January 28 is data privacy day, and I thought it an appropriate time to take a step back. One of my greatest regrets as a practitioner is that we are always under so much crisis pressure – deadlines, both real and imagined – to get to an answer or to a piece of advice or to a deal closing, that we fail to think big. I am jealous of my peers in academia who get to read, write, and think for extended periods of time. For myself, the pandemic has afforded me a little more ability to luxuriate in big thoughts (even losing that LA freeway commute time helps). So, this post is not about the CCPA, the CPRA, cross-border data transfers, the potential for federal legislation, or any of those other strictly legislative or regulatory matters, at least not on the surface. But it is about where we find ourselves today in terms of consumer privacy, where we are going, and what those of us in the private sector should be thinking about as we travel this path.
I found inspiration for this post in an unlikely place. Conceptions of privacy sometimes meet us in unexpected ways. Dilemmas that seem new, or unanticipated, are really very old. They are concerns that have preyed upon our idealized picture of humanity for many years, but are suddenly brought to life by new technologies or new social or political realities. This one came to light for me during story time, and the big thinker in this case was writing in 1961 (or before).
During life in lockdown, I am always home for bedtime. Every other night, my eight year old daughter and I read together from a chapter book. Right now we are completing The Phantom Tollbooth. Somehow I never read it, in school or otherwise. Last night we read Chapter 18, “Castle in the Air.” As I read those words out loud and in real time, I was astonished to imagine that, sixty (60) years ago, Norton Juster had such uncanny insight. Juster saw latent threats to personal privacy and dignity that we now see playing out in our daily lives, with potentially disastrous consequences. I want to talk about the character of the Senses Taker.
The Senses Taker
When chapter 18 opens, the main characters – Milo, Tock (a dog), and the Humbug – are climbing a mountain towards the Castle in the Air to rescue the Princesses Rhyme and Reason. They are chased by demons. Suddenly they encounter, sitting in front of the first step of the final staircase leading to the castle, a sleeping man covered in ink stains and holding a quill pen and a ledger book. He wakes up and immediately demands to know who the travelers are. “NAMES?”
“I'm the official Senses Taker, and I must have some information before I can take your senses. Now, if you'll just tell me when you were born, where you were born, why you were born, how old you are now, how old you were then, how old you'll be in a little while, your mother's name, your father's name, your aunt's name, your uncle's name, your cousin's name, where you live, how long you've lived there, the schools you've attended, the schools you haven't attended, your hobbies, your telephone number, your shoe size, shirt size, collar size, hat size, and the names and addresses of six people who can verify all this information, we'll get started.”
The three struggle to provide answers, and all the while the demons gain ground on them.
“May we go now?” asked the dog, whose sensitive nose had picked up a loathsome, evil smell that grew stronger every second.
“By all means,” said the man agreeably, “just as soon as you finish telling me your height; your weight; the number of books you read each year; the number of books you don't read each year; the amount of time you spend eating, playing, working, and sleeping every day; where you go on vacations; how many ice-cream cones you eat in a week; how far it is from your house to the barbershop; and which is your favorite color.”
Finally, when the three think they are done with this drill, the Senses Taker demands to know their destination.
“The Castle in the Air,” said Milo impatiently.
“Why bother?” said the Senses Taker, pointing into the distance. “I'm sure you'd rather see what I have to show you.”
At this point, Milo alone starts to see a circus on the horizon, Tock alone smells an aroma that is wonderful, and the Humbug alone can hear a crowd cheering and applauding for him:
They each stood as if in a trance, looking, smelling, and listening to the very special things that the Senses Taker had provided for them, forgetting completely about where they were going and who, with evil intent, was coming up behind them.
This is a stunning description of third party targeted advertising, long before any such thing existed. Long before the Internet as we know it. (I want to pause here to recognize Paul Bernal, a lecturer in the UEA Law School in the fields of Information Technology, Intellectual Property and Media Law, who also wrote a blog post about this that I found after I decided to write this piece earlier today, and who had the same epiphany during story time with his daughter back in 2011.)
The Senses Taker in 2021
In our daily lives today, we all set out on journeys, large and small (hardly to rescue the Princesses of Rhyme and Reason, but we try to put in a good day's work and stay in positive communication with our friends and family on social media). Along the way, we are intercepted by questions and inquiries about who we are and where we are going. Sometimes those interceptions take an obvious form – a survey, a quiz, a questionnaire, a chatbot, a virtual Senses Taker. Sometimes those interceptions are imperceptible and involve nothing more than bits of code that follow us from page to page, site to site, screen to screen.
More often than not, this continual and invisible flow of interceptions results in our taking a journey other than the one we planned. We are distracted by the circus (the recipe loaded with pixels that will target me for an air fryer, or a diet program), or the applause (the temptation to join a crowd of others to post our approval or dismay with respect to a particular story about a recent political event, loaded with pixels to target me with an ad for everything from a particular television program, to a vacation spot, to a political campaign). We lose track of our original destination. And we fail to see the evil lurking behind. (That last point takes on even more significance today with what we now know about targeted political advertising.)
Digital advertising can be done in responsible ways, but the ecosystem is currently structured in a way that allows the biggest players to make the rules and control the information flows. I will come back to that in a minute.
The Consequences
So what happened to Milo, Tock, and the Humbug? The spell was broken when Milo dropped a bag of gifts holding a package of laughter that exploded loudly, and all three suddenly realized there was no circus, no smells, no applause. It was all an illusion.
How did the Senses Taker react?
“I warned you I was the Sense Taker . . . I help people find what they're not looking for, hear what they're not listening for, run after what they're not chasing, and smell what isn't even there. And furthermore, …I'll steal your sense of purpose, take your sense of duty, destroy your sense of proportion – and, but for one thing, you'd be helpless yet.”
“What's that?” asked Milo fearfully.
“As long as you have the sound of laughter,” he groaned unhappily, “I cannot take your sense of humor – and, with it, you've nothing to fear from me.”
But the Humbug quickly realizes that they do still have much to fear from the rapidly approaching demons, and it is only by virtue of their quick thinking and feet that they escape their clutches, at least for the time being. (I am going to part ways here with Bernal, who asserts that the Senses Taker is himself a demon. I am not so sure, but I think the Senses Taker and the demons have made a deal or two.)
In the real world of 2021, a sense of humor may help you navigate your digital world, but it won't save you from the distractions of the Senses Taker, or the demons with whom he may be in cahoots.
Who is the Senses Taker and How Can We Fix It?
Who is the Senses Taker in our world today? I would posit that there are a few today – they are the largest players in the digital advertising ecosystem. Those players set the rules for everyone else just trying to make digital media buys or sell advertising inventory. Only the largest players get to dictate what information must be provided, and in what form. They sit on vast troves of data and they are impervious to regulation designed to restrict sharing because they already have it and they don't have to share it with anyone else. And they have the resources to litigate and resist changes to the existing paradigm.
Aha! you might say, but we are fixing that because we are moving away from third party cookies and it will all be controlled by the direct relationships between the consumer and trusted businesses. Well, no, not really. It is still the largest players, the ones who don't have direct relationships with consumers, the guys just hanging out on the mountain with their ledger books, that are designing these new methods for targeting advertising, purportedly without using personal information. I'm not buying it. Not yet. We need to do better.
I'm also not convinced that the new California laws, the many proposed bills in other states, or the prospects for federal privacy legislation will solve the core problem. Most of these laws or potential laws are focused on what they characterize as unauthorized sharing or selling. They fail to recognize that it is the Senses Takers – the folks who already have all the information about everyone and who can intercept those people along the way to learn more – whose data processing needs to be controlled. Legislation should control the ability of the Senses Takers to leverage all that information they have already collected to their benefit – particularly when it comes to their relationships with the demons, who want to get their hands on that data. I'll let you decide for yourself who you think those demons really are.
The Takeaway
We have a long way to go to get to meaningful privacy law. We need to get away from old conceptions that it is enough for the Senses Takers to tell approaching travelers that they need personal information in order to take their senses, and don't worry they won't share it. Nobody knows what that means or the potential consequences. We need to place the burden on the Senses Takers to do more with respect to transparency and accountability, and prevent them from offloading those responsibilities on other, smaller players in the ecosystem. We need to fundamentally revisit our conceptions of why we collect information and how we will deal with the vast stores of it already held by the Senses Takers.
I'm up for that challenge, and I hope that others will follow by thinking their own big thoughts and sharing them.
Oh, and yes, I have ruined story time. Forever. Sorry.
Happy Data Privacy Day.
Originally Published by Frankfurt Kurnit, January 2021
This post first appeared in Frankfurt Kurnit's Focus on the Data blog (www.focusonthedata.com). It provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.
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