Journal of Free Speech Law: "Brokered Abuse," by Prof. Thomas Kadri

Just published as part of the symposium on Media and Society After Technological Disruption, edited by Profs. Justin "Gus" Hurwitz & Kyle Langvardt.

The article is here; here are the Introduction and Part I:

"It's accually obsene what you can find out about a person on the internet."

To some, this typo-ridden remark might sound banal. We know that our data drifts around online, with digital flotsam and jetsam washing up sporadically on different websites across the internet. Surveillance has been so normalized that, these days, many people aren't distressed when their information appears in a Google search, even if they sometimes fret about their privacy in other settings.

But this remark isn't a throwaway line by a disgruntled netizen. No. It's a boast by a stalker, Liam Youens, who went online to find his victim, Amy Boyer. Youens traced Boyer after buying her work address from a data broker—a company that traffics information about people for profit. Youens documented his search for Boyer's whereabouts on his personal website: "I found an internet site to do that, and to my surprize everything else under the Sun. Most importantly: her current employment." After he asked the broker for more information, he just had to bide his time. "I'm waiting for the results," he wrote ominously, not long before shooting Boyer dead at work.

Data brokers fuel abuse by sharing people's information and thwarting their obscurity. The value of obscurity, though sometimes overlooked in privacy discourse, rests on the idea that "information is safe—at least to some degree—when it is hard to obtain or understand." Brokers hinder obscurity by making it easier and likelier to find or fathom information about people. This act of foiling obscurity, in turn, facilitates interpersonal abuse. The physical violence suffered by Amy Boyer is but one kind of abuse; people also face stalking, harassment, doxing, defamation, fraud, sextortion, and nonconsensual sharing of their intimate images.

This chapter explores the phenomenon of brokered abuse: the ways that data brokerage enables and exacerbates interpersonal abuse. The harms of brokered abuse go beyond the fact that brokers make it easier to surveil people and expose them to physical, psychological, financial, and reputational harms. In addition, people must beg every single broker to conceal their information from thousands of separate databases, over and over again, with little or no legal recourse if brokers reject their efforts to regain some obscurity. Due partly to existing laws, this whack-a-mole burden of repeatedly pleading to obscure data can trigger trauma and distress. Only by grasping this fuller scope of brokered abuse can we begin to regulate it.

This chapter splits into three parts. Part I introduces the broker industry before Part II reveals how the law largely fails to address, and is even complicit in, key features of brokered abuse. Part III then explores the harms stemming from brokered abuse in order to lay some foundations for regulating them.

[I]. Data Brokers as Information Traffickers

Data brokerage is a multibillion-dollar industry. Thousands of companies form a sprawling network of brokers that buy, sell, trade, and license gigabytes of human information. Though brokers' business models vary, their power and profit fundamentally stem from trafficking information about people.

For the most part, brokers buy information from other companies and gather it from government records and public websites. From there, brokers build profiles including data like a person's name, aliases, photos, gender, birthdate, citizenship, religion, addresses, phone numbers, social-media accounts, email addresses, Social Security number, employers, schools, families, cohabitants, purchases, health conditions, and hobbies. These data dossiers are then sold for a fee or even shared for "free" thanks to the ads adorning broker websites.

There are, to be fair, some benefits tied to the broker industry. Transparency and accessibility come from publicizing information online, including data drawn from public records. Journalists, activists, academics, and the general public can garner insights from this information. Indeed, a person might even evade interpersonal abuse or other ills after discovering an acquaintance's restraining order or criminal record through a broker. Though this kind of data is often accessible in other ways, a Google search is easier, faster, and cheaper than a trip to the county courthouse.

Some people also use brokers to locate heirs or reconnect with long-lost friends and family. Others might rely on brokered data to inform their hiring decisions. Some companies rely on brokers in order to collect debts or discover fraud, corroborating information given to them by a customer or client. And brokers can even assist the legal system, such as when class-action awards are being distributed. These perks can't be ignored, but we should be wary of their value being exaggerated.

Another set of purported benefits relate to consumers, largely stemming from how businesses use brokered data. In particular, human information fuels the datasets and algorithms that help companies target ads and develop products. The resulting corporate revenue could, at least theoretically, yield cheaper or better services for consumers. I'm skeptical that this species of informational capitalism is in the public's interest, but debunking this defense of data brokerage isn't essential. Even if the commercial benefits are substantial, we shouldn't scoff at the serious harms tied to the broker industry.

Though there are many harmful facets of data brokerage, I'll focus here on only one: how brokers enable and exacerbate interpersonal abuse. Most directly, brokers' dossiers can be treasure troves for abusers, who can plunder them for information with just a few clicks and bucks. In Amy Boyer's case, Youens paid a broker $45 for her Social Security number, $30 for her home address, and $109 for her work address. $184 might already seem like a trifling sum given the vile result, but many brokers offer much more for far less. In 2013, for instance, a stalker bought Judge Timothy Corrigan's home address for less than $2 and later shot bullets at his house, missing the judge's head by a mere 1.6 inches.

These jarring anecdotes tell part of the story of how brokers enable and exacerbate abuse, but the phenomenon needs more interrogation to show its full scope. To do so, we must unpack how the law can be ineffective and even injurious when responding to brokered abuse.