Earlier this month, Lior Strahilevitz posted a paper on SSRN entitled "Reputation Nation: Law in an Era of Ubiquitous Personal Information." The abstract is below and the full paper is available here.
University of Chicago Law School
Northwestern University Law Review, Vol. 102, October 2008
U of Chicago Law & Economics, Olin Working Paper No. 371
U of Chicago, Public Law Working Paper No. 190
Modern technology has made two sorts of previously private information widely available in the past decade: Information about individual's past actions and activities, often contained in government files, consumer credit histories, and advertising profiles; and Feedback information about individual's reputations and preferences, often contained in social networking sites' pages, eBay feedback scores or Slashdot karma scores. In the coming decade, wearable computing devices and advances in network technologies have the potential to transform completely the way that strangers interact with each other and consumers interact with service providers. This paper is the first to ask systematically how the law should respond to the newly widespread availability of this information.
The paper develops a hopeful hypothesis, which is that the widespread availability of personal history and reputation information will reduce individuals' reliance on easily observable proxies like race, gender, and age, in deciding with whom to socialize or do business. The government thus has an unrecognized anti-discrimination tool at its disposal. For example, in addition to imposing liability on landlords who discriminate on the basis of race, the state can provide landlords with personalized information about a prospective tenant's attributes that allows the landlord to assign more weight to those attributes and less weight to the tenant's race. The paper then explores the application of this insight to varied antidiscrimination challenges in employment law, jury selection, health law, and insurance regulation. It then extends the discussion to examine how the widespread availability of personal information might improve immigration policy and consumer protection law.
The paper's next part examines the variables that will determine whether the optimistic story plays out, and whether greater information availability might undermine welfarist and distributive goals. It develops a typology of curtains and search lights, respective strategies designed to obscure individual attributes that are otherwise visible or render observable attributes that would otherwise be obscure, and explains why search light strategies might be particularly well suited to certain contexts. The paper concludes with a discussion of the normative case for the government to supplement traditional antidiscrimination laws with information-based antidiscrimination strategies, focusing on the pathologies that result when privacy protections or other obscurity-inducing measures are used for distributive purposes and the social meaning of strategies that try to reduce discrimination by providing decisionmakers with more information about job seekers, apartment renters, jurors, or patients.