III. CONTEXTUALIZING THE PROBLEM OF PRIVACY
[16] The right to privacy transforms with each generation. George Orwell’s 1984 is often cited when discussing the intersection of technology and privacy rights.72 The error is thinking that Orwell’s imagination is still a way’s away— in the future, close but not quite here, or otherwise confined to its pages written decades ago. Of course, the reality is that “Big Brother” is actually Big Tech and 1984’s plot is yesterday’s news. While older generations gradually discover their online activity is under constant surveillance, younger generation’s right to online protection is vaporizing.
72 See generally GEORGE ORWELL, 1984 (1949) (“We know that no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship.”).
A. Surveillance Capitalism Defined
[17] In her seminal work, The Age of Surveillance Capitalism, Professor Shoshana Zuboff defines “surveillance capitalism” as “the new logic of accumulation.”73 Professor Zuboff elaborates:
Surveillance capitalism unilaterally claims human experience as free raw material for translation into behavioral data. Although some of these data are applied to product or service improvement, the rest are declared as a proprietary behavioral surplus, fed into advanced manufacturing processes known as ‘machine intelligence,’ and fabricated into prediction products that anticipate what you will do now, soon, and later. Finally, these prediction products are traded in a new kind of marketplace for behavioral predictions that I call behavioral futures markets. Surveillance capitalists have grown immensely wealthy from these trading operations, for many companies are eager to lay bets on our future behavior.74
[18] Professor Zuboff provides a framework for understanding the novelty of surveillance capitalism: (1) the logic, (2) the means of production, (3) the products, and (4) the marketplace.75 Google is considered the “pioneer” of surveillance capitalism and their business practice can be traced through the proliferation of its online advertising business model.76
73 SHOSHANA ZUBOFF, THE AGE OF SURVEILLANCE CAPITALISM: THE FIGHT FOR A HUMAN FUTURE AT THE NEW FRONTIER OF POWER 8 (2019).
74Id.
75 Id. at 93–96.
76 Id. at 63–67; See generally Kayla McKinnon, Comment, Nothing Personal, It’s Just Business: How Google’s Course of Business Operates at the Expense of Consumer Privacy, 33 J. MARSHALL J. INFO. TECH. & PRIVACY L. 187, 187–88 (2018).
1. The Logic
[19] Google’s discovery of “behavioral surplus” allowed the company to “translate its nonmarket interactions” into “prediction products” readily available for advertisers.77 Prediction products are “surveillance assets” which ultimately produce “surveillance revenues” and “surveillance capital.”78 The adage “[i]f a service is free, you’re the product,”79 is no longer true. “Instead, we are the objects from which raw materials are extracted and expropriated for Google’s prediction factories. Predictions about our behavior are Google’s products . . . . We are the means to others’ ends.”80 Whereas industrial capitalism expropriates nature’s raw material (e.g., wood, stone, crude oil, etc.) and cuts, cleaves, and compounds commodities (e.g., lumber, countertops, plastics, etc.), surveillance capitalism captures human nature (e.g., patterns, behaviors, inclinations, etc.) and contrives “prediction products.”81
77 Zuboff, supra note 73, at 93–94; See Amy Tracy, Technology Law-Great Google-Y Moogley: The Effect and Enforcement of Click Fraud and Online Advertising, 32 UNIV. ARK. L. REV. 347, 349–53 (2010).
78 ZUBOFF, supra note 73, at 94.
79 See Scott Goodson, If You’re not Paying for it, you become the Product, FORBES (Mar. 5, 2012), https://www.forbes.com/sites/marketshare/2012/03/05/if-youre-not-paying-forit-you-become-the-product/#317c03c45d6e [https://perma.cc/7QVB-7BP9] (“But the next time you’re browsing the web or enjoying a video on YouTube, remember that Google is watching your every move; because that’s the price you pay.”).
80 ZUBOFF, supra note 73, at 94.
81 See id.
2. The Means of Production
[20] Machine learning and artificial intelligence are the new means of production.82 As Google (and other surveillance capitalists) accumulate more data, their “machine intelligence” evolves and their prediction products become more accurate.83 Indeed, Google researchers have already introduced a new “deep-neural network model” to significantly improve “clickthrough rate”84 predictions.85
3. The Products
[21] Viable “prediction products” forecast our thoughts, feelings, and likely actions based on data that are processed by machine intelligence.86 These products are heavily guarded from competitors and the general public.87 The goal is pseudo-certainty: as prediction products become more certain, the more online commerce will commence.88
82 See id. at 95; cf. Bob Lambrechts, May It Please the Algorithm, 89 J. KAN. B. ASS’N. 36, 37 (2020) (discussing how artificial intelligence will change the legal profession);* see also* Darrell M. West & John R. Allen, How Artificial Intelligence is Transforming the World, BROOKINGS (Apr. 24, 2018), https://www.brookings.edu/research/how-artificialintelligence-is-transforming-the-world/ [https://perma.cc/LX6A-DEPJ] (discussing how artificial intelligence is shaping finance, national security, health care, and infrastructure among other industries).
83 See ZUBOFF, supra note 73, at 95.
84 See generally Clickthrough Rate (CTR): Definition, GOOGLE ADS HELP, https://support.google.com/google-ads/answer/2615875?hl=en [https://perma.cc/MKX5- DBCE] (explaining that CTR is the ratio between how many people click on a given advertisement (“clicks”) and how many people saw the ad (“impressions”), and that a higher CTR means that the ad is more helpful and relevant for the particular search terms used).
85 See ZUBOFF, supra note 73, at 95–96.
86 Id. at 96.
87 *See id. *
88 *See id. *
4. The Marketplace
[22] Though the market was initially limited to advertisers, “behavioral futures markets” are now open to any entity—advertiser, businessperson, politician, or otherwise89—keenly interested in influencing future behavior.90 In the same way that mass production was not confined to automobile manufacturers, surveillance capitalism with its new logic, means, and products will not be bridled to online advertising.91
B. A Whole New Problem
[23] Congress’ twentieth-century understanding of the internet is no longer applicable to today’s digital milieu.92 Children have shifted from“familiar fill-in-the-blank questionnaires”93 and “customize[d] MySpace pages”94 to today’s trendy and entrenched social media sites. This transition represents much more than “stranger danger”;95 it represents a vast, unsettled frontier. A child’s every movement across the internet— from a Santa-gifted iPad to a school-issued Chromebook—is often hunted, captured, prodded, and aggregated before being shipped off to the highest bidder. Welcome to the frontier of surveillance capitalism.
89 Id. See, e.g., Bruno Zeller et al., The Internet of Things–the Internet of Things or of Human Objects? Mechanizing the New Social Order, 47 RUTGERS L. REC. 15, 19 (2020) (“[Personal data] manipulation is most evident by mega-data corporations, such as Facebook, providing the data of millions of users to Cambridge Analytica . . . to influence voters in the 2016 US Presidential Elections and the UK referendum on Brexit.”).
90 See ZUBOFF, supra note 73, at 96.
91 *See id. *
92 See generally Ariel Fox Johnson, 13 Going on 30: An Exploration of Expanding COPPA’s Privacy Protections to Everyone, 44 SETON HALL LEGIS. J. 419, 431–443 (2020) (discussing how children’s use of technology has dramatically changed since COPPA’s inception and the subsequent effects on children as a result).
93 Malkin, supra note 3.
94 Gehman, supra note 3.
95 E.g., Martine Oglethorpe, Teaching Stranger Danger in a digital world, THE MODERN PARENT (Jan. 14, 2020, 11:35 AM), https://themodernparent.net/teaching-strangerdanger-in-a-digital-world/ [https://perma.cc/6UFR-8AKY]; see generally Anita L. Allen, Minor Distractions: Children, Privacy, and E-Commerce, 38 U. Pa. L. Rev. 751, 754-58 (2001) (discussing how the internet threatened young families almost two decades ago).
1. Mental and Social Development
[24] Teens are sharing more information on social media sites than they ever have before.96 In turn, their mental health severely suffers.97 Researchers have shown that Generation Z—“the first group of digital natives, with no memory of life before the rise of surveillance capitalism”— relies on four to five social media platforms for “psychological sustenance.”98 Researchers reported findings of “loneliness and acute disorientation that overwhelm young people when faced with disconnection from social media.”99 Given the fact that 95% of Generation Z uses smartphones and 45% are online “on a near-constant basis,” it makes sense that teenagers today increasingly see themselves through their social media accounts, or what researchers call an “outside-looking-in approach.”100 This phenomenon further entrenches the feelings of “disorientation and isolation” and “suggests a psychological dependency on the ‘others.’”101
96 Mary Madden et al., Teens, Social Media, and Privacy,PEW RES. CTR. (May 21, 2013), http://www.pewinternet.org/2013/05/21/teens-social-media-and-privacy/ [https://perma.cc/4569-9RAK].
97 See ZUBOFF, supra note 73, at 445.
98 Id. at 447.
99 Id.
100 *Id. *
101*Id. *
[25] Today’s children are different from children two to three generations ago.102 Psychologists denote “emerging adulthood” as the years between eighteen and the late twenties, and the essential challenge for this new “life stage” is differentiating self from others.103 The separation between childhood and adulthood is growing in today’s time: “emerging adulthood is to the twenty-first century what adolescence was to the twentieth.”104
[26] Psychologists have said that the essential challenge of “emerging adulthood” is delineating between one’s self and social peers.105 The proliferation of social media muddles this delineation.106 Professor Zuboff expatiates three ways the “enduring existential task of self-making”107 is morphed by the internet’s prevalence: (1) accelerated individualization, (2) online socialization, and (3) the domination of “network publics.”108 Professor Zuboff expounds further:
102 Id. at 462 (explaining that “[s]ocial media marks a new era in the intensity, density, and pervasiveness of social comparison processes, especially for the youngest among us, who are ‘almost constantly online’ at a time of life when one’s own identity, voice, and moral agency are a work in progress. In fact, the psychological tsunami of social comparison triggered by the social media experience is considered unprecedented. If television created more life dissatisfaction, what happens in the infinite spaces of social media?”).
103 ZUBOFF, supra note 73, at 452; accord JEFFREY JENSEN ARNETT, EMERGING ADULTHOOD: THE WINDING ROAD FROM THE LATE TEENS THROUGH THE TWENTIES (2006).
104 ZUBOFF, supra note 73, at 452.
105 Id. at 453.
106 See id. at 453–54.
107 Id. at 455.
108 See DANAH BOYD, IT’S COMPLICATED: THE SOCIAL LIVES OF NETWORKED TEENS (2014).
Young life now unfolds in the spaces of private capital, owned and operated by surveillance capitalists, mediated by their ‘economic orientation,’ and operationalized in practices designed to maximize surveillance revenues. These private spaces are the media through which every form of social influence—social pressure, social comparison,109 modeling, subliminal priming—is summoned to tune, herd, and manipulate behavior in the name of surveillance revenues. This is where adulthood is now expected to emerge.110
[27] Facebook has openly acknowledged that their platform is a “sensory experience of communication that helps us connect to others, without having to look away.”111 Their platform is based on the addictive nature of casino games with the intention that users enter a mental state called the “machine zone”: a connection between user and device that invokes a “loss of self-awareness, automatic behavior, and a total rhythmic absorption carried along on a wave of compulsion.”112 Anyone who has scrolled their Facebook feed for an extended period of time and suddenly “snaps out of it” knows the feeling.113
109 ZUBOFF, supra note 73, at 455–56.
110 Id. at 456.
111Id. at 448.
112 Id. at 449–50; accord NATASHA DOW SCHÜLL, ADDICTION BY DESIGN: MACHINE GAMBLING IN LAS VEGAS 166–67 (2014).
113 See, e.g., Brian X. Chen, You’re Doomscrolling Again. Here’s How to Snap Out of It, N.Y. TIMES (July 15, 2020), https://www.nytimes.com/2020/07/15/technology/personaltech/youre-doomscrollingagain-heres-how-to-snap-out-of-it.html. [https://perma.cc/HYD2-JCUY].
2. Data Collection
[28] Internet users are generally unaware of how tech companies use aggregated data collection. For instance, the Journal of Social Studies Research published a study that examined high school students’ responses to the discussion of internet privacy.114 Three startling themes emerged from the researchers’ analysis of the students’ responses:
(1) students displayed a surprising trust in Facebook and Google;
(2) students framed the issue of Internet Privacy as a conflict in values and a set of trade-offs; and
(3) students tended to put more weight on personal consequences and responsibility than on implications for democracy in their assessment of the (acknowledged) erosion of privacy as a result of social media and Internet search engines.115
[29] Teenagers implicitly trust tech companies and presume that the companies are acting in the user’s best interest.116 Researchers speculated that such lackadaisical responses could stem from broader themes of tradeoffs around privacy in the post-9/11 world.117 Americans generally accepted the increase in state surveillance as a tradeoff for increased protection.118 Thus, the “cultural zeitgeist” in which these students grew up fundamentally shaped their conceptions of online privacy: “[p]erhaps the traditional valuation of privacy by adolescents needs redefinition in a media-saturated society in which young people live their lives on [social media], without much thought about the potential long-term consequences for their adulthood.”119As another study explains:
114 Margaret S. Crocco et al., “It’s not like they’re selling your data to dangerous people”: Internet privacy, teens, and (non-)controversial public issues, 44 J.SOC.STUD. RES. 21, 25 (2019).
115 Id. at 21–33.
116See id.
117 See Crocco et al., supra note 114 at 26–28.
118 John Cohen, Most Americans Back NSA Tracking Phone Records, Prioritize Probes over Privacy, WASH.POST (June 10, 2013), https://www.washingtonpost.com/ politics/most-americans-support-nsa-tracking-phone-records-prioritize-investigationsover-privacy/2013/06/10/51e721d6-d204-11e2-9f1a-1a7cdee20287_story.html. [https://perma.cc/5G5Q-H2F9].
119 Crocco et al., supra note 114 at 28.
When asked whether [students] thought Facebook gives anyone else access to the information they share, one middle schooler wrote: ‘Anyone who isn’t friends with me cannot see anything about my profile except my name and gender. I don’t believe that [Facebook] would do anything with my info.’ Other high schoolers shared similar sentiments, believing that Facebook would not or should not share their information.120
[30] When similarly question, however, parents expressed deep concern over how much information companies could learn about their children simply by tracking their children’s online behavior.121
120 Madden et al., supra note 96.
121 See Madden et al., supra note 96; but cf. Stacey B. Steinberg, Sharenting: Children’s Privacy in the Age of Social Media, 66 EMORY L.J. 839, 842–44 (2017) (arguing that “sharenting,” the parental act of sharing details about their child online (text, pictures, etc.), should be at the forefront of legal analysis when a parent’s right to share conflicts with a child’s right to privacy).
3. Sexual exploitation
[31] As an empirical matter, children’s online presence increases their exposure to sexual content and solicitation.122 Even before the rise of social media, experts warned of the proliferation of child exploitation and pornography as the internet pullulated from its nascency.123 Sexual predators frequently use social media sites as a way to lure children into sexual conversations.124 Despite this knowledge, internet service providers and social networking sites are likely legally inculpable.125 Predators may target young people that respond well to online attention, particularly those that are “insecure, needy, [and] isolated.”126 Children are apt to disclose personal information, either intentionally or unintentionally, thereby making a sexual predator’s “grooming” that much easier.127
122 See Adina Farrukh et al., CTR. FOR TECH. INNOVATION AT BROOKINGS, YOUTH INTERNET SAFETY: RISKS, RESPONSES, AND RESEARCH RECOMMENDATIONS, 5–6 (2014), https://www.brookings.edu/wp-content/uploads/2016/06/Youth-Internet-Safety_v07.pdf [https://perma.cc/RLM6-TVLR]; see also Nellie Bowls & Michael H. Keller, Video Games and Online Chats are ‘Hunting Grounds’ for Sexual Predators, N.Y. TIMES (Dec. 7, 2019), https://www.nytimes.com/interactive/2019/12/07/us/video-games-child-sexabuse.html [https://perma.cc/24EN-FDWC] (“The criminals strike up a conversation and gradually build trust. Often they pose as children, confiding in their victims with false stories of hardship or self-loathing. Their goal, typically, is to dupe children into sharing sexually explicit photos and videos of themselves—which they use as blackmail for more imagery, much of it increasingly graphic and violent.”).
123 See MONIQUE MATTEI FERRARO & EOGHAN CASEY, INVESTIGATION CHILD EXPLOITATION AND PORNOGRAPHY: THE INTERNET, THE LAW AND FORENSIC SCIENCE 46–47 (Mark Listewink et al. eds., 2005).
124 DJ Mico, Protecting the Digital Playgrounds: Narrowly Tailoring the Meaning of “Social Media” to Prohibit Sexual Predators from Using Social Media, 51 U.PAC. L. REV 123, 125 (2019) (“Of approximately 6,000 reports of ‘online enticement’ across different social media and messaging applications, the most common methods offenders used to entice children included engaging in sexual conversation, asking children for sexually explicit images of themselves, and discussing interests or ‘liking’ the child’s online posts to develop a rapport with the child.”) (footnote omitted).
125 See Saponaro v. Grindr, LLC, 93 F. Supp. 3d 319, 323 (D.N.J. 2015) (holding internet service provider was statutorily immune from liability in tort, pursuant to Communications Decency Act, for its alleged negligence in failing to monitor social networking site and allowing minor child to access site to arrange sexual encounter); Doe v. SexSearch.com, 551 F.3d 412, 415-16 (6th Cir. 2008) (dismissing several of plaintiff’s claims against the website after underage user lied about her age, used the website, and engaged in sexual relations with the plaintiff); In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262, 295 (3d Cir. 2016) (holding that Google did not violate the Wiretap Act, California Invasion of Privacy Act, New Jersey Computer Related Offenses Act, or Video Privacy Protection Act when it collected personal information about children).
126 How Predators Groom and Control their Victims, FOCUS FOR HEALTH, https://www.focusforhealth.org/how-predators-groom-and-control-their-victims/.
127 Dickson A. Abimbola-Akinola, The Cyber Crime and Internet and Internet Sexual Exploitation of Children” (Feb. 2017) (Student Thesis, Governors State University); but cf. Gehman, supra note 3, at 161–62 (arguing that children have a right to self-expression on social networking sites despite the infiltration of sexual predators).
Table of Contents
- I. INTRODUCTION
- II. RECLAIMING PRIVACY
- III. CONTEXTUALIZING THE PROBLEM OF PRIVACY
- IV. PROPOSED ADJUSTMENTS
- V. CONCLUSION