Manipulation, Privacy, and Choice


Appeared In: North Carolina Journal of Law & Technology

Publication Date: April 2022

As individuals navigate their lives on websites and apps, their movements, searches, and actions are silently tracked. Streams of consumer data are then pooled by data aggregators and mined to identify potential vulnerabilities of consumers. These potential weaknesses, e.g., whether someone is in financial distress, having a health crisis, or battling an addiction, are valuable to marketers and ad networks to silently steer consumers’ market actions towards the manipulator’s interests. While identified early on as problematic within the economics of information broadly, the use of hypertargeting to manipulate consumers is underappreciated as a threat to not only the autonomy of individuals but also the efficiency and legitimacy of markets.

This article examines targeted manipulation as the covert leveraging of a specific target’s vulnerabilities to steer their decisions to the manipulator’s interests. This article positions online targeted manipulation as undermining the core economic assumptions of authentic choice in the market. Then, this article explores how important choice is to markets and economics, how firms gained positions of power to exploit vulnerabilities and weaknesses of individuals without the requisite safeguards in place, and how to govern firms that are in the position to manipulate. The power to manipulate is the power to undermine choice in the market. As such, firms in the position to manipulate threaten the autonomy of individuals, diminish the efficiency of transactions, and undermine the legitimacy of markets.

This article argues that firms merely in the position to manipulate, with knowledge of individuals’ weaknesses and access to their decision-making, should be regulated to ensure those firms’ interests are aligned with the target. The economic oddity is not that firms have data that render another market actor vulnerable, but rather the oddity is that so many firms have data to covertly manipulate others without safeguards in place. Market actors regularly share information about their concerns, preferences, weaknesses, and strengths within contracts or joint ventures or within a relationship with professional duties.

The point of manipulation is to covertly steer a target’s decision towards the manipulator’s interests and away from the target’s; as such, manipulation impedes a market actor’s ability to enact preferences through choice. This undermining of choice—and not the harming of consumers—is the basis for additional safeguards on those in the position to manipulate. Governing targeted manipulation online will require additional safeguards on those firms in the position to manipulate rather than attempting to identify each instance of targeted manipulation. First, additional safeguards are needed to limit data aggregators and ad networks—specifically, any data trafficker without any relationship with consumers—to ensure the use of information is in the interests of the consumer. Second, consumer-facing websites and apps act as gatekeepers by luring in consumers to have their data tracked by third parties and later to be targeted with manipulative content. In so doing, consumer-facing companies should be responsible for ensuring all third parties that access their users—either for data collection or for targeting content—abide by standards of care that are audited. Where scholarship has focused on identifying instances of manipulation to regulate, this article argues that firms merely in the position to manipulate, with knowledge of the individual and access to their decision-making, should be regulated to ensure their interests are aligned with the target.

Kirsten Martin, Manipulation, Privacy, And Choice, 23 N.C. J.L. & TECH. 452 (2022).

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