Tyranny of Convenience

Brandon Jones
The idea of a right of privacy in American legal discourse has often been made in
regards to privacy from the government. However, the idea of privacy from private
interests has often been lost in the shuffle. This is an incredibly frightening thought
because today, major corporations such as Facebook are able to gather enormous amounts
of information on people to better target ads to them. This business model helps
Facebook and others to better tailor the content for each specific user (Sisk 2016). For
these models to work, the sites will ask users to agree to a form much like an end-user
licensing agreement to give the illusion that consumers are consenting to these practices.
However, these models of self-managing privacy are incredibly coercive and do not
follow any form of informed consent (Hull 2015). In my paper, I hope to draw a
distinction between the original social idea of privacy and the privacy of the private
interests of the individual. Further, I would also like to express the dangers of the
potential that private interests can serve as watchmen for the government creating a
paradox with our understanding of privacy.
Any scholarly work on privacy must first ground itself in some legal regards. The
idea of privacy as a right has had a long, tumultuous history in the United States. The
notion of a right to privacy can be argued to be found in the Constitution in a few places.
First, the Third Amendment, which prohibits the forced quartering of soldiers in a
persons private home, creates the idea that an individual has the right to allow or disallow
people on their property (Waltz 2014). The Third Amendment is now outdated due to its

connotations with the American Revolution, but the message of personal privacy still
rings true today.
Secondly, the Fourth Amendment, which prohibits unreasonable search and
seizure and requires authorities to obtain search warrants through probable cause,
establishes that in order for the government to infringe on a persons privacy, the
governmental authorities must first follow a procedure to allow for transparency in the
surveilling process. However, this scope is limited to only the government. As
Grimmelman explains: First, only searches by the government implicate the Fourth
Amendment; it does not apply to a search or seizure, even an unreasonable one, effected
by a private individual not acting as an agent of the Government or with the participation
or knowledge of any governmental official (United States v. Jacobsen, 1984). If a FedEx
clerk opens your wrapped package and drugs tumble out, this is a private search and the
Fourth Amendment is uninterested. Indeed, the clerk can take the package to the police to
show them what he found (2015, 226). This notion is known as the Third-Party
Doctrine. Essentially, it can be understood that once a fact is disclosed to the public, that
information is no longer entitled to privacy protection (Sisk 106, 107).
Thirdly, the Fifth Amendment, which establishes a persons right to remain silent,
creates the notion that people do not have to testify in anyway against themselves that
may incriminate them. The government, however, may be able to compel a criminal
defendant to offer their testimony by offering the defendant immunity, which negates all
thats said during the testimony to be used against the defendant in trial (Grimmelman,
2015).

None of these amendments to the Constitution explicitly state that we have a right
to privacy. Aware or not of this issue, the framers of the Constitution created the Ninth
Amendment to tackle this issue. The Ninth Amendment states: The enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage others retained
by the people (FindLaw 2016, 1). The Ninth Amendment can thus be interpreted as
saying that just because a right is not mentioned in the Bill of Rights, does not mean that
the right ceases to exist in America society (FindLaw 2016). Therefore, the right to
privacy very much can be inferred to exist, but to what extent is where the trouble lies.
To better understand Americas relationship with privacy, I will examine Supreme
Court cases and important legislation that have addressed Americas concerns with
privacy. An early landmark case in the realm of privacy was Olmstead v. United States in
1928. Roy Olmstead was arrested for breaking the National Prohibition Act. However,
the government figured this out through unwarranted wiretapping of his phone. The
Supreme Courte determined that the Fourth Amendment did not extend to telephone, and
Chief Justice Taft in his opinion reasoned about the difference between a physical search
and seizure vs. evidence that was overheard (Waltz 2014). In his dissent, Supreme Court
Justice Louis Brandeis argued that the Court had made the wrong decision and that
citizens had the right be let alone (Burrows 2013).
The decision would eventually be overturned with the 1967 ruling in Katz v.
United States. The case surrounded around Charles Katz who was found to give illegal
gambling wagers via a public phone booth that the authorities knew he went to. The case
created the idea that people have the reasonable expectation of privacy. Grimmelman
explains: Katz was a watershed in criminal procedure; it repudiated older cases holding

that there was no search without an actual physical invasion of a defendants property.
Katz shifted the focus of the Fourth Amendment from spaces and objects protected
against trespassers to expectation(s) of privacythat society is prepared to recognize as
reasonable (2015, 226).
This idea of a reasonable expectation of privacy is a great starting place for an
examination of sites like Facebooks privacy policy, but there is still another piece in the
history of privacy that blurs the lines a little bit. Congress passed the Electronic
Communications Privacy Act in hopes of ensuring privacy in the computer age. For its
passing in 1986, the Electronic Communications Privacy Act was a landmark work of
legislation meant to help maintain a reasonable expectation of privacy. However, with
the dawn of the digital revolution, this piece of legislation has quickly become outdated.
Waltz explains: This legislation bifurcated the protections afforded to private documents
and communications. Documents that were typed or written physically were granted
greater constitutional protection than those that might be stored in an electronic format.
Likewise, conversations that were spoken face-to-face were viewed differently than those
transmitted over the airways or by wire. This statute provides impetus for much of the
confusion and conflict regarding privacy in the digital age. It is a law that is in desperate
need of revision, if not repeal (2014, 208).
Finally, an important concept with privacy in American law can be found with
informed consent law. Now, informed consent law is rooted in medical law, but it applies
to any other sector where an individuals wellbeing and/or health are at stake (HG
2016, 1). Informed consent can be applied to privacy because a breach in privacy could
put an individuals wellbeing at risk. Informed consent has two goals in mind. First,

informed consent must respect and promote a participants autonomy (Nguyen 2015).
Second, informed consent must protect participants from harm (Nguyen 2015). To
establish informed consent from a participant, a researcher must meet the criteria of five
concepts: voluntariness, capacity, disclosure, understanding, and decision (Nguyen 2015).
Thanh Tam Nguyen explains these concepts stating:
Voluntariness means that an individuals decision to participate is made without
coercion or persuasion. Capacity relates to an individuals ability to make
decisions that stems from his or her ability to understand the information
provided. Disclosure involves giving research participants all relevant information
about the research, including its nature, purpose, risks, and potential benefits as
well as the alternatives available. Understanding implies that research participants
are able to comprehend the information provided and appreciate its relevance to
their personal situation. Decision is that made to participate, or not (2015, 186).
If all of these requirements are met, then a researcher has a participants informed
consent.
This idea of informed consent applies to Facebook and other sites in a number of
ways but first it is important to understand how Facebook operates. In case you are
unaware, Facebook is an incredibly large social media platform that had 890 million
daily users on average and 1.39 billion monthly active users as of December 2014 (Sisk
2016). Facebook allows for people from all over the globe to share information about
themselves with others through posts and their own profile. Facebook is a free medium
for users to participate in. However, that does not stop it from being a cash cow.

Facebook is able to make money based on a behavioral targeting marketing model. Sisk
explains:
Companies that conduct behavioral targeting, known as advertising networks,
can predict Internet users interests by using certain sophisticated technology that
tracks and gathers data about the users online activity. This in turn creates a user
persona or profile that can be used to segment users into certain groups. The
resulting targeted ads are approximately twice as effective as other forms of
online advertisements, which make them far more valuable. Online content
providers can then fund their entire operations with revenues from selling online
advertising space, making it possible for websites to essentially offer online
content for free (2016, 104).
This model allows sites like Facebook to entice other businesses to pay them for their
marketing capabilities since they literally have access to over 1 billion users, who have
their desires listed on their profile.
Facebook would argue that they have the informed consent in their marketing
research of people through their end-user license agreement. This type of idea about
privacy is known as self-management. This idea of privacy instills the belief that
individuals are willing to forgo their privacy for convenient economic reasons. Hull
explains:
Privacy self-management abets such an official narrative in at least two ways.
First, by viewing the loss or preservation of privacy as a commercial transaction,
and then treating the transaction as revealing consumer preference, the privacy
self-management model obscures a social struggle, repackaging it as a well-

functioning market. Both the enthusiastic sharing of information and its grudging
release appear as the preference of an economically rational consumer. That is,
treating economic rationality as the truth of subjectivity makes it possible to
propose that no matter what someone does, it can and should be understood as
presenting her revealed preferences. Even more importantly, it assumes that those
preferences have been formed autonomously, outside of the context in which they
appear (2015, 98).
This idea of privacy self-management takes a very neoliberal approach in that it sees
privacy as merely an individual preference that gets in the way of convenient,
individualized marketing approaches. Hull notes that this idea of self-managing privacy
fails for three reasons: (1) users do not and cannot know what they are consenting to; (2)
privacy preferences are very difficult to effectuate; and (3) declining to participate in
privacy-harming websites is increasingly not a viable option for many (2015, 91). To
better understand, the shortcomings of Facebooks encroachment on privacy, I will
discuss how these three reasons are apparent in its model.
While people do have to accept this end-user licensing agreement to participate on
Facebook, the agreement is such an arduous task in and of itself that people could not
possibly know exactly what they are consenting to especially when these contracts are
updated at a rapid rate. One study found that if all web users were to read the privacy
policies of the websites they visit just once, it would take each of them roughly 244 hours
a year to complete this task (Hull 2015). For informed consent to derive any validity, it
must be understood by the participant. People are not going to read 244 hours worth of
content that is constantly being updated. Part of this dilemma stems from what is known

as the privacy paradox. Anja Bechmann describes the privacy paradox as the fact that
users want convenience above privacy, but do care about privacy if they are asked about
it (2014, 29). One offered solution is more transparency in end-user licensing
agreements that way people can at least have knowledge on what their data is used for.
However nice that may sound, that actually creates more of a dilemma: In the city of
Facebook, we experience an ever increasing data complexity and infrastructure that
means accounting for transparency would to intratransparency. As noted in the theoretical
framework this has also been termed the transparency paradox by Nissenbaum.
Furthermore, the complex, ubiquitous and interwoven data infrastructure means that both
from a technical and especially usage perspective, it is difficult to determine when one
context ends and a new one begins (2014, 30). Transparency to this extent may seem
like a great idea, but transparency is useless if people are not going to cipher through the
massive amounts of information in all of the collective end user licensing agreements.
Further, this creates the problem of information asymmetry, which is where one
party in a transaction has more information than another party, hindering peoples
opportunities to actuate their privacy preferences. (Hull 2015). This becomes problematic
as Hull explains: Discussion of information asymmetry at the moment of consent also
risks obscuring a more fundamental problem, which that data mining conspires to make
consent meaningless because the uses to which data will be put are not knowable to the
user or perhaps even the company at the time of consentUsers are in no position to
assess either the likelihood or nature of these futures uses (2015, 91). Running a business
model that relies on overloading information as a guise of transparency in a contract that

the participant knows or is at least unwilling to read does not sound much like informed
consent.
Finally, Facebooks model is coercive in its understanding that social media is
becoming more and more socialized into culture that it makes it substantially more
difficult to resist. This idea fits in with Andrejevics prediction of digital enclosure
made back in 2002. Andrejevic explains:
The current trend suggests that over time, alternatives to this tyranny (of
convenience) may be increasingly foreclosed. The result is that consumption and
leisure behaviors will increasingly migrate into virtual spaces where they can
double as a form of commodity-generating labor. If the latest work of a popular
author or musical group is available only on-line, consumers are compelled to enter
a virtual space within which very detailed forms of surveillance can take place.
Electronic databases can keep track not only of who is reading or listening to what,
but when and where (2002, 238).
As online entities with individually tailored made ads and suggestions, not just Facebook,
become more ingrained in culture, the harder it becomes to resist joining. Hull touches on
this this stating: (P)rivacy self-management does not just obscure the social benefits of
privacy, it actively subverts them: particularly once certain tipping points are reached, it
will almost always be individually rational to forego privacy, even as the social benefits
of privacy remain collectively rational (2015, 95). Through the process of socialization,
Facebook and other sites are able to coerce people into giving up their right to privacy by
making such a sacrifice mandatory to participate in their knowingly insurmountable
network.

This point brings me to what the stakes are in this debate and why people need to
be concerned. First of all, the information gathered by sites like Facebook does not have
to be only used by them. As seen in the Third Party Doctrine, information gathered by a
third party does constitute an illegal search and seizure. Once information is disclosed to
a third party, that information can be used by the government if the party with the
information chooses to hand over that information. Why would sites like Facebook resist?
Knowing that their visitors are none the wiser to their dragnet surveillance, these sites
could easily serve as watchdogs for the government leaving them in the good graces of
the government. The government also foregoes any liability for the method of obtaining
the information because it adheres to the Third Party Doctrine. This type of surveillance
is nowhere near unfathomable seeing as though the government has employed similar
tactics with Verizon, AT&T, and Google.
The problems go even deeper than the fear of being spied on by the government.
Thinking back to a discussion that we had about the possibility of one day being arrested
for ordering The Communist Manifesto off of Amazon, I have come to the realization that
it doesnt matter given the mechanisms of such a site. Your resistance is futile and
unimportant in this regard because you are still adhering to the neoliberal rules that
Amazon will surely put into play. Buying The Communist Manifesto, just as an example,
would lead to Amazon suggesting more content of the same or similar nature. These data
driven sites essentially put all of us (leftists and right-wingers alike) into our own tailor
made, neoliberal filter bubbles where our views are just reinforced with every purchase.
In reality, these sites just keep us playing the same game dictated by the tyranny of
convenience. Thats where the real root of the problem lies. Democracy is not an

institution meant for convenience. Democracy requires diligent citizenry that actively
questions the government and private institutions even if that takes a little bit longer. The
only real way to enact change is through the ballot box from the ground (local) on up
(federal). When you reign in the excess of neoliberalism, the citizens can one day be free
from the tyranny of convenience.

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