Privacy versus antidiscrimination

University of Chicago Law Review

Volumn 75, Issue 1, 2008, Pages 363-381

  Strahilevitz, Lior Jacob ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

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EID: 42349109601     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (90)

1. See Linda Greenhouse, Justices Reject Challenges to Megan's Laws, NY Times A29 (Mar 6, 2003) (providing general background to Megan's Laws, now promulgated in all fifty states, "which impose registration restrictions on tens of thousands of [sex offenders]").
2. See, for example, Alan Finder, When a Risqué Online Persona Undermines a Chance for a Job, NY Times sec 1 at 1 (June 11,2006) ("Many companies that recruit on college campuses have been using search engines like Google and Yahoo to conduct background checks on seniors looking for their first job.").
3. For some examples of work in this vein, see generally Daniel J. Solove, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale 2007);
4. Oscar H. Gandy, Jr., Quixotics Unite! Engaging the Pragmatists on Rational Discrimination, in David Lyon, ed, Theorizing Surveillance: The Panopticon and Beyond 318 (Willan 2006);
5. Daniel J. Solove, The Digital Person: Technology and Privacy in the Information Age (NYU 2004);
6. Stan Karas, Privacy, Identity, Databases, 52 Am U L Rev 393 (2002);
7. A. Michael Froomkin, The Death of Privacy?, 52 Stan L Rev 1461 (2000);
8. Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 Stan L Rev 1373 (2000).
9. For a more optimistic take, see David Brin, The Transparent Society: Will Technology Force Us to Choose between Privacy and Freedom? 13 (Addison-Wesley 1998).
10. I develop a more comprehensive theory of the relationship between information privacy and competing policy interests in Lior Jacob Strahilevitz, Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 Nw U L Rev (forthcoming 2008). That article also elaborates on some of the arguments that I introduce in this symposium contribution.
11. Jodi Kantor, Nanny Hunt Can Be a "Slap in the Face for Blacks, " NY Times Al (Dec 26, 2006).
12. Id.
13. See Ian Ayres, Fredrick E. Vars, and Nasser Zakariya, To Insure Prejudice: Racial Disparities in Taxicab Tipping, 114 Yale L J 1613,1648-53 (2005).
14. Michael Lynn, Ethnic Differences in Tipping: A Matter of Familiarity with Tipping Norms, 45 Cornell Hotel & Restaurant Admin Q 12, 12 (2004).
15. On statistical discrimination, see David A. Strauss, The Law and Economics of Racial Discrimination in Employment: The Case for Numerical Standards, 79 Georgetown L J 1619, 1622-24,1626-30,1639-43 (1991);
16. Stewart Schwab, Is Statistical Discrimination Efficient?, 76 Am Econ Rev 228,229 (1986).
17. See also Christine Jos and Cass R. Sunstein, The Law of Implicit Bias, 94 Cal L Rev 969,974-75 (2006) (describing implicit bias as a problematic decisionmaking heuristic).
18. For a discussion of the decline of overt discrimination and the rise of statistical discrimination and implicit bias, see generally Rachel F. Moran, Whatever Happened to Racism?, 79 St John's L Rev 899 (2005).
19. Harry J. Hölzer, Steven Raphael, and Michael A. Stoll, Will Employers Hire Former Offenders?: Employer Preferences, Background Checks, and Their Determinants, in Mary Pattillo, David Weiman, and Bruce Western, eds, Imprisoning America: The Social Effects of Mass Incarceration 205,210-11 (Russell Sage 2004): Approximately 92 percent of employers indicated that they would definitely or probably hire former or current welfare recipients, 96 percent indicated that they would probably or definitely hire workers with a GED in lieu of a high school diploma, 59 percent indicated that they would hire workers with a spotty employment history, and 83 percent indicatedthat they would probably or definitely consider an application from an individual who has been unemployed for a year or more. In contrast, only 38 percent of employers said that they definitely or probably would accept an application from an [sic] former offender.
20. For an illuminating discussion of the legal and moral issues implicated by this sort, and other sorts, of profiling, see Frederick Schauer, Profiles, Probabilities and Stereotypes 16-17,155-223 (Belknap 2003).
21. Shawn D. Bushway, Labor Market Effects of Permitting Employer Access to Criminal History Records, 20 J Contemp Crim Just 276, 277 (2004).
22. See Kathleen Daly and Michael Tonry, Gender, Race, and Sentencing, 22 Crime & Just 201, 201-03 (1997).
23. See Strauss, 79 Georgetown L J at 1626-29 (cited in note 9).
24. See Arizona Governing Committee for Tax Deferred Annuity & Deferred Compensation Plans v Norris, 463 US 1073,1085 n 15 (1983) ("Title VII clearly would not permit use of race ... as a proxy for such an employment qualification, regardless of whether a statistical correlation could be established.").
25. Francis Carleton and Jennifer Nutt Carleton, An Ethic of Care Applied: A Critical Analysis of Affirmative Action Jurisprudence, 8 Temple Polit & Civ Rts L Rev 87, 109-10 (1998);
26. Michael Selmi, Public vs. Private Enforcement of Civil Rights: The Case of Housing and Employment, 45 UCLA L Rev 1401,1429-30 (1998).
27. See, for example, Ledbetter v Goodyear Tire & Rubber Co, Inc, 127 S Ct 2162, 2165 (2007), (construing the time Umit for filing employment discrimination claims with the EEOC narrowly);
28. Brown v City of Oneonta, 221 F3d 329, 338-39 (2d Cir 2000) (holding that despite potential disparate impact, the law enforcement's stopping of suspects on the basis of gender and race did not violate equal protection absent evidence of discriminatory racial animus).
29. See also Matt Graves, Note, Purchasing While Black: How Courts Condone Discrimination in the Marketplace, 7 Mich J Race & L 159, 185 (2001) (discussing how many judges have viewed certain antidiscrimination suits "with a presumption of frivolousness"),
30. citing Judith Olans Brown, Stephen N. Subrin, and Phyllis Tropper Baumann, Some Thoughts about Perception and Employment Discrimination Law: A Modest Proposal for Reopening the Judicial Dialogue, 46 Emory L J 1487, 1489-90 (1997).
31. Harry J. Holzer, Steven Raphael, and Michael A. Stoll, Perceived Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers, 49 J L & Econ 451,452 (2006).
32. Id at 451.
33. Id. See also Devah Pager, The Mark of a Criminal Record, 108 Am J Soc 937,938 (2003) (noting that approximately 8 percent of the working-age population of the United States are exfelons).
34. Holzer, Raphael, and Stoll, 49 J L & Econ at 464 (cited in note 19).
35. Id.
36. Id at 464-65.
37. Id at 465-66,470-71.
38. Id at 473.
39. Id at 472.
40. Id at 473. One of the authors of this study recently hedged this conclusion somewhat, noting that the desirability of promoting access to criminal records would depend on the amount of time for which a prior conviction would act as a reliable proxy for future conduct and the degree of nuance in employer reactions to prior convictions. See Steven Raphael, Should Criminal History Records Be Universally Available?, 5 Criminol & Pub Policy 515,516-17,519-20 (2006).
41. Holzer, Raphael, and Stoll, 49 J L & Econ at 473 (cited in note 19) ("The results of this study suggest that curtailing access to criminal history records may actually harm more people than it helps and aggravate racial differences in labor market outcomes.").
42. Keith Finlay, Employer Access to Criminal History Data and the Employment of Young Black Men 22 (unpublished paper, Sept 2006), online at http://www.economics.uci.edu/docs/colloqpapers/f06/grad/Finlay.pdf (visited Jan 12, 2008) (finding that access to criminal history records was associated with a 2.34 percent decrease in the relative employment of young black men).
43. Finlay and Bushway both used employment data from the Current Population Survey, though the years they selected differed, and a ranking of internet accessibility of criminal history records prepared by the Legal Action Center in 2004. Finlay used the Legal Action Center's rankings as a starting point and supplemented them with his own estimates of when the publication of criminal history information began. Although the Legal Action Center's ratings attempted to report the relative degree of accessibility, Finlay appears to have transformed accessibility into a binary choice. See id at 30 nn a-b. Bushway, by contrast, did not modify the Legal Action Center's rankings. See Bushway, 20 J Contemp Crim Just at 286 (cited in note 13).
44. Bushway, 20 J Contemp Crim Just at 280 (cited in note 13).
45. Id at 287.
46. In addition to the differences mentioned in note 31, Bushway focused on African-American employment generally and Finlay focused on young African-American males.
47. Keith Finlay, Effect of Employer Access to Criminal History Data on the Labor Market Outcomes of Ex-offenders and Non-offenders 14 (unpublished manuscript, Apr 16,2007), online at http://client.norc.org/jole/SOLEweb/7348.pdf (visited Jan 12,2008).
48. Id at 16 (noting that the wages of black male non-offenders were about 9 percent lower in states with open records).
49. Id at 18.
50. Id at 19.
51. The Legal Action Center index of internet availability that both authors use is no longer available on the Center's website.
52. See Washington State Patrol, WATCH: Washington Access to Criminal History, https://watch.wsp.wa.gov (visited Jan 12, 2008).
53. See, for example, Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CaI L Rev 1,14-16 (2000) (discussing orchestral auditions, in which a screen separates the judges from the auditioning musician).
54. But see Rudy Kleysteuber, Tenant Screening Thirty Years Later: A Statutory Proposal to Protect Public Records, 116 Yale L J 1344,1350-52 (2007) (proposing that the government try to limit landlords' access to information regarding tenants' prior involvement in landlord-tenant litigation).
55. For an interesting discussion and critique of this initiative, see Anita L. Allen, Race, Face, and Rawls, 72 Fordham L Rev 1677, 1686-96 (2004).
56. Richard Epstein notes in passing the desirability of such efforts and complains that antidiscrimination law sometimes thwarts them. Richard A. Epstein, Forbidden Grounds: The Case against Employment Discrimination Laws 40 (Harvard 1992):
57. The strategy of the law should be to encourage employers to obtain as much individual information as possible about workers so that they can, pro tanto, place less reliance on broad statistical judgments. To the extent, therefore, that the present antidiscrimination law imposes enormous restrictions on the use of testing, interviews, and indeed any information that does not perfectly individuate workers, then by indirection it encourages the very sorts of discrimination that the law seeks to oppose.
58. But see Strauss, 79 Georgetown L J at 1641-42 (cited in note 9) ("[Statistical discrimination can be reduced if employers are provided with reliable information about employees. This should be a principal objective of any regulatory regime in this area. Ordinarily, one excellent way to learn about an employee's qualifications is to hire him or her.").
59. See, for example, Briscoe v Reader's Digest Association, Inc, 483 P2d 34, 43-44 (Cal 1971);
60. Melvin v Reid, 297 P 91,93-94 (Cal App 1931).
61. This was one result of the FTC's actions following the ChoicePoint data privacy breach. ChoicePoint got into hot water after identity thieves signed up as its customers and obtained a wealth of financial data concerning individuals. Pursuant to a consent decree, ChoicePoint agreed to begin checking the credentials of its customers, visiting their places of business, and auditing their practices. See Order, United States v ChoicePoint Inc, *5-17 (ND Ga 2006), available online at http://www.ftc.gov/os/caselist/choicepoint/ 0523069stip.pdf (visited Jan 12, 2008) (detailing the "reasonable procedures" under statute that ChoicePoint had failed to use to limit consumer reports to those authorized to receive them, and outlining an information security program that ChoicePoint would adhere to in the future). Subsequently, ChoicePoint stopped doing business with small companies and began doing business exclusively with large firms.
62. SeeAvivah Litan, Case Study: ChoicePoint Incident Leads to Improved Security, Others Must Follow 2 (Gartner RAS Core Research Note, Sept 19,2006).
63. See, for example, DOJ v Reporters Committee for Freedom of the Press, 489 US 749,780 (1989) (holding that criminal rap sheets are exempt from disclosure under the Freedom of Information Act because their dissemination would constitute an unwarranted invasion of personal privacy).
64. See, for example, Kenneth J. Melilli, Batson in Practice: What We Have Learned about Batson and Peremptory Challenges, 71 Notre Dame L Rev 447, 503 (1996).
65. The issue of implicit bias adds further complexity, as a decisionmaker may be acting on the basis of animus but not realize he is doing so. See Moran, 79 St John's L Rev at 907-10 (cited in note 10). For the purposes of this paper, conscious animus-based racism and implicit bias should be grouped together.
66. I use the word "often" here, rather than "invariably, " because of the possibility that increased reliance on reputational information will facilitate automated decisionmaking, which could in turn employ algorithms that draw decisionmakers away from the influences of animus. This argument is made in Tal Z. Zarsky, "Mine Your Own Business!": Making the Case for the Implications of the Data Mining of Personal Information in the Forum of Public Opinion, 5 Yale J L & Tech 1, 22-35 (2003).
67. See, for example, Council Directive 95/46/EC of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 38 Off J Eur Communities (L 281) 31 (Nov 23, 1995).
68. This is a recurring problem with the Department of Homeland Security's no-fly and restricted lists. See, for example, Rachel L. Swarns, Senator? Terrorist? A Watch List Stops Kennedy at Airport, NY Times Al (Aug 20,2004) (explaining that airline agents attempted to block Senator Edward M. Kennedy from boarding airplanes on five separate occasions over the course of seven days because his name resembled the alias of a suspected terrorist). See also Kleysteuber, 116 Yale L J at 1358-59 (cited in note 41) (discussing this problem in the context of tenant information databases).
69. The normative dimensions of another example, racial profiling in law enforcement, are provocatively discussed in Peter H. Schuck, Meditations of a Militant Moderate: Cool Views on Hot Topics 142-44 (Rowan & Littlefield 2006).
70. See Centers for Disease Control and Prevention (CDC), Cases of HIV Infection in the United States and Dependent Areas, 2005, Commentary (June 2007), online at http://www.cdc.gov/hiv/topics/surveillan/resourœs/ reports/2005report/commentary.htm (visited Jan 12,2008) (estimating that 44.4 percent of those within the United States who are living with HIV/AIDS were infected through male-to-male sexual contact).
71. See CDC, Fighting HIV among African Americans: A Heightened National Response 1 (Mar 2007), online at http://www.cdc.gov/hiv/topics/aa/resources/ factsheets/pdf/AA_response_ media_fact.pdf (visited Jan 12, 2008) (reporting that African Americans made up 51 percent ofHIV diagnoses between 2001 and 2005, with the rate of HIV diagnoses among black men nearly seven times higher than that of white men).
72. Pub L No 101-336,104 Stat 327 (1990), codified as amended at 42 USC §12101 et seq (2000).
73. See, for example, Multimedia WMAZ, Inc v Kubach, 443 SE2d 491,493 (Ga App 1994);
74. Hillman v Columbia County, 474 NW2d 913,922-23 (Wis App 1991).
75. See, for example, Gates v Discovery Communications, Inc, 101 P3d 552, 562 (Cal 2004);
76. Sadiq Reza, Privacy and the Criminal Arrestee or Suspect: In Search of a Right, In Need of a Rule, 64 Md L Rev 755,762-63 (2005).
77. But see Norris v King, 355 S2d 21,23-25 (La App 1978) (reaching a contrary result, but relying on a California precedent that Gates overruled). The Supreme Court held decades ago that it was not unconstitutional for the government to disseminate information about a shoplifter's prior arrests.
78. See Paul v Davis, 424 US 693, 713 (1976).
79. Holzer, Raphael, and Stoll, 49 J L & Econ at 473 (cited in note 19).
80. See also Holzer, Raphael, and Stoll, Will Employers Hire Former Offenders? at 227 (cited in note 11) ("[E]mployers may overestimate the average incidence of prior conviction among blacks, owing to prejudice or a general lack of experience with black employees.").
81. See, for example, Briscoe v Reader's Digest, 483 P2d 34, 41 (CaI 1971) ("In return for becoming a 'new man,' [the rehabilitated offender] is allowed to melt into the shadows of obscurity.");
82. Melvin v Reid, 297 P 91,93 (Cal App 1931) ("Where a person has by his own efforts rehabilitated himself, we ... should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime.");
83. Megan C. Kurlychek, Robert Brame, and Shawn D. Bushway, Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminol & Pub Policy 483, 498-99 (2006);
84. James B. Jacobs, Mass Incarceration and the Proliferation of Criminal Records, 3 U St Thomas L J 387,406-12 (2006).
85. See George K. Yin, et al, Improving the Delivery of Benefits to the Working Poor: Proposals to Reform the Earned Income Tax Credit Program, 11 Am J Tax Policy 225,291-92 (1994).
86. See 26 USC §51(d)(1)(C) (2000); 26 USC §51(d)(4) (2000) (defining a "qualified exfelon" for purposes of the Work Opportunity Credit).
87. The Delancey Street Foundation is a particularly successful example of this type of organization. See http://www.eisenhowerfoundation.org/grassroots/ SanFrancisco_CA.html (visited Jan 12, 2008) (describing the Delancey Street Foundation's as "the most acclaimed educational and rehabilitative institution for ex-offenders in the world").
88. Notably, this sort of analysis is absent from Steven Raphael's recent essay on the subject. See generally Raphael, 5 Criminol & Pub Policy 515 (cited in note 28).
89. See Jacobs, 3 U St Thomas L J at 399-400 (cited in note 59) (noting that Colorado allows anyone to do a criminal records search over the internet for a small fee and that Florida provides online access to a directory of current and past state prisoners).
90. Selective access to the NCIC database currently presents problems. See Shaun B. Spencer, Security vs. Privacy: Reframing the Debate, 79 Denver U L Rev 519, 520-21 (2002) (describing what he sees as the inadequate safeguards to prevent data breaches from insiders at the NCIC and other government repositories of information).