Abstract
Nudges can pose serious threats to citizens’ privacy. The essay discusses several examples of nudges that must appear problematic to anyone valuing privacy. The paper also re-draws a well established connection between privacy and autonomy and argues that insofar as nudges incur too great a loss of privacy, they are incompatible with the libertarianism that libertarian paternalism is committed to by virtue of its very name.
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Notes
Thaler and Sunstein (2008), p. 6.
The solution to the spillage problem is a tiny fly painted on the inside of the urinal. Apparently, men cannot resist the urge to aim at the fly.
OIRA is one of the most powerful government agencies in the US, able to review, reject and delay many proposed regulations. Originally, however, its scope was more limited, in that it reviewed only regulations involving information collection from the public. This might suggest that it was set up as a data protection agency. However, while Sunstein in an executive memorandum mentions the protection of privacy among a cluster of topics to be kept in mind, it is not among the three main functions of the agency he singles out. One of these is to ensure that “the collection of information (…) maximizes the practical utility of and public benefit from information collected by or for the Federal Government.” (Sunstein 2011, p.5) Privacy enhancing measures such as timely destruction of records are surely far from maximizing such practical utility.
See Dworkin (2014).
While other actors and institutions can act paternalistically, we are only concerned with paternalistic governments.
Bundesverfassungsgericht (Federal Constitutional Court), Neue Juristische Wochenschrift 1987, 180.
See, e.g., Sunstein and Thaler (2003), p.1193.
See Sunstein (2013b), p. 1875–1878.
See Solove (2008) for an extensive critique of these conceptions and an account of privacy as a nexus of many concepts that share a Wittgensteinian family resemblance.
Other taxonomies speak of “locational” privacy, which concerns access to information about your whereabouts. In Rössler’s framework, this would fall under informational privacy.
These are main categories in the taxonomy of privacy harms in Solove (2006).
See Rössler (2008) p. 703.
Rössler (2008) and the references therein are a good start for accounts of other valuable aspects of privacy.
Unless indicated otherwise, we will from now mean informational privacy whenever we simply write privacy.
Richards (2008), p. 404.
An example that shows that great ideas sometimes require an immense amount of undisturbed privacy is Andrew Wiles’s solution to Fermat’s famous last theorem, which had exercised the best mathematical minds of the last 350 years. Wiles had been working on this problem for many years without telling anyone about it. After his triumphant disclosure of the proof, he stressed the impossibility of working on this famous problem “out in the open”. He would have been unable to stomach the disbelieving interest, the possible comments about his intellectual hubris, the ridicule and the dissuasions of his colleagues (see Singh 1997).
Richards (2008), p. 404.
Cohen (2000), p. 1426–1427.
See Foucault (1977).
See Mill (1869).
See Nissenbaum (2011), p. 36.
In practice, it is a matter of some debate whether such defaults would work as well for privacy protection as they do for organ donorship (see Willis 2013). However, we are more concerned here with the question of whether a policy should be rejected on normative grounds rather than on the grounds of practical efficiency.
Porat and Strahilevitz (2013).
Porat and Strahilevitz 2013, p. 1468.
Sunstein (2013c). It is especially interesting to compare this manuscript with an earlier draft from 2012, which at the point of this writing is also available online. The sections on privacy are among the main changes, suggesting that the kinds of problems we discuss here have been on Sunstein’s mind lately, as well.
Sunstein (2013c), p. 40. Active choosing here refers to an alternative to default setting, namely to prompt individual users to actively make their privacy choices themselves.
Sunstein (2013c), p. 40.
On the factual falsity of most pronouncements of the claim “I’ve got nothing to hide”, see Solove 2007.
Our claim might be questioned if at issue is the more exclusive understanding of paternalism, according to which measures can only be considered paternalistic if they overrule the preferences of the individuals solely for their own good. Might there not be a secondary benefit to universally informed governments that might save Sunstein’s fantasy from being paternalistic? Indeed, we know that governments collect vast amounts of information about their citizens in the name of national safety; what harm could there be in letting the “nudging unit” look over the information the NSA has collected? This sort of information sharing between government agencies, however, has already been shown to be far from unproblematic in the famous census decision of the German Federal Constitutional Court in 1983 (translation available at 5 Human Rights Law Journal 1984, p. 94–116 (100)). Even back then it was recognized that free flow of information between such agencies dramatically increases the threats to citizens’ privacy as it increases uncertainty about which persons have access to sensitive information. It also makes data theft and leakage more likely and leads to other related problems. The preference of privacy conscious citizens would be that information about them, if it must be collected, should not be freely distributed to other agencies such as the nudging unit. Even if the collection of the data might itself not be paternalistic (in the narrow sense), as it might serve some purpose unrelated to the citizens’ own good, using it to find out more about their ends in order to serve those ends surely is.
See Thaler and Sunstein (2008), p. 68 et seq.
Solove (2006) gives a taxonomy of privacy harms that might serve as guide for such checks.
Sunstein (2014).
See Wang et al. (2013).
See Thaler and Sunstein (2008), p. 24 on availability biases.
Also, the effect on those who merely watch the video would have to beb e factored in. We would guess that watching the video isn’t near as effective as being a victim of the magician, in part because of the persistent overoptimism that behavioral economics has observed time and again: People are aware of risks, but they grossly underestimate the chance that they themselves could fall victim to those risks. Smokers think that smoking is causing cancer, but tend to believe that their personal chance of getting cancer isn’t any higher than that of non-smokers, etc. On the other hand, many more people might watch the video than could feasibly be directly targeted by such a demonstration, so that the net benefit might be comparable in the end.
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Acknowledgments
The research of the first author was funded by the German Research Foundation (Project PI 1082/1-1 0228 885 2134).
We would like to thank Simon Garnett, Prof. Gerrit Hornung, three anonymous referees and the editors for helpful comments on this paper.
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Kapsner, A., Sandfuchs, B. Nudging as a Threat to Privacy. Rev.Phil.Psych. 6, 455–468 (2015). https://doi.org/10.1007/s13164-015-0261-4
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DOI: https://doi.org/10.1007/s13164-015-0261-4