Why should I care about how my data is used?

The question often arrives with a sideways slant of skepticism: Why should I care how my data is used?

An especially animated speaker may accompany it with a dismissive hand gesture or a flippant roll of the eyes. But more often than not, the question precedes a matter-of-fact statement about data in the United States being used just for targeted advertising.

If pushed on the matter, the speaker may resort to defensive justifications for this reductionist perspective:

• “Anyway, I don’t have anything to hide.”

• Or, “They don’t actually learn anything worthwhile about me.”

As if a regulatory framework must intimately and directly affect this particular individual to have a reason to exist.

Yet, the truth is, most Americans feel this way. The notion of privacy in America remains firmly grounded in physical locations, tangible items, and manifest intrusions into one’s personal space. It’s the Fourth Amendment style of privacy — the right to “be secure in their persons, houses, papers, and effects.”

If a government van suddenly parked in one’s driveway or a stranger demanded entrance to inspect one’s bedroom, it would raise alarm. Data collection and usage, by contrast, fails to feel invasive because its technologically ephemeral process exists in the abstract. There is no van parked in the driveway. No physical presence surveilling one’s intimate bedroom activities. No sensory input to raise acknowledgement and shock.

Yet, the primarily ephemeral nature of today’s data practices is precisely what makes them dangerous. The appearance of a van or an intrusive stranger is noticeable, whereas the incorporeal nature of surveillance mechanisms vacuuming up one’s constant data shedding makes them easy to ignore.

But as I intend to demonstrate, in today’s surveillance capitalism world, these data practices have real consequences. And even if a person may today feel comfortable claiming not to have anything to hide, tomorrow’s shifting legal landscape may well bring reasons to hide one’s information.

AND THEN THEY CAME FOR ME

To disregard data practices in today’s era is to exist in a state of privileged ignorance.

If a person defends disinterest in data regulation by saying, “I have nothing to hide,” the person has allowed their individualistic experience of life to override the experiences of others. Meaning, while that particular individual may have nothing to hide, many individuals in America do in fact have things to hide.

On June 24, 2022, Justice Alito delivered the opinion of the U.S. Supreme Court for Dobbs v. Jackson Women's Health Organization, thereby fulfilling Alito’s decades-long strategy to overturn Roe. In the 6—3 judgment, the Court held that abortion was no longer a protected right under the Constitution. In response, trigger laws across the country went into effect, and at the time of writing, fourteen states have implemented some form of an abortion ban.

Disregarding the legal and political maelstroms surrounding these laws, abortion bans provide a reason to care about data collection and usage, because these laws require a number of basic facts to occur in order for them to be enforced.

1. An individual must become pregnant.

2. The pregnancy must be terminated.

Thus, state governments and prosecutors have a great interest in uncovering these intimate facts, and one way to procure such information is to examine an individual’s retail purchasing history and interests.

Even back in 2012, Target created a “pregnancy prediction” score for customers. Using a plethora of data procured directly from the customer and supplemented with information purchased from other companies, Target “could also estimate her due date to within a small window, so Target could send coupons timed to very specific stages of her pregnancy.”

This practice is not unique to Target, as Walgreens was also caught monitoring an individual’s pregnancy status via purchasing habits. But under America’s current data regulation framework, “really any organization” can “amass profiles” on consumers, either by collecting the data directly from you or purchasing such data collected by other companies.

Then, due to the highly unregulated nature of data practices in America, that information “can flow across contexts, including to law enforcement officials, including to doctors or medical providers, or in some states, private individuals who might have an interest in going after people suspected of obtaining an abortion.”

So yes, while Target’s pregnancy prediction algorithm may have at one time been banal — albeit creepy — targeted advertising, the sensitivity of that data changed with the times. After Dobbs, an individual’s shopping preferences and behaviors could out them as pregnant or, in some cases, suddenly not pregnant.

The government van need not park in your driveway when it can learn such intimate details through big-box shops like Target or Walgreens.

And remember: this issue becomes worse when considering data points beyond one’s shopping preferences. In 2017, investigators “downloaded the contents of [a Mississippi woman’s] phone, including her internet search history,” to use as evidence of murder after giving birth to a stillborn child at her home. Years earlier, prosecutors used an Indiana woman’s text messages to a friend about taking abortion pills late in a pregnancy to successfully convict the woman. Between 2018 and 2020, Google received more than 5,000 warrants from police in 10 states that have already banned abortion, requesting location data from phones. That location data could show a woman crossed state lines to enter a particular medical facility.

All of this data — text messages, location data, shopping preferences, search history — may seem trivial to one privileged enough to not fear such information being used against them for something as intimate as pregnancy. But laws are often written on water. They change, get repealed, and even constitutional freedoms may get judicially axed.

The truth is, the privilege of careless data shedding today may tomorrow result in a wealth of evidence used in a conviction.

Glut of Location Data & Consequential Inferences

In 2019, the New York Times (NYT) acquired a digital file containing “50 billion location pings from the phones of more than 12 million Americans as they moved through several major cities.” Each ping represented “precise location” information, which allowed NYT reporters to determine which individuals lived in which neighborhoods and residences. They tracked individuals at the White House, the Playboy mansion, the Pentagon, trailer parks, public beaches, cities, and so many other locations.

This information came from everyday phone apps — “weather apps to local news apps to coupon savers” — which was compiled by a single “location data company.” That company, “one of dozens quietly collecting precise movements using software slipped onto mobile phone apps,” created a single file containing the precise movements of 3.5% of all Americans.

One file. One dataset. The precise movements of 3.5% of all Americans.

And where one goes can tell a lot about one’s life.

If your location data shows you didn’t move from a location at night for six to ten hours, one can infer you slept there. See this repeat enough and you can infer the person lives there. Cross reference this information with public property records and you have a decent shot at identifying the person behind the location ping, or at least determining their family name.

Study such location information enough and one could find the person’s religion, sexual orientation, or health status. The NYT reporters saw “hundreds of pings in mosques and churches, abortion clinics, queer spaces and other sensitive areas.”

Continue studying such data and it may reveal “hints of faltering marriages, evidence of drug addiction, records of visits to psychological facilities.” Some of the most intimate moments of one’s life on fully display — all because of one type of data.

Notably, this was not a file from a telecommunications company or capital-B big tech company like Google, which would have access to even more data types. This was a company small enough to fly under the radar, yet with enough technological reach to vacuum up tidbits of location data, compile it, and infer intimate details about an individual’s life.

But inferences derived from data can have dire consequences.

One year after NYT reporters received the aforementioned data set, they received a second one. This time, the file contained the location pings of individuals who participated in the January 6, 2021, attack on the Capitol.

Now, I want you to repress whatever emotional feeling you just had at the mention of these events. We are not here to discuss history; we are here to discuss data. And underneath the political hellstorm of that day lies a worthwhile examination of data.

The second file received by NYT reporters, as with the first, did not expressly contain names or identifying information — just location pings and unique smartphone IDs. However, when the location ping “trails lead from the Capitol right back to their homes,” it is easy to infer identifying information.

The problem is, an inference could be the difference between freedom and a successful criminal charge.

Location data, even when relatively precise, can be inaccurate. In the chaotic mob scene unraveling at the Capitol, it can be difficult to pinpoint exactly where a particular individual was located during an alleged criminal activity. In such a situation, a “few feet can be the difference between a participant who committed a serious crime and on onlooker.”

Yet, that data is potential evidence. Even if the location data is inaccurate or untrustworthy, prosecutors can and will attempt to use that information to place a particular individual at the scene of a crime. Or to identify a particular individual by tracking the ping trail back to their residence. Or to rebut the individual’s argument for not even being in the area on January 6, 2021.

“In a situation such as the Capitol riot, exact locations matter. A few feet can be the difference between a participant who committed a serious crime and an onlooker.” — NYT

That data provides a potential record through time, and as with abortion laws, that record provides an opportunity to infer criminal activity. It is the equivalent of opening up an individual’s diary and trying to infer intent from the individual’s style of handwriting on a particular day — it is an inferential yet deeply intimate examination of one’s life.

And if these inferences sound farfetched — if you are thinking, “Well, don’t break the law and your data won’t be used against you” — remember: these are only two examples of data use within the prosecutorial sphere. Step outside that sphere and you will encounter countless other examples, as further parts of this series will demonstrate.

The truth is, your location data is valuable because it provides a step-by-step detailing of who you are as a person. And if you are an active participant in today’s information age, your location data is being “reviewed by hedge funds, financial institutions and marketers, in an attempt to learn more about where we shop and how we live.”

These companies are constructing datasets on you in order to infer information about your life, and ultimately, to make decisions about your life based on those inferences, regardless of their accuracy.

So, I say again: To disregard data practices in today’s era is to exist in a state of privileged ignorance — ignorance for how these data practices affect others, but also ignorance for how they affect you.