Privacy versus Antidiscrimination

Thanks to the adoption of Megan’s Laws in all fifty states and the rise of a large background check industry that caters to employers, landlords, lenders, and other important decisionmakers, information about criminal histories is becoming more accessible than ever before. The same is true of financial information, such as bankruptcy records, credit records, and other evidence of past financial distress. Google and other search engines have made it easier for decisionmakers to locate other information about individuals that may have some bearing on their fitness for a job, an apartment, a loan, or another opportunity. For the most part, information privacy scholars have bemoaned these developments. Privacy critics have responded by suggesting that the availability of this information results in more accurate decisions about hiring and that efforts to use privacy law to block the dissemination of this information will compromise economic efficiency.

This essay seeks to add one important argument to the debate over the proliferation of information about individuals’ involvement in the criminal justice system, financial distress, or other embarrassing activities. It suggests that by increasing the availability of information about individuals, we can reduce decisionmakers’ reliance on information about groups. Put another way, there is often an essential conflict between information privacy protections and antidiscrimination principles, such that reducing privacy protections will reduce the prevalence of distasteful statistical discrimination. The essay draws heavily on a series of recent economic papers finding that in the absence of accurate information about individuals’ criminal histories, employers who are interested in weeding out those with criminal records will rely instead on racial and gender proxies.

In framing this project, it is worth identifying my priors at the outset. I care about information privacy protections. But I care more about antidiscrimination protections. Were it possible to sacrifice information privacy interests to reduce the prevalence of racial discrimination or other forms of unlawful discrimination, that is a tradeoff that I would be willing to make, particularly where the information privacy interests at stake implicate neither intimate association nor political association. Some readers may not share that hierarchy of interests, but my goal in this project is to help advocates of greater information privacy protections recognize all the collateral consequences of those policies.