Last Week 69: The Privacy Bargain

(by Jay Gurney, Colorado Law 2L)

“She sees you when you’re sleeping
She knows when you’re awake . . .”

Smart Home devices like Amazon’s Alexa or Google Home are increasingly prevalent in American homes. Users prime the device by uttering a trigger word, in Amazon’s case, “Alexa.” Upon activation Alexa lights up, listens to, records, and responds to user’s requests.

These devices are often asked to stream music, sync to other “smart home” devices or answer questions varying from “What is the weather?” to “What is the net worth of Cardi B?” After processing a user’s Spotify request, for example, Alexa’s light turns off—signaling it is not recording—while the music continues.

As with other technological products, the data gathered from smart home requests can be provided to third parties such as advertisers. It can also be used to tailor and improve user experiences. Furthermore, the data acts as inputs for complex artificial intelligence and machine learning algorithms, creating “smarter” products.

Because the data gathered from these requests is valuable and smart home devices provide unprecedented access into home life, companies like Amazon may be incentivized to record and store as much as they can (subject to data storage costs). Smart home devices like Alexa have the potential to record before activation and could, in principle, continue recording long after responding to a user’s request. This unfettered recording could prove beneficial in some instances, for example, in criminal investigations involving burglary or homicides.

Data collection of the type enabled by smart home devices raises obvious privacy concerns due to the amount of personal information collected. For others, it is part of the technological bargain: I give up my privacy for a personalized product, often free of charge. If you value your privacy more than the product, ditch the product.

However, the technological bargain breaks down when personal information is provided to third parties without the consent of the user, as illustrated by the recent Facebook/Cambridge Analytica scandal.

Another, more abstract issue raised by large-scale data collection is autonomy concerns. For example, Facebook uses artificial intelligence to predict user behavior, enabling advertisers to focus their efforts on consumers who might “jump ship.”  In addition to advertising, companies use data to tailor user experiences. Amazon may suggest products to purchase or Prime videos to watch based on your last Alexa query. Reddit may promote certain posts based on your user inputs. This personalization of content within single platforms may enhance user experience and promote product use. However, this content bifurcation may promote “echo chambers” and funnel users into distinct pathways.     

Regulations may address these concerns. Some commenters contended Mark Zuckerberg’s testimony before Congress exposed a lack of technological acumen among our federal representatives and analogized the hearings to a trip to the principal’s office  However, there is action at the state level. California is contemplating including a ballot question on its November 2018 election which would allow consumers to more easily discover what information is being collected on them and opt out of sharing that personal information.

On the other hand, these technology companies are essential drivers of the American Economy. Data gathering restrictions may inhibit technological growth and enable foreign competitors to fill the technological void.