AFFIRMATIVE-CONSUMER/INTERNET-SIGNIFICANCE 356

INFORMATION GATHERING LEADS TO DAMAGING DISCRIMINATION

CYBERSPACE DISCRIMINATION CREATES SECOND CLASS CITIZENS

Neil Weinstock Netanel, Arnold, White & Durkee Centennial Professor of Law, University of Texas School of Law, March 2000; California Law Review, "Cyberspace Self-Governance: A Skeptical View from Liberal Democratic Theory," EE2001-hxm lxnx

Significantly, moreover, widespread discrimination in cyberspace may cause intolerable harm even if it is not so pervasive as to preclude victims from finding alternative networks and sites. Discrimination is not a discrete act with discrete consequences. Rather it can be laden with symbolic potency. It can be a public statement about the presumed inferiority of a minority group. Given the global, instantaneous nature of cyberspace communication, that statement - the fact that many regard a particular group as undesirable--is all the more likely to become common knowledge. It will fuel a common awareness that the subjugated group enjoys access to the discursive foundations of civil society only at the leave of the powerful. n253

That common awareness in turn will tend to relegate the group to the status of second-class citizenship. Equal citizenship derives not just from the possibility of finding alternative sources for the goods from which a group is deprived. Rather it comprises a subjective and intersubjective aspect, a shared knowledge that citizens are entitled to access as a matter of right. n254 Pervasive virtual discrimination on the basis of race, gender, or other such status may thus work a fundamental deprivation of the incidents of liberal citizenship even if nondiscriminatory fora are readily available.

CYBERSPACE DISCRIMINATION IS A REAL THREAT THAT COULD AFFECT REAL SPACE AS WELL AS THE VIRTUAL

Cyberfora and networks that are generally open to the public should similarly be seen as "places of public accommodation," whether by statutory construction or legislative extension. n248 Cyberspace is fast becoming a central source of information, opinion, and entertainment. The discursive arenas of cyberspace also increasingly serve as important avenues for social contact and market transaction, just as they present vital opportunities to make one's voice heard and to seek to influence others. n249 Pervasive discrimination in cyberspace would cause no less deprivation than does discrimination in places of public accommodation offline. As cyberspace assumes an increasingly greater part in public discourse, civil association, social intercourse, cultural expression, and market transaction, the effects [*457] of virtual discrimination would flood into real space. They would work a fundamental impairment not only of "netizenship," but also of citizenship in territorial polities.

WEBLINING INVOLVES DISCRIMINATION AGAINST CUSTOMERS WHO ARE NOT AS VALUABLE

Edward C. Baig, Business Week, April 5, 1999; Pg. 84 TITLE: PRIVACY // acs-VT2001

Some companies use the gold mine of consumer data to discriminate against customers who don't make the grade. You might call it ''Weblining.'' At Sanwa Bank in California, customer-service reps use Net-based programs to classify customers into A, B, and C categories. The least-valued Cs are the ones most likely to end up on hold when they call in for service. Angie Blackburn, who oversees Sanwa's phone and online banking, defends the practice. ''Obviously, if we have a customer...who has a significant amount invested, you want [him or her] to be treated extra special,'' she says.

CONSUMER INFORMATION WILL BE AGGREGATED TO ECONOMICALLY DISENFRANCHISE MANY CITIZENS

Robert O'Harrow Jr., The Washington Post January 2, 2000, SECTION: FINANCIAL; Pg. H01 TITLE: HORNING IN ON PRIVACY; As Databases Collect Personal Details Well Beyond Credit-Card Numbers, It's Time to Guard Yourself // acs-EE2001

But must we really worry about what marketers and corporations know about us and think about us? Well, yes, say privacy and civil liberties activists. As companies amass personal information, they use their insights to discriminate between the most profitable people--and all the rest. In fact, that's becoming a central thrust of many marketing efforts.

That means you may never hear about certain deals because you're tagged as frugal or a bargain hunter. At the same time, law enforcement investigators (hopefully armed with subpoenas) are beginning to tap private data reservoirs, such as grocery purchases and electronic toll records. State and federal officials are using a massive new data system to track parents who owe child support.

THE INTERNET IS BECOMING INCREASINGLY DISCRIMINATORY WITH ADVANCED TECHNOLOGIES THAT MAKES ANONYMITY IMPOSSIBLE

Of course, just as status discrimination can center on expertise, occupation, and association, so can it focus on race, gender, physical disability, age, sexual orientation, or other immutable physical characteristics. Given the limitations of current Internet technology, such status discrimination has thus far been relatively uncommon in cyberspace. n234 The vast majority of virtual discussion takes place through the exchange of text, and those who wish to participate without revealing their offline identity may generally do so. n235 As the Internet develops, however, text-based anonymity will increasingly become a thing of the past. Software such as CU-SeeMe makes possible Internet video chat, a phenomenon that can be expected rapidly to proliferate as high-speed modems and increased network bandwidth enable high-quality video conversation. n236 Moreover, "online profiling" of Internet users, digital identification, and the possible availability of digitized driver's license photographs and other visual identification will enable web site operators and other Internet players to determine users' race, gender, age, and other physical characteristics. n237 As a result of these developments, Internet technology will no longer constrain status-based discrimination. Whether for economic motives or because of simple prejudice, cyberspace redlining may become increasingly prevalent.

DISCRIMINATION BASED ON CATEGORICAL IDENTITY IS DEHUMANIZING

The invidious nature of status discrimination also depends on extent. If widespread across multiple spheres of activity, discrimination based on race, gender, sexual orientation, age, or disability can transform what is generally "a morally irrelevant characteristic into a pervasive source of social disadvantage." n241 Systemic discrimination on the basis of such characteristics deprives large groups of people of the education, employment, political influence, and economic opportunity required for self-advancement and basic participation as citizens in a democratic society. n242 Somewhat more symbolically, but ultimately no less tangibly, [*456] such status discrimination creates a stigma of second-class citizenship, placing its victims under the constant threat of domination at the hands of another. n243

THE INTERNET IS VERY STATUS DISCRIMINATORY

Status discrimination is endemic in cyberspace. Numerous listservs, newsgroups, and other cyberfora restrict access based on a person's professional standing, occupation, knowledge, or affiliation. The Cyberprof listserv, for example, is generally restricted to professors who teach courses related to cyberlaw. Similarly, nonlawyers cannot generally gain access to Counsel Connect, and none but select Internet pundits may join any of a number of "virtual gated communities" that screen out uninvited hoi polloi. n233