Successful Failure: What Foucault Can Teach Us About Privacy Self-Management in a World of Facebook and Big Data

Abstract

The “privacy paradox” refers to the discrepancy between the concern individuals express for their privacy and the apparently low value they actually assign to it when they readily trade personal information for low-value goods online. In this paper, I argue that the privacy paradox masks a more important paradox: the self-management model of privacy embedded in notice-and-consent pages on websites and other, analogous practices can be readily shown to underprotect privacy, even in the economic terms favored by its advocates. The real question, then, is why privacy self-management occupies such a prominent position in privacy law and regulation. Borrowing from Foucault’s late writings, I argue that this failure to protect privacy is also a success in ethical subject formation, as it actively pushes privacy norms and practices in a neoliberal direction. In other words, privacy self-management isn’t about protecting people’s privacy; it’s about inculcating the idea that privacy is an individual, commodified good that can be traded for other market goods. Along the way, the self-management regime forces privacy into the market, obstructs the functioning of other, more social, understandings of privacy, and occludes the various ways that individuals attempt to resist adopting the market-based view of themselves and their privacy. Throughout, I use the analytics practices of Facebook and social networking sites as a sustained case study of the point.