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Data Aggregators, Consumer Data, and Responsibility Online: Who Is Tracking Consumers Online and Should They Stop?

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Data Aggregators, Consumer Data, and Responsibility Online: Who Is Tracking Consumers Online and Should They Stop? THE INFORMATION SOCIETY 2016, VOL. 32, NO. 1, 51–63 http://dx.doi.org/10.1080/01972243.2015.1107166 Data aggregators, consumer data, and responsibility online: Who is tracking consumers online and should they stop? Kirsten Martin Department of Strategic Management and Public Policy, George Washington University, Washington, DC, USA ABSTRACT ARTICLE HISTORY The goal of this article is to examine the strategic choices of firms collecting consumer data online Received 7 August 2014 and to identify the roles and obligations of the actors within the current network of online tracking. Accepted 3 May 2015 In doing so, the focus shifts from placing the onus on individuals to make an informed choice, to KEYWORDS fi ’ justifying the roles and responsibilities of rms when gathering, aggregating, and using consumers Big data; business ethics; interests or behavior online. Firms online are uniquely positioned to undercut or to respect privacy Internet; privacy; expectations within three possible roles: as a member of a supply chain of information traders, surveillance; tracking online within a network of surveillance online, and as an arm of law enforcement. These firms benefit from aggregating and analyzing consumer data and have an associated responsibility to not only minimize the harm to consumers but also to enact change where the firm is in the most knowledgeable and powerful position. Through everyday activities, such as buying groceries, becoming a “captive audience” without functional opt-out paying bills, researching medical symptoms, and map- mechanisms, thereby making notice and choice less mean- ping runs, consumers create a data trail that is collected ingful (Popescu and Barah 2013). Privacy law scholars by companies and aggregated for later use. The term “big Schwartz and Solove (2011) summarize the idea behind data” refers to the marriage of modern predictive tools notice and choice: As long as a company provides notice with these large data sets of consumer information (boyd of its privacy practices, and people have some kind of and Crawford 2012; Lohr 2012; Sloan and Warner 2014). choice about whether to provide the data or not, then pri- Better analytical capabilities and larger data sets—with vacy is sufficiently protected. greater volume, variety, and velocity (Laney 2001)— The emergence of widespread consumer tracking com- allow for greater precision in tracking individuals and pounds the frailty of relying on notice and choice to gov- more widespread, beneficial use of big data by firms, ern privacy online. Currently, the only affirmative such as for fraud prevention and credit risk assessments responsibility of firmsonlineisadequatenotification (Beales and Muris 2008; U.S. Senate 2013), as well as in (Calo 2012;Beales2013). Firms online are not responsible health care, mobile, smart grids, traffic management, for their specificprivacypractices—only in communicat- retail, and payment services (Tene and Polonetsky 2013). ing their tactics to consumers. In focusing on disclosure as While recent advances have led to a democratization of the main responsibility of the firm, firms become free to big data, where more actors have access to more con- implement questionable privacy practices as long as the sumer information with better, faster, and cheaper tools, practices are accurately reported. As more firms have the tactics to address online privacy continue to languish access to consumer data, little prescriptive guidance is (Langenderfer and Cook 2004). The Federal Trade Com- offered in developing strategies for consumer information. mission (FTC) reliance on Fair Information Practices While the policy focus has been on consumer choice (FIP), and notice and choice in particular, serves as a and the associated user responsibility in disclosing infor- source of guidance for self-regulation within the industry mation, this article shifts the attention to the strategic (FTC 2012), yet considerable agreement exists that notice choices of firms online and their associated responsibility and choice have failed to govern privacy effectively online in collecting, aggregating, storing, and sharing consumer (Martin 2013;Nissenbaum2011;SchwartzandSolove information. The goal of this article is to critically analyze 2011;Calo2012; Solove 2013).1 Consumers fall victim to the strategic choices of firms collecting data online and to CONTACT Kirsten Martin [email protected] Department of Strategic Management and Public Policy, George Washington University, 2201 G Street, Washington, DC 20052, USA. Published with license by Taylor & Francis. © Kirsten Martin 52 K. MARTIN identify the roles and obligations of the actors within the Strategic choices of firms online current network of online tracking. In doing so, the focus shifts from placing the onus on individuals to make an When online, firms regularly gather and store consumers’ informed choice to justifying the roles and responsibilities information, browsing habits, clickstream data, and pur- of firms when gathering, aggregating, and using consum- chasing history. While websites have long been known to ers’ movements, preferences, interests, or behavior online. record users’ online activities in order to suggest products Firms are uniquely positioned to undercut or to respect or give discounts, additional actors and technologies have expectations on privacy based on the information tracked entered the online tracking space with increasing access to and the firms’ relationship with users. user information. For example, a Web beacon can capture The article proceeds as follows. First, I categorize firms detailed information such as clicking, typing, and brows- online based on the two important strategic decisions con- ing behavior and then relay that information to profes- cerning (1) a firm’s relationship with consumers and (2) sional tracking companies and data aggregators; a mobile the breadth of information collected. Second, these strategic software company such as Carrier IQ—with which no end choices are framed as positioning firms to either undercut customer has any direct contact—can log customer activ- or respect privacy expectations within three possible over- ity on mobile devices down to the keystroke for later anal- lapping roles: as a member of a supply chain of informa- ysis without the knowledge of the user. Primary websites tion traders, within a network of surveillance online, and as may pass information to affiliated companies, sell infor- an arm of law enforcement. Based on the firms’ strategic mation to data aggregators and data exchanges directly, or position online, I identify the moral basis for firms’ obliga- allow a tracking company to place an invisible beacon or tions for each role and summarize in Table 1. web bug on their website. Table 1. Problems with tracking online by role. Suggested ethical Role Problem Key actors Responsible because… actions Supply chain Potential harm from Primary website acting as a Primary website benefit from harm Reveal tracking allowed on secondary use of gatekeeper to the caused to individuals within the primary website or information along the information supply chain. information supply chain. application. supply chain. Without primary website, individual would not disclose information. Relationship with individual acts as a lure for the individual to visit the site and disclose information. Possible breaching of privacy Primary website has unique knowledge Set policies as to who has expectations and and ability to identify and stop access to user data and confidentiality in passing tracking. for what purpose. Limit information within the who has access. supply chain. Surveillance Inability to avoid watcher. Data aggregators with no Residual harm from data aggregation— Keep data within functional direct relationship with tracking actors benefit from the silos so that no single users. personality and identity of others actor has broad user while contributing to the harm of data. surveillance. Deidentify user information. Inability to identify watchers Tactics by which data is collected are Make watchers visible by deceptive and disrespectful to browser or primary individuals by not maintaining website/application. minimum social contract norms that require the ability to identify contractors (trackers) and give contractors (the individuals) a voice. Law enforcement Storing data and leaving Actors that benefit from Retaining data makes the individual Add options to make data individual vulnerable to aggregated and vulnerable. An already obscure or less changing ability of law individualized data disadvantaged party online—the personally identifiable. enforcement. render the data attractive user—is made worse off in retaining Diminish size of data set: to law enforcement. data. delete data; collect less data. Lowering hurdles for law Actors online that change the structure Implement transparency enforcement to access of privacy expectations have a reports (such as Google information by making responsibility to fix what was broken. and Twitter). data more accessible. By breaking an existing structure that Make presence visible to was relied upon to uphold privacy end users to allow users interests online, the actors to make decisions voluntarily take on the responsibility about disclosure. to reconstitute the social and Have own policies as to technological structures. when and why to disclose data to law enforcement. THE INFORMATION SOCIETY 53 Companies collecting, aggregating, and disclosing Yet the distinction between actors focused on front- consumer
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