Privacy and Manipulation in the Digital Age

Abstract

The digital age brings with it novel forms of data flow. As a result, individuals are constantly being monitored while consuming products, services and content. These abilities have given rise to a variety of concerns, which are most often framed using “privacy” and “data protection”-related paradigms. An important, oft-noted yet undertheorized concern is that these dynamics might facilitate the manipulation of subjects; a process in which firms strive to motivate and influence individuals to take specific steps and make particular decisions in a manner considered to be socially unacceptable. That it is important and imperative to battle manipulation carries with it a strong intuitive appeal. Intuition, however, does not always indicate the existence of a sound justification or policy option. For that, a deeper analytic and academic discussion is called for.

This Article begins by emphasizing the importance of addressing the manipulation-based argument, which derives from several crucial problems and flaws in the legal and policy setting currently striving to meet the challenges of the digital age. Next, the Article examines whether the manipulation-based concerns are sustainable, or are merely a visceral response to changing technologies which cannot be provided with substantial analytical backing. Here the Article details the reasons for striving to block manipulative conduct and, on the other hand, reasons why legal intervention should be, in the best case, limited. The Article concludes with some general implications of this discussion for the broader themes and future directions of privacy law, while trying to ascertain whether the rise of the manipulation-based discourse will lead to information privacy’s expansion or perhaps its demise.