Privacy: It’s a 2.5-Dimensional Issue

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“Privacy” is a hot topic in the world of marketing analytics, driven primarily by shifting consumer (and, in turn, regulatory) sentiment on the subject. That shifting sentiment, I think, is largely being driven by the increasing integration of social media into our lives and our online behavior.

The WAA stepped up and put together a Code of Ethics a few months ago, and privacy is going to be a recurring topic at eMetrics and other conferences for the foreseeable future. Following the San Francisco eMetrics conference, Stéphane Hamel put together three scenarios and asked the #measure community to vote as to the ethics and allowability of each situation. He then revealed the results and added his own thoughts. Towards the end of that second post, Stéphane noted that he was disappointed by the lack of interest in the exercise, given the generally accepted importance of the topic.

Emer Kirrane responded in the comments:

It’s interesting that there seems to be a correlation between legality and ethics in the minds of your respondents. To me, the Code of Ethics is there as a flag against practices that are deemed unethical by the community, rather than deemed unethical by law.

Stéphane’s concern and Emer’s response have been bouncing around in my brain for several weeks. My conclusion: “ethics vs. legality” is going to continue to give us fits.

I realize this isn’t the first time that “ethics” and “the law” haven’t perfectly aligned (they almost never do, actually, even though that, from a purist point of view, is the goal), but bear with me — it’s worth using that lens to explore the issue and outline the challenges we’re going to have to deal with. These are two very different dimensions of the privacy debate, and one of them is in flux on several fronts.

Why 2.5 Dimensions?

Obviously, there is a legal/regulatory dimension, and there is an ethical dimension. But, really, the legal/regulatory dimension is heavily driven and influenced by consumer perceptions and fears. I actually wrote some thoughts on that a couple of years ago. With high-profile Facebook snafus and high-profile media outlets reporting on cookies and cross-site tracking, politicians have found an issue that their constituents care about (or can be prodded to care about). So, in a sense, the legal/regulatory dimension has some added “oomph” of consumer concerns behind it; I’m calling that “consumer perspective” another half a dimension.

It’s possible that “consumer perception” should be a third dimension in and of itself. But, oh boy, that would make for some hairy sketching in the remainder of this post. I’m pretty sure I’m not just punting, though — the will of the consumer when it comes to something like privacy does generally get manifested through some form of government regulation.

Start with the Basics

Two dimensions: legal and ethical. We can look at them like this:

Various practices raise privacy questions. In theory, we can plot each of them on this (conceptual) grid — there are more than shown here, but I’m just laying out the basic idea of the framework:

In Theory, We’d Have Harmonious Dimensions

If life was simple, we would have perfect clarity for each dimension, and perfect alignment between dimensions:

Notice the shaded quadrants at top left and bottom right — there would be no practices that were ethical but not legal, nor would there be any practices that were legal but unethical.

Alas! Privacy is Rife with Gray Areas!

Reality is more like this — gray areas rather than hard lines along both dimensions:

Ugh. Things get messy. There are more activities that are questionable — they may or may not be legal and/or they may or may not be ethical! Argh!

But Wait! There’s More!

Ever since the web went mainstream, it’s been a more global medium than anything that came before. And, we’ve all run into cases and concerns that our standard web analytics implementation runs afoul of the law in some country somewhere. This grid illustrates that wrinkle, too — the legal/regulatory gray areas live in different places depending on the country (only the U.S. and the E.U. are shown here — it’s an illustrative diagram, people! Not a comprehensive one!):

And the big blue arrow shows where pressure is being applied (back to that half-dimension of consumer fears mentioned at the beginning of this post). It’s a little counterintuitive that the arrow is pointing upward, isn’t it? How could it be that things are trending towards “allowed?” They’re not. Rather, the “interpretation zone” is moving upward — practices that used to be “clearly allowed” aren’t inherently changing what they are, but those practices are moving from “in the clear” towards the gray area.


This was definitely one of those situations where, when I initially had a rough picture in my mind that would represent these two dimensions, it was simple and clear. It was only as I put pen to paper to sketch it out that it turned out to be tricky. Shortly after I finished writing this post (but, obviously, before I published it…as I’m adding this comment at the end), Jason Thompson made a really good case as to what is (misguidedly) driving the legal dimension out of alignment with the ethical perspective. That reminded me that I keep meaning to go back and re-read the last chapter (chapter 9?) of Jim Sterne’s Social Media Metrics book, as I recall that it was an intriguing non-sequitur that considered turning the entire “tracking” model on its head. Food for thought for another post, that.

What do you think? Is this an effective representation of the shifting privacy landscape we’re dealing with? What does it miss?

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