Normative Paradoxes of Privacy: Literacy and Choice in Times of Data Governmentality Normative Paradoxes of Privacy: Literacy and Choice in Times of Data Governmentality

Privacy scholars, advocates, and activists repeatedly emphasize the fact that current measures of privacy protection are insufficient to counter the systemic threats presented by datafication and platformization (van Dijck, de Waal and Poell 2018:
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  F    o   r    P    e   e   r    R    e   v   i    e   w    O    n   l      y      Normative Paradoxes of Privacy: Literacy and Choice in Times of Data Governmentality Journal: The Information Society  Manuscript IDUTIS-2019-0033Manuscript Type:ArticleDate Submitted by the Author:25-Feb-2019Complete List of Authors:Helm, Paula; Goethe University Frankfurt, Social SciencesSeubert, Sandra; Goethe University Frankfurt, FB 03 Social SciencesKeywords:Digital Literacy, Notice and Choice, Privacy, Normative Paradoxes, Critical Data Studies, Digital Divide, Data Economy, Privacy Literacy, Empowerment   URL: Email: The Information Society  F    o   r    P    e   e   r    R    e   v   i    e   w    O    n   l      y    1 Normative Paradoxes of Privacy:Literacy and Choice in Times of Data Governmentality1.Introduction Privacy is generally defined as personal control over information and access. 1  In light of this function, privacy is further understood to be of instrumental value because it is necessary for  personal autonomy and perceived as an integral component of individual self-determination,  but is also essential for intimate relationships insofar as it protects the integrity of social contexts. In line   with these convictions, liberal democratic states have established a variety of legal frameworks to protect and enhance privacy. Most of these frameworks, however, have  been found to be insufficient to meet the challenges posed by new information technologies with their data mining and processing capabilities. These challenges have given rise to new debates about the values and trade-offs associated with privacy. While some commentators are passionate advocates for more and better privacy  protection (for an overview, see Bennet 2008), others criticize privacy regimes as systems that help to conceal power asymmetries, and corruption, and undermine a sense of community and solidarity (MacKinnon 1989; Pateman 1989; Etzioni 1999; Sevignani 2016). In this paper, we generally support the perspectives of those calling for better and more rigorous privacy  protection suited to deal with the new challenges of information technology because we believe that privacy and an appropriate form of privacy protection, are essential, not only for individual freedom but also for the functioning of democratic and just societies. Nevertheless, we are also very skeptical about the prevailing understanding of privacy and the current way in which it is  being put into practice. That said, we would like to go even one step further than those who argue that current  policies are not strong enough to provide adequate privacy protection in times of big data. We argue that, not only are recently introduced privacy protection regimes and privacy regulations insufficient, but they also—and this is even more problematic—tend to have unintended, ambivalent, and often even paradoxical consequences for actors and societies. Nevertheless, we are also aware that discourses in this field do indeed demonstrate an intuitive sensitivity to the 1  Different variations of this very general framing can be found in Fried (1970); Solove (2008); Reiman (2012); and Westin (1967). One can also draw a rough distinction between an Anglo-American liberal understanding of  privacy and a Continental-European one (Gusy,Eichenhofer, and Schulte 2016). Since the main companies currently dominating the Internet and thus the most contested sphere of privacy protection are based in the United States, it is their understanding of privacy protection that we are mostly concerned with. At the same time though, we acknowledge that there are significant differences between the European and the US-American interpretation of privacy protection. For an account of this distinction, see, for instance, Whitman (2004). Page 1 of 20URL: Email: The Information Society123456789101112131415161718192021222324252627282930313233343536373839404142434445464748495051525354555657585960  F    o   r    P    e   e   r    R    e   v   i    e   w    O    n   l      y    2  problems we are observing. We therefore suggest that many reformative measures in the field of privacy regulation be seen as ongoing attempts to overcome the aforementioned problems and this paper will analyze, discuss, and evaluate them as such. The specific privacy protection measures we will look at include the “Notice and Choice” regime, on the one hand, and programs that aim to expand and improve “digital literacy” in civil society, on the other. In our examination of these two examples, we firstly reconstruct the aims behind these privacy regulation measures and elaborate the type of normative principles that motivate these actions. Second, we analyze the extent to which these measures are   capable of fulfilling their normative aims and show how they, deviating from their srcinal or explicit intention, tend to produce paradoxical effects. Third, by introducing the concept of “normative paradoxes” developed by Axel Honneth and Ferdinand Sutterlüty (2015), we try to unravel the paradoxical conversions we are observing. Applying this general framework of social criticism to the specific case of privacy helps us to understand the complex dynamics created by the interreaction between economic and technological transformations and normative ideals and the related material-discursive  practices. Our assumption is that it is the interaction betweeormative ideals, on the one hand, and socio-economic power structures, on the other, which fosters the development of social conditions under which tech giants such as Google and Facebook can profit so tremendously from the commodification of personal communication in the first place. The ideals of a form of liberal individualism which is becoming increasingly one-sided from a normative perspective creates complicities with the structural dynamics of digital capitalism and this, in turn, promotes those material-discursive practices of digital usage that are ultimately so incredibly privacy-invasive. This also has an impact on the privacy protection regimes that are trying to respond to these practices. In conclusion, we discuss an alternative approach to privacy protection, based on empowerment and conditions enabling the realization of autonomy. Based on this, we  propose a concept of privacy, which we hope will be capable of breaking the vicious circle of  paradoxical conversion. Page 2 of 20URL: Email: The Information Society123456789101112131415161718192021222324252627282930313233343536373839404142434445464748495051525354555657585960  F    o   r    P    e   e   r    R    e   v   i    e   w    O    n   l      y    3 2. Case Studies2.1. Notice and Choice, without choice? “Notice and Choice” is the current paradigm for consent online. 2  “The Notice is a “presentation of terms, typically in a privacy policy or terms of use agreement. The Choice is an action signifying acceptance of the terms, typically clicking on an “I agree” button, or simply using the website” (Sloan and Warner 2013). The approach aims to push individuals toward not only consenting to the privacy policies of Web providers but in fact encourages them to make an informed and free choice (Cate and Mayer-Schönberger 2014, 67). This mechanism therefore “is believed to be an effective means of respecting individuals as autonomous decision makers with rights of self-determination, including rights to make choices, take or avoid risks, express  preferences, and, perhaps most importantly, resist exploitation” (Barocas and Nissenbaum 2014, 14).However, what kind of choice do people really have when agreeing to the policies of Web providers? Is it genuinely free and informed? On the surface, privacy policies are readily  presented to users for their critical review but it is questionable whether such a critical review can actually take place. Given the fact that these texts often appear rather cryptic for the laity, it is easy to assume that they are written by lawyers to be understood only by members of their own profession (Bakos, Marotta-Wurgler, and Trossen 2009; McDonald and Cranor 2008). Thus, instead of critically reviewing privacy policies, most people seem to simply rely on the view that nothing unjust will be done with their data and that national privacy regulations will  protect them from harm. Some scholars even suggest that privacy policies are elusive by design: “If websites and social media applications require individuals to share information to make money, it may be in their best interest to keep individuals in the dark about their use of personal data” (Madden et al. 2017, 118). Critical accounts of Notice and Choice to date have primarily focused on the readability of the documents and the scope of their content: Should the provider’s responsibility end with informing subjects about data that is explicitly mined and sold, or should they also reveal who they are selling it to, for what price, for what purpose, and what further information may be gleaned from this data (Sloan and Warner 2013)? Indeed, the quality  of information is of utmost importance. But how should the provider explain that it is in fact impossible to know in advance what further information might be derived from the data and how this information might affect 2  Federal Trade Commission, FTC Issues Final Commission Report on Protecting Consumer Privacy: Agency Calls on Companies to Adopt Best Privacy Practices (2012), Page 3 of 20URL: Email: The Information Society123456789101112131415161718192021222324252627282930313233343536373839404142434445464748495051525354555657585960  F    o   r    P    e   e   r    R    e   v   i    e   w    O    n   l      y    4 individuals? In light of potentially limitless future “use potentials” providers might even have a structural interest in being elusive (Mayer-Schönberger and Cukier 2013, 98-122). How then can these open-ended privacy policies be presented to data subjects as the basis for informed consent (Barocas and Nissenbaum 2014)?In addition to this problem there is the question of the quality  of the choice itself. Even if privacy policies were easy to comprehend, were all-encompassing, and people actually read them, this would still not change the fact that a choice can hardly be called “free” and “autonomous” if it does not include a number of options that are equally respected by society. This same shortcoming applies to Notice and Choice on the Internet. Here, all other options apart from consenting would be highly detrimental for the person making the decision. If an individual decided to opt-out: He/she might face higher fees when paying cash for an item instead of purchasing online, she might not get a ticket or a good seat when purchasing last minute at the counter instead of in advance over the Internet, and, worst of all, she might not  be able to participate in public debate, promote his/her ideas, skills, and knowledge, connect with like-minded people, and talk to friends and family living far away. All these options would  be denied any person not consenting to the privacy policies of big Web providers. Due to the growing trend toward oligarchization, a few platform providers dominate Web 2.0 and, with it, our communicative infrastructures. Thus, a significant proportion of our  political and personal discourse is increasingly mediated through these very platforms. 3  Anyone disagreeing with their privacy intrusive policies seems to be resolutely turned into a social outcast, placing them in an isolated social position. What kind of choice is this, therefore, when the options are in fact binary—a choice between consent and marginalization, between being excluded from social participation and being forced into agreeing to sell one’s data. When  Notice and Choice does not comprise any kind of  genuine choices, in the sense of socially equally respectable choices, between two or more options, it is rather undermining the idea of freedom through choice than promoting it. This raises the suspicion that Notice and Choice represents a legitimating instrument for the profitable collecting and selling of data by huge Internet firms rather than an effective instrument of privacy protection for users. The prevailing Notice and Choice regime, which operates without reasonable choice, appears to be serving as an instrument for Web providers to protect their privacy-invasive business. Moreover, this system helps them to abrogate much 3  Currently, this oligarchization is about to reach a new level with Facebook reportedly planning to integrate its messaging services WhatsApp, Instagram, and Facebook into one mega-platform. Although claiming to ensure   high levels of protection against outside  intrusion (e.g., via end-to-end encryption), this move gives Facebook huge additional power with regard to the data—particularly meta-data—of (even more) users inside  the ‘circle’. 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