What Stays in Vegas (37 page)

Highly degreed experts and ordinary Joes will continue to argue about what uses of data constitute great marketing and what creep into an intrusive zone. Opinions are going to differ. Former Las Vegas Mayor Oscar Goodman is outspoken on the topic. “This kind of ‘Big Brotherism' I don't think has any place in America, in the free world,” he says. “They find out what you like, what you dislike, then they appeal to you either personally or as a matter of advertising. That's the nature of that beast. I don't like it. I don't want people to know my business.”

Everyone should reflect on the issue of personal data and decide for himself where the line should be. My prescribed solution—openness on the part of the data hunters and choice to the data hunted—accommodates a wide span of opinions, from those convinced that privacy is dead so get over it to those who want more control over what the commercial world knows about them.

The Price of Free

Consumers should expect that companies offering free services want to make money from personal data. Internet firms could do a better job of explaining what they are doing and how advertising underwrites the free stuff. The perception of underhandedness can badly damage a company or an entire industry. Facebook and Google continue to arouse suspicions by changing the rules on users from time to time.

Think before accepting free, and consider the consequences. For example,
Scholarships.com
tells high school students, “We can help you find money for school, even as colleges discover and recruit you. FREE!” The site includes a detailed series of pages where students add personal information, including sensitive categories like ethnicity, religion, and disabilities such as those related to cancer, obesity, or genetic
predisposition to Alzheimer's. Another page includes the information box for “Lesbian/Gay/Bisexual/Transgender (LGBT) or Parent LGBT.” “Any and all of your responses during your search could impact your search results, so don't skip anything!” the site tells visitors.

Former Las Vegas Mayor Oscar Goodman (right). Source: Author photo
.

Because the service is free,
Scholarships.com
makes money selling personal data via list broker American Student Marketing, which is located at the same address. About fifty thousand people visit the site every day, and 80 percent share information about themselves. “It's opt-in on the front page—nobody else has opt-in on the front page,” says Larry Gerber, president of
Scholarships.com
, who calls his site a valuable service that matches students with the right funding sources.

However, some say high school students volunteering the information don't really understand that they have exposed themselves in the open marketplace. “Certainly this type of marketing poses real privacy risks to individuals, particularly young people that might be reliant on their family but not out to them,” says Michael Cole-Schwartz, a spokesman for the gay rights group Human Rights Campaign.

Many firms offer free services or contests in exchange for data, often vaguely explaining their practices in lengthy fine print.
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Online quizzes and surveys that offer insights on your health or wealth or other issues typically collect personal data. Publishers Clearing House encourages people to share details to enter lucrative sweepstakes or receive incentives such as gift cards. Some of its pharmacy offers ask about high blood pressure, smoking, sleep disorders, or diabetes. “I personally don't think there is anything taboo if you explicitly explain why you are collecting the data,” says Mike Zane, senior director of online marketing.

A drawing to win more than $1,000 in PlayStation gaming goods asked for name, phone, date of birth, and email to enter. With this information Sony can easily use other commercially available data to learn more about you, as well as to sell your data if it chooses to do so. If you don't want such information on the marketplace, don't enter the contest.

“Consumer awareness is far and away the most important ingredient in consumer privacy. The more people know how things work, the more they'll be positioned to take the steps they want to protect their privacy,” says Jim Harper, a founding member of the Department of Homeland Security's Data Privacy and Integrity Advisory Committee, now at the Cato Institute. Among the steps Harper takes is entering some false information when filling out Internet forms, thus potentially confusing aggregators. An example of such a practice happens when people give wrong ZIP codes to prevent stores from figuring out who they are. Harper also maintains several accounts at different social networks, and uses multiple logins and accounts on different platforms such as his Android phone, Twitter, and other services.

In the end, if you want the service for free, you may have to pay some price in personal data—or buy access. “I think we need to move away from advertising-supported business models because these models are inimical to privacy. There is a steady drumbeat for more and more personal information, for more finely grained targeting, with no end in sight,” says Chris Hoofnagle, director of the Berkeley Center for Law and Technology's information privacy programs. “I'd like to move
back to a subscription world—which is not a privacy utopia—to better align interests between consumers and firms, and to put consumers in a better posture with regard to consumer protection laws, some of which do not apply when the service offered is ‘free.'”

Imagine, then, dishing out a monthly fee for your social network, another for your email account, perhaps a third for your data vault. That's the alternative vision. You may not like this concept and prefer free. Just know the price is personal data.

The Role of the Government

Many have seen a 2012 photo of Britain's Prince Harry, then third in line to the throne, naked in his hotel suite after playing strip billiards with some women he had met at a Las Vegas bar. R&R Partners, the advertising agency that came up with the slogan “What Happens Here, Stays Here,” responded by running ads promoting discretion when it comes to personal information.

Under the slogan “Know the Code,” the campaign warned against oversharing. “I promise to follow the code of Las Vegas by not tweeting, tagging, posting, telling, whispering, emoting, defining, drawing up, writing about or in any way revealing the all-powerful What Happens Here, Stays Here moment of me or anyone else in my party to others not on said trip,” part of the promotional pledge says.

Matthew Mason, vice president of digital strategy and development at R&R Partners, said the campaign sought to shame the people who had broken the code. “When the Prince Harry thing happened we very explicitly felt that went over the line,” he said. “We've got a set of rules we'd like to establish as a city and we'd like to enforce those rules and, of course, we do that in a tongue-and-cheek way. It's very much about pushing back against this pervasive sharing thing that seems to be okay everywhere else. We'd like it to maybe be not so okay when you come to Vegas.”

Of course, the code is itself a clever marketing gambit to highlight all the fun Las Vegas can offer. Yet the same type of self-regulation and self-monitoring is mostly what guides data brokers and marketers
today. Such a code is not always enough. Even some industry insiders say the government should do more to regulate what is and is not okay in the private-sector collection and proliferation of personal data.

“‘No regulation, no transparency' risks having an environment where the most aggressive companies win,” says Matthew Monahan of
PeopleSmart.com
. Even Acxiom, the master data collector itself, wants more rules. “You might be surprised, but we are in favor of regulation of the industry,” says Acxiom CEO Scott Howe. “There is enough bad stuff going on that having tighter legislation around data collection, visibility, and choice would be good.”

US law allows firms to share and sell most data, with some exceptions for financial, medical, and employment-related data.
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The United States also limits the gathering of data and marketing to children. The US Congress and the Federal Trade Commission have stepped up their examination of data brokers, raising the possibility of future restrictions. Medical data remains a problematic area. Health providers face limitations on how they can share under the Health Insurance Portability and Accountability Act (HIPAA) of 1996. Yet commercial marketers collect and freely traffic in medical data, drawing details from shopping histories, web browsing, survey results, and other information.

Some say data brokers should draw the line at health and not seek out details of people's ailments. “Let's say cancer, for example. Is there some value to people understanding and having access to relevant research and new drugs when they are out searching for that stuff? Yeah,” says M. K. Marsden, a senior vice president at data broker Epsilon. “But I think that's where it's got to be like, you as a pharmaceutical company or you as the cancer center have to be there when they touch you. You don't push at them. . . . When we've declared and we are explicit and we've asked for relevant messages of things like that, then it is appropriate to push. I think it's a delicate dance that we are learning the lines of every single day.”

Government regulation could simplify that dance by setting out some of those lines more clearly. That could include some limitations on bulk access to public records, the core building block of data brokers' records. In Las Vegas, Clark County Clerk Diana Alba feels that
instant access to public records has gone too far. She has worked for decades with public documents, as has her colleague Cheryl Vernon. “I don't know how you stop it. Before they opened up this whole Internet they should have given some thought to this,” Vernon says.

The rich and famous avoid some of this exposure by creating their own companies so that their names do not appear in public records. Law enforcement officers, judges, and others petition courts to seal their records. But such filings are complicated and expensive. Many celebrities do not go through the trouble. When I visited the Clark County Recorder's office, former baseball pitcher Orel Hershiser, a Cy Young Award winner, had just registered a home purchase, an official told me. And officials say that even singer Michael Jackson's past purchase of a Las Vegas home was in their system for anyone to look at.

One approach might allow individuals to continue to look up public records but set limits on outside firms buying in bulk and reselling. That's how Las Vegas handles its police mug shots. Some local governments have also acted to limit what types of data they make available. For several years at the beginning of the 2000s, Clark County wedding licenses shown to anyone who asked included Social Security numbers. During this time someone obtained a copy of the marriage license for tennis superstars Andre Agassi and Steffi Graf, complete with Social Security numbers, and posted it on the Internet.
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Since 2003 the clerk's office has redacted everyone's Social Security numbers in response to growing public concern about identity theft.

“The data has always been public, but it was in government storage that was much less accessible than a website. The problem today is that these data brokers are taking advantage of out-of-date public records laws,” says Sarah Downey, a lawyer who worked for several years at Boston privacy company
Abine.com
.
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“These laws were built around paper documents in regulated storage: you used to have to go to a town clerk's office to see them. It took time and effort that most people wouldn't bother with. The Internet has fundamentally changed what it means for something to be ‘public,' and unless public record laws adapt, we're all in for a lot more privacy invasions.”

Downey oversaw Abine's pay service, which helps users opt out from data brokers. Abine would make less money if people could easily erase their dossiers, but she advocates a one-stop removal option. “Whether it is established by Congress, the FTC, consumer rights organizations, or another group or entity, consumers need a simple method through which they can block their information from being sold by data brokers, something similar to the National Do Not Call Registry for telemarketing,” she said. In some situations, such as those involving firms that use personal data to shame people, new laws and the courts may be the best remedy.

As the person being profiled, right now you can ask each data broker to remove you, but the process for multiple removals is cumbersome and there is no inherent right to stay off the data broker rolls. In 2010 an Indiana court dismissed a lawsuit from a woman who alleged a privacy invasion because Intelius kept a record on her.
¹¹
Some countries have taken a different approach and enacted broad privacy-protection laws, including those in the European Union, as well as Taiwan, Vietnam, New Zealand, Malaysia, and South Korea.