But What Did the Daughter Think?

The Target pregnancy story is still the best example of the harms of big data.

William L. Prosser’s famous article “Privacy” begins with a story about Samuel D. Warren’s annoyance over the press’s coverage of his wife’s parties and his daughter’s wedding.[1] Prosser even refers to Mrs. Mabel Warren as Mrs. Samuel D. Warren throughout the anecdote. For those unfamiliar with United States privacy law, Samuel D. Warren went on to develop, with Louis Brandeis, the four modern privacy torts in The Right to Privacy. The takeaway: our entire system of privacy torts was developed because the press was reporting on Warren’s wife and daughters in ways that he did not like.

As the anecdote from Prosser suggests, there’s a long history of privacy panics being centered around the loss of control of women’s bodies. But it is rarely the women we hear from. Rather, the panic is over others gaining the same access to information that the men in their life have. Our current big data panic is is no exception, and the best example is the obligatory one: the story of how Target knew a young girl was pregnant.

The anecdote is usually recited something like: Target had analytics so good that it could tell when women are pregnant by their buying habits, and market to them accordingly. It was popularized in part by Kashmir Hill’s perceptive piece called “How Target Figured Out a Teen Girl Was Pregnant Before Her Father Did.” It represents a tangible example of the power of big data. Here’s the story, quoting from the NYT piece on Target’s analytics model:

About a year after Pole created his pregnancy-prediction model, a man walked into a Target outside Minneapolis and demanded to see the manager. He was clutching coupons that had been sent to his daughter, and he was angry, according to an employee who participated in the conversation.

“My daughter got this in the mail!” he said. “She’s still in high school, and you’re sending her coupons for baby clothes and cribs? Are you trying to encourage her to get pregnant?”

The manager didn’t have any idea what the man was talking about. He looked at the mailer. Sure enough, it was addressed to the man’s daughter and contained advertisements for maternity clothing, nursery furniture and pictures of smiling infants. The manager apologized and then called a few days later to apologize again.

On the phone, though, the father was somewhat abashed. “I had a talk with my daughter,” he said. “It turns out there’s been some activities in my house I haven’t been completely aware of. She’s due in August. I owe you an apology.”

Why does this story have staying power? Certainly, it’s evocative. The idea that big data could know our family members better than we do is scary, just as the press reporting on one’s family-life is intimidating. It’s a real, tangible story of what big data’s predictive power looks like, in an area where examples are few and far between. It’s also questionable if it’s even true, as pointed out by Nick Seaver’s excellent tumblr post on how the story has not been approached critically.

However, the framing of the story in the New York Times piece elides a key perspective — the daughter’s. The story is told by a member of a Target team, to the New York Times, from the father’s perspective. The father clearly believes he is entitled to knowledge of his daughter’s reproductive system.[2] I’ve heard the story recounted as “Target knows you’re pregnant before you do” — but that’s not quite accurate. The reader has no idea what the daughter thought about her pregnancy — whether she knew, whether she was waiting to tell her father, whether she felt safe about telling her father in the first place.

Women’s bodies are so often the battleground for privacy, but rarely is the discussion framed in terms of what the woman in question wants or needs. Another evocative illustration of how privacy is often about control over women’s bodies comes from Justice Antonin Scalia’s majority opinion in Kyllo, where he laments that heat scanning technology might allow someone to figure out what time the lady of the house takes her bath.[3] Justice Scalia has never been overly concerned about a woman’s right to her body before, so one wonders why heat-scanning is the circumstance in which he begins.[4]

Missing from this story is what the young woman thinks about Target’s advertising. Was she excited to get coupons for cribs and diapers because it meant that she could afford to take care of her baby? Was she annoyed that Target was sending her mail? Was she afraid that her father would find out about her pregnancy?

If the Target story is true, it is about Target outing a pregnant, sexually active teen to her father. The elision of the daughter from the story reinforces the notion that the harm is his embarrassment over having to call back the Target manager. That’s not what went wrong here. The harm done is not that Target knew more than her dad, but that Target effectively told her father she was pregnant.

And this is precisely the problem with lacking control over one’s information, whether it’s gathered by big data analytic techniques or not. Others may take information from one context and transfer it to another, harming people in the process. Privacy harms often disadvantage the most vulnerable, leaving them without recourse as their personal information is shared broadly, and writing them out of the very stories that should center them.

[1] Amy Gajda from the University of Illinois College of Law has an interesting paper about how the press coverage of Mrs. Warren lead to the development of privacy torts.

[2] Even if the daughter is under 18, there are a number of good reasons why teenage girls may not share the details of their sex lives or their pregnancies with their parents. Within the United States, a minor under 18 still retains the right to make decisions about her body without going to her parents. For example, in Planned Parenthood of Central Missouri v. Danforth, the Supreme Court reaffirmed the right of minors under 18 to access abortion services without the consent of a parent. 428 U.S. 52, 65 (1976). Ultimately, the daughter should be able to make the call about whether it’s safe to inform her parents about her pregnancy.

[3] “The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath-a detail that many would consider “intimate”; and a much more sophisticated system might detect nothing more intimate than the fact that someone left a closet light on.” Kyllo v. United States, 533 U.S. 27, 38 (2001).

[4] See, e.g, Planned Parenthood v. Casey, 505 U.S. 833, 984 (1992) (Scalia, J., concurring in part and dissenting in part) (arguing that a woman’s right to bodily integrity is not protected by the Constitution).