IPSC Panel 12 – Identity, Data, and Privacy

Dustin Marlan, The Dystopian Right of Publicity

Privacy problems (surveillance) are often analogized to the dystopia
of 1984; ROP problems stemming from infinite transferablility can be analogized
to Brave New World (1932). A state of unfreedom that is apparently chosen and
pleasurable (though enforced by drugs and conditioning). This is relevant to
the extent that everyone has a ROP. ROP is also criticized when applied to use
of celebrity personae in expressive works. Is that a preference for amusement
over discourse? There are only about 18 celebrity personality cases/year. That’s
not nothing and litigated cases aren’t everything, but wants to focus on publicity
interests of average citizens: the pleasurable servitude problem. Risk of
identity loss means that “everyone belongs to everyone else,” as the slogan
used in Huxley’s book goes. Class action ROP lawsuits against social media:
result was broader consents in TOS. Voluntary relinquishment of identity
control in return for the benefits of social media. Commodification of identity
as a prerequisite for social media access. Social, political problem; social
networks get monopolies over human capital.

Proposal: clickthrough policies designed to educate the
public, maybe choices. 1A shouldn’t be a barrier to regulation b/c the use for
endorsement is commercial speech.

Rothman: Does not agree that ROP is the coined opposite of
the right of privacy, nor that it should have a purely economic and commercial
focus. See her book. Also in her count there are 100s of ROP cases/year—order of
magnitude more.

RT: Suggestion: Read Ashley Mears, Very Important People, on
pleasurable exploitation and its relation to commodification and anti-commodification
norms. Doesn’t have policy discussion itself, but has implications for
solutions where individual relations seem pleasurable. Discussion seems
indifferent to hidden data use; endorsement is almost literally the tip of the
iceberg of individual data use. Proposal seems pretty weak tea; disclosure won’t
work if they can still condition access on agreement.

A: On disclosure: Wants to be realistic about what could
happen.

Wu: seems more unwitting [without thinking about it one way
or another] and unavoidable transfer than pleasurable transfer. But in context
of social media, the pleasure is inextricable from the agreement [and it’s not
surprising that the agreement would then be experienced as, at least, not a
problem].

Bita Amani, Authoring Identity: Copyright, Privacy, and
Commodity Dissonance in the Digital Age

Emerging threats to capacity for self-authorship seem
greater than in the past—here, algorithmic errors may generate disruptions in
identity construction. Personal experience with multiple Bita Amanis with related
interests. This has led to problems both with health care (corrected),
misattribution of credit (interviews), and database connections as if they were
all the same author.

Why should we care? Misappropriation; interference w/connection
b/t author and text. Moral rights as a solution? Not clear. Peter Doig,
well-known artist: denied
creating a particular work
; the owner claimed it was Doig’s work, and had
to defend his identity to assert it wasn’t his work. The plaintiff pointed to
style indicia of it being his. (Doig
won; it was another guy named Peter Doige.)
Privacy may have untapped
potential for dealing with these misattributions, especially false light. Even
true facts can be actionable; defamation is not required for intrusion on
privacy/public disclosure of embarrassing facts. (Comes out of case involving nasty
divorce where one party posted videos involving the kids on YT.)

Victoria Schwartz, Joint Privacy

[picking up kid; interesting project using ideas of joint authorship
as a lens on issues of privacy that arise when people create information (or
even just have information, as w/DNA) together and so sharing one’s own information
or life story necessarily implicates others.]

Uri Y. Hacohen, User-Generated Data Network Effects

Network effects are key to current tech companies, whether
via reviews, userbase, or otherwise. AI increases the power of network effects—making
Google’s predictive results better. Many problems, including price discrimination,
manipulation. Possible changes: changing liability regime so that they are more
liable depending on what they know (e.g. that the user is a child); simple
payment requirements to pay for harm [Pigouvian tax, I think]; management
rights for users. Does not want to break up (at least as first solution) b/c that
just means more entities with the data creating privacy and security problems,
but we may not have a choice.

Felix Wu: Amazon, Google, and FB actually had different core
businesses and if they’re all gulping this data then we have oligopoly, not
monopolies. Even in a world of perfect competition, wouldn’t they be competing
for who can manipulate best?

A: for FB, more data = more problems; right now they aren’t
sharing as much as they might.

Wu: Some would say that innovation from the scale isn’t
worth it; give up the marginal benefits and limit the size.

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