On the Rise of The Data-Rich and The Privacy-Poor

In the mid-1960s, Americans were startled awake to discover they had been subjected to seemingly unceasing surveillance at the hands of the credit reporting industry. Indeed, over the preceding century, credit reporting agencies had learned to leverage gossip and insinuation to construct financial identities that determined whether, and on what terms, a consumer could participate in the modern economy. What’s more, the advent of the computer enabled credit reporting agencies to aggregate these identities in comprehensive dossiers that could be easily transmitted to virtually anyone curious enough to ask. Alarmed by the threat these agencies posed to Americans’ privacy, Congress passed the Fair Credit Reporting Act, the first federal statute that offered some protection to an individual’s right to their informational privacy. And though the bill did curb some of the worst abuses committed by credit reporting agencies, it also legitimized the quasi-legal status of the industry’s operations that made such abuses possible. In this way, the intellectual underpinnings of the FCRA reflected a particular conception of privacy, one defined not by a singular value, but rather one constructed by slapdash protections against certain kinds of harms. Indeed, this was a vision of privacy that was first constructed by William Prosser, and that had been subsequently embraced by state and federal courts nationwide. As such, this paper argues that the evolution of the common law right to privacy at mid-century helped to shape the scope of legitimate government intervention to protect an individual's privacy, and in so doing, to build what Professor Julie Cohen has called the “political economy of informational capitalism” in which we now live.