Technology has changed the nature of private and public information, increasing both what we know about each other and what governments and businesses know about us. Lior Strahilevitz, the Law School’s deputy dean and the Sidley Austin professor of law, wrestles with the implications of those swift and shifting social changes in his book Information and Exclusion (Yale University Press, 2011). In his view, the accessibility of information—and the sophisticated ways that corporations and institutions use it—has made the modern world one big Mayberry. “Thanks to these databases and these algorithms, social-networking sites, etcetera,” Strahilevitz says, “it’s almost a return to an earlier era of small-town America where everybody knows everybody else’s business.” In that information-saturated environment, many people argue for privacy protections, but Strahilevitz considers their consequences too complicated for blanket support or opposition. He’s most interested in how the availability of information influences housing, employment, and law-enforcement bias—and in how policy can be designed to prevent such bias. “Discrimination,” he says, “tries to route itself around whatever impediments the law places in its path.”  

Crime and employment

In jurisdictions where there’s inexpensive access to criminal-history information, African American males do better in terms of employment outcomes than in those jurisdictions where employers don’t have easy access to criminal-history information. The reason is, these employers are worried about hiring people with criminal histories, they overestimate the propensity of African American males in the labor pool to have criminal histories, and they therefore shy away from hiring African American males regardless of whether they’ve had any involvement in the criminal-justice system. From that vantage point, you can argue that the decision to make criminal history private, or to make it obscure, actually has terrible consequences, penalizing African American males who don’t have criminal histories.

Public record, private business

There’s a big push to put more crime statistics online, get them online faster and more complete. Private insurers are going to use that information too.They will, to the extent they’re permitted to by the law, build that information into the actuarial models they use to decide how much you or I pay for property insurance. … It’s not rocket science to correlate information about where crimes are being committed with information about where each of us is spending our time and then to use those two sets of data to try to figure out, Am I a good risk for life insurance or not? Am I a good risk for automobile insurance or not? What premium should I pay?

De facto privacy of DNA evidence

Think of a world where we don’t have any DNA evidence—there are a whole bunch of people who were near the scene of the crime, who might be subjected to really extensive police investigations, or who fit the description of a person leaving the building where a rape occurred. Those people have to incur really significant costs from being grilled by the police, having all their friends and relatives be grilled by the police, having the police search their home for evidence of wrongdoing. Something like DNA evidence does create de facto privacy for those innocent people who would not be suspects in a world with an extensive DNA-matching database.

Facing technology’s implications

The potential increase in the use of facial-recognition technologies could permit more individuated judgments by law enforcement, in the sense that those men walking down the street showing up as people with criminal records might be profiled no longer on the basis of their race but on the basis of their prior record. … In some sense that’s better. The world we live in now imposes a collective sanction on people who happen to share a racial or a gender trait with a group perceived to offend at a higher level. In some sense [that form of profiling] is probably worse, in that not knowing who they’re frisking—not knowing whether it’s someone with a criminal record who’s been in and out of jail several times or a popular minister—actually might constrain police officers and cause them to treat people they encounter on the street on average better than they would in a world where it’s very clear who’s an ex-con and who’s without a record.