Privacy is an elusive and ever-changing concept that marketing managers are increasingly trying to understand. The privacy issue is invariably raised when new information technologies are used for marketing efforts. It is not surprising that in their efforts to maintain consumer relationships, marketers have been amassing databases containing consumer profiles and behaviors, both online and off. These databases, coupled with new technological tools to collect information, help marketers tailor their offering at the individual level with the purpose of serving consumers better. However, instead of consumers being completely satisfied, consumers continue to send marketers mixed messages. Consumers claim that they are concerned about their privacy, yet they often engage in behaviors that puts their privacy at risk.
The problem that managers face is to understand when their actions will violate a consumer’s sense of privacy? Because privacy is inherently contextual, it is difficult to get a consistent understanding. In addition, marketers have different perspectives than consumers and legislators; consumers themselves cannot agree on what a privacy violation is. This discussion becomes complicated by the rise of new information technologies (e.g., RFID [radio-frequency identification] tags, biometrics, video surveillance, new data-mining approaches) that present new contexts and situations from which to view the privacy question. Adding to the multiperspective view is the observation that the discussion of privacy is taking place without a well-established vocabulary. Missing from all these discussions is a solid understanding of what privacy is and what the harms are to consumers and society when it is violated. These are questions that Daniel Solove’s latest book, Understanding Privacy, attempts to address.
Solove has written several books addressing the state of privacy in today’s marketplace that have wide appeal in dealing with topics such as the “digital self” and “online reputation.” These prior books have informed readers about the dangers to society of “dataveillance” (surveillance through data collection) and the issues of data permanence and the way it can virally spread on the Internet. In his latest effort, Solove attempts to put forth a comprehensive theory of privacy. Admittedly an ambitious undertaking, his effort is compelling and has the potential to influence the way that the courts, firms, and marketers think about privacy. Understanding Privacy is thoroughly researched and grounded in legal theory, yet it offers a pragmatic and straightforward approach for describing privacy harms so that various parties’ interests can be balanced to avoid conflicts.
The premise of Solove’s book and theory is to present and illustrate a taxonomy of how people can be harmed (in a legal sense) from privacy violations. To convey that message, the book is organized in six logically connected chapters. In Chapter 1, Solove argues that though understanding privacy is more important than ever, it is a concept in disarray because nobody can articulate its precise meaning. As part of this chapter, he illustrates several violations that are not adequately addressed by the existing view of privacy, which tends to be focused singularly on one facet of a complex topic. Two marketing violations that he uses to illustrate this point are (1) a company marketing a list of five million elderly incontinent women and (2) a company selling its members’ personal information despite promises not to do so. Solove points out that the courts would treat both the situations the same given the singular perspective of the law; however, each case has different extenuating circumstances, which can alter the degree of harm incurred. Chapter 2 reviews previous conceptual efforts to define privacy and then systematically points out limitations or shortcomings of each approach. The perspectives he reviews are as follows: the right to be let alone, limited access to the self, secrecy, control over personal information, personhood, and intimacy. The result of this multiperspective point of view is akin to the story of several blind men talking about different parts of an elephant. They all are correct but do not converge on the true essence of the phenomena. The conceptualizations of privacy are either too narrow to include all issues or too broad to bring any useful insight to the intellectual discourse. In Chapter 3, he reasons for the ground-up approach in conceptualizing privacy and suggests that the various conceptualized perspectives are loosely related. He uses the metaphor of family resemblances to suggest that privacy conceptualizations need to be multifaceted. In Chapter 4, Solove discusses the value of privacy. He argues that privacy needs to be considered from a societal level rather than just an individual rights level. In Chapter 5, he lays out his taxonomy, which presents legal harms that are structured in a manner that addresses current problems and also can be used to craft new laws and policies. In Chapter 6, he demonstrates the value of this framework by showing how it can weigh competing interests in varying contexts.
The heart of Understanding Privacy defines and reviews the taxonomy of harm-related items and discusses how the issues surrounding these harms have been examined in legal cases and the courts. The taxonomy he presents in Chapter 5 consists of 16 consumer harms: surveillance, interrogation, aggregation, identification, insecurity, secondary use, exclusion, breach of confidence, disclosure, exposure, increased accessibility, blackmail, appropriation, distortion, intrusion, and decisional interference. These harms are grouped into four types of privacy problems: (1) information collection, (2) information processing, (3) information dissemination, and (4) invasions. The issues that are directly applicable to consumers (and are of interest to marketers) include areas such as information collection and invasions. Notably, much of the focus in marketing has been on information gathering and the indirect problems with information processing and information dissemination. The area of invasions has traditionally not received much attention, though it is increasingly becoming a valid issue with pervasive technologies. Solove notes that invasion, which is often initiated by information-gathering activities, can be affected by both surveillance and interrogation. Invasion is a harm in that it interrupts a person’s activities through unwanted presence. Thus, marketing communications, other than their physical properties, may be unwanted and disruptive because they have the potential to drain a person’s time and attention and interrupt other activities.
Solove’s taxonomy presents a framework for thinking through harms that affect competing interests in the legal system. For example, although the harm to a specific individual as a result of his or her information being collected by a single marketer might be considered negligible, the aggregation of information and constant surveillance of a consumer’s activities online might raise trust issues for companies. Moreover, at a societal level, concern might arise if the pattern of data reveals too much detail pertaining to consumer lives. The constant monitoring without giving consumers a voice in the matter is one of the concerns being raised in the discussion about behavioral advertising in the United States and in Europe.
This book succeeds in providing comprehensive and insightful coverage of consumer harms and a detailed account of how the courts have historically addressed these types of issues over the years. Many readers would be surprised to find that issues such as information gathering and the specific harm of surveillance have a history that dates back to before the Internet. For example, one of the harms from information gathering, surveillance, is grounded in “Peeping Tom” laws, whose foundations were first established in Jewish law from the twelfth century. In addition to the broad historical perspective throughout, the book is effective in its use of literary and metaphorical examples to help illustrate consumer harms that are sometimes overlooked and disregarded with the employment of today’s technology. The discussion of Jeremy Bentham’s conceptualization of the prison, called the Panopticon—in which each cell is viewed from the guard tower at all times but the prisoners cannot see the guards—exemplifies the power of observation for deterring behavior. In light of this metaphor, it is interesting to consider whether and how consumers today are responding to data surveillance on the Internet and video surveillance of public spaces.
My recommendation of the book is based on the type of reader and the reader’s motivation. If a potential reader is motivated to gain a deeper understanding of privacy and be familiar with privacy harms and the legal issues that surround its protection, this is a valuable book for him or her to read. The taxonomy of harms and the issues pertaining to information collection, processing, and dissemination, as well as privacy invasion, in and of themselves, are worth the time invested in reading the book. Privacy, by its very nature, is a complicated topic that requires a comprehensive book, and I would consider the topics discussed by Solove to be appropriate for thoughtful marketers who want to better understand this important aspect of business. As a bonus, the book is clearly written, well structured, and filled with interesting legal cases. However, for readers who might want to gain a more concise and less comprehensive understanding, the level of detail provided in the book may be overwhelming. Another point of caution to both segments of readers is that the majority of the examples and perspectives that Solove (who is a legal professor) provides pertain to the law and government. Thus, a limitation of the book for a marketer audience may be the lack of market-based and marketing-specific illustrations. Although the key points in this book regarding harms are valid to the marketplace, it requires the marketer to make the contextual transfer.
—George R. Milne, University of Massachusetts