The Death of Privacy: Evaluating Data Collection in the Digital Age

The Death of Privacy: Evaluating Data Collection in the Digital Age

A Thesis Presented to the Faculty and Students of Pulaski Academy

Om Desai April 2019

Desai 1 Abstract With recent advancements in new technologies, companies, as well as the government, have been able to collect data on nearly every aspect of our lives. Under current regulations, it is nearly impossible to determine which of our movements or interactions are being monitored, lending itself to manipulation and exploitation. Companies like Google and Facebook appear to promote transparency and the ethical use of Big Data, but nevertheless still come before Congress and the courts for their potential mal-practices. Since the government has largely left data and privacy untouched since the twentieth century, understanding the value of our privacy and data has never been more important.

Desai 2 Table of Contents Abstract​………………………………………………………………………………………………….....​1 Table of Contents​…………………………………………………………………………………….....…​2 Chapter One: Data and Privacy From the Old to the Digital Age​……………………………………..​3 The Evolution of Privacy……………………………………………………………………...…...4 Modern Data Collection and Big Data……………………………...…………………………….10 Chapter Two: Corporate Data Collection​……………………………………………………………...​15 Data-opolies Are Not a Concern…………………………………………………...……………..15 Dangers of Data-opolies....………………………………………………………...……………..23 Chapter Three: The Government​……………………………………………………………………….​30 Open Data Policy………………………………………………………………...……………….30 The Death Registry and FOIA…………………………………………………………...……….34 Data Regulations and Compliance…………………...…………………………………………...44 Chapter Four: Consumers​………………………………………………………………………………​47 The Four Horsemen……………………………………………………………...……………….47 Social Media…...…………………………………………………………………………………51 Chapter Five: Policy Recommendations​…………………………………………………………….….​57 Bibliography​……………………………………………………………………………………………...​61

Desai 3 Chapter 1: Data and Privacy From the Old to the Digital Age A citizen's right to privacy has been in question since the creation of the constitution, however, its discussion has never been more significant than in the current digital age. The creators of the constitution did not anticipate that such a large scale technological revolution would occur during the late twentieth century, which means that the only privacy protection definitively given in the constitution is a citizen's right to their personal property. As a result, the term “privacy� needs to be frequently re-evaluated as the political, social, and technological climate continues to change. Revisions to the present-day digital privacy laws that were created three decades ago are occurring slowly, even though information sharing and technology continue to evolve at a rapid pace.

The fundamental issue of privacy is tied directly with the type and volume of data that corporations and the government collect.1 Corporations are relentlessly looking for ways to increase their data collection and storage capabilities, as it is essential for them to understand what each individual consumer wants and needs. Similarly, foreign and domestic governments want to expand their capabilities such as administering surveillance, collecting intelligence, and creating policies.

However, the growing power of corporations and the government to collect and manipulate data comes at the expense of a powerless party: consumers. While collecting data, the protection of consumers is rarely kept in mind, as the sole purpose of collecting data is to boost profits. As corporations monopolize data, consumers face the heightened risk of possible data

1

This thesis will be analyzing data collection and privacy issues within the U.S. only. Comparisons to other supranationalist organizations or nations will be made, but the primary focus will be on industries in the U.S. as well as the state’s power. Influences from the European Union or other governments will be addressed in the recommendation section of the paper.

Desai 4 security breaches resulting in the exposure of personal and legal information. In addition, forms of behavioral and unethical discrimination begin to appear in how companies use data to extrapolate new information from particular consumers.

The Evolution of Privacy Privacy is not a newly coined term. It’s existence dates back to the creation of the Constitution when privacy was strictly concerned with an individual's right to their personal property. Primarily concerning one’s freedom from the government, Amendment V of the Constitution protects an individual from being “deprived of life, liberty, or property, without due process of law.”2 Its origin came from a history of invasive and corrupt governments that frequently violated its citizens privacy. As a result, colonists wanted to establish a set of restrictions to prevent the government from infringing upon their sovereignty over their property.

It was not until almost a half century later that privacy was the subject of further discussion. A1890 article by Samuel Warren and Louis Brandeis, ​The Right to Privacy,​ warranted an entirely new sense of property, one that exists solely in the mind. This change resulted from “the intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization” which “made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things.”3 Warren and Brandeis were the first to address that common law should protect intellectual thoughts and decisions alongside protection from unwarranted searches and seizures.

Although not explicitly stated in the law, Warren and Brandeis believe that common law should follow a set of general rules, the first one being that any publication cannot be restricted if

2 3

"Fifth Amendment", 2010, ​LII / Legal Information Institute​, 1.

Samuel Warren and Louis Brandeis, "The Right to Privacy," ​Harvard Law Review​ 4, no. 5, 195.

Desai 5 it is in the interest of the public.4 With the goal being to protect an individual’s being if there is no need for the public to know. The second states that the right to privacy does not apply to forms of communication that would be labeled as slander or libel under the law.5 The final regulation regarding privacy suggests that it no longer applies when the individual publishes or has the information published with consent. In the next chapter over corporations, the idea of publishing with and without consent will be further discussed.

Following the publication of ​The Right to Privacy​ came William Prosser’s ​Privacy,​ regarding privacy torts, the privacy regarding legal liability. Prosser’s right to privacy argument named privacy torts, helped a court of law maintain privacy for all associated. Unlike Brandeis and Warren who relied on the interpretation of common law, Prosser believed that that the privacy torts could be separated into four distinct categories of types of invasions with four different reasons: intruding into a plaintiff's private affairs, publicly exposing private facts, spreading lies regarding the plaintiff, and appropriation of the plaintiff.6 However, tort privacy implementations did not apply to the general public, only to those associated with a court case or court of law, meaning that substantial developments in privacy policy still had yet to occur.7 But The first significant Supreme Court case involving technology and privacy in 1967 was Katz v. U.S​. The Federal Bureau of Investigation (FBI) had attached communication recording devices to a telephone booth which caught Katz exchanging classified information and as a result, was convicted.8 Their actions were approved by the Court of Appeals, which upheld that

4

Samuel and Brandeis, 214.

Samuel and Brandeis, 216.

6 Neil Richards, and Solove Daniel, "Prosser's Privacy Law: A Mixed Legacy," ​California Law Review​ 98, no. 6.

1889.

7 Richards and Daniel, 1890.

8 Stewart Potter, and Supreme Court Of The United States, U.S. Reports: Katz v. United States, 389 U.S, 347.

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Desai 6 the Fourth Amendment was not violated since there was no physical intrusion upon rights given to Katz under the constitution. Soon, however, the decision was overturned by the Supreme Court following the precedent that the eavesdropping actions constitute unreasonable “search and seizure,” ultimately violating the fourth amendment.9 Past court cases referenced, including Silverman v. United States, w ​ hich declared that the fourth amendment also extends to oral statements and ​Goldman v. United States​, which implied that the Fourth Amendment does not extend to place, only to people.10 From the decision of the court came significant implications regarding how privacy protects an individual. Though the government could have justified surveilling an individual by seeking authorization, the FBI had not received the proper warrants or means to do so. In addition, the case supported the idea that the Fourth Amendment did not only protect one's right to physical property, but also preserves their intellectual property and private communication rights.

Just three years after ​Katz v U.S,​ Newsweek released an article, “Is Privacy Dead?” the cover, a political cartoon, showed an American couple being overwhelmed with numerous different methods the government was using to monitor them. Everything pictured, from cameras to telephones have eyes fixated on the couple, taking in every action, reflecting the disturbing truth that every entity within the United States, including federal agencies, had begun to use technology to collect endless quantities of information on all Americans. Newsweek stated that “The country could not function as it does without this activity, poured into huge computers, swapped with mountains of other data from other sources.”11 9

Potter and Supreme Court.

Stewart, Potter, and Supreme Court Of The United States, U.S. Reports: Katz v. United States, 348.

11 “The Assault on privacy”, Is Privacy Dead?, ​Newsweek​, July 27, 1970, 15.

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Desai 7 Since the digital data market is still relatively new, the government has only just begun to pass laws and regulations to control it. The U.S. Department of Health, Education and Welfare, and the Secretary’s Advisory Committee on Automated Personal Data Systems, Records, Computers, and the Rights of Citizens formed the HEW Advisory Committee on Automated Data systems in 1972.12 A report was soon published in July 1973 by the Advisory Committee, labeling eight basic principles regarding corporate data collection, primarily focused upon protecting civilian privacy.13 A year later, the report became the basis of the Privacy Act of 1974, primarily addressing concerns on how computer databases are beginning to influence civilian privacy.

Three major principles from the act accounted for a large majority of privacy regulations regarding data. The first category, transparency, requires companies to notify the individual on how the personally identifiable information (PII) is being manipulated.14 The second principle, individual participation, stated that companies must seek individual consent for the collection and use of PII.15 Many companies and corporations abide by this principle by requiring a user to opt-in to a particular data collection in order to receive access to a service or product. The third principle, requires that an organization which is manipulating or collecting data in any way is obliged to ensure that the data is being used reliably and has taken proper security precautions.16 These principles also extended to government agencies involved in data manipulation. The Department of Homeland Security must enact proper security measures across all media and

Electronic Center, 2018, "EPIC - The Code Of Fair Information Practices," ​Epic.Org​, 1.

Shannon Dahn, "Fair Information Practice Principles," Homeland Security, 3.

14 Dahn, 8.

15 Dahn, 9.

16 Hal Abelson, Ken Ledeen, and Harry Lewis, “Blown to Bits: Your Life, Liberty, and Happiness after the Digital Explosion”, Library of Congress, 2008, 64.

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Desai 8 hold any contractors or organizations who also use PII accountable.17 These laws were a significant step for the government in pursuing adequate privacy and data regulations, though they would soon become outdated in the emerging digital market.

As these PII laws developed, another aspect of civilian privacy came into question. The New York Legislature, established in 1972, created a requirement where prescriptions of dangerous drugs needed to be filled out on an official document. Each form required the patient's name, address, and age, which had to be filed to the State Health Department to be recorded.

Under this system, forms are held for five years then are destroyed but while in the State’s database, patient's identity would not be disclosed to anyone. Groups of patients as well as doctors believed that the identification documents violated the constitution, citing that “the doctor-patient relationship is one of the zones of privacy accorded constitutional protection.”18 Upon reviewing the aforementioned case, the Supreme Court upheld the document, citing evidence from both health and privacy standpoints. In terms of privacy, the court held that a patient's identification, including address and name, is within the powers of the State and that the computerized data bank poses no privacy issue for the prescribers and the patients.19 It is important to note that at the time, major privacy breaches and database hacks had still yet to occur, meaning that the Court had no previous case to base the security off of. Although the case primarily involves health privacy, the extension of the state’s powers has broader implications. If the state finds that certain information on civilians is necessary, regardless of opposition and privacy concerns, the state has the ability to uphold its collection.

17

Shannon Dahn, “Fair Information,” Homeland Security, 14-15.

“Whalen V. Roe,” ​LII / Legal Information Institute​, 2018, 1.

19 Whalen v. Roe, 2.

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Desai 9 Throughout the end of the twentieth century, the State’s powers continued to fluctuate as new acts were created and repealed, but a full augmentation of the government's powers did not occur until the September 11 attacks. Just one month after the attacks, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act 2001) was passed in an overwhelming majority of 98 to one. Title I: Enhancing Domestic Security Against Terrorism acknowledges the civil rights and liberties of all Americans but declares that they preserve their safety by any means necessary.20 Congress also enhanced surveillance procedures in Title II, which authorized the interception of various communications with the purpose of finding evidence of terrorist behavior or computer fraud.21 Title II also had foreign policy implications by allowing the State to disclose foreign intelligence that is a part of a criminal investigation to officials.22 These new regulations were immensely vague and broad, leaving the state to determine to what extent it could demonstrate its powers. Section 217 of the Patriot Act allows the government to intercept the electronic communication of a computer trespasser in “certain circumstances,” but lacks a definitive definition of what circumstances. Subsequently, the government could exploit the electronic communication without having to be clearly transparent about it. With the lack of transparency, concerns regarding to what extent the government could go would soon come into question, but most Americans valued national security over civil liberties at the time.23 Similarly, Section 212 allows data to be disclosed by remote computing

20

James Sensenbrenner, “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001,” Congress, 1.

21 Sensenbrenner, 2.

22 Sensenbrenner, 2.

23 A similar aspect of civilian liberties and the way people act in regards to them will be further discussed in the consumer section of the paper.

Desai 10 service providers to government agencies to “protect life and limb.”24 Unlike cases prior to September 11, the augmentation of the government’s powers enabled the state to bypass courts and essentially enact data collection systems at any scale that was needed.

While concerns about privacy remained silent as the state continued to label terrorism as its number one enemy, the collection capabilities and necessities of companies and corporations also increased. According to a Gallup poll during June 21 to 23 in 2002, approximately sixty percent of adults declared the Patriot Act to be appropriate, and twenty five percent saying the measures were inadequate.25 The poll results demonstrate the public's little concern on civil liberties in the face of large scale terrorist attacks and national security.. A mere eleven percent stated that the government had gone too far.26 Laws that had been passed put more emphasis on preserving national security than the people's right to privacy, ultimately enabling companies to grow in a loosely regulated data market. However, with the attacks on the twin towers becoming more and more distant, public approval rating for the Patriot Act sharply declined, demonstrating a return to the values of civil liberties rather than national security. With new developments in technology resulting in the expansion of storage and collection capabilities, terms such as Big Data have emerged, establishing an entirely new conflict over privacy.

Modern Data Collection and Big Data The mass collection and storage of personal data has become inevitable. A significant number of organizations are constantly taking in our personal information and storing it in some

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Sensenbrenner, 3.

Moore, David, “Public Little Concerned About Patriot Act,” Gallup.Com, https://news.gallup.com/poll/9205/public-little-concerned-about-patriot-act.aspx, 4.

26 ​Moore, “Public Little Concerned About Patriot Act,” Gallup.Com, 4.

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Desai 11 large database, waiting to be sold, used, or stolen. Nearly every part of our life “emit some sort of data exhaust as a byproduct,” while the new generation of processing and Artificial Intelligence (AI) continue to find new ways to manipulate our data.27 Similar to mid 20th century advancements in computing, rising social media platforms and monopolies have streamlined commerce immensely, which has been to there benefit. By streamlining commerce, a few large corporations such as Facebook and Google have access to large amounts of personal data.

The term Big Data has been divided into the four “V”s: volume, velocity, variety, and value. According to the firm Cisco, annual global data center IP, which stands for Internet Protocol and refers to data as a means of communication, traffic will rise to 20.6 Zettabytes (ZB) by 2022 from the 8.8 ZP a year in 2016.28 This is because the cost to collect and control data has decreased, while broadband access, smartphone usage, and social media accessibility have increased. The second “V,” velocity is how fast data can be collected and analyzed. Each data set carries a “time value,” where over time, the usefulness of the data to the company may decrease.

As a result, companies are constantly archiving old data and replacing it with fresh data sets.29 The adoption of the Big Data initiatives in current business models has become so mainstream that according to a NewVantage Partners study on Fortune 1000 companies, only 5.4 percent of firms have no existing Big Data plans.30 In addition, the value of data can also be based off of the variety collected on an individual. This is constructed through the collection of

Craig Mundie, “Privacy Pragmatism," ​Science and Technology,​ (March 2014), 28.

"Cisco Global Cloud Index: Forecast And Methodology, 2016–2021 White Paper," ​Cisco,​ 2.

29 Maurice Stucke and Allen Grunes, “Big Data and Competition Policy,” Oxford:Oxford University Press, 2016, 21 30 NewVantage Partners, "Big Data Executive Survey 2016: An Update on the Adoption of Big Data in the Fortune 1000: Executive Summary," http://newvantage.com/wp-content/uploads/2016/01/Big-Data-Ex ecutive-Survey-2016-Findings-FINAL.pdf, 5.

27 28

Desai 12 data from differing number of sources, and sometimes may only be from one. The final characteristic of Big Data is the value of the data to the market. Value encompasses all previously mentioned terms, but will have a different meanings in each industry. For instance, data sets over the type of content a user consumes and their location holds a higher value within the advertising and marketing industry rather than the medical industry, demonstrating that the value of a data set can differ from industry to industry.

Currently, the largest industries in the data collection business include social media, E-commerce, and the government, as each have their own use for the data. Companies such as Facebook and Google utilize the data for advertising, content precision, and subscription-based products. E-commerce corporations such as Amazon use for data range from activities including product advertising and the development of AI technologies. The government also has a multitude of laws and regulations allowing them to collect data for what they justify as preserving national security or performing surveillance.

Emerging companies have begun to commit large investments in “everything data”, where almost any public information or trail consumers leave behind is collected. In addition, companies have also employed a large number of data scientists and warehouses, for the sole purpose of garnering and maintaining data systems. The International Business Machines Corporation (IBM) estimates that by 2020, the demand for Data Scientists will have grown by 28%.31 This means skills requiring data analysis well other IT skills such as expertise in machine learning are becoming significantly more valuable to data-driven companies.

31

Louis Columbus, 2018, "IBM Predicts Demand For Data Scientists Will Soar 28% By 2020," ​Forbes,​ 4.

Desai 13 According to a survey on executives of industry-leading companies taken by NewVantage Partners, 37.2% reported that their organizations have allocated more than 100 million dollars towards a big data initiative in the past five years, and 6.5% have invested over one billion.32 Although these companies have been investing hundreds of millions of dollars in big data, of firms that have attempted to establish a data-driven culture, only 27.9% reported success.33 This idea that their may still be a conflict in how data is integrated within companies will be discussed in the second chapter over corporations.

Credit to OECD Report

The figure above portrays the interconnectedness of the use of a singular big data technology, Hadoop, used for the processing of large volumes of data.34 Hadoop was created as

32

NewVantage Partners, "Big Data Executive Survey 2017," 7.

New Vantage Partners, 8.

34 OECD, ​Data-Driven Innovation for Growth and Well-Being: Interim Synthesis Report,​ oecd.org, https://www.oecd.org/sti/inno/data-driven-innovation-interim-synthesis.pdf, 12.

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Desai 14 the open-source version to Google’s MapReduce, which is why Google’s use of Hadoop in the figure appear to be non-existent. MapeReduce’s innovativity came from its ability to run queries on large sets of data and split the information among low-cost server facilities across the globe, ultimately solving the issue of storing large amount of data.35 By creating an open-source version of highly effective data processing software, Hadoop essentially provides any company with the opportunity to sift through large amounts of data for free.

As data processing technology costs continues to fall significantly with the advent of open source software and the availability of data increases, the amount of companies that integrate data into their business model will rise rapidly. Consequently, the role of data in developing monopolies and the implications on consumers will need to be analyzed.

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​ OECD.

Desai 15 Chapter 2: Corporate Data Collection For the purpose of this thesis, the two major data collecting industries in focus will be Social Media and E-commerce. Big Data’s significance in the digital world has become inevitable and every industry is looking to capitalize on the benefits it provides. How the sharing and restricting of data affects companies are still being researched by data analysts and economists, yet companies have already developed distinct data policies. This chapter will focus on how these policies contribute to their business model as well as predict the effect of data-monopolies on the free service market.

Data-opolies Are Not a Concern There are two main arguments regarding the implications of data-opolies (monopolies of data). The first argues that government regulation of data is not needed since data-opolies may not exist and even if they do, they pose little to no harm to their market. In contrast, the second argues that data-opolies have a dominant hold on the market and are prohibiting the entry of competitors. Moreover, anti-data-opolies believe that government regulation could be a solution.

The first argument also suggests that data monopolies can reap certain benefits for consumers. In many other industries, marginal costs increase with higher amounts of production: however, for information based industries, production costs tend to fall, causing the marginal cost to become nearly zero.36 This, in turn, creates lower prices for its users. This effect, known as the network and scale effect, strengthens consumer welfare through minimizing costs and heightening the value consumers receive from using a service as more users join the program.37 Although this may seem like a factor helping monopolies, the effect relies on the best service Joe Kennedy, "The Myth Of Data Monopoly: Why Antitrust Concerns About Data Are Overblown," ​Information Technology And Innovation Foundation​, 6.

37 Kennedy, 6.

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Desai 16 offered which does not necessarily originate from low costs. Much of the services provided by social media is largely free, relying on the interest of the public. As a result, network and scale effects do not establish permanent market power nor do they compound a company’s advantage, but instead increases the value of each service to users and consumers.

In a similar sense, weak entry barriers provide ample opportunities for competition to compete for market power. Just possessing large volumes of data does not create high entry barriers for competition. Economists Anja Lambrecht and Catherine Tucker, in an article regarding Big Data and competition law, emphasized the misconception of large volumes of data stating that, “The unstable history of digital business offers little evidence that the mere possession of big data is a sufficient protection for an incumbent against a superior product offering...

To build a sustainable competitive advantage, the focus of a digital strategy should therefore be on how to use digital technologies to provide value to customers in ways that were previously impossible.”38 If a data set has been used by a certain company already, it does not mean that the data loses it value to other companies. For instance, Google’s utilization of publicly available data for its navigation service does not prohibit Citymapper from using the same source for its service. This same idea can be applied in how users distribute their personal data. Users tend to participate in a number of free services, giving basic information to each company without losing any value in the service. It is also important to note that entry barriers in the information industries are not data-dependent. Health data systems will have differing start-up costs than for an advertising or marketing agency, but for the purpose of this thesis, referring to start-up costs will be only for social media companies.

38

​Anja Lambrecht and Catherine Tucker. "Can Big Data Protect a Firm from Competition?." SSRN. 15-16.

Desai 17 As mentioned before, part of data collection is the value it has to the company. In the social media industry, data tends to lose value very quickly, meaning that, possessing data from years ago would serve no advantage over new competitors. In order for a company to maintain a competitive advantage, it must increase the velocity at which it collect data as well as prevent others from collecting that same information. Still, the marginal value of the unattainable data could also be falling and would not result in any increase of market power. For example, Apple’s use of it’s own smartphone also allows it to promote the use of its other services such as Siri and Safari and as a result, has prevented Google and other companies from having access to data from those consumers. However, the value of the data Apple collects will be falling since the information will only cover Apple’s own market. Google will still be able to collect data on other smartphone providers and will also have access to larger and diverse markets.

Based off of a study by Ericsson, a telecommunications company, it is estimated that between 2015 and 2021, the total mobile traffic data will have increased by a multiplier of 10.39 Joe Kennedy, former economist for the U.S. Department of Commerce, suggests that as a result of the significant increase in data traffic, the probability of a new use of data and new business models extinguishing current ones is high.40 This means that current data monopolies or data hoarders may face intense competition from upcoming companies.

Although this may be true to a certain extent, the current data market share that social media companies such as Google own seems as though it would be capable of maintaining its proportion in a larger market. For instance, Google constitutes seventy seven percent of the search engine market share while Bing and other providers do not even make up ten percent

39 40

Louis Columbus, "Roundup Of Internet Of Things Forecasts And Market Estimates, 2016," ​Forbes,​ 3.

Kennedy, "The Myth Of Data Monopoly,” ​Information Technology And Innovation Foundation,​ 5.

Desai 18 individually.41 Corporations like Google already control a significant percentage of a certain market but still have not faced restrictions in many of those areas. Consequently, such dominance makes it difficult to see how a smaller company with new ideas would be able to provide free services at even close to the span of larger corporations without already having a significant presence in the market. Since these corporations also offer services and products in other areas, such as Google’s Youtube and social media platform, they can buy the smaller companies. Facebook, largely known as a social media service, bought Oculus VR which is distant from social networking. This example shows the dominance that many corporations have in markets that are closely related to their main service and the lack of competition for such markets.

Still, economists such as Kennedy argue that data is widely available, largely inexpensive, and ubiquitous.42 This declaration is substantiated by the fact that the U.S. has signficant open data policies based around making it usable by all and releasing sets for innovation. The Freedom of Information Act (FOIA) was passed in 1966 and set the standard for the government’s data sharing initiatives.43 Under the FOIA agencies are required to answer requests for public records but the Act has on numerous occasions been amended and restricted.

The Government in the Sunshine Act of 1976 allowed information deemed linked to national security and current investigations to be exempt from disclosure, but the Electronic Freedom of Information Act of 1996 required agencies to ensure that specific information was readily available in an electronic format.44 Following the FOIA, in 2013, President Obama’s executive

Douglas Schmidt, “Google Data Collection Research,”August 2018, ​Digital Content Next,​ 28.

Kennedy, "The Myth Of Data Monopoly,” ​Information Technology And Innovation Foundation,​ 10.

43 Daniel Castro and Korte Travis, "Open Data in the G8: A Review of Progress on the Open Data Charter,"​ Center For Data Innovation​, http://www2.datainnovation.org/2015-open-data-g8.pdf. 31.

44 Castro and Travis, 29.

41 42

Desai 19 order created a standard where data is “open by default”, through making agencies to release sets in machine readable formats, which gives greater access to more people.

In the U.S.’s Open Data Action Plan, several federal agencies host annual meetings with developers for the purpose of data sharing and improving data transparency.45 Many agencies have also developed open data releases to match the private-sector demands. The FDA, for example, has set data releases based off of how frequent a particular data set is requested under FOIA.46 As a result, the argument that data is readily available and that companies reside in a climate where data sharing and openness is encouraged is supported by federal law. Government data is not restricted to certain corporations and is now available in formats that all companies can access.

However, the stability of such laws and the incentives of the government to continue pursuing open data regulations can still be questioned. The following chapter will further analyze the relationship between the Government and companies to determine the prospects of future and current regulations.

In this same idea, antitrust laws could actually prevent companies from sharing data.47 Regulations regarding competition can only be applied if the company has a certain market cap, but if the company does not sell the data it collects, it cannot be observed as a player in that respective area. However, when the company begins to sell the data it collected, it can be charged as a monopoly even though the buyer will now have access to that data.

45

Castro and Travis, 31.

"CDRH FOIA: How To Get Records From CDRH," 2018,​ Fda.Gov.,​ https://www.fda.gov/aboutfda/centersoffic, 2.

47 Joe Kennedy, “Should Antitrust Regulators Stop Companies From Collecting So Much Data,” 2017, ​Harvard Buisness Review​, https://hbr.org/2017/04/should-antitrust-regulators-stop-companies-from-collecting-so-much-data.

3.

46

Desai 20 Google in Europe, for example, is being investigated over antitrust issues revolving around the terms and conditions it placed on manufacturers of Android phones. In order for Android phones to license the Google Play Store, Google required each manufacturer to have pre-installed Google search and browser app which was deemed to violate antitrust regulations in the EU. Margrethe Vestager highlighted Google’s market dominance when she said Today, mobile internet makes up more than half of global internet traffic. It has changed the lives of millions of Europeans. Our case is about three types of restrictions that Google has imposed on Android device manufacturers and network operators to ensure that traffic on Android devices goes to the Google search engine. In this way, Google has used Android as a vehicle to cement the dominance of its search engine. These practices have denied rivals the chance to innovate and compete on the merits. They have denied European consumers the benefits of effective competition in the important mobile sphere.

This is illegal under EU antitrust rules.48 In contrast, Apple was able to avoid being considered in violation of antitrust laws by creating their own phone even though companies would not have access to the data collected from that product.

Thus, by participating in a competitive market for their own smartphone operating system, Google was fined 4.92 billion US dollars by the EU.49 Google’s fine demonstrates how increased antitrust laws can lead to a decrease in the sharing of data and actually promote company dominance. Instead of allowing other companies to use their services and products, companies will want to maintain exclusive datasets, which would other companies from having access to data collected by that service or device.50 While forcing companies to share the data they collect is a solution that can be argued, the privacy implications of data landing in the hands

48

"European Commission - PRESS RELEASES - Press Release - Antitrust: Commission Fines Google €4.34 Billion For Illegal Practices Regarding Android Mobile Devices To Strengthen Dominance Of Google's Search Engine," July 18, 2018, ​Europa.Eu, 1​ .

49 ​"European Commission,” 1.

50 ​Kennedy, "The Myth Of Data Monopoly,” ​Information Technology And Innovation Foundation​, 10.

Desai 21 of low standard or low security companies is significant, and this idea will be further discussed later.

Adding on to the argument is the claim that data rich firms still have limited power. Just because a company has substantial access to data does not mean that they are all-knowing and it also is based around a presumption of both the quality and quantity of the data. Corporations and Companies are still prone to making mistakes and can make bad decisions that reduce their market dominance. Microsoft’s merging with Nokia and aQuantive ended in Microsoft spending approximately fourteen billion US dollars, leading to the loss of thousands of jobs, yet did not yield substantial profits to justify the cost.51 This decision led to Microsoft’s fall in the mobile phone market as well as a significant financial setback.

In addition, an entity possessing data does not give them a competition prohibiting advantage over other companies wanting to develop a product in the same industry. IBM, for example, develops its Artificial Intelligence service, IBM Watson, to complete a variety of tasks including analyzing medical information and discovering new drugs.52 Though IBM collects a lot of data, it would be meaningless to Watson without IBM’s development of sophisticated algorithms to use the data and they have incentives to protect those algorithms from competitors.

However, IBM’s decision to keep the algorithms discreet does not inhibit competitors from trying to make their own.

TensorFlow, owned by Google, is a open-source platform that encouragers users to both improve it as well as use it in a way Google had not already. TensorFlow has seen immense

Ashley Stewart, “Microsoft's new acquisition strategy” December 2016, ​BizJournals,​ https://www.bizjournals.com/seattle/news/2016/12/30/microsoft-acquisition-strategy-satya-nadella.html, 2.

52 "IBM Watson Health - Cognitive Healthcare Solutions", 2018, ​IBM Watson Health​, https://www.ibm.com /watson/health/, 2.

51

Desai 22 success and has the ability to compete with other AI services like Watson. This is just one example of how companies are not restricted from a market, despite being kept away from certain datasets. It also serves to show that many companies do not simply have a severe advantage resulting from their collection of data, but rather their specific skills in developing a technology. Google’s former chairman, Eric Schmidt, said that, “No one is stuck using Google.

People have choices, and they exercise them all the time. We know that if we cease to be useful, our users will leave. The barriers to entry are negligible, because competition is just one click away.”53 It is also important to note that market power is quite fragile due to the fact that companies that rely on data are in very innovative industries. Even when a company appears to have a distinct advantage in data, new technologies and business models have the ability to trump free services or products, as was seen in the fall of MySpace, Blackberry, and Nokia and in the rise of Facebook, Google, and Apple. Similarly, large companies with a powerful presence in one market does not mean that they will have the same dominance in other markets where their products and services are present.

In the past two decades, most of the data-driven industries have seen the rise and fall of numerous companies, propelled by their ability and innovative ideas to raise capital and grow rapidly.54 All of this is benefitted by the increase in the sustainability of the free service business model, enabling a growing company to spread their ideas as fast and wide as possible.

​Eric Schmidt, "Why Google Works," 2015, Huffpost. https://www.huffingtonpost.com/eric-schmidt/why-google-works_b_6502132.html.

54 ​Kennedy, "The Myth Of Data Monopoly,” ​Information Technology And Innovation Foundation​, 12.

53

Desai 23 Consequently, in order to draw conclusions about the dominance and threat that monopolies pose to consumers, the argument for increased antitrust laws needs to be analyzed.

Dangers of Data-opolies Unlike the previous argument, many other economists and data scientists believe that data-driven corporations with exclusive datasets could form monopolies and prohibit competition from entering certain markets as well as potentially harming consumers. The presence of data-opolies in the U.S. would raise more concerns regarding data regulations as well as the government's role in facilitating data distribution. It would also bring to discussion the inherent problems of monopolies in terms of economics and security problems with consumers.coMaurice E. Stucke, a law professor at the University of Tennessee and co-founder of the Konkurrenz law firm, refutes ten major myths regarding antitrust laws and data monopolies.55 In cohesion with the opposite argument, four of the myths will be discussed in this section.

The first myth is that markets that rely on data have relatively low entry barriers, meaning companies do not face high start-up costs to enter a dominated data driven market.56 Current antitrust analysis has been focused on traditional entry barriers even though market dominance can be exploited through means other than product degradation or raising prices for services.

Such focus on traditional entry barriers is highlighted by Microsoft's purchase of Skype. The EU Court noted that “high market shares are not necessarily indicative of market power, and therefore, of lasting damage to competition which Regulation NO 139/2004 seeks to prevent.”57 Further in the document, the court also determined that since the type of market the merger was

55

Maurice Stucke and Allen Grunes, “Data-opolies,” University of Tennessee Legal Studies Research Paper No. 316, http://dx.doi.org/10.2139/ssrn.2927018, 2.

56 Stucke and Grunes, 3.

57 Case T-79/12, ​Cisco Systems and Messagenet v Commission,​ Court of Justice of the European Union, December 2013, 69.

Desai 24 associated with was based off of free services, any attempt to establish a fee or to diminish the quality of the product would just cause users to find an alternate provider.58 Because the EU came to these conclusions on the merger, the court ultimately decided that antitrust action was not required as it was not a competition prohibiting factor in the market. However, the court potentially failed to address certain aspects of the merger that are inherent with an enormous multi-service company.

A significant contributor to the monopolization in markets that are made up of free services are network effects. Direct network effects are when a user’s use for a particular service increases as the number of people that use that service increases as well.59 For instance, the value of Youtube increases for all users as more people utilize the service for content creation and consumption. Indirect network effects result from the increasing use of a certain technology, which also benefits consumers and encourages them to remain with a service.60 The more people that use Windows, for example, further encourages Microsoft to release more products and platforms that utilize it.

Antitrust officials are already aware of these effects, but fail to recognize the pertinence of them in the free digital market. When the EU investigated Facebook and WhatsApp merger, the court declared that consumers have the ability to alternate between services with relatively no switching costs and also use more than one texting service on a daily basis.61 According to Stucke and Grunes, the court completely failed to address a major point regarding network effects. Just because a consumer uses more than one service does not mean that each service was

58

Case T-79/12.

Arun Sundararajan, "Network Effects,” Part Of The Industrial Organization Of Information Technology Industries Website, Oz.Stern.Nyu.Edu, http://oz.stern.nyu.edu/io/network.h, 2.

60 Sundararajan.

61 Stucke and Grunes, “Big Data,” Oxford:Oxford University Press, 168.

59

Desai 25 acting as a competitive constraint, but instead the degree to which network effects have shifted market power.62 This essentially theorizes that if a company already has a large presence in a particular market, direct network effects can restrict people from using other services, solely based on that company’s dominance.

Along with previously mentioned network effects, the scope of data collected and spill-over effects can create market dominance. Corporations such as Google can use data collected from all of their platforms and apply them in other areas. For instance, Google’s default search settings allow it to record what is being searched as well as the time and location of the search. Google can then apply this data to develop ad recommendations based off of location and search activity on their other platforms, such as YouTube. The wide variety of data that corporations like Google can collect stems from having a presence in multiple markets, and leaves them up to the decision as to whether or not they want to share that data.

Spillover effects occur when one side of a multi-sided platform being to receive a growth in users and subsequently attracts users and other beneficiaries to the other side of the platform.63 Amplifying this effect is the use of personal data, an aspect that delineates the advantage of digital marketing and advertising over traditional newspaper and television. The Organisation for Economic Co-operation and Development (OECD), an intergovernmental organization with 36 member countries, has stated that “the reuse of data generates huge returns to scale and scope which lead to positive feedback loops in favour of the business on one side of the market, which in turn reinforces success on the other side(s) of the market.”64

62

Stucke and Grunes, 169.

Stucke and Grunes, 189.

64 OECD, ​Data-Driven Innovation for Growth and Well-Being: Interim Synthesis Report,​ 29.

63

Desai 26 Another supposed myth is that Big Data has no competitive significance due to its ubiquity, low cost, and wide availability to all companies. Before acknowledging the accessibility of data and the implications it has for those who do not have access to it, the actual benefits that data has for companies must be determined. A McKinsey survey determined the significance of data analytics and made the following conclusions about the advantage of data: The average initial increase in profits from big data investments was 6 percent for the companies we studied. Looked at from another vantage point, big data investments amounted to 0.6 percent of corporate revenues and returned a multiple of 1.4 times that level of investment, increasing to 2.0 times over five years. That’s not only in the range of the 1.1 to 1.9 multiples observed in the computer-investment cycle of the ’80s but also exceeds the multiples others have identified for R&D and marketing expenditures.65 Moreover, a Massachusetts Institute of Technology (MIT) study concluded that companies that self determined to be dependent on data are five percent more productive as well as being six percent more profitable than competitors.66 Taking in these results from both studies, as well as evidence from earlier, it can be reasonably concluded that companies that use Big Data in their business model and make decisions based off of data will observe far greater profitability and advantages in a market over competitors that do not use data. Once these results are combined with the advantages of Network effects, the idea that corporations can restrict competition becomes more clear.

Spillover effects strengthen an entities control throughout markets by compounding the benefits they receive from one to another. Having an advantage on one platform can lead to greater

McKinsey Global Institute, ​Big Data: Getting A Better Read On Performance,​ 2018, Mckinsey & Company, https://www.mckinsey.com/industries/high-tech/our-insights/big-data-getting-a-better-read-on-pe rformance, 6.

66 Erik Brynjolfsson and Andrew McAfee, “Big Data: The Management Revolution,” ​Harvard Business Review​, October 2012, https://hbr.org/2012/10/big-data-the-managemen t-revolution, 5.

65

Desai 27 success on other platforms as well as compounding as the company begins to offer more services and cover a wider variety of products.

The third claim is premised around the idea that data does not offer a particular company any advantage since dominant companies have no way of prohibiting competition from using critical data. Many economists fear that modern data-opolies may even be worse than Microsoft’s dominance in the late 1990s. A significant reason for this is the use of the nowcasting business model. Originally a term for forecasting weather in the future, nowcasting tracks the factors that cause shifts in data and creates a prediction on how market participants will react.67 In most data-driven industries, companies can use social media platforms, search queries, and other forms of data to make predictions about a certain market.68 The UK government has also acknowledged the benefits that third party software serves for market forecasting: “By analysing the extent to which they are mentioned in social media content, whether trends are positive or negative and why, firms can adjust their marketing activity.”69 Since dominant companies have access to a wide range of third parties that use their platform, they can build an extensive nowcasting model which is nearly impossible for smaller companies to replicate, ultimately enabling them to monitor all new business models in real time.

70

As was previously mentioned, exclusive data sets are an inherent competitive advantage,

boosting both the ability of the company to better appeal to the public’s demands as well as

67

Brandyn Bok, Daniele Caratelli, Domenico Giannone, Argia M. Sbordone, and Andrea Tambalotti, "Macroeconomic Nowcasting And Forecasting With Big Data - Federal Reserve Bank of New York", 2018, Newyorkfed.Org,​ https://www.newyorkfed.org/research/s, 3.

68 Stucke and Grunes, 285.

69 UK Competition and Markets Authority, ​The commercial use of consumer data Report on the CMA’s call for information,​ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file /435817/The_commercial_use_of_consumer_data.pdf, 49.

70 ​Stucke and Grunes, 286.

Desai 28 drawing conclusions on large populations of people. Not only can a company use nowcasting to swiftly acquire any startup before they pose as competitors, dominant companies can also manipulate platforms or industries to prohibit its growth.

Furthermore, the fourth myth is that antitrust regulators should not worry about industries that rely on data since there is no practical way a consumer can be harmed or maltreated through free goods and services.71 Declaring antitrust to be inapplicable to a market of free goods and services is completely false. Consumers do not simply receive a service in exchange for nothing, they give up their personal data and privacy for those supposed free services and products, which means that this exchange of personal data for services should be under the same jurisdiction of antitrust regulations that control markets of commerce and sales.72 In zero-price markets, the larger a firm, the more data it collects on a user.73 Which could be seen in Google’s efforts to purchase financial information from Mastercard or even its expansion into other markets like AI that require new subsets of data.

Additionally, entrants to zero-cost markets with low information costs for users generally experienced rapid growth as users typically stayed away from products that required larger amounts of information.74 DuckDuckGo is a search engine that grants the user complete privacy by not storing any personal information or search queries. In 2017, DuckDuckGo reported to have six billion searches on their platform, which was nearly a fifty percent increase from 2016.

75

71

Still, DuckDuckGo’s market growth is minuscule compared to the percentage of the search

Stucke and Grunes, 189.

John Newman, “Antitrust in Zero-Price Markets:Foundations,” University of Pennsylvania Law Review, Vol.164:149, 174.

73 Newman, 175.

74 ​Newman, 176.

75 Mindy Weinstein, "Duckduckgo SEO: What You Should Know", 2018, ​Search Engine Journal​, 2.

72

Desai 29 query industry that companies like Google and Baidu own. As of 2018, Google accounted for 90 percent of total searches with DuckDuckGo only managing a mere .22 percent of all searches worldwide.76 Despite barely having a presence in the search query market, the CEO of DuckDuckGo, Gabriel Weinberg, says that the company is actually profitable and that having to collect personal data for profit is just a myth.77 Weinberg even goes as far to criticize Google and other companies for collecting data by saying, “Most of the money is still made without tracking people by showing you ads based on your keyword, i.e. type in car and get a car ad. These ads are lucrative because people have buying intent.”78 Even though DuckDuckGo has seen profitably over the course of a decade, the longevity of the non-data business model is not known and will require more companies to take on this business model. As a result, the sustainability of companies like DuckDuckGo in the future will be based upon how well it can differentiate its value proposition from that of Google. If users begin to value privacy over targeted advertising and tracking, DuckDuckGo may see substantial growth and profitability, but is completely contingent on what users value more.

76

Weinstein, 3.

Chris Matthews, "Http://Fortune.Com," 2018, ​Fortune.​ http://fortune.com/2015/10/09/duckduckgo -profitable/, 2.

78 Mathews.

77

Desai 30 Chapter 3: The Government Corporations and businesses are required to adhere to laws and regulations regarding data passed by the Federal Trade Commission (FTC). These laws are in place to protect consumers from invasive companies and non-transparent policies that could potentially collect data on consumer without consent. The next two sections of this chapter will further discuss the current state of data regulations, effect on corporations and companies, as well as the Government's own surveillance capabilities and open data initiatives. While data security and privacy can be tied in with regulation, its impact on consumers will be addressed in the following chapter.

Open Data Policy One of the ways that many argue that antitrust is unnecessary in the data market is due to the abundance of datasets available through the government. Before determining whether or not the US has significant and relevant open information policies, the term “Open Government Data” (OGD) needs to be defined. A widely accepted definition of OGD was created by the government and follow eight major principles. These principles require that government data be: complete, primary, timely, accessible, machine processable, non-discriminatory, non-proprietary, and license-free.79 Having a complete data set means that the entire dataset can be acquired since full datasets are required for even the simplest of applications. The data from those sets should also be primary, meaning that they are collected from the source at the highest level of granularity.80 While complete and primary, as mentioned before, data can lose value over time, meaning that the government will also need to publish it as quickly as possible.

"The 8 Principles Of Open Government Data (Opengovdata.Org)", 2019. ​Opengovdata.Org,​ 2019, https://opengovdata.org/.

80 Data Granularity - Deeper levels of detail in data 79

Desai 31 Data also needs to be available to all users for a wide range of applications. In order to achieve this, data must be standardized with the current industry standards and protocols, as well as being in a Machine readable format. Ease of access and machine processability can be extremely significant in lowering entry barriers to a certain market. For instance, automation means that smaller companies would not have to invest labor into processing large quantities of data, seeing how there is already an extremely high demand for data scientists and analysts. In addition to being easily accessible, the datasets should not have any entity that has exclusive control over it, otherwise the benefits of ease of access would be lost. Similarly, open data should not be subject to restrictive regulations such as copyrights or patents, but privacy and security restrictions can be allowed.

International organizations have conducted surveys and comparisons between countries open data policies providing solutions and areas as to where they can improve. One notable study was by the Center for Data Innovation (CDI) reviewing progress on the Open Data Charter in the G8.81 Similar to the principles constructed by the government regarding open data, the CDI follows a five principle standard: Release open data by default, ensure high quality and quantity of data, accessibility, improved governance, and innovation.82 Since these goals are nearly identical to the US standard, they will be used interchangeably as a reference for development.

In 2015, the U.S. had published 137,601 data sets on the National Data Portal Data.gov. but in 2018 that number had rose to 239,830 datasets, demonstrating a commitment towards open data. This 174 percent increase in datasets can be accounted for by the 2013 executive order under the Obama administration where agencies were pushed to maintain data as

81 82

Castro and Travis, “Open Data in the G8,� 1.

Castro and Travis, 3.

Desai 32 “open by default” and in a machine readable format. Although data.gov does address the issue of open data, it does not pertain to government agencies that contain PIIs. This is addressed by the FOIA, which requires federal administrations to disclose the records that it possesses when a citizen requests those particular records.

Subsequently, the White House launched Project Open Data in 2013 as well, which was a collection of resources for standards of information and case studies regarding open data. Todd Park, US Chief Technology Officer, and Steven VanRoekel, US Chief Information Officer, described the purpose of the policy in saying, Project Open Data is an online, public repository intended to foster collaboration and promote the continual improvement of the Open Data Policy. We wanted to foster a culture change in government where we embrace collaboration and where anyone can help us make open data work better.83 Success was imminent, as within a day of the projects launch the administration received more than two dozen submissions from the public. One of the contributions was code that helps to convert geographic data from unreadable formats to open data that could be used by anyone.84 Three years later in September of 2016, former President Obama also established the first White House Open Data Summit with the purpose of exploring three important questions: Open data’s impact on the government’s efficiency and effectiveness, open data effects on health and wellness, and how open data has or can spurr innovations and economic opportunity.85 A number of nonprofits and organizations attended the vent, with over 50 booths run by non-governmental organizations set up and all promoting innovative ideas and policy suggestions.

Todd Park and Steven Vanroekel,"Introducing: Project Open Data,” 2013, ​Whitehouse.Gov.​ https://obamaw hitehouse.archives.gov/blog/2013/05/16/introducing-project-open-data.

84 Park and Vanroekel, 2.

85 "The White House Open Data Innovation Summit And Solutions Showcase - Data.Gov," 2019, ​Data.Gov​. https://www.data.gov/event/white-house-open-data-innovation-summit/.

83

Desai 33 While promoting openness and transparency, the government still does not have a completely transparent surveillance system. The standard operating procedure for the Domestic Surveillance Directorate, as stated on the National Security Agency’s (NSA) terminal, is to “collect all available information from all available sources all the time, everytime, always.” Yet the agency still only offers a partial list of both current and future data collection targets. This is exacerbated by the fact that the NSA has had a recurring tendency to be very slow at following up FOIA requests. In a statement to the public, former President Obama portrayed the importance of transparency as, Here in the United States, we’ve worked to make government more open and responsive than ever before. We’ve been promoting greater disclosure of government information, empowering citizens with new ways to participate in their democracy. We are releasing more data in usable forms on health and safety and the environment, because information is power, and helping people make informed decisions and entrepreneurs turn data into new products, they create new jobs.86 While the government and certain actors continue to push for more transparency in regards to information, another sector of the government is seemingly acting in hypocrisy by not disclosing all the types of data it collects. This disparity regarding in the values of transparency within the government can be somewhat correlated to the USA PATRIOT ACT. As mentioned before, Section 217 and other articles in the act allow the state to determine its powers without any oversight committee or transparent efforts required.87 Because of this act, the NSA’s actions can be justified under national security, but can also be criticized in terms of the public right to information.

Nicki Sutton, "President Obama On Open Government: "The Essence Of Democracy," 2011, ​Whitehouse.Gov,​ https://obamawhitehouse.archives.gov/blog/2011/09/20/president-obama-open-government-essence-democracy, 2.

87 Sensenbrenner, “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001,” 2.

86

Desai 34 The Death Registry and FOIA The death registry is a database maintained at the state level but is subject to both state and federal regulations. There are both incentives for the government to withhold documents in order to protect the privacy of the dead and related peoples, as well as justifications for investigators and companies to retain access to those documents.

In 1991, Timothy Wiltsey, a five year old, was reported missing from a fairground in Sayreville, New Jersey. The tragedy garnered interest from the public and received significant media coverage, but the boy’s body would be found a few months later in a drainage area around Edison Township. Three years later, Home News, a popular local newspaper commonly read in New Jersey, requested a copy of Wiltsey’s death certificate from the Registrar of Vital Statistics of Edison. The New Jersey State Act 26:8-62 requires that facilitators of critical information infrastructures supply to a person who establishes himself as one of the following: the subject of the record of a birth, death, fetal death, certificate of birth resulting in stillbirth, domestic partnership, civil union or marriage, as applicable; the subject's parent, legal guardian or other legal representative; the subject's spouse, one partner in a civil union couple, child, grandchild or sibling, if of legal age, or the subject's legal representative; an agency of State or federal government for official purposes; a person possessing an order of a court of competent jurisdiction; or a person who is authorized under other emergent circumstances as determined by the commissioner, a certified copy, or release of the data and information of that record registered under the provisions of R.S.26:8-1 et seq.88 Since the journalist from Home News met none of the previously mentioned conditions, they were not legally obligated to reveal the documents. Michelle Lodzinski, the mother of Timothy, was charged with his murder in 2014, nearly 25 years later from the actual event.89 However,

88

"2013 New Jersey Revised Statutes : Title 26 - Health and Vital Statistics :: Section 26:8-62 - Certification, Certified Copy Of Records, Search Fee; Uniform Forms For Vital Records." ​Justia Law,​ https://law.justia.com/codes/new-jersey/2013/title-26/section-26-8-62/.

89 Sherman Ted, "Convicted child killer Lodzinski files suit over injuries from fall in handcuffs," True Jersey, https://www.nj.com/middlesex/2018/02/fall_in_handcuffs_during_murder_trial_sparks_lawsu.html.

Desai 35 Michael Lodzinski, Michelle’s sister, released over 200 pages of an FBI report that he had acquired through a public records request previously. Lodzinski attorneys are attempting to use the documents to demonstrate the extensive surveillance and measures that were taken to investigate the case which ultimately contained no verdict. What the case illustrates is the necessity for public inspection of government documents. Wiltsey death records certainly do incite a privacy risk: people attempting to blackmail or harass the Lodzinski family may seek these types of records from the government.

Public access to such documents, including death certificates, is manifested in two arguments: one being in favor of privacy along with the right to withhold personal data and one that lies in the public’s right to inspect government process and actions. Former president Obama has repeatedly urged the public to understand the necessity of government transparency by emphasizing that “In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government."90 This was just one of the instances where a particular sect of the government would express its support either in favor of privacy or transparency.

Death records serve as the primary and permanent documentation of death and are solely maintained and created by the government. Thus, it would be reasonably concluded that access to such registries would fall under the scope of FOIA laws. Historically, this has been the case and the general public has benefited from open access in many ways. Prior to the introduction of stricter access laws, citizens had requested access to death certificates that would ultimately be

Barack Obama, "Memorandum for the Heads of Executive Departments and Agencies," ​Federal Registar​ 74, no.

15 (January 20, 2009).

90

Desai 36 used in investigations to uncover instances of corruption or even medical malpractice.91 If researchers would have access to data, possible trends in public safety and medical issues could arise from greater access to death records.

While government agencies may have an incentive to prevent the release of certain records, the Supreme Court has consistently ruled in favor of the disclosure of government documents. In National Archives and Records Administration v. Favish, the court determined that FOIA requesters should not be required to justify their purpose in seeking a record and has established that [A]s a general rule, when documents are within FOIA's disclosure provisions, citizens should not be required to explain why they seek the information. A person requesting the information needs no preconceived idea of the uses the data might serve. The information belongs to citizens to do with as they choose. Furthermore, . . . the disclosure does not depend on the identity of the requester. As a general rule, if the information is subject to disclosure, it belongs to all.92 Abiding by this law indicates that a requester’s privilege of a requester to access a certain record will not change depending on their demonstrated interest or the type of record they are looking for. Subsequently, the identity or merit of a requester should not have any bearing regarding the disclosure of data.

In contrast to the position of the Supreme Court, Congress established that agencies have the ability to consider certain information or documents as exempt from FOIA requests. This gives agencies "the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses."93 Congress created nine

91

Jeffrey Boles, "Documenting Death: Public Access to Government Death Records and Attendant Privacy Concerns," ​Cornell Journal of Law and Public Policy​ 22, no. 2 (2012): 242.

92 Boles, 245.

93 "Department Of The Air Force V. Rose, 425 U.S. 352 (1976)". 2019. ​Justia Law​. https://supreme.justia.com/cases/federal/us/425/352/.

Desai 37 categories of records under the scope of FOIA law, hoping to strike a balance in a citizen's right to information as well as national security and the need to protect certain information in favor of privacy. Congressional action has occured on nearly all sides of the debate regarding public disclosure. The FOIA had been enacted due to the vagueness and injustice correlated with section three of the Administrative Procedures Act (APA) that restricted access to government documents and granted greater power to agencies, allowing them to determine the disclosure of their records.

Despite the apparent problems leaving broad exemption law under the control of the very agency that is being inspected by the public can have, Congress maintained the exemptions but instituted measures to address transparency concerns. If an agency were to deny access to a particular record, the requesters only action is to then challenge the denial in a District Court, requiring the agency to present reasons for the denial. If the court deems fit, the agency can be forced to display the documents if the reasons for the withholding do not outweigh the public's right to government records. Even if the exemption were to apply to the record and the agency were justified in withholding the document, the FOIA mandates that portions of the document or data set be disclosed if there is no reasonable concern in the release of it. Through shifting power from government agencies to the people, Congress essentially altered the “information access paradigm to provide for expansive transparency to the public.”94 The final assessment of FOIA, as upheld by the Supreme Court, supports that “disclosure, not secrecy, is the dominant objective of the Act.” 95 Since FOIA’s ratification, amendments to the act have established and have reinforced the following ideas: Congress's intent to substantiate ​Boles, “Documenting Death,” 243.

"Department Of The Air Force V. Rose, 425 U.S. 352 (1976)," ​Justia Law​, https://supreme.justia.com /cases/federal/us/425/352/.

94 95

Desai 38 democracy by allowing the public to access government documents, increase access the general public has to government information, enforce agency compliance in a timely manner, and maximize the efficiency and usefulness of government records.

Currently there are two exemptions in the FOIA that specifically address personal privacy concerns which refers to the ability and capacity of an individual to control the information that pertains to themselves. Exemptions 6 and 7(C) function in restricting the release of certain government records if they act as an unwarranted invasion upon an individual's privacy. While this law primarily serves as a protection for individuals who have personal information in government records, a trade-off exists between increasing government transparency and the people's right to inspect the government or the protection of a person's privacy.

Exemption 6 safeguards “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”96 Agencies abiding by the regulation can not disclose any information that contains personnel, medical, or similar files or one that constitutes an unjustified invasion of privacy. The exemption’s vagueness comes from the lack of explanation or specificity of what “similar” documents are and the extent to which agencies can withhold documents based off of the exemption. The only action a requester can take if an agency unjustly cites privacy and exemption six in withholding the document is to appear before a federal court, which takes a long period of time and could cause the value of the documents to the requester to be lost. Courts then ascertain whether or not the disclosure of the requested information would in fact act as an unwarranted invasion of privacy or meets the standard of exemption six.

"5 U.S. Code § 552 - Public Information; Agency Rules, Opinions, Orders, Records, And Proceedings," ​LII / Legal Information Institute,​ https://www.law.cornell.edu/uscode/text/5/.

96

Desai 39 In an attempt to balance privacy and disclosure, if the federal court finds minimal or no privacy interest, then it demands the agency to disclose the requested records. However, if the court does find that there is reasonable or imminent privacy concerns regarding the disclosure, then it will attempt to measure the consequences of the information release to determine if it is truly unwarranted and if public interest outweighs the concerns.97 Under FOIA, public interest is "the extent to which disclosure of the information sought would 'she[d] light on an agency's performance of its statutory duties' or otherwise let citizens know 'what their government is up to.”98 The persons requesting the information is encumbered in demonstrating why the information acts in the public interest. If the court determines that privacy disquietude is more prevalent than public interest, then they will uphold the restriction of the information, but if the court finds that the personnel interests do not outweigh public interest, then they will demand the release of the requested information.

Exemption 7(C) states that an agency can withhold documents that “ could reasonably be expected to constitute an unwarranted invasion of personal privacy.”99 When a court is shown a dispute between an agency and requester under exemption 7(C), they first ascertain as to whether or not the information has legitimate government purpose. Consequently, the court's actions will be reflective of the weight of privacy rights or the need to uncover particular information regarding government procedures.100 Even though Congress and the Supreme Court have expressed the necessity of transparency through FOIA law, the vagueness of exemption six

​Guide to the Freedom of Information Act​, N.p.: Office of Information and Privacy, 2009, 415. ​Department of Justice, "Guide to the Freedom of Information Act," 2009, https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/exemption6.pdf.

99 "5 U.S. Code § 552 - Public Information; Agency Rules, Opinions, Orders, Records, And Proceedings,” ​Legal Information Institute.

100 Boles, “Documenting Death,” 251.

97 98

Desai 40 illustrates just the opposite. Exemption six ultimately leaves the power to disclose agency documents in the hands of the government, burdening the requester in having to prove that exemption six does not apply to the documents.

The death certificate can be argued to be the most significant legal document maintained by the government since it is the only piece of information that differentiates an individual from legally being dead or alive. Just over one percent of the U.S population dies every year.101 For instance, if a person were to be declared dead while that person is alive, they would lose access to all government services, such as social security, and would be unable to change it or even be aware of it since it is not open to the public. Its applications range from assessing the distribution of a person's estate, transfer of property, insurance benefits, and various other private affairs.

Additionally, the government uses the record in ascertaining taxes, benefits, and other administrative purposes. Information regarding the factors and contributions to the death of an individual is included in the death certificate and, according to the Center for Disease Control (CDC), “provides family members’ closure, peace of mind, and documentation of the cause of death.�102 After death, a physician, coroner, or related medical person will announce the death officially and file a death certificate. Every state mandates the completion of a death certificate for any death within its borders, with information input coming from the attending medical examiner, physician, coroner, or funeral director and also requiring them to file the document with the health department.

101

Sherry Murphy, Jiaquan Xu, Kenneth Kochanek, and Elizabeth Arias, "NCHS Data Brief ," Center for Disease Control and Prevention, https://www.cdc.gov/nchs/products/databriefs/db328.htm.

102 CDC, "Medical Examiners' and Coroners' Handbook on Death Registration and Fetal Death Reporting," https://www.cdc.gov/nchs/data/misc/hb_me.pdf.

Desai 41 The general public may, for any reason, want to attain access to death records and documents from the government, but even with the application of current FOIA law and an urge for disclosure over secrecy, agencies and requesters have repeatedly come into conflict over the information. This stems from one question regarding the current paradigm on the public right to information regarding death: does an individual's right to investigate government actions or the death of a person, regardless of the displayed intention or identity of the requester, outweigh the inherit privacy concerns or the right of the decedent’s family in releasing such information?

States first began to restrict access to death certificates and other records in the 1970s by only enabling particular people or groups, such as family members and children to the decease to access the documents.103 Legislators only provided brief and very broad reasons for the laws, declaring that they enacted them “to protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration of the system of vital statistics.”104 Currently, states either offer full, partial, or no access to death documents.

Open access states, ones that grant full public access to death certificates, have reinforced their efforts through state doctrine freedom of information acts. These states view the information as public records and dictate that agencies releases the requested information upon inquiry from the general public. States that only offer partial access to document limit the disclosure of any documents pertaining to medical information. According to legislation passed in these states, such as Florida, documentation containing medical information “represents

103 104

“Eugene Cervi & Co. v. Russell,” Copyright at Harvard Library, 2017, 3.

Iowa Government, "Section 144.43," https://www.legis.iowa.gov/docs/code/2018/144.43.pdf.

Desai 42 sensitive and generally private information [i]f made public, . . . could cause public embarrassment to the deceased's family.”105 A majority of states have adopted the closed access approach which restricts the disclosure of all death records and certificates completely from the reach of the general public.

This method completely dissociates public records with death information, essentially rejecting all requests and FOIA claims for the documents. These states have only allowed very select groups that have what they deem to be tangible, interest and necessity for the records. Since the legislation varies between states, the groups that are allowed to access the data also vary between states. Courts have historically discerned that altering the general public’s right to view death records relies upon legislation and that it is in the legislators capability to change these functions.

106

In any state that does not have a statute governing the release of particular certificates, then

courts perceive the data to be subject to FOIA law and mandate the divulgence of the respective documents. While more states are implementing the closed-access approach to death certificates, having an open-access approach actually has benefits for the public.

The first benefit is that by having open access statutes, any person having a close relationship with the deceased may be provided closure through seeing the documents. Closed access legislation prohibits all members of the family, except for certain categories of family, dependent on the state, from accessing the data, essentially managing them the same way they would the general public. Even if a family member that does not have access were to have a stronger relationship than a family member that does, the documents would still be withheld due

105

US Department of Justice, "2004 Edition:Exemption 6," https://www.justice.gov/oip/foia-guide-2004-edition-exemption-6.

106 "SLOAN v. Of Whom Friends of the Hunley, Inc., is, Appellant," ​Supreme Court of South Carolina,​ 2698, (June 13, 2011) 4.

Desai 43 to the legislation. Through open-access statutes, any family member with a significant relationship to the deceased would be able to access the documents, since the identity and purpose of the requester would not be challenged, and as a result would hopefully be provided some emotional closure.107 Open access statutes also permit journalists, media organizations, and other groups to investigate places of potential corruption and maldoing within the government and even related parties. Investigations completed by various journalists in states such as California have allowed for the exposure of medical facilities partaking in physician malpractice, drug abuse, and even organ trafficking.108 By allowing the public to view and investigate data inputted by private medical systems can even contribute to increased accuracy in the information present in certificates. In closed-access states, the general public would not be allowed to view the data in order to complete such investigations, leaving private medical facilities to enter information with no oversight or transparency. Family members, in open-access states, would be allowed to carry out genealogical research and trace ancestry through death certificates. A federal court even suggested that such research be not only allowed but encouraged in saying, The 'benefits' to be derived from . . . genealogical activity are highly intangible, but nevertheless real. Self Knowledge can only lead to greater family stability, benefiting both the individual and society, and a greater appreciation of the common heritage shared by all Americans.109 Agencies have even pointed out that in order to properly identify genealogy, researchers must analyze death certificates. However, close-access states do not allow any public access to the records, meaning unless the researcher was a family member to the deceased and fits the

107

“​SLOAN v. Of Whom Friends,” 7. ​William Heisel, "A Public Death: State Laws Hiding Death Certificates Can Hurt the Living," ​USC Annenberg (December 12, 2011) 2.

109 ​Boles, “Documenting Death,” 270.

108

Desai 44 categorical legislation, they would also be denied access to the records, this being unable to conduct the research.

While data sets such as the death registry will have many distinctions from other types of data maintained by the government, such as car accidents, the concerns regarding a citizens rights are the same. Any document or information that the general public seeks from the government will first need to address the same question: does the right of the requester subdue privacy or national security concerns? If so, then to what extent and should all states be mandated to follow? Current FOIA at the state and federal level attempts to address this question, but fails to do so, furthering the conflict and demonstrating the ever-growing need for new FOIA legislation.

Data Regulations and Compliance Since industries such as health, energy, financing, technology, and social media all have distinct values for data, there is no single comprehensive federal law that is monitoring the collection of data. Instead of a single law, there is a system of both federal and state laws and regulations addressing industry-specific issues that can sometimes overlap and even contradict each other. This approach is known as the ‘sectoral’ approach to data protection legislations as it relies on a combination of federal and state regulations as well as self-regulation. For instance, the Financial Services Modernization Act of 1999 created a federal oversight institution preventing the cross-marketing of products and services to another entity as well as regulating the use, disclosure, and collection of personal information.110 Additionally, under the Federal

110

Joe Mahon, 2019. "Financial Services Modernization Act Of 1999, Commonly Called Gramm-Leach-Bliley | Federal Reserve History," ​Federalreservehistory.Org​, https://www.federalreservehistory.org/essays/gramm _leach_bliley_act.

Desai 45 Trade Commision Act, the FTC is responsible for enforcing actions to protect consumers and for enforcing federal privacy and data protection laws.111 Forms of regulation applicable to emerging tech companies occur both at the state and federal level. The Controlling the Assault of non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act) regulates the collection and use of e-mail and telephone numbers and serves as a protection for consumers by requiring unsolicited commercial uses of email addresses to not be misleading.112 Companies must also be required to give consumers the option to opt-out from marketing or contact attempts through email or could face penalties up to $41,484.113 FTC regulations like CAN-SPAM offer consumers protection across all markets for specific data sets, such as e-mail, without enacting harsh rules that could potentially harm or deter a company from collecting or using that data.

Nearly all laws passed at the local and federal level, similar to the ones previously mentioned, regarding data mainly pertain to the preservation of a consumer's privacy, invasive companies, or possible data breaches. California, for example, was the first state to require companies that store personal data to disclose any breach of security to all California residents.114 in March of 2018, all states and territories enacted laws requiring the disclosure of security breaches to all affected state residents, however California continued to enact more privacy focused laws.

"Federal Trade Commission Act", 2013, ​Federal Trade Commission​, https://www.ftc.gov/enforcement/statutes/federal-trade-commission-act.

112 Federal Trade Commission, 2.

113 "CAN-SPAM Act: A Compliance Guide For Business," 2009, ​Federal Trade Commission​, https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-business.

114 "Law Section", 2019, ​Leginfo.Legislature.Ca.Gov,​ https://leginfo.legislature.ca.gov/faces/codes_displa ySection.xhtml?lawCode=CIV&sectionNum=1798, 82.

111

Desai 46 The California Electronic Communications Privacy Act limits the government’s ability to intercept private electronic communications for law enforcement. These types of laws demonstrate a trend towards privacy, even when it comes to state or federal access to data.

Another progressive california privacy law included the California Consumer Privacy Act of 2018, providing consumers within California with the following rights: Ability to delete all personal data, request disclosure on how their information is being shared, and prevent the selling of their data.115 However, the California Consumer Privacy Act also gives individuals the right to pursue, in court, violators of the act, which could lead to a significant increase in class action lawsuits occurring in California when implemented in 2020.

California laws regarding privacy have tended to be more reactive than preventive, however, other states have attempted to establish preventative type laws. In Massachusetts, the Massachusetts Regulation was passed, giving in extensive detail a list of requirements for technical, physical, and administrative security protocols with the purpose of preserving personal information that companies are required to incorporate into their security infrastructure.116

"Bill Text - AB-375 Privacy: Personal Information: Businesses," 2019, ​Leginfo.Legislature.Ca.Gov,​ https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB375&search_keywords=Californi a+Consumer+Privacy+Act+of+2018.

116 Jolly Loeb,. "Data Protection in the United States," Practical Law, https://content.next.westlaw.com/6-502-0467?transitionType=Default&contextData=(sc.Default)&firstPage=true&b hcp=1.

115

Desai 47 Chapter 4: Consumers The Four Horsemen For accurate measurements and frequent data, a calendar year is split up into 4 sections.

These sections are labeled Q1-Q4 and are generally used at times when organizations compete market calculations and projections.117 All companies are also required to file reports and the end of each quarter, containing financial statements and operation details but will also file an annual report with more detailed information and disclosures. Analysts and investors use this data to predict the future of the company as well as to make calculations on the current state of the company.118 Each of the following statistics that are mentioned will correspond to the end of a quarter or a fiscal year.

In the early 2000’s, the Four Horsemen of Tech was a term used to describe Microsoft's, Cisco’, Intel, and Dell’s, now Dell Technologies, dominance of the tech industry. According to Forbes and a Goldman Sachs report, Microsoft had once owned 97 percent of the operating systems market in 2000.119As previously mentioned, owning such a large percentage of the market enabled Microsoft to take advantage of network and scale effects. More companies were drawn in to develop programs compatible with Microsoft's proprietary operating system, Windows, which encouraged consumers to purchase the software. The combination of these effects have allowed Microsoft to still dominate the market, in recent years, owning nearly 83 percent of the market at the end of Q3 2018.120

Will Kenton. "Quarter - Q1, Q2, Q3, Q4". 2019. ​Investopedia.​ https://www.investopedia.com/terms/q/quarter.asp.

Kenton, 3.

119 Tim Worstall, "Microsoft's Market Share Drops From 97% To 20% In Just Over A Decade," Forbes, https://www.forbes.com/sites/timworstall/2012/12/13/microsofts-market-share-drops-from-97 -to-20-in-just-over-a-decade/#23be6b6051cf, 3.

120 Statista, "Global Operating Systems Market Share for Desktop PCs," https://www.statista.com/statistics/218089/global-market-share-of-windows-7/, 2.

117 118

Desai 48 Though Microsoft was able to maintain a dominant market presence and still stay relevant in the modern tech industry, the other companies of the old four have not had the same success. Cisco had its highest stock price of 62.427 in 2000, but would quickly begin to plummet in the coming decade.121 Beginning in 2012, Cisco’s stocks have begun to rise, but are still nowhere near the stock level of the 2000s.122 In contrast, Dell’s share of sales in the Global PC market are nearly identical to that of when it was considered a part of the big four. In 2005 Dell had the most computer shipments, at around 16.8 percent of the market, but in 2018, Dell made up the same percentage of the market but was third in terms of market share.123 Dell’s stagnation demonstrates two significant factors that need to be taken into account when analyzing the sustainability of a company: All of the markets that the company has a presence in and the accelerated growth of other companies in those markets. Dell, for instance, has changed to Dell Technologies and extends beyond its old PC centered focus subsequently expanding their share in other markets like AI and forensics as well.124 These factors that attributed to the loss of market dominance for most of the old four may also affect what many believe to be the new four horsemen: Google, Facebook, Amazon, and Apple. There is a disagreement as to whether or not a horsemen position belongs to Facebook, IBM, or Microsoft. For the purpose of this thesis, Facebook will be considered a part of the four

121

Macrotrends, "Cisco - 29 Year Stock price History," 2019, https://www.macrotrends.net/stocks/charts/CSCO/cisco/stock-price-history, 3.

122 Macrotrends, 3.

123 ​Gartner, "Gartner Says Worldwide PC Shipments Declined 4.3 Percent in 4Q18 and 1.3 Percent for the Year," https://www.gartner.com/en/newsroom/press-releases/2019-01-10-gartner-says-worldwide-pc-shipments-declined-4 -3-perc, 4.

124 Bob Lang, "The Old Four Horsemen Are Riding High,” 2017, ​Realmoney,​ https://realmoney.thestreet.com/articles/02/21/2017/old-4-horsemen-are-riding-high-once-again, 2.

Desai 49 horsemen due to recent congressional hearings and concerns regarding data collection and privacy.

The way most companies like Google operate on a mainly “free” service business model is through a opt-in by use standard, meaning that a consumer, by choosing to utilize a particular service or product, automatically consent to data collection. After the data has been collected, advertisers can then pay Google for targeted marketing and advertising placement, meaning that the data never goes directly to third parties.

Globally, Google accounts for 32.3% of online advertisement revenue and has stayed relatively the same for the past 3 years.125 Though this may seem like a low percentage to be considered a monopoly, the closest competitor is Facebook at 18.7%, just over half of Google’s.

A significant portion of Google’s advertising dominance can be attributed to its monopolization of other markets, enabling them to have access to exclusive data sets. The way Google AdSense, which is Google’s proprietary advertising service, works is by targeting specific audiences that may have an interest in a particular ad or marketing campaign. Not only can these ads be based off of the content of a web page or site, they can also be user-specific. Each user generates data which is stored by Google to create a profile on the user. Subsequently, ads can be directly catered to any user based off of search queries, content consumption, and other forms of data that Google has collected.

Furthermore, Google’s advertisements and data collection techniques have allowed them to use a search and recommendation algorithm. Through a user’s online activity, Google is able to recommend particular services or content on its social media as well as Youtube. Referring

Statista, "Google: Share Of Digital Ad Revenues 2019 | Statistic", ​Statista,​ https://www.statista.com/statistics/193530/market-share-of-net-us-online-ad-revenues-of-google-since-2009/ 2.

125

Desai 50 back to the discussion on network effects, indirect network effects can be seen taking place in the digital ad market. Since Google already has access to a large variety of data sources and has substantive user base, companies are incentivised to use AdSense over competing platforms.

Additionally, monopolization of other data-centric markets can compound Google’s advantage, such as their control of 90 percent of all search queries.126 In this case, exclusive datasets could prohibit competitors from competing with Google in terms of data collection.

Google Maps can track a user’s travel routes, locations, and speed, which enables Google to draw conclusions on the user’s interests, movements and behaviour. While Google does not give third parties access to its user's personal information, it has collected and purchased from third party data vendors. Such as when in 2014, Google announced that they would begin buying credit and debit card transaction data from Mastercard.127However, Google does not view its techniques as being a threat to user privacy as in late 2018, Google’s spokeswoman commented on the ad technique by stating “We do not have access to any personal information from our partners’ credit and debit cards, nor do we share any personal information with our partners.”128 Google’s actions to purchase data from data brokers and reach out for data partnerships may allude to another discussion regarding data, the selling and sharing of data with other companies. As a way to make a profit, companies that collect personal data can sell it to data brokers who then can use it for ad distribution or sell it to another company.129

126

Schmidt, "Google Data Collection Research," Digital Content Next, 26.

Schmidt, 35.

128 Mark Bergen and Jennifer Surane, "Google and Mastercard Cut a Secret Ad Deal to Track Retail Sales," ​Bloomberg​ https://www.bloomberg.com/news/articles/2018-08-30/google-and-mastercard-cut-a-se cret-ad-deal-to-track-retail-sales.

129 Kalev Leetaru, "The Data Brokers So Powerful Even Facebook Bought Their Data - But They Got Me Wildly Wrong," Forbes, https://www.forbes.com/sites/kalevleetaru/2018/04/05/the-data-brokers-so-powerful-even -facebook-bought-their-data-but-they-got-me-wildly-wrong/#74d68f33107a, 2.

127

Desai 51 However, the reselling of data can have significant implications on the effect that data can have in a market. Companies that previously did not have access to certain datasets could purchase data from data brokers instead of investing in the costs to collect their own data. Since Google’s users were not utilizing its services for purchases and transactions, Google was not collecting that type of data. Subsequently, with the purchase of financial data and transactions, Google could allocate advertisement based off of a particular trend, location, or user base.

Through seeing the activity of users and comparing them to purchases made, Google can then provide companies with relevant ads based off of the data it had collected.

Social Media Like most other industries, social media’s use of data applications and universality of the social media industry have greater implications for consumers in recent years. The combination of social media and big data has created a field called social media mining. This field represents the collection of data from social media and serves as a way for a company to analyze trends in populations.130 These can be used for a multitude of purposes ranging from marketing campaigns to even large-scale political influence.

Social media refers to any Internet-based application that helps to facilitate content generated by users, works to democratize information, and maintains both content consumers and creators.131 Traditional media outlets, including television and newspaper, consists only of information dissemination from the media company to its consumers whereas social media allow for the multifaceted communication between large groups of people. Online social media and

130

Abby McCourt, "Social Media Mining: The Effects Of Big Data In The Age Of Social Media - Yale Law School," 2018, ​Law.Yale.Edu​, https://law.yale.edu/mfia/case-disclosed/social-media-mining-effects-big-dat A-age-social-media, 2.

131 ​Andreas, Kaplan, and Michael Haenlein, "Users of the world, unite! The challenges and opportunities of Social Media," ​Business Horizons​ 53, no. 1 (January 2010) 2.

Desai 52 new technologies altered the communication scene from conventional forms to where nearly anyone can publish audio, written, or visual content for the world to see. Since there are many types and vehicles of communication that could be considered under the broad social media term, it can be split into six distinct classification: blogs, collaborative projects, social networking sites, content communities, virtual social worlds, and virtual game worlds.132 While all the six classifications of social media can be exploited, the focus will be on social networking sites which have had very recent implications.

Although technology has evolved significantly from the advent of the internet, there are still three obstacles in handling data from social media networks. The first one is that most data sets in social media have a considerably large volume of information and users.133 If automated information analytic procedures were not implemented, assessing and collecting data on the over 1.7 billion Facebook users would be a daunting and impossible task. There is also the issue with filtering noise or possible disruptions that can alter data and misrepresent the intended population. For instance, a company attempting to test the emotional effects of altering a users feed will want to filter out factors that are not on the social media platform, such as the employment status of the individual.

The last problem with social media is how dynamic social media data is. A paramount dimension of social media are the perennial changes that occur across all of social media. Users are constantly uploading and consuming content, giving new insight into the microtargeting of ads or campaigns. User data, such as location, change so often that without the proper automated tools would nearly be impossible to analyze and apply for research or advertising purposes.

132

Andreas, Kaplan, and Michael Haenlein.,"Users of the world, unite!� 13.

Geoffrey Barbier and Huan Liu, "Data Mining in Social Media," ​Social Network Data Analytics​ (2011), 332.

133

Desai 53 Depending on the type of data being analyzed, social networks can take on one or even all three of these issues at once.

The primary way of addressing the three obstacles in social media is to implement technology-based data mining techniques to any category of data in social media. Data mining is the method of “data processing using sophisticated data search capabilities and statistical algorithms to discover patterns and correlations in large pre-existing databases; a way to discover new meaning in data.”134 Correspondingly, social media mining is the implementation of data mining techniques on platforms with significant amounts of user generated content and feedback.

Unlike one-way communication, social networking sites produces relationships between individuals, masses of people, and ideas that can be mined for exploitable information.

Effectively, this constant communication allows companies and even governments to study human relationships and utilize it to modify their techniques in spreading information or methods of pushing an agenda. A few social networking sites contain Application Programmer Interfaces (APIs) that enable companies to create an application which can sift through and interact directly with datasets.135 A notable implementation of data driven research and the utilization of social media is the cambridge analytica election controversy. Aleksandr Kogan, a lecturer and researcher at the University of Cambridge, divulged Facebook user data to Cambridge Analytica and created the app “This is your digital life.”136 Individuals who downloaded the app completed surveys and

134

Princeton, WordNet (3.1), http://wordnetweb.princeton.edu/perl/webwn?s=data%20mining.

Barbier and Liu, “Data Mining,” 336.

136 Alex Horn, and Carole Cadwalladr. "Revealed: Aleksandr Kogan collected Facebook users' direct messages." The Guardian. https://www.theguardian.com/uk-news/2018/apr/13/revealed-aleksandr-kogan-collected-faceb ook-users-direct-messages.

135

Desai 54 questionnaires and either opted in or out of sharing that data with the developers. In total, about 40 percent of the six million users agreed to send in the data.

Cambridge Analytica CEO, Alexander Nix, described their use of data driven research in harnessing “the power of Big Data and psychographics in the electoral process.”137 He also claimed that through this research and behavioral science, he could manipulate and direct election result through big data analytics. In stark contrast, however, Kogan attempted to depreciate the impact of the data driven strategies when stating in a BBC radio interview that I personally don’t think micro-targeting is an effective way to use such data sets. It could have only hurt the campaign. What Cambridge Analytica has tried to sell is magic. And it made claims that this is incredibly accurate and it tells you everything there is to tell about you, but the reality is that it’s not that. If you really work through the statistics … those claims quickly fall apart.138 Kogan was not alone in downplaying the effects or possible implications of data driven research strategies, however, Baldwin Philippi also argued that “[w]hile much has been written about the possibilities of data driven campaigning, the on-the-ground realities are often much less precise and much less novel than journalistic coverage implies.”139 The implementation of the collected research was an emerging scandal, no one had ever seen it before. Věra Jourová, the EU Commissioner for Justice, illustrated the novelty of the topic and the lack of understanding in saying [W]e have to understand if these practices might have had relevance for elections or referenda in Europe. If only one country’s elections are at risk of being manipulated, this

Annika Richterich, "How Data-Driven Research Fueled the Cambridge Analytica Controversy," ​Open Journal of Sociopolitical Studies​ 11, no. 2 (July 15, 2018) 535.

138 Matthew Weaver, "Facebook scandal: I am being used as scapegoat – academic who mined data," The Guardian, https://www.theguardian.com/uk-news/2018/mar/21/facebook-row-i-am-being-used-as-scapegoat-says-academic-ale ksandr-kogan-cambridge-analytica.

139 Jessica Baldwin, “The Myths of Data-Driven Campaigning,” Political Communication, Vol 34, No. 4, 630.

137

Desai 55 has an impact on our whole Union. And this is a big concern, in particular ahead of the upcoming European Parliament elections.140 Ultimately, Cambridge Analytica contribution to the presidential election was the ability to apply microtargeting when using many web-based communications, event promotions, or native advertising through any means, but primarily social media.141 The Trump campaign during 2016, using Cambridge Analytica, employed 4,000 online ad campaigns and approximately 1.4 billion web impressions, which are all ad communications visible to the user.142 According to Cambridge Analytica, they were able to target about 13.5 million voters in sixteen different states uncovering demographic information to help the campaign, such as a surprisingly large amount of Trump supporters in the Midwest. In addition to micro-targeting Trump supporters, the campaign also targeted Clinton supporters with advertising and communication being specifically altered to reduce voter turnout among white liberals, young women, and African Americans.143 While the exact effects of the Cambridge Analytica campaign scheme may not be known, it is still within the rights of private companies like Facebook to compile and utilize the data in these ways. Despite this, there are very significant privacy implications regarding and individuals autonomy and freedom of choice in terms of voting. The issues of mass persuasion and the application of behavioural studies brings to light a question asking: Are our opinions truly ours?

Influencing public opinion through emerging technologies is not a new concept. The invention of the printing press or even photographic images in 1920 have been exploited to

​European Commission, "Speech by Commissioner Jourová on media and democracy in Europe at the Media," http://europa.eu/rapid/press-release_STATEMENT-18-4095_en.htm.

141 Nathaniel Persily, "The 2016 U.S. Election: Can Democracy Survive the Internet?" ​Journal of Democracy,​ 28, no. 2 (April 2, 2017), 65.

142 Persily, 65.

143 Persily, 66.

140

Desai 56 manipulate voters in some way.144 Sam Wetherell, a lecturer at the University of York, states that “Theorists from various different disciplines have long known that people’s desires and preferences are shaped by massive forces beyond their control.”145 While this statement is true, it had never been applied on such a large scale as the political campaign had. Not only were people being influenced through ads, but were knowingly providing them with the data being used to manipulate them.

144

Richteric, “How Data-Driven Research,” 531. ​Sam Wetherell,. "Cambridge Analytica and the Death of the Vote," Verso, https://www.versobooks.com/blogs/3720-cambridge-analytica-and-the-death-of-the-voter.

145

Desai 57 Chapter 5: Policy Recommendations The current state of government regulations regarding information disclosure leaves much open to interpretation and relies immensely on the judicial branches’ capability to make the correct decision. Retrieving documents from an agency can be delayed by exemption six and seven claims consequently diminishing the value that those documents had to the requested. As was seen in the Wilotsky murder case, public inspection of federal or state documents can be pivotal in reevaluating government actions and ensuring proper executive or legislative measures are taken.146 Accordingly, the first government initiative in promoting transparency should be a major re-evaluation of FOIA law. Broad statements in FOIA document public interest as what “would 'she[d] light on an agency's performance of its statutory duties or otherwise let citizens know what their government is up to,” which theoretically should encompass the vast majority of data regulated by the government.147 Leaving immensely vague statements in disclosure legislation creates a greater potential for exploitation as well as gives the court the ability to unjustly disclose documents even when privacy interests are applicable. In many cases, agencies have unmistakingly violated FOIA mandates by not disclosing documents and stating that public interest does not extend to certain information.

To account for mis-interpretations of legislation and the possible exploitation of it, new FOIA law must properly define what constitutes publicly available information. By defining the exact types of information that are inaccessible to the public, whether it be surveillance efforts by the NSA or medical information collected by the CDC, courts would no longer have as much

146 147

Boles, “Documenting Death,” 250. ​Department of Justice, "Guide to the Freedom,” 11

Desai 58 precedence in disclosure since legislations would be more clear.148 Exemptions, particularly six and seven which primarily regard privacy, also need to be re-evaluated in a similar way to the rest of FOIA law. Instead of blanket statements safeguarding “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” or “documents that could reasonably be expected to constitute an unwarranted invasion of personal privacy,” exemptions to FOIA should explicitly establish what can be withheld.149 Referring to an “unwarranted invasion of personal privacy” ultimately enables the government to alter what it considered to be unwarranted or even personal privacy, which could lead to exemptions being applied in a number of cases where it should not.

Still, not every case would be encompassed or directly addressed by a new and revitalized FOIA. Cases that involve criminal activity and unsolved cases may instigate investigations taken on by the public, but could pose immense privacy concerns for all parties involved. As a result, congress should enact, unlike the one already in place, a balancing act where documents are neither solely disclosed or withheld, but instead provided to an organization or entity separate from the government to carry out investigative or oversight procedures. Releasing sensitive documents to an organization unassociated with the government present obvious security concerns, however, with enough incentives, the new balancing act would still be a better option then releasing privacy invading information to the general public.

In addition to altering the current state of FOIA, changes need to be made in regards to the regulations concerning the manipulation and collection of data across the private sector. As stated earlier, there is no single comprehensive law controlling data across all industries, but 148 149

​CDC, "Medical Examiners,” 3.

Department of Justice, “FOIA Update,” 2.

Desai 59 instead a set of principles and minor legislation regarding good and transparent use of data.

Regulations do not need to shift from sectoral to comprehensive but alternatively need to address more of the major concerns regarding data and its capabilities. Current legislation and guiding principles fail to recognize the potential pertenece of data in establishing monopolies and manipulating the general public. Although those principles primarily address privacy concerns, their lack of establishment as legislation as well as vagueness leaves much to be improved.

The first step that the government can take in re-evaluating its data regulations is to ascertain the distinctions between industries that will enable a sectoral approach. For instance, health and medical data is heavily legislated under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) which safeguards privacy and medical information.150 While there certainly negatives to HIPPA, such as the difficulties in exchanging medical information between entities in the healthcare industry, it still shows the importance of dividing regulation among industries instead of having an all-in-one approach: medical and health data is vastly different from behavioural and other types of information. For these reasons, distinctions should be made between at least five major industries: social media, health care, finance, real estate, and technology.151 In addition to industry wide regulations, new legislation needs to address the potential use of data to help manipulate or influence the general public. As seen in the case Cambridge Analytica, new uses of data may emerge in the future and could be used to alter the public opinion or cause them to act in a particular way. Acknowledging that the Cambridge Analytica

150

U.S Department of Health and Human Services, “Your Rights Under HIPAA,� Health Information Privacy, 2017.

Evidently, many more distinctions can be made but since the focus of the thesis is on social media and technology, only similar industries were premised to be different. As mentioned before, social media can be split up into even more categories, but regulations will largely regard the same types of data and methods of collection.

151

Desai 60 scandal used Facebook users to develop its database needs to act as an incentive for the government to prohibit such manipulation. Significantly more people are subject to manipulation from groups like Cambridge Analytica, demonstrating the ever growing need for protection from such influence. Blogs or other media that attempt to persuade or impose a political opinion should not fall under this category and instead of substantiating censorship of political opinion, Congress should hold companies like Facebook or Google accountable for the facilitation of their data as well as the content that appear on their sites. Facebook has already established an information campaign where they are actively informing users about their data and attempting to better integrate them into the data collection process. SImilarly, Congress should both encourage and require social media companies to disclose their data collecting capabilities and actions to the entire user base and anyone affiliated.

Currently, private companies like Google or Facebook have the right to collect any data on a user and face no regulations in terms of the breadth and granularity of the data. Based off the previous studies on corporations, the mass or exclusive collection of data does not contribute significantly in prohibiting competition or creating monopolies.

Data continues to be more prevalent in the digital age as its potential uses increases rapidly every day. As it continues to grow, the need for legislation also grows with it. If the issue is not addressed in the coming months, it becomes very easy to see widespread violations of privacy and the right to information as well as the manipulation of people and elections.

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