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The Privacy Pragmatic as Privacy VulnerableJennifer M. Urban & Chris Jay HoofnagleUniversity of California, Berkeley School of LawBerkeley, CA 94720jurban, choofnagle [@law.berkeley.edu]ABSTRACTorganization . . . [and then] decide whether it makes sense forthem to share their personal information.”[10] Our counternarrative explains why consumers so often are surprised byinformation practices exposed in the media—they think thesepractices are illegal. Westin’s explanation of consumer behaviorhas lent great support to opt-out approaches and self-regulatoryregimes; this counter-narrative calls some of these approaches intoquestion.Alan Westin’s well-known and often-used privacy segmentationfails to describe privacy markets or consumer choices accurately.The segmentation divides survey respondents into “privacyfundamentalists,” “privacy pragmatists,” and the “privacyunconcerned.” It describes the average consumer as a “privacypragmatist” who influences market offerings by weighing thecosts and benefits of services and making choices consistent withhis or her privacy preferences. Yet, Westin’s segmentationmethods cannot establish that users are pragmatic in theory or inpractice. Textual analysis reveals that the segmentation failstheoretically. Original survey data suggests that, in practice, mostconsumers are not aware of privacy rules and practices, and makedecisions in the marketplace with a flawed, yet optimistic,perception of protections. Instead of acting as “privacypragmatists,” consumers experience a marketplace myopia thatcauses them to believe that they need not engage in privacyanalysis of products and services. Westin’s work has been used tojustify a regulatory system where the burden of taking action toprotect privacy rests on the very individuals who think it isalready protected strongly by law. Our findings begin to suggestreasons behind both the growth of some information-intensivemarketplace activities and some prominent examples of consumerbacklash. Based on knowledge-testing and attitudinal surveywork, we suggest that Westin’s approach actually segments tworecognizable privacy groups: the “privacy resilient” and the“privacy vulnerable.” We then trace the contours of a more usablesegmentation and consider whether privacy segmentationscontribute usefully to political discourse on privacy.After discussing the Westin segmentation, we trace the contoursof improved segmentations, and then discuss whether suchsegmentations have practical utility in the political sphere.In part. this position paper is a shortened version of ourforthcoming article, Alan Westin’s Privacy Homo Economicus, 48WAKE FOREST LAW REVIEW (2014), available athttp://papers.ssrn.com/abstract 2434800. Sections 4.1 and 4.2,which trace a new segmentation model and discuss the utility ofsegmentations generally, are new.2. THE WESTIN SEGMENTATIONWestin’s privacy segmentation divides the American public intothree groups: the privacy fundamentalists (high privacy concernand high distrust in government, business, and technology), theprivacy pragmatists (mid-level concern and distrust), and theprivacy unconcerned (no or low concern and distrust). For manyyears, academics from a variety of disciplines have used theWestin segmentation for privacy analysis. For example, it hasrecently been employed in psychology, in the study of marketing,in computer security, and in the information and communicationstechnology contexts. Beyond the academy, the segmentation hasnotably influenced United States privacy regulation byundergirding the predominant “notice and choice” regime, underwhich consumers, given information about privacy trade-offs, areexpected to choose products and services according to theirpreferences. In many ways, the “notice and choice” modelassumes that consumers will act as “privacy pragmatists,” and thatthe privacy fundamentalists’ preferences are powerful enough topolice the marketplace and influence less-involved consumers.1. INTRODUCTIONProfessor Alan Furman Westin (1929-2013) advised on over 100consumer surveys in his illustrious career. His well-knownprivacy segmentation is widely used in various fields.Although Westin was also a preeminent historian and scholar ofprivacy law, his survey research sprang from his role as aconsultant to information-intensive firms.[7] As a result, hegenerally did not publish it academically. Given this, it has beensubject to only a few sustained analyses, which appear to havegone unanswered by Westin.[3,4,6]In 2002 Westin made the clearest extant summary of the threegroups:“Privacy Fundamentalists [about 25%]: This group sees privacy asan especially high value, rejects the claims of many organizationsto need or be entitled to get personal information for theirbusiness or governmental programs, thinks more individualsshould simply refuse to give out information they are asked for,and favors enactment of strong federal and state laws to secureprivacy rights and control organizational discretion. . . .In this position paper, we describe the Westin privacysegmentation, offer a textual analysis, and present empirical datathat both call into question longstanding assumptions used byWestin and lend new insight into consumers’ privacy knowledgeand preferences.Westin’s tripartite segmentation interpreted individuals’marketplace privacy choices as knowing and deliberate. In ournarrative, this is not the case. Instead, most consumers havesubstantial deficits in their knowledge of privacy law and ofbusiness practices. They do not, as Westin argued, “weigh thepotential pros and cons of sharing information, evaluate theprotections that are in place and their trust in the company or“Privacy Unconcerned [about 20%]: This group doesn’t knowwhat the “privacy fuss” is all about, supports the benefits of mostorganizational programs over warnings about privacy abuse, haslittle problem with supplying their personal information togovernment authorities or businesses, and sees no need for1

creating another governmentsomeone’s privacy. . . .bureaucracy . . . toobtainable ends.1 None of these questions have much to do withthe specific behaviors—evaluating and weighing choices andmaking a cost-benefit-driven decision—that define pragmatism,nor do they accurately capture fundamentalism or unconcern. Forexample, it is unclear, at best, that a belief about whetherconsumers have control over personal information or about how“most” businesses handle personal information corresponds to apragmatic approach to personal information privacy. It may alsobe that consumers simultaneously believe that “most” businessesfail to handle personal information in a “proper and confidential”way, and yet fail to act on that belief in the marketplace asexpected. Beliefs about control over personal information andbusiness behaviors may inform, or may be completely orthogonalto, an individual’s behavioral approach. This reasoning appliesequally to privacy “fundamentalists” and the “unconcerned,” whocould simultaneously hold beliefs about business practice and lawand remain “fundamentalist” or “unconcerned” in their attitudesabout these beliefs. And all three groups may be misinformed intheir beliefs, calling the decisional conclusion into question.protect“Privacy Pragmatists [about 55%]: This group weighs the value tothem and society of various business or government programscalling for personal information, examines the relevance andsocial propriety of the information sought, wants to know thepotential risks to privacy or security of their information, looks tosee whether fair information practices are being widely enoughobserved, and then decides whether they will agree or disagreewith specific information activities—with their trust in theparticular industry or company involved a critical decisionalfactor. The pragmatists favor voluntary standards and consumerchoice over legislation and government enforcement. But theywill back legislation when they think not enough is being done—or meaningfully done—by voluntary means.[10]3. CRITIQUE OF THE WESTINSEGMENTATION3.1 The segmentation instrument does notestablish that individuals are pragmatic intheory or in practiceBecause of these instrumental deficits, it is not possible to answerWestin’s screening questions and come to the conclusion that theproposed groups exist, much less that privacy pragmatists “weighthe potential pros and cons of sharing information, evaluate theprotections that are in place and their trust in the company ororganization. After this, they decide whether it makes sense forthem to share their personal information.”[10]Our first critique focuses on the methods Westin used tocategorize consumers as fundamentalists, pragmatists, orunconcerned. Ponnurangam Kumaraguru and Lorrie Cranor haveengaged in the most careful review of Westin’s privacysegmentation. They found that Westin generally askedrespondents these three questions:Accordingly, the Westin segmentation cannot establish any groupas “pragmatists.” It could be that Westin used other questionsfrom his surveys to establish the link to pragmatism, but this is notapparent from his extant surveys. Westin generally did not publishhis work academically and did not explain any method he mighthave used in moving from the segmentation to the segmentdescriptions.“For each of the following statements, how strongly do you agreeor disagree?“1. Consumers have lost all control over how personalinformation is collected and used by companies.We next turn to two empirical critiques based on two surveys onprivacy knowledge and issues. Both polls were national,telephonic (landline and wireless) surveys. The 2009 studysurveyed 1,000 Internet users, and the 2012 study surveyed 1,203.Fuller results and survey instruments are available in our aw.berkeley.edu/privacysurvey.htm.“2. Most businesses handle the personal information theycollect about consumers in a proper and confidential way.“3. Existing laws and organizational practices provide areasonable level of protection for consumer privacy today.Kumaraguru and Cranor reported that Westin segmented the threegroups as follows:3.2 A knowledge gap causes Americans tofalsely believe that privacy policies mandatestrong legal protection“Privacy Fundamentalists are respondents who agreed(strongly or somewhat) with the first statement . . . and disagreed(strongly or somewhat) with the second . . . and thirdstatements . . . .In both surveys, respondents appeared to operate in themarketplace with a “knowledge gap” concerning existing legalprotections and actual business practices. This knowledge gap wasfirst observed empirically by Professor Joseph Turow, who,starting in 2003, surveyed Americans about their knowledge ofcommon Internet business practices, finding that: “theoverwhelming majority of U.S. adults who use the internet athome have no clue about data flows—the invisible, cutting edge“Privacy Unconcerned are those respondents who disagreedwith the first statement . . . and agreed with the second . . . andthird statements . . . .“Privacy Pragmatists are all other respondents.[6]It thus appears that Westin coded privacy pragmatists as thedefault category—“all other respondents.” This is problematic asa matter of logic because pragmatism requires its adherents toengage in positive inquiry, to weigh costs and benefits of differentdecisions, and to reject idealism in favor of practical means and12We do not object in principle to the composition of Guttmanscales and the idea of default categories generally. Our pointconcerns the special characteristics of being a “pragmatist,”which requires a series of active behaviors and decisions.People are not pragmatic by default.

3.3 When respondents were confronteddirectly with examples of extant marketplaceinformation collection and use, they expressedpreferences contrary to Westin’s predictionstechniques whereby online organizations extract, manipulate,append, profile and share information about them. Even if theyhave a sense that sites track them and collect individual bits oftheir data, they simply don’t fathom how those bits can be used. Infact, when presented with a common way that sites currentlyhandle consumers’ information, they say they would not accept it.The findings suggest that years into attempts by governments andadvocacy groups to educate people about internet privacy, thesystem is more broken than ever.”[8,9]In our 2012 survey, we asked Americans about a variety of realworld collection and uses of mobile phone data, a rapidly growingsector of information-rich tracking and marketing. Our instrumentused these real-world scenarios to surface the marketplaceexchange being offered (usually information collection and use inreturn for a consumer benefit). These details of such exchangesare often hidden to consumers, who may only be told that aservice is “free.” The Westin model predicts that the averageconsumer, a privacy pragmatist, would investigate these hiddenfactors, weigh them against the benefit of the exchange, and in theprocess evaluate whether the company was trustworthy andfollowing fair information practices.The 2009 survey included a quiz that explored respondents’knowledge about the privacy rules surrounding popular online andoffline transactions. The questions about online transactionsprobed respondents’ assumptions about the rights that exist inprivacy policies through a series of true or false questions. Forinstance, “If a website has a privacy policy, it means that the sitecannot share information about you with other companies, unlessyou give the website your permission.” The correct answer to thisquestion is false: a privacy policy, in essence, is simply astatement of practices, which could (and often does) allowinformation-sharing with third parties.We found that instead, large numbers of respondents categoricallyrejected several forms of information-intensive activities thatexchange data collection for some consumer benefit. Theseincluded: gathering contact list information from phones toprovide suggestions for new social networking connections orcoupons to friends (with 75% choosing “definitely not allow”),the use of presence-sensing technology to identify the consumerin a store (with 70% choosing “definitely not allow”), andlocation-based ad targeting (with 70% choosing “definitely notallow”). These models were broadly rejected, including byprivacy pragmatists. In their real-world applications, the scenarioshave in some cases prompted consumer backlash in the market.Overall, respondents failed the privacy knowledge quiz. Only25% of respondents answered three or more of the five onlinequestions correctly, and 38% answered three or four of the offlinequestions correctly. Indeed, 30% answered every one of the fiveonline questions incorrectly, and 27% answered every one of thefour offline questions incorrectly. Complicating narratives about“digital natives,” younger respondents did most poorly, with 42%answering none of the online questions correctly, and 50%answering none of the offline questions correctly.4. DISCUSSION3.2.1 Privacy pragmatists are less knowledgeablethan people in other segmentsViewed in a new light, Westin’s segmentation can be seen asdescribing two groups, one with more accurate knowledge aboutbusiness and legal protections and one with less. The moreknowledgeable group is made up of Westin’s “privacyfundamentalists;” this matches our knowledge-based findings.Beyond knowing more, this group is also more likely to engage inprivacy self-help according to Westin’s own research. We couldthink of these consumers as the “privacy resilient”—moreknowledgeable and at least more willing to take steps to protectprivacy.In 2012, we again asked questions that tested respondents’knowledge about privacy protections in the marketplace. Privacyfundamentalists answered all three knowledge questions correctlyin greater proportion than the other groups; all such differencesbetween groups were significant at a p of .01 or better. Thisfinding followed a smaller study by author Hoofnagle andJennifer King, who observed a similar knowledge gap betweenprivacy fundamentalists and other segments in an earlier, smallerstudy focused on Californians. In that study, Hoofnagle and Kingfound that, in eight of nine questions probing privacy knowledge,privacy fundamentalists answered correctly more often thanpragmatists or the unconcerned.The second group—made up of Westin’s privacy pragmatists and“unconcerned”—labors in the marketplace with fundamentallymisinformed views about privacy rules and is less likely to takeself-help measures. We could think of these consumers as the“privacy vulnerable”—less knowledgeable and less likely to takesteps to protect privacy.3.2.2 Privacy pragmatists’ knowledge deficitspreclude true pragmatic action in the marketplaceWestin presents the privacy pragmatist as a “super consumer,”evaluating the benefits and risks of technology in a rational choicetheory framework. However, our work shows that pragmatists’knowledge gap would affect this key behavior. If pragmatistsbelieve that privacy policies create privacy protections, then theydo not understand that it is their duty to read and compare privacypolicies, evaluate them for fair information practices, comparemarketplace offerings according to their protections, and so on.The knowledge gap makes pragmatic action as described byWestin unlikely to occur.Westin’s approach places a high value on individuals negotiatingin the marketplace for privacy, but the knowledge gap weelucidate shows that many consumers both misunderstand thescope of data collection and falsely believe that relevant privacyrights are enshrined in privacy policies and guaranteed by law.Further, when presented with some typical current-day valuepropositions, high percentages reject them, even those made—andapparently accepted—every day in the marketplace. While wecannot draw a direct conclusion for the reason behind thismismatch, it plausibly indicates that myopia, created by lack ofknowledge, is a contributing factor. Operating within this myopicview of their duties as consumers, individuals may find littlereason to bargain for privacy in the marketplace.3

Thinking in terms of myopia also addresses a common rationalchoice theory explanation that consumers do not read privacypolicies because it is rational to remain ignorant. Simply put, thisargument holds that it is not worth a consumer’s time to learnabout privacy issues.[2] We suggest that it may not be that peopledo not care. Instead, it is more likely that they often do notunderstand the exchange involved, and think they are protected inany event—and so they do not believe there is value to be had inreading about those protections. Why would one stop to read aneight-page long policy if she believed that she already knew whatpractices it described and what rights it conferred?respondent hears about privacy controversies in thenews; whether the individual has had a bad experiencerelevant to privacy issues, such as identity theft,stalking, or an intractably error-ridden credit report;race; gender; socioeconomic class; and attitudes towardgovernment and law enforcement. Its accuracy and reliability should be testable, andshould show validity over time. Testing should includereplication of the findings rather than simple marketuptake of a product or service. This is necessary toaccommodate the problem that the market is often not agood test bed for privacy attitudes. For instance, themarket may reflect the knowledge gap we describe, ormay provide no privacy-protective choice for services,or choices that are misunderstood or symbolic (such asthe Online Behavioral Advertising opt out options). Wenote that survey research is limited in this dimensionbecause respondents may feel judged for providingcertain responses (such as revealing that they do notshred sensitive mail). It should accurately reflect the marketplace. If itmeasures preferences about business propositions beingmade in the marketplace, all relevant components of thechoice should be clear to the respondent. For example,if a product is offered in exchange for personalinformation rather than money, the question shouldneutrally provide details about that exchange, ratherthan simply saying that the product is offered “free.” So far as possible, it should be based on measurements(such as privacy knowledge) that can be stably repeatedover time to allow a baseline to be established andchanges in responses to be measured. It should segment groups into categories that canaccurately inform policy makers of the interests at stakewhen crafting policy compromises, such as groups thatmight warrant greater or lower levels of protection.If large numbers of consumers do not understand the quid pro quoexchange being offered when information is collected or used orhold inaccurate beliefs about privacy protections in themarketplace, then privacy is a less marketable value. Employingthe Westin segmentation distorts the market for privacy, becauseit leaves aside the reality of a marketplace where the consumerdecision maker does not understand material aspects of thebargain and assumes that aspects of interest are already decided inher favor.4.1 Contours of an improved segmentationOur findings suggest that the Westin segmentation, and its use toinform both marketplace offerings and privacy policy, are flawed.A more usable segmentation requires at least the followingcharacteristics: It should adequately measure the information aboutprivacy preferences that is required for a specificpurpose. For example, a marketing purpose may requirea different tool from a policy-making purpose.It should recognize that privacy is a nuanced issue, andthat individuals react differently to different actors. Forinstance ,it is well established that most Americans areconcerned about both government and business datapractices, but some are only concerned about the state,and others, only about the private sector. It should also recognize that individuals may responddifferently to different actions. For instance, manypeople conceive of privacy as “access to the self,” andperceive events such as a telemarketing call or spam asa privacy problem. A consumer who holds such aconception may reject calls and spam, but overlook thecollection and uses of data that made the telemarketingcall or spam possible (or, to add more complexity, theuse of information to decide not to call or email). It should logically segment groups based on anobjective instrument that avoids the line-drawing issuesthe Westin segmentation exhibits. Building such aninstrument requires work beyond this paper. However,questions that objectively test knowledge rather thanattitudes could be a useful component. cs. Because privacy is a nuanced topic andis interpreted in many ways, a usable segmentationshould accommodate multiple factors about anindividual. Factors that, in our estimation, could shapeprivacy attitudes include: knowledge about privacyprotections or business practices; how often theBased on this, we propose that the “privacy vulnerable” and“privacy resilient” groups drawn from our knowledge and attitudeinstruments are more usable segmentation categories than thetripartite Westin categories. That said, there is further work to bedone in order to understand whether our categories are moreusable and whether they meet the criteria listed in this section.Indeed, as we discuss next, we think there is more work to bedone to decide whether segmentation models are useful, at all.4.2 Utility of segmentation modelsSection 4.1 sets forth contours for a better segmentation. It isimmediately apparent that a lot of work needs to be done toimprove segmentation models. This raises a serious question:what is the utility of segmentation models, overall? Is the gameworth the candle?One might want a segmentation to determine whether informationcollection and use should be opt-in (data subject mustaffirmatively accept) or opt-out (data subject must affirmativelyreject). For instance, the Telemarketing Sales Rule requires theconsumer to take action to avoid telemarketing. Theoverwhelming majority of Americans have taken this action,suggesting that they rejected the benefits (more marketing offers)offered in the exchange for additional privacy protection. Perhaps4

it would have made sense to flip the default rule so that the greatmajority of individuals did not have to take affirmative action toreject telemarketing. But one does not need a segmentation tomake that determination.them, and focuses the policy debate on consumer behavior,without considering the marketplace’s structural influences.This pragmatic “super-consumer” model is reflected in the muchused segmentation Westin employed in his survey research. Ourtextual review and empirical testing show that Westin’ssegmentation method exhibits fundamental flaws. A newsegmentation method is required if segmenting consumers is tobecome a more usable tool. While we propose some requirementsfor a most accurate and useful segmentation method, we leaveopen the question of whether segmentation offers sufficientinformation about consumer privacy to be pursued at all.Similarly, one might want a segmentation that can reveal societalgroups who are especially vulnerable to some privacy-relatedharms, because they are less knowledgeable, limited in thechoices they can make, more vulnerable to consequences, or forsome other reason.[1,10] Such groups might warrant differenttypes of regulatory protection, benefit from additionalinformation, and the like.We suspect that Westin’s segmentation was developed fordifferent purposes—marketing strategy purposes—and then laterapplied as a political tool. If the segmentation were more accurate,businesses could use the segmentation testing to identify thosewho would not need to be sold on a product (the unconcerned),those who would not buy under any circumstance (thefundamentalist), and a large middle group that would be open topurchasing a product and would merely need to be informed aboutit in order to buy. Such a segmentation would allow a business totarget its advertising investments. Since business information needonly be good enough to improve sales, Westin’s formula couldhave been valuable for marketers, despite its flaws.6. REFERENCES[1] Allen, Anita, UNPOPULAR PRIVACY: WHAT MUST WE HIDE?(2011).[2] Beales, J. Howard, III & Muris, Timothy J., Choice orConsequences: Protecting Privacy in CommercialInformation, 75 U. CHI. L. REV. 109 (2008).[3] Gandy, Oscar H. Jr., Public Opinion Surveys and theFormation of Privacy Policy, 59 J. Soc. Issues 283 (2003)[4] Gandy, Oscar H. Jr., The Role of Theory in the PolicyProcess: A Response to Professor Westin, in TOWARD ANINFORMATION BILL OF RIGHTS AND RESPONSIBILITIES (CharlesM. Firestone & Jorge Reina Schement eds., 1995).The use of Westin’s segmentation in the political realm wasproblematic, however. Many of Westin’s surveys were funded byprivate companies and ratified these companies’ public policygoals. The tripartite segmentation allowed them to divide thepublic into thirds and combine two of the groups to come to afavored conclusion.[5] Katz, James E. & Tassone, Annette R. Public OpinionTrends: Privacy and Information Technology, 54 Pub.Opinion Q. 125 (1990).[6] Kumaraguru, Ponnurangam & Cranor, Lorrie Faith, PrivacyIndexes: A Survey of Westin’s Studies (2005), /CMU-ISRI-05138.pdf.More generally, we question the utility of segmentation because,at present, privacy law treats all individuals equally. The privacyunconcerned receives the same treatment as the fundamentalist.[7] Simpson, Glenn, Consumer-Privacy Issue Turns a RetiredProfessor into a Hot Item, WALL ST. J., June 25, 2001, atA20 (“[Westin] is on the payrolls of many of the largefinancial services, technology and marketing companies thathave resisted new privacy rules and legislation.”).At the workshop, we would like to explore with other participantswhether and how segmentations are valuable, and whether theyhave utility in legal considerations of privacy.5. CONCLUSIONWestin’s privacy segmentation model labels a broad group ofAmerican consumers as “pragmatists” without establishingwhether they actually engage in the kind of deliberations thatdefine pragmatism. Our empirical research supports and goesbeyond more general experimental work to reveal that manyconsumers negotiate privacy preferences based on fundamentalmisunderstandings about business practices, privacy protections,and restrictions upon the use of data, and that thesemisunderstandings may lead them to expect more protection thanactually exists. Further, when presented with specific informationprivacy propositions actually offered in the marketplace, mostrespondents preferred more control than they are presentlyafforded. These misunderstandings distort the market for privacybecause they cause consumers to believe that they need notnegotiate for privacy protections.[8] Turow, Joseph, Americans & Online Privacy: The System isBroken rg/wpcontent/uploads/20030701 online privacy report2.pdf;[9] Turow, Joseph et al., Open to Exploitation: AmericanShoppers Online and Offline g/wpcontent/uploads/Turow APPC Report WEB FINAL2.pdf.[10] Westin, Alan F. Harris Interactive, Privacy On and Off theInternet: What Consumers Want .Thus, the most cited aspect of Westin’s work—hischaracterization of consumers’ decisions as pragmatic, and hisargument that consumer decisions signaled the collective sense ofhow society should balance privacy and new technologies—should, we think, be strongly questioned. Westin’s approachattached a euphemistic “super-consumer” lab

marketplace activities and some prominent examples of consumer backlash. Based on knowledge-testing and attitudinal survey work, we suggest that Westin’s approach actually segments two recognizable privacy groups: the “privacy resilient” and the “privacy vulnerable.” We then trace the contours of a more usable

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