ACLU against freedom of speech

I used to love the ACLU when they were actually a civil liberties organization, particularly when they focused on defending the First Amendment and freedom of speech. Over the years, as all institutions are inclined to do, their remit has widened in scope to the point that they have ended up in odd places.

Their most recent press release, FTC Needs to Make Sure Companies Aren’t Using Big Data to Discriminate by Rachel Goodman, brings together the Social Justice Warrior's obsession with Disparate Impact and the Luddite's general paranoia of Big Data in a fashion completely at odds with a commitment to Freedom of Speech.

In the pre-digital era, advertisers could only target particular kinds of consumers in fairly general terms. Ads placed in the New York Times, for example, would reach a different audience than ads placed in the Amsterdam News, New York’s African-American newspaper. But this form of market segmentation was limited—advertisers would have no way of keeping News readers from seeing, and responding to, the Times ad.

That proposition is very different in the era of big data. Behavioral targeting allows advertisers to decide which ad to show a specific person based on the data known about that person. So, for example, advertisers may opt to show users different prices for products based on data functioning in the background, such that Mac users, or those who live in more affluent zip codes, or those who live farther from a competitor’s store see higher prices. Although many of us find this more precise targeting more troubling, and the existence and aggregation of the personal data that enables it certainly raises privacy concerns, the consensus view is that this kind of price discrimination isn’t illegal.

ACLU grants that a merchant trying to find those people most likely to want to buy their product and placing his/her ads in a very targeted fashion is not illegal. So what are they concerned about? It is the Social Justice Warrior's concern that people exercising their freedom of speech might have a disparate impact and affect some races more than others, or classes, or genders, etc. But of course that is the very nature of targeted advertising. If only people who live in snowy climes are likely to buy snow mobiles and their racial/class/gender/religious distribution is different from that of the country at large, then the ACLU does not want you to be able target those denizens of snowy climes and buyers of snowmobiles. They want to proscribe your speech in advance, not because of what you are doing but because they are concerned that it might have a disparate impact.

They hide their disparate impact argument in slightly different language, but that is what they are saying.

Except that price discrimination can also be race discrimination, if it’s based on data about race or factors closely linked to race (it can also be sex discrimination, or disability discrimination, or some other form of discrimination, depending on which data an algorithm relies upon).

The amazing thing to me is that this is a prospective fear, not a documented real problem. They want to curtail people's freedom of speech just in case it has a disparate impact even if it is perfectly legal speech.

Ack! These times. Bring back the old ACLU, please.