University (Oct. 6, 2019) (on file with author).
101 Focus Group 1 (Seniors), Rutgers University (Sept. 13, 2019) (on file with author).
102 Focus Group 5 (Young Adults), Rutgers University (Sept. 23, 2019) (on file with author).
values privacy less than ever before but also actively believe that the costs of trading away one’s privacy are outweighed by the incentives and benefits received from doing so.
These individuals trumpeted technology’s benefits, and generally believed privacy concerns were overblown, exaggerated, and more often than not theoretical musings of those far removed from reality. Futurists typically based their beliefs on the presumption that new technology brings about immense benefits for the “greater good” of society, such as heightened security, enhanced abilities to find and prosecute criminals, increased health benefits, and greater convenience in people’s daily lives. Many Futurists also acknowledged that this advancement is achieved not despite the diminution of privacy but because of it. Individuals along the right side of the Resignation Curve sometimes even went as far as to champion the possibilities of mass data collection, especially in fields such as human genetics.103 That these respondents would not only move past a general acceptance of a society dominated by information sharing but also seek to thrive in it is a testament to the wide array of opinions expressed—even by small subsections of the population—on the topic of privacy.
The more moderate of these respondents (those more toward the center-right of the Resignation Curve) felt that they had “nothing to hide,” so privacy intrusions were not much of an intrusion at all. More forceful proponents said that the handwringing, dystopia-invoking voices of privacy champions were nothing more than “Chicken Littles,”104 exaggerating the costs of technology and not crediting the enormous benefits that are associated with change. Not infrequently, these respondents threw down a challenge to the focus group: name a privacy concern that has actually materialized and affected individuals seriously and negatively. These challenges often went unanswered by other focus group respondents.105
The following are quotes from individuals near the Futurist end of the Resignation Curve:
Has anyone ever suffered from these privacy concerns we are bandying about? I never did. I am happy with all that technology has given . . . . I love when the bank knows all about my accounts and alerts me to fraud. I love the fact that
103 See generally Natalie Ram, Genetic Privacy After Carpenter, 105 VA. L. REV. 1357 (2019) (analyzing privacy considerations surrounding recent advancements in genetics).
104 CHICKEN LITTLE (Walt Disney Co. 1943).
105 See Auxier et al., supra note 49. When asked if they had recently experienced three of the most common privacy harms, respondents from the Pew Study overwhelmingly answered in the negative.
the doctor knows all about me. To be frightened is wrong . . . . Every change is for the good even if it has good and bad things . . . . What are you going to do, stay in your house the whole time?106
I am not very concerned with these privacy concerns . . . by collecting more data, you get more knowledge . . . through machine learning, etc. It helps scientific progress. Every generation is faced with this [fear]. New information can be valuable . . . . We will get more benefits from AI, machine learning.107
Another Futurist claimed, “I have nothing to hide, so what is the problem? There are so many benefits . . . so make some concessions. I don’t think we should let the negatives outweigh the positives.”108 On the topic of Google, one Futurist said, “I don’t care enough to use those services [alternative to Google]. Sometimes a targeted ad is nice if it is what I am looking for.”109 Another Futurist commented, “Google is the most phenomenal thing . . . . [It is] an amazing service that adds tremendous value.”110
C. The Pragmatists: The Future of Privacy is . . . Different!
The center of the Resignation Curve is occupied by a small subsection of individuals who expressed neither extremely positive nor extremely negative views toward society given the current state of privacy as they perceived it. Pragmatists, like almost all focus group respondents, also perceived societal values to be trending away from privacy. Despite perceiving this trend, however, Pragmatists themselves often still reported that they believed privacy ought to be valued and protected because of the benefits it provided—primarily those surrounding safeguarding against potential cyber-attacks that threaten an individual’s financial or emotional well-being (a threat Pragmatists often took seriously). Depending on which side of the Resignation Curve members of this group fell on, Pragmatists were either cautiously optimistic or cautiously pessimistic about the direction in which society’s privacy values were trending—an attitude
106 Focus Group 1 (Seniors), Rutgers University (Sept. 13, 2019) (on file with author).
107 Focus Group 2 (Middle Age), Rutgers University (Sept. 15, 2019) (on file with author).
108 Focus Group 6 (Middle Age), Rutgers University (Oct. 6, 2019) (on file with author).
109 Focus Group 5 (Young Adults), Rutgers University (Sept. 23, 2019) (on file with author).
110 Focus Group 4 (Seniors), Rutgers University (Sept. 20, 2019) (on file with author).
that was largely tied to a Pragmatist’s belief in the extent to which other individuals also realized their individual agency over protecting their personal privacy.
The following diagram illustrates how the cross section of certain attitudes affects where an individual is placed along the Resignation Curve. This depiction also distinguishes between Negative Pragmatists (those on the left side of the curve) and Positive Pragmatists (those on the right side of the curve). As previously stated, there was a subtle difference in the attitude Pragmatists took toward their general feelings about society given the current state of privacy as they perceived it. The defining characteristic within this group was an individual’s perception as to whether or not others also believed that they had individual agency to affect their personal privacy. Many Pragmatists were optimistic as to the agency of their peers, while others believed that they were alone in their ability or willingness to either resist privacy tradeoffs or take certain measures, as explored below, to mitigate the collection of their data.
Resignation Curve Typologies 
Unlike their peers at either end of the Resignation Curve, Pragmatists cited a variety of ways—to various extents of personal usage—that individuals could actually use technology to their benefit in protecting personal privacy. This included practices such as private browsing (a means of hiding users’ cookies, the mechanism through which websites track user traffic), VPNs (which allow individuals to create secure networks to access the internet), and encryption (a tool used to restrict information access). Knowledge of any one of these technologies varied widely among even the Pragmatist group, and many respondents—especially younger ones—reported that they were aware of such methods to protect individual privacy, but did not actively utilize these methods themselves, mostly due to a lack of technical knowledge. Despite this fact, the mere existence of such technologies suggested to the Pragmatists that perhaps a world devoid of privacy was not inevitable, although many remained skeptical that enough people cared enough, especially given tantalizing tradeoffs, or had the technical knowledge to actually use such privacy-protecting technology (“PPT”). For the Pragmatists, even among those who actively engaged with PPT, the widespread use of PPT was a necessary step if the protection of private information were to ever extend beyond small clusters of privacy-concerned individuals.
The following are quotes from Pragmatists, near the apex of the Resignation Curve: “I can choose: do I want to share [information], or do I not want to share?”111 “I use DuckDuckGo instead of Google because they respect my information.”112 Two Pragmatists highlighted the moral duality of technology: “Every technology can be used for good and evil . . . . Encryption is a secure way of storing information.”113 “The future of privacy is different. Not bad or good necessarily—just different.”114
Table of Contents
- I. INTRODUCTION
- II. BACKGROUND
- III. RESEARCH DESIGN
- IV. FOCUS GROUP FINDINGS
- V. THE RESIGNATION CURVE - PROFILES IN PRIVACY
- VI. CONCLUSION - REFRAMING PRIVACY’S MEANING
- APPENDIX A - GENERAL SCRIPT/QUESTIONS FOR FOCUS GROUPS
- APPENDIX B - RESPONDENTS’ ONE-WORD DESCRIPTIONS OF PRIVACY IN THE FUTURE