Save the robots: cyber profiling and your so-called life.

• Author: Ford, Richard T.

I'm new to the "cyberspace" genre of legal scholarship although not to the issues it raises (I live in the San Francisco Bay Area and work in Silicon Valley, so the phenomenology of the virtual is an ever present part of the popular culture). Much of my work has focused on the legal construction of physical territories, so one could say that I'm approaching some of the concerns raised in this volume from an oblique direction: Much of my work suggests that "real" space itself may be more "virtual" than most people assume.

The emergent genre of "law and cyberspace" is exciting, largely because most of us believe that computer technologies raise new and unprecedented issues and problems that will stretch, if not exceed, our abilities as lawyers, policy makers, and social critics. Even the moniker most commonly adopted for this vast and diverse collection of technological, social, economic and political issues--"cyber-space"--suggests a vast, virgin territory in which discovery is still possible, conquest necessary, danger imminent and law undeveloped and often impotent.

Despite the hyperbole--too many commentators seem to think that describing a matrix of data crunching devices as a new space somehow actually creates a new space in which the jurisdiction of traditional territorial sovereigns is not just problematized but rendered illegitimate or unworkable--it seems to me that there is a lot of truth to the idea that the digital revolution is just that: a revolution in which the whole is a lot more than the sum of its parts.

If so, the issues of privacy raised by cyberspace will be different--not just more intense, but mutated and recombined--than those with which we are used to dealing. What's worrisome (and thrilling) about computerized collection and distribution of consumer data is that it could lead to consequences that no one--not even the companies collecting and/or using the data--could anticipate. It's old hat now that companies as diverse as dot-com startups to credit card and banking giants include data collection as a significant revenue source in their business plans, despite having no clear idea why the data might be relevant or valuable. Like pharmaceutical companies who patent new genetic sequences first and only later figure out what diseases they might cure, data collection is a new frontier of economic opportunity in which the value of proprietary control over information is way ahead of concrete plans for it, in which, to use terms familiar to the old left, exchange value eclipses use value.

This isn't all bad. Scientists have stumbled onto all sorts of technologies that improved day-to-day life while trying to build spacecraft or perfect the art of warcraft: microwaves, global positioning systems, satellites, Tang instant breakfast drink. On the other hand, the U.S. military is rumored to have developed LSD and ecstasy while trying for truth serum--whether or not one thinks these psychopharmaceuticals improve day-to-day life, there's certainly a civilian market for them.

A lot of the controversy about consumer data collection is oddly reminiscent of the drug wars, but the ideological combatants have switched sides. Here the left and liberals want to protect consumers from themselves and from avaricious or just plain evil data collectors by prohibiting or at least controlling the collection and dissemination of data while conservatives resist such prophylactic measures in the name of the free intercourse of data and dollars.

The classical liberal fear about information collection asks, "What happens if the information falls into the wrong hands?" The idea seems to be, if a vast conspiracy or the Nazis or Pat Buchanan take over, they'll access these data bases and know who to round up. This isn't totally implausible given how easily information is bought and sold--its plausibility depends on how likely one thinks evil conspiracies or Nazi takeovers are. Hillary Clinton's concerns during the Paula Jones case notwithstanding, I don't think vast conspiracies are all that common. And if Pat Buchanan does take over, we'll have bigger problems than cyber privacy to worry about. I don't think the "information falls into the hands of pure evil" scenario is the most likely outcome--in fact it seems somewhat remote, closer to the X Files than to the files in Amazon.com's mainframe. I have a different concern. We may need to worry even if the information doesn't fall into the hands of evil doers, even if it is used only for seemingly benign purposes.

THE TRUTH IS OUT THERE

The concerns I'm about to raise take the form of ambiguities and ambivalences--almost everything I'm about to describe could be interpreted as a positive advance.

When corporations collect consumer data, they can put it to a number of uses. One of the most intriguing is the creation of "user profiles" which predict the consumer's buying patterns based on her previous purchases. Anyone who has visited Amazon.com or CDNow.com has seen this technology in action on a relatively small scale: When I show interest in a product, it tells me what "other people who liked this product also liked." One can have hours of fun (okay, fifteen or so minutes) clicking on various selections and seeing what the computer predicts you will like. It could be (I daresay...