Certification scams

The SMH reports that Mark Anthony Buhagiar has pleaded guilty (in Sutherland Local Court) to fraud and using false documents to obtain a financial advantage. (Buhagiar was also charged with common assault after he spat at a Fairfax photographer taking photographs during a break in the hearings.)

Buhagiar charged thousands of dollars to run fake assessments for migrant tradespeople and then supplied forged documents stating the recipients were qualified to carry out electrical tradework.

Buhagiar was sentenced to 18 months' imprisonment with a minimum non-parole period of 13½ months.

His scam was uncovered through discrepancies in signatures on trade certificates.

The SMH notes that

 It was then discovered that Buhagiar had set up an office and a company, and presented himself as a qualified assessor from VETASSESS - an accredited registered training organisation that covers more than 160 trade qualifications in Australia and administers the recognised prior learning scheme for migrants seeking to have their overseas trade qualifications and experience recognised. 

He had been conducting sham assessments targeting male migrants from non-English-speaking backgrounds and charging up to $6000 for the forged certificates. 

Fair Trading officers said he had been engaged in a calculated, premeditated breach of trust. It was argued that the offences were aggravated by his disregard for public safety and the tradespeople could have been responsible for substandard electrical work exposing the public and themselves to real and potential danger. 

Dozens of people were caught by the racket, which netted Buhagiar almost $80,000.

The Australian reports that

"The Independent Commission Against Corruption (ICAC) and the Department of Education and Communities were notified [after initial detection], with the ICAC returning the matter to Fair Trading for further investigation," Fair Trading Commissioner Rod Stowe said in a statement.

Twenty-two applicants were found to have been using fraudulent documents, Mr Stowe said.

He said Fair Trading had since improved its licensing IT system.

In 2009 Buhagiar was in trouble, with one newspaper reporting -

Fair Trading Minister Virginia Judge has warned people not to do business with Mark Buhagiar and his airconditioning company, Five Star Air Pty Ltd.

Ms Judge said the Windsor-based trader had never been issued with a licence by the Office of Fair Trading to contract or undertake airconditioning or gas fitting work.

Mr Buhagiar and Five Star Air were recently fined $93,119 in Parramatta Court for offences under the Home Building Act 1989, including contracting for and carrying out this specialist work and taking excessive deposits, she said.

Fair Trading has previously prosecuted and fined Mr Buhagiar for home building offences.

“There is a serious concern that he and Five Star Air Pty Ltd may continue to act outside the law and fail to provide consumers with the goods or services for which they have paid,” the minister said.

Fair Trading's February 2010 Think Smart newsletter stated that

Acting Minister for Fair Trading, Graham West unveiled a ‘rogues gallery’ of ten unscrupulous traders brought to justice by NSW Fair Trading in 2009.

Mr West said the Government was proud of the results achieved over the last year, and issued a warning that inspections, investigations and prosecutions would continue unabated in 2010.

“Let this ‘rogues gallery’ serve as a warning to anyone who thinks they can treat NSW consumers with contempt,” Mr West said.

Among the individuals and companies successfully prosecuted by NSW Fair Trading in 2009 were:

• Armond Shoostovian – finance broker – convicted under the Consumer Credit Administration Act on 28 July 2009. He was fined $183,600 and sentenced to a 2-year good behaviour bond. 

• Mark Anthony Buhagiar – unlicensed and unqualified gas, refrigeration and air-conditioning fitter – convicted under the Home Building Act on 19 August 2009, fined $18,500. In addition, on 13 November 2009 he was convicted under s.307A for making a false or misleading application and fined $2,000 and placed on a good behaviour bond for 12 months. ...

Questions about vetting by Fair Trading NSW?

Cannadine

From Mark Mazower's FT review of David Cannadine's Undivided Past: History Beyond Our Differences (Allen Lane, 2013) -

 I cannot think of another scholar who has so sweepingly dismissed the whole idea of history as identity politics. 

Let us give him the benefit of the doubt. After all, there is no use denying that however much on the side of the angels historians may be now, in the past they have done their fair share of rabble-rousing. The real issues raised by this book lie at a rather deeper level. Appalled by the Manichean rhetoric that emanated from the Bush administration after 9/11, Cannadine wants us to abandon Us and Them, and to eschew such polarised modes of thought, what he calls “the impulse ... to sunder all the peoples of the world into belligerent collectivities” that has been around as long as mankind itself. 

Yet this Age of Terror emphasis on binaries, on polarisation – between faiths, civilisations or nations – is more than a little misleading. For theorists of nation or class, for instance, those categories were often neither exclusive nor, indeed, terminal. Marxists believed that class struggle was necessary only so long as humanity’s basic goals remained unrealised. Heck, even Proudhon felt that way. The greatest 19th-century theorist of nationalism, the Italian Giuseppe Mazzini, told his many followers that to be a nationalist was to be an internationalist. This was precisely the reasoning that inspired the creators of great global institutions such as the League of Nations to give them the form of clubs of member nation-states and that allowed President Woodrow Wilson, one of Mazzini’s most ardent admirers, to be both a proud American patriot and a confirmed internationalist. 

Overcoming our differences sounds great. It is about as hard to denounce as Christmas. But might there not be losers as well as winners in this game? Try telling the unemployed they should focus on what they have in common with billionaires and reflect on who has gained or lost out from the collapse of the language of class. Categories that Cannadine finds wanting have underpinned many of the decisive struggles in our time. In one case, he accepts this – noting that in the second wave of feminism, women’s groups achieved lasting civil rights gains. Nothing so positive emerges from his chapters on race, nation or class. Yet it is often the relatively powerless who have chosen to name things the powerful would have rather ignored, and who in naming them have helped improve their lot. 

Class may have turned out to be a fairly useless category for some generations of historians. But it was a pretty indispensable part of the toolkit of organised labour and not irrelevant to the struggle to raise workers’ living standards. Race may have been invoked to justify slavery; but it was later asserted to win rights for slaves’ descendants as well. Nationalism was emancipatory before it turned into its own form of tyranny. And, for many centuries, solidarity itself was regarded as a virtue; in 1981, when martial law was declared in Poland, every good western liberal was in support of it. Now, The Undivided Past suggests, the only solidarity that is acceptable is solidarity with humankind: nothing less will do because anything more partial risks dividing us, and division means fisticuffs or worse. Yet is there not something ultimately quietist about writing off many of the conceptual vehicles that have previously allowed people to mobilise? Not all conflict, after all, is bad and justice sometimes may even require it. 

Behind Cannadine’s story of identities that need to be shrugged off is the interesting intellectual question of when we all got so hung up on this business of identity and started seeing it as something limiting rather than liberating. Nazism and fascism took the shine off nationalism for many European liberals. “Identity” began to be used in the contemporary sense sometime in the 1950s but it acquired a harder and more negative edge during the culture wars on British and American campuses. In an earlier book, Ornamentalism (2001), Cannadine criticised Edward Saïd’s influential account of Orientalism by claiming that in the British empire divisions of class trumped race. In The Undivided Past he seeks to do away with such categories completely, trumping them by an appeal to our common humanity. 

Yet terms such as “the human condition” are no less problematic than the six [religion, nation, class, gender, race and civilisation] he highlights and simply shift the identity problem to a new level. The cause of humanity has often lent itself to ideological misuse but these days, in particular, we face a bewildering proliferation of “the human” in global affairs – from human rights and humanitarianism to human security and human development. One therefore looks for Cannadine to provide more information than he does on the new kind of history that he has in mind to improve our lot.

Gummibiometrics

A nice incident of old-fashioned fraud involving the 'gummi bear exploit' in biometrics, reported in today's SMH

Five doctors at a Brazilian hospital have been suspended for allegedly covering for absentee colleagues by using fake silicone fingers to fool biometric machines. 

Thaune Nunes Ferreira was arrested on Sunday for signing in six co-workers to the biometric employee attendance device at a hospital in Ferraz de Vasconcelos, Sao Paulo. 

There might be as many as 300 hospital employees who do not exist, except for fake fingers with their prints, but who get paid anyway. 

Ferreira had six silicone fingers on her person when she was arrested, three of which have already been matched to the fingerprints of fellow employees, police say. Globo television showed footage of a doctor touching her finger to the device, then using two fake digits to do the same for colleagues, and taking delivery of slips of paper indicating they had in fact clocked in to work. 

That way it looked like there were multiple doctors on duty when there was in fact just one.

Names

'Pseudonyms and the Rise of the Real-Name Web' by Bernie Hogan in Hartley, Burgess & Bruns (eds) A Companion to New Media Dynamics (Blackwell, forthcoming) 290–308 comments that

Despite their ubiquity, pseudonyms are an under-theorized element of online participation, as is the use of real names (or names commonly used to personally identify someone). This absence has become especially acute in recent years as sites listing an individual’s real name have become common. This shift towards real names is not merely a technical convenience, but a specific political turn. As pseudonyms are often associated with Internet trolling and cyberbullying, it is useful to track the use of pseudonyms in history and to consider many of their positive functions. Ironically, pseudonyms help to solve a problem that Facebook creates – the single heterogeneous audience, i.e., the collapsed context.

I describe three classes of pseudonyms: functional, where pseudonyms denote a specific social or technical function, such as eight character names or official titles; situational, where an external motivating force compels people to hide their real name identities (and of attributes) and personal, where an internal drive to adopt a different persona makes pseudonyms useful. I then describe how these uses operated in a pre-web 2.0 era, and how their use persists.

In discussing the 'nymwars' he argues that

These issues came to a head in the summer of 2011 with the rise of the "nymwars". This term emerged to capture the dissatisfaction with Google+’s assertion that people who joined the service had to use their real name. This decision was widely derided as problematic by a host of scholars and policymakers. As mentioned above, in one such example boyd (2011) called this policy an abuse of power. The counter arguments, however, were just as strong, and based on two general claims (see comments on boyd’s post for examples of this discussion). The first theme is ‘‘don’t like it, don’t use it; its Google’s house, not yours.’’ The second is ‘‘nothing to hide, nothing to fear.’’ The third is ‘‘it doesn’t matter since it is all going public anyway.’’

The first claim carries the most weight insofar as, indeed, Google is the architect of this system, and can make good claims to determining how it is run. However, Google’s policy is nevertheless a presumptuous one. That is, it presumes its particular model for the distribution of content is sufficient for selective sharing, when there are good reasons to think otherwise. Google+ offers individuals the ability to place friends in lists (or ‘‘circles’’). One can share content with these friends or any combination of lists. However, once the friends view this content, there is nothing except a polite pop-up preventing them from redistributing that content to whomever they choose.

The most concerning aspect about this claim is that Google’s policy has the potential to become national or state policy as well. Eric Schmidt, former Google CEO, reinforced this with comments at the same Marie Claire panel where Randi Zuckerberg was quoted above. He believes that at some point all governments will demand real names.

The second claim is more easily discredited. In particular, Solove has made a strong case that ‘‘nothing to hide, nothing to fear’’ is a red herring. Even without the assertion of privacy as a fundamental right, Solove (2007) was able to demonstrate a convincing case for why individuals should have an interest in the sort of informational self-determination that is central to an interest in privacy. In particular, people self-incriminate in many unanticipated ways and lose control when they lose privacy. This claim dovetails Nissenbaum’s (2004) notion of ‘‘privacy as contextual integrity.’’

This article on privacy reframed the debate and crystallized the sentiments of many in both policy and academic circles. For example, if we are so close to our parents or spouses, why do we tell things to our doctor that we do not tell them? Nissenbaum argues that privacy is intimately bound up with the notion of contextual integrity. She explores not what privacy is from a positive point of view but what constitutes a breach of privacy. To breach privacy is to move information from one context where such information is understood or expected to reside and into another context where that information was neither intended nor appropriate given the existing social norms. For the hedonistic tourist, Las Vegas is a vacation, not just from another place but another context of norms. Consequently, the Las Vegas tourist board did well with the slogan ‘‘What happens in Vegas stays in Vegas.’’

This is privacy understood as informational self-determination. One has privacy when one can assume that information created by a person will be managed in the way that the person deems appropriate. A doctor who calls a patient’s boss to tell them of a recent diagnosis is breaching privacy. It is unprofessional, but might happen if the doctor and the boss are friends. A website that reveals the IP address and email of someone who posts anonymously is breaching privacy. By linking all information to one’s real name, one effectively transfers informational self-determination into information curation, and allows Google or Facebook to be the curator.

The third claim, typified by Marc Smith’s notion of ‘‘the myth of selective sharing’’ (Smith 2011), draws upon Brand’s earlier claim that ‘‘information wants to be free’’ (1987: 202). That is, it does not matter whether one uses a filter or not; information will end up unified and searchable in the end. This claim is a moderated version of the second claim as Smith is not saying people have nothing to fear but only that, if information is encoded in some form, it is both possible and plausible that it will first escape from the confines of the desired context and second make its way back to the producer. This makes the case a fortiori that labeling all information with one’s real name will undermine informational self-determination. It remains to be seen whether a user interface will emerge that can allow selective sharing with audiences in a useable form, and in its absence we are again left with curation.

He concludes

I conclude by returning to the claim made at the beginning of the chapter: the real-name web is not a technology; it is a social practice. But, in light of this discussion, it is clear that there are both technical trajectories and historical antecedents that foster a trend toward real-name spaces as well as a persistent need for pseudonyms. In particular, the early days of the web were characterized by the paucity of social cues, the sparsity of one’s social network, and the strangeness of people who might be quite different from what they say they are. Pseudonyms made sense both technically and contextually. The modern web, by contrast, is a rich multimedia experience where large corporations curate content on our behalf via cloud services. These corporations continually seek ways to assert their legitimacy, through technical interfaces (e.g., Google’s social circles model) and politics (e.g., real-name policies). In essence, they are suggesting that they have figured out a solution to context collapse (their particular interface). To push people toward these solutions, it is conventional to publicly discourage the use pseudonyms, despite their efficacy.

The increasing use of real names does not, however, attenuate the motivations for pseudonyms. It only mitigates against the personal motivations of cranky and vulgar users and serves to make people and their content more findable. There still exist functional reasons for pseudonyms (such as a unique name or email address), situational motivations in response to context collapse, and personal motivations of identity play beyond trolling and flaming. Through pseudonyms people can express their competitive urges in gaming environments, their health concerns on specialist sites, their sexual urges on pornographic sites, and their political appetites on blogs without these getting in the way of each other or personal and professional obligations.

In light of this, there is much work to be done both academically and politically. Academic work ought to provide greater nuance to identity practices online – when do people adopt a different mask and ‘‘troll’’ or play with identity? Under what conditions, such as those of Wikipedia, do pseudonyms enable effective local collaboration? Are pseudonyms dying out or surging, especially in crosscultural contexts? Policy scholars ought to consider work such as the current Canadian legal trend of balancing privacy online and public interests for freedom of speech. Reidentification practices ought to be lifted out of discussions about vandals and terrorists and reframed in terms of free-speech practices in a new era of persistent content and collapsed contexts.

Finally, we ought to dispel myths that pseudonymous online interaction is a Hobbesian state. In its place we ought to consider such interaction as a localized social contract and response to the increasing array of technologies focused on identity consolidation for profit rather than for the social good. Sites such as the fleeting protest site http://my.nameis.me helped to focus the discussion to good effect. After a protracted public relations war, Google+ has dropped its realname requirement and joined a growing number of sites that acknowledge the legitimacy, functions, and utility of pseudonyms as well as real names. This was announced at the 2011 Web 2.0 forum. At the same summit the day before, Poole (moot) made his most eloquent plea yet for rethinking identity: ‘‘Google and Facebook would have you believe that you’re a mirror, but we’re actually more like diamonds ... Look from a different angle, and you see something completely different . . . . Facebook is consolidating identity by making us more simple than we truly are’’ (Poole 2011a).

The web is not merely a highly connected place out there but a codification of the social relations that bind much of the developed and developing world. The real-name web helps to reinforce this sense of global connectivity. But it also runs against limits inherent in a system curated by third parties with persistent content. Pseudonyms are both an antecedent to this situation and also a partial solution. We may live in a global village but our huts still need curtains.

Desensitisation?

'Silent Listeners: The Evolution of Privacy and Disclosure on Facebook' by Fred Stutzman, Ralph Grossy & Alessandro Acquistiz in (2012) 4(2) Journal of Privacy and Con fidentiality argues that

Over the past decade, social network sites have experienced dramatic growth in popularity, reaching most demographics and providing new opportunities for interaction and socialization. Through this growth, users have been challenged to manage novel privacy concerns and balance nuanced trade-off s between disclosing and withholding personal information. To date, however, no study has documented how privacy and disclosure evolved on social network sites over an extended period of time. In this manuscript we use profile data from a longitudinal panel of 5,076 Facebook users to understand how their privacy and disclosure behavior changed between 2005 - the early days of the network - and 2011. Our analysis highlights three contrasting trends. First, over time Facebook users in our dataset exhibited increasingly privacy-seeking behavior, progressively decreasing the amount of personal data shared publicly with unconnected profiles in the same network. However, and second, changes implemented by Facebook near the end of the period of time under our observation arrested or in some cases inverted that trend. Third, the amount and scope of personal information that Facebook users revealed privately to other connected profiles actually increased over time|and because of that, so did disclosures to "silent listeners" on the network: Facebook itself, third-party apps, and (indirectly) advertisers. These findings highlight the tension between privacy choices as expressions of individual subjective preferences, and the role of the environment in shaping those choices.

In discussing research limitations and conclusions the authors comment that

We have presented the results of a longitudinal analysis of 5,076 Facebook users who were members of the Carnegie Mellon Facebook network in 2005. Over the course of seven years, we captured pro file content with a goal of understanding how disclosure practices change over time. Before summarizing our results, we point out a number of limitations of the current analysis.

First, as we have observed in the introduction, one limitation of this data is that it does not originate from a random sample of Facebook users - nor could it, as the bulk of Facebook users in 2013 did not have Facebook accounts in 2005. Our trends are based on a panel of Facebook users dominated by undergraduate students, and our analysis focuses on one specifi c Facebook network - the Carnegie Mellon network - and only on those who were members of that network in 2005. Hence, our results may not extrapolate to more diverse samples of users. However, both survey data and analyses of other Facebook networks are consistent with one of the results presented here: that over time Facebook users have become less likely to share their personal information publicly. Our analysis extends that research by offering evidence that the privacy-seeking behavior started early in the life of the network, and then progressed over several years of Facebook usage - until it was partly obstructed by Facebook's policies and interface changes.

Second, in this manuscript we did not distinguish between non-disclosures due to the member actually not filling out a field, and those due to the member altering the privacy settings of that field (or of their entire profile) in order to limit public disclosures. While such distinction is of interest (and is the object of our ongoing research), it does not invalidate the main conclusions of the current analysis, which focused on the trends in public disclosures of personal information over time. It does affect, however, the discussion of how much information remains available to third-parties (such as apps providers) and to Facebook itself.

Third, our quantitative analysis was restricted to the fields which existed on Facebook in 2005, and the analysis presented in Section 5 was mainly qualitative, and included only a preliminary investigation of additional fields. However, using a consistent set of fields, and a consistent set of users, allowed us to more precisely define and explain trends in disclosure and privacy behavior over the past seven years. As our analysis revealed, a robust trend of declining public disclosure emerged over the years across a broad range of Facebook pro file elements - including personal, contact, and interest information. We also observed a signi cant shift for many of these profile elements between the years 2009 and 2010, when public disclosure increased. We concluded that changes to privacy policy and interface settings by Facebook produced greater public disclosures. In other words, exogenous changes effected by Facebook near the end of the period of time under our observation arrested or inverted an endogenous, user-driven trend of members trying to protect their privacy by managing the public disclosure of their personal information.

On the other hand, we also observed that, over time, the amount and scope of personal information that Facebook users have revealed to friends' profiles seems to have markedly increased - and thus, so have disclosures to Facebook itself, third-party apps, and (indirectly) advertisers. Such findings highlight the challenges users of social network sites face when trying to manage online privacy, and the power of providers of social media services to affect individuals' disclosure and privacy behavior through interfaces and default settings.

Rawls, Rights Hierarchies and the CJEU

'Fundamental Rights and the EU Internal Market: Just How Fundamental are the EU Treaty Freedoms? A Normative Enquiry Based on John Rawls’ Political Philosophy' by Nik J. de Boer in (2013) 9(1) Utrecht Law Review 148-168 assesses

whether the EU Treaty freedoms - the free movement of goods, persons, services and capital - should be considered as fundamental rights which are hierarchically equal to other fundamental rights. It uses the political philosophy of John Rawls to assess why we should attach priority to certain rights and which rights should therefore be considered fundamental rights. On this basis it is argued that we should recognise two main types of fundamental rights, namely basic rights and liberties associated with Rawls' first principle of justice and the rights associated with the principle of fair equality of opportunity. This is followed by an analysis of the interpretation that the European Court of Justice (CJEU) gives to the Treaty freedoms. On the basis of the normative framework, it is argued that the Treaty freedoms can be seen as fundamental rights insofar as they embody the value of equality of opportunity. Nonetheless, the CJEU increasingly seems to rely on a broader market access approach rather than an equal treatment approach in interpreting the Treaty freedoms. It is argued that where equal treatment is not at stake, the Treaty freedoms should not be seen as fundamental rights. Therefore, in cases where there is a conflict between a fundamental right and a Treaty freedom the CJEU should carefully distinguish between these two different interpretations of the Treaty freedoms. In cases where it is merely market access that is at stake, the CJEU should regard the protection of fundamental rights as more important, and be very careful in allowing a restriction of fundamental rights in order to protect the exercise of the Treaty freedom. On the other hand, in cases where the Treaty freedoms can be seen as protecting equality of opportunity and where they conflict with other fundamental rights, the Court is justified in construing the conflict as a right-right conflict in which a fair balance has to be sought.

Positive Privacy

'Toward a Positive Theory of Privacy Law' by Lior Strahilevitz in (2013)113(1) Harvard Law Review argues that

Privacy law creates winners and losers. The distributive implications of privacy rules are often very significant, but they are also subtle. Policy and academic debates over privacy rules tend to de-emphasize their distributive dimensions, and one result is an impoverished descriptive account of why privacy laws look the way they do. The article posits that understanding the identities of the real winners and losers in privacy battles can improve predictions about which interests will prevail in the agencies and legislatures that formulate privacy rules. Along the way, the article shows how citizens whose psychological profiles indicate a strong concern for their own privacy are less likely to be politically efficacious than citizens who do not value privacy, producing a substantive skew against privacy protections. The article employs public choice theory to explain why California’s protections for public figure privacy are noticeably stronger than the protections that exist in other American jurisdictions, and what factors might explain the trans-Atlantic divide over privacy regulation with regard to Big Data, the popularity of Megan’s Laws in the United States, and the enactment of Do Not Call protections. The article concludes by noting that structural features of privacy regulation can affect the public choice dynamics that emerge in political controversies. Individuals seeking to expand privacy protections in the United States might therefore focus initially on altering the structure of American privacy laws instead of trying to change the law’s content.

Strahilevitz comments that

Privacy protections create winners and losers. So do the absence of privacy protections. The distributive implications of governmental decisions regarding privacy are often very significant, but they can be subtle too. Policy and academic debates over privacy rules tend not to emphasize the distributive dimensions of those rules,1 and many privacy advocates mistakenly believe that “all consumers and voters win” when privacy is enhanced. At the same time, privacy skeptics who do discuss privacy in distributive terms sometimes score cheap rhetorical points by suggesting that only those with shameful secrets to hide benefit from privacy protections. Neither approach is appealing, and privacy scholars ought to be able to do better.

This Article reveals some of the subtleties of privacy regulation, with a particular focus on the distributive consequences of privacy rules. The Article suggests that understanding the identities of privacy law’s real winners and losers is indispensable both to clarifying existing debates in the scholarship and to helping us predict which interests will prevail in the institutions that formulate privacy rules. Drawing on public choice theory and median voter models, I will begin to construct a positive account of why U.S. privacy law looks the way it does. I will also suggest that a key structural aspect of U.S. privacy law - its absence of a catch-all privacy provision nimble enough to confront new threats - affects the attitudes of American voters and the balance of power among interest groups. Along the way, I will also make several other subsidiary contributions: I will show why criminal history registries are quite likely to become increasingly granular over time, examine the relationship between data mining and personality-based discrimination, and explain how the U.S. political system might be biased in favor of citizens who do not value privacy to the same degree that it is biased in favor of highly educated and high-income citizens. Part I assesses the distributive implications of two privacy controversies: the extent to which public figures should be protected from the nonconsensual disclosure of information concerning their everyday activities, and the extent to which the law should suppress criminal history information. In both instances the United States is far less protective of privacy interests than Europe, and, as a result, the U.S. government has been subjected to criticism both here and abroad.

The Article shows that defensible distributive judgments undergird the American position. The European approach to celebrity privacy is highly regressive, and causes elites and nonelites to have differential access to information that is valuable to both groups. The U.S. attitude toward criminal history information may be defended on pragmatic grounds: in the absence of transparent criminal history information, individuals may try to use pernicious proxies for criminal history, like race and gender. The Article then shows how these distributive implications affect the politics of privacy; California’s interest groups are pushing that state toward European-style regulation, and there is an apparent emerging trend toward ever-increasing granularity in criminal history disclosures.

Part II analyzes the emerging issue of Big Data and consumer privacy. The Article posits that firms rely on Big Data (data mining and analytics) to tease out the individual personality characteristics that will affect the firms’ strategies about how to price products and deliver services to particular consumers. We cannot anticipate how the law will respond to the challenges posed by Big Data without assessing who gains and who loses by the shift toward new forms of personality discrimination, so the Article analyzes the likely winners and losers among voters and industry groups. The analysis focuses on population segments characterized by high levels of extraversion and sophistication, whose preferences and propensities to influence political decisions may deviate from those of introverts and unsophisticated individuals in important ways.

Part III glances across the Atlantic, using Europe’s quite different legal regime governing Big Data as a way to test some of the hypotheses articulated in Part II. Although U.S. and European laws differ significantly, the attitudes of Americans and Europeans toward privacy seem rather similar. The Article therefore posits that different public choice dynamics, especially the strength of business interests committed to data mining in the United States, are a more likely cause of the observed legal differences. But this conclusion raises the question of why European business interests committed to data mining do not have similar sway. The Article hypothesizes that structural aspects of U.S. and European privacy laws substantially affect the contents of those laws. In Europe, open ended, omnibus privacy laws permit regulators to intervene immediately to address new privacy challenges. The sectoral U.S. approach, which lacks an effective “catch-all” provision, renders American law both reactive and slow to react. As a result, by the time U.S. regulators seek to challenge an envelope-pushing practice, interest groups supporting the practice have developed, social norms have adjusted to the practice, and a great deal of the sensitive information at issue will have already been disclosed by consumers.

Part IV examines a rare case in which U.S. regulators were able to combat a substantial privacy harm despite these structural and interest group dynamics. The fact that the National Do Not Call Registry took more than a decade to be implemented, despite its enormous popularity with voters, shows just how difficult regulating privacy can be, especially since many other privacy regulations will create a substantial number of losing consumers who are likely to buttress the interests of prospective loser firms in opposing the new regulation.