Privacy Big Data And The Public Good

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 Privacy, Big Data, and the Public Good
Frameworks for Engagement

Massive amounts of data on human beings can now be analyzed. Pragmatic pur-
poses abound, including selling goods and services, winning political campaigns,
and identifying possible terrorists. Yet “big data” can also be harnessed to serve
the public good: scientists can use big data to do research that improves the lives
of human beings, improves government services, and reduces taxpayer costs. In
order to achieve this goal, researchers must have access to this data – raising impor-
tant privacy questions. What are the ethical and legal requirements? What are the
rules of engagement? What are the best ways to provide access while also protect-
ing confidentiality? Are there reasonable mechanisms to compensate citizens for
privacy loss?
The goal of this book is to answer some of these questions. The book’s authors
paint an intellectual landscape that includes legal, economic, and statistical frame-
works. The authors also identify new practical approaches that simultaneously
maximize the utility of data access while minimizing information risk.

Julia Lane is Senior Managing Economist for the American Institutes for
Research in Washington, DC. She holds honorary positions as professor of eco-
nomics at the BETA University of Strasbourg CNRS, chercheur associée at
Observatoire des Sciences et des Techniques, Paris, and professor at the University
of Melbourne’s Institute of Applied Economics and Social Research.

Victoria Stodden is Assistant Professor of Statistics at Columbia University

and is affiliated with the Columbia University Institute for Data Sciences and
Engineering.

Stefan Bender is head of the Research Data Center at the German Federal
Employment Agency in the Institute for Employment Research.

Helen Nissenbaum is Professor of Media, Culture and Communication, and

Computer Science at New York University, where she is also director of the
Information Law Institute.
Privacy, Big Data, and
the Public Good
Frameworks for Engagement

Edited by
Julia Lane
American Institutes for Research, Washington DC
Victoria Stodden
Columbia University
Stefan Bender
Institute for Employment Research of the
German Federal Employment Agency
Helen Nissenbaum
New York University
32 Avenue of the Americas, New York, NY 10013-2473, USA

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781107637689
© Cambridge University Press 2014

This publication is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2014

Printed in the United States of America

A catalog record for this publication is available from the British Library.

Library of Congress Cataloging in Publication Data

Privacy, big data, and the public good : frameworks for engagement / [edited by] Julia
Lane, American Institutes for Research, Washington DC, Victoria Stodden, Columbia
University, Stefan Bender, Institute for Employment Research of the German Federal
Employment Agency, Helen Nissenbaum, New York University.
pages cm
Includes bibliographical references and index.
ISBN 978-1-107-06735-6 (hardback : alk. paper) –
ISBN 978-1-107-63768-9 (pbk. : alk. paper)
1. Privacy, Right of. 2. Research – Moral and ethical aspects. 3. Big data – Social
aspects. 4. Common good. I. Lane, Julia I.
JC596.P747 2015
323.44′ 8–dc23 2014009737

ISBN 978-1-107-06735-6 Hardback

ISBN 978-1-107-63768-9 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy of URLs
for external or third-party Internet Websites referred to in this publication and does not
guarantee that any content on such Websites is, or will remain, accurate or appropriate.
 For
Mike Holland
and
Diana Gillooly
 CONTENTS

Contributors page ix
Editors’ Introduction xi

Part I. Conceptual Framework 1

② Monitoring, Datafication, and Consent: Legal

1
Approaches to Privacy in the Big Data Context 5
Katherine J. Strandburg

② Big Data’s End Run around Anonymity and Consent

2 44
Solon Barocas and Helen Nissenbaum

② The Economics and Behavioral Economics of Privacy

3 76
Alessandro Acquisti

② Changing the Rules: General Principles for Data Use

4
and Analysis 96
Paul Ohm

② Enabling Reproducibility in Big Data Research:

5
Balancing Confidentiality and Scientific Transparency 112
Victoria Stodden

Part II. Practical Framework 133

② The Value of Big Data for Urban Science

6 137
Steven E. Koonin and Michael J. Holland

② Data for the Public Good: Challenges and Barriers

7
in the Context of Cities 153
Robert M. Goerge

② A European Perspective on Research and

8
Big Data Analysis 173
Peter Elias
viii Contents

② The New Deal on Data: A Framework for Institutional

9
Controls 192
Daniel Greenwood, Arkadiusz Stopczynski, Brian Sweatt,
Thomas Hardjono, and Alex Pentland

② Engineered Controls for Dealing with Big Data

10 211
Carl Landwehr

② Portable Approaches to Informed Consent and

11
Open Data 234
John Wilbanks

Part III. Statistical Framework 253

② Extracting Information from Big Data: Issues of

12
Measurement, Inference and Linkage 257
Frauke Kreuter and Roger D. Peng

② Using Statistics to Protect Privacy

13 276
Alan F. Karr and Jerome P. Reiter

② Differential Privacy: A Cryptographic Approach to

14
Private Data Analysis 296
Cynthia Dwork
 CONTRIBUTORS

Alessandro Acquisti Professor of Information Technology and Public Policy at the

Heinz College, Carnegie Mellon University; Co-director of CMU Center for Behavioral
Decision Research; acquisti@andrew.cmu.edu

Solon Barocas Doctoral student in the Department of Media, Culture, and Commu-
nication, New York University; solon@nyu.edu

Cynthia Dwork Distinguished Scientist, Microsoft Research Silicon Valley;

dwork@microsoft.com

Peter Elias Professor at the Warwick Institute for Employment Research, University of
Warwick; peter.elias@warwick.ac.uk

Robert M. Goerge Senior Research Fellow at Chapin Hall, University of Chicago;

Director of the Joint Program on Public Policy and Computing and Lecturer, Harris
School for Public Policy Studies, University of Chicago; rgoerge@chapinhall.org

Daniel Greenwood Lecturer and Research Scientist in the Human Dynamics Group,
Media Lab, Massachusetts Institute of Technology; dazza@civics.com

Thomas Hardjono Technical Lead and Executive Director of the MIT Kerberos &
Internet Trust Consortium; hardjono@mit.edu

Michael J. Holland Chief of Staff at the Center for Urban Science & Progress, New
York University; mike.holland@nyu.edu

Alan F. Karr Director of the National Institute of Statistical Sciences; Professor of

Statistics and Biostatistics, University of North Carolina at Chapel Hill; karr@niss.org

Steven E. Koonin Director of the Center for Urban Science & Progress, New York
University; steven.koonin@nyu.edu

Frauke Kreuter Associate Professor in the Joint Program in Survey Methodology,

University of Maryland; Professor of Statistics at Ludwig-Maximilians-Universität; Head
of the Statistical Methods Research Department, Institute for Employment Research,
Germany; fkreuter@survey.umd.edu

Carl Landwehr Lead Research Scientist at the Cyber Security Policy and Research
Institute, George Washington University; carl.landwehr@gmail.com

Helen Nissenbaum Professor of Media, Culture, and Communication, Professor of

Computer Science, and Director of the Information Law Institute, New York University;
helen.nissenbaum@nyu.edu
x Contributors

Paul Ohm Associate Professor at the University of Colorado Law School; paul
.ohm@colorado.edu

Roger D. Peng Associate Professor in the Department of Biostatistics, Johns Hopkins

Bloomberg School of Public Health; rpeng@jhsph.edu

Alex Pentland Toshiba Professor of Media, Arts, and Sciences; Director of the Human
Dynamics Laboratory; and Director of the Media Lab Entrepreneurship Program, Mas-
sachusetts Institute of Technology; sandy@media.mit.edu

Jerome P. Reiter Mrs. Alexander Hehmeyer Professor of Statistical Science at Duke

University; Principal Investigator, Triangle Census Research Network; Associate Director
of the Information Initiative, Duke University; jerry@stat.duke.edu

Victoria Stodden Assistant Professor of Statistics and Affiliated Member of the Insti-
tute for Data Science, Columbia University; victoria@stodden.net

Arkadiusz Stopczynski Doctoral Student at the Technical University of Denmark;

Visiting Student in the Human Dynamics Group, Media Lab, Massachusetts Institute of
Technology; arks@media.mit.edu

Katherine J. Strandburg Alfred B. Engelberg Professor of Law at New York Uni-

versity School of Law; katherine.strandburg@nyu.edu

Brian Sweatt Research Staff Member in the Human Dynamics Group, Media Lab,
Massachusetts Institute of Technology; brian717@media.mit.edu

John Wilbanks Chief Commons Officer at Sage Bionetworks; Senior Fellow at the
Ewing Marion Kauffman Foundation, Washington DC
 EDITORS’ INTRODUCTION
Julia Lane, Victoria Stodden, Stefan Bender, and
Helen Nissenbaum

Massive amounts of data on human beings can now be accessed and ana-
lyzed. And the new ‘big data’1 are much more likely to be harvested from
a wide variety of different sources. Much has been made of the many uses
of such data for pragmatic purposes, including selling goods and services,
winning political campaigns, and identifying possible terrorists. Yet big
data can also be harnessed to serve the public good in other ways: sci-
entists can use new forms of data to do research that improves the lives
of human beings; federal, state, and local governments can use data to
improve services and reduce taxpayer costs; and public organizations can
use information to advocate for public causes, for example.
Much has also been made of the privacy and confidentiality issues asso-
ciated with access. Statisticians are not alone in thinking that consumers
should worry about privacy issues, and that an ethical framework should
be in place to guide data scientists;2 the European Commission and the
U.S. government have begun to address the problem. Yet there are many
unanswered questions. What are the ethical and legal requirements for sci-
entists and government officials seeking to use big data to serve the public
good without harming individual citizens? What are the rules of engage-
ment with these new data sources? What are the best ways to provide
access while protecting confidentiality? Are there reasonable mechanisms
to compensate citizens for privacy loss?
The goal of this book is to answer some of these questions. The book’s
authors paint an intellectual landscape that includes the legal, economic,
and statistical context necessary to frame the many privacy issues, including
the value to the public of data access, clarifying personal data ownership
questions, and raising issues of agency in personal data. The authors also
identify core practical approaches that use new technologies to simulta-
neously maximize the utility of data access while minimizing information
risk. As is appropriate for such a new and evolving field, each chapter also
identifies important questions that require future research.
The work in this book is also intended to be accessible to an audi-
ence broader than those in the research and policy spheres. In addition
xii Editors’ Introduction

to informing the public, we hope that the book will be useful to people
trying to provide data access within confidentiality constraints in their roles
as data custodians for federal, state, and local agencies, or decision makers
on Institutional Review Boards.

Historical and Future Use of Data for the Public Good

Good data are critically important for good public decisions. For exam-
ple, national and international government policies depend on GDP
estimates – indeed, international crises have been exacerbated when statis-
tical agencies have cooked the data books.3 Good data are also important
for good science – as Daniel Kahneman famously pointed out, the first big
breakthrough in our understanding of the mechanism of association was
an improvement in a method of measurement.4
Historically the leading producers of high-quality data were statistical
government agencies engaged in collecting data through large-scale statis-
tically representative surveys. There are several reasons for this. One was
the sheer scale of the necessary activity: generating representative samples
required an expensive, constantly updated population frame and exten-
sive investments in survey methodology and data storage, cleaning, and
dissemination. The second was that the public trusted the government
to protect confidentiality, and statistical agencies invested heavily in the
appropriate statistical disclosure limitation methodologies. The third was
that the statistical agencies were seen to be objective, and not trying to sell
a product. The U.S. Census Bureau’s mission statement reflects all three of
these reasons:

The Census Bureau’s mission is to serve as the leading source of quality data
about the nation’s people and economy. We honor privacy, protect confiden-
tiality, share our expertise globally, and conduct our work openly. We are guided
on this mission by scientific objectivity, our strong and capable workforce,
our devotion to research-based innovation, and our abiding commitment to our
customers.5 (Emphases added)

The public good has clearly been served by the creation and careful
dissemination of data by both the government and the research com-
munity. Of course, the nature of the data, as well as the dissemination
modality, has evolved over time. The development and release of large-
scale public use datasets like the Current Population Survey and, later, the
National Longitudinal Surveys of Youth and the Panel Study of Income
Dynamics and the German Socio-Economic Panel have transformed our
 Editors’ Introduction xiii

understanding of labor markets while protecting respondent confidential-

ity. The development of large-scale administrative datasets and their access
through secure data enclaves have lowered costs, increased sample size, and
reduced respondent burden,6 as well as created completely new classes of
information.7
Big data, by which we mean the data necessary to support new types
of data-intensive research,8 hold the promise of even more profound con-
tributions to the public good. Knowledge derived from big data is likely
to become one of the foundational elements in the functioning of society
by, for example, generating real-time information about economic and
social activity or generating new insights into human behavior.9 Yet the
pathway to developing this foundation is not clear, because experience
provides little guidance. The data currently used to inform decisions –
survey and administrative data – have benefited from decades of statistical
research, as well as clear rules defining ownership and responsibility. Statis-
tical agencies, the primary custodians, have developed clear ways to both
protect and access the data. By contrast, the value of big data in informing
evidence-based policy is still being established, and the ownership of big
data, typically distributed across multiple entities, is not well defined. Big
data have many elements of a natural resource, and sensible rules must be
developed in order to avoid a tragedy of the commons, and to create a
commonly pooled resource for improving scientific understanding for the
public good.10

Privacy, Big Data, and the Public Good: The Contributions

of This Book
The vast changes in the data world have brought with them changes
in the nature of data collectors and producers. Data on human beings,
though now more likely to be collected, are much less likely to be pur-
posively collected by researchers and government agencies, and are thus
less often held by organizations with traditional knowledge about how to
protect privacy. There are serious consequences: the lack of dissemination
experience of non-governmental collectors can lead to massive privacy
breaches (the 2006 AOL data release is but one famous example).11 Even
worse, if no dissemination is allowed, the quality of privately held data
is largely unknown12 absent detailed researcher inspection and valida-
tion. Similarly, Institutional Review Boards with few reference guidelines
are likely to slow or prevent research on human subjects with complex
data.13
xiv Editors’ Introduction

Because of the importance of the topic, there is a rich and vibrant

literature; the contributors to this book have provided, for the first time
in one place, an accessible summary of existing research on many of the
important aspects of balancing access to data with protection of privacy.
They have also identified practical suggestions – to help guide practitioners
and Institutional Review Boards – and identified important areas for future
research.
Opening Part I, on the conceptual framework, Strandburg argues that
the acquisition, transfer, and aggregation of data on a massive scale for data
mining and predictive analysis raises questions that simply are not answered
by the paradigms that have dominated privacy law to date. She develops
a taxonomy of current U.S. privacy law and uses that taxonomy to elu-
cidate the mismatch between current law and big data privacy concerns.
Barocas and Nissenbaum argue that big data involves practices that have rad-
ically disrupted entrenched information flows. From modes of acquisition
to aggregation, analysis, and application, these disruptions affect actors,
information types, and transmission principles. Privacy and big data are
simply incompatible, and the time has come to reconfigure choices that
we made decades ago to enforce certain constraints. They argue that it is
time for the background of rights, obligations, and legitimate expectations
to be explored and enriched so that notice and consent can do the work
for which it is best suited. Acquisti discusses how the economics and behav-
ioral economics of privacy can be applied to investigate the implications
of consumer data mining and business analytics. An important insight is
that personal information, when shared, can become a public good whose
analysis can reduce inefficiencies and increase economic welfare; when
abused, it can lead to transfer of economic wealth from data subjects to data
holders. The interesting economic question then becomes who will bear
the costs if privacy-enhancing technologies become more popular in the
age of big data: data subjects (whose benefits from business analytics and
big data may shrink as they restrict the amount of information they share),
data holders (who may face increasing costs associated with collecting and
handling consumer data), or both?
There are practical implications. Ohm provides an overview of how
information privacy laws regulate the use of big data techniques, if at all.
He discusses whether these laws strike an appropriate balance between
allowing the benefits of big data and protecting individual privacy and, if
not, how the laws might be extended and amended to better strike this
balance. He notes that most information privacy law focuses on collection
or disclosure and not use. Once data has been legitimately obtained, few
 Editors’ Introduction xv

laws dictate what may be done with the information. The chapter offers
five general proposals for change. Stodden sets out the scientific rationale for
access to data and computational methods, to enable the verification and
validation of published research findings. She describes the legal landscape
in the context of big data research and suggests two guiding principles to
facilitate reproducibility and reuse of research data and code within and
beyond the scientific context.
Koonin and Holland open Part II, on the practical framework, by address-
ing the motivations of the new urban science and the value for cities in big
data – particularly with respect to analysis of the infrastructure, the envi-
ronment, and the people. They discuss the key technical issues in building a
data infrastructure for curation, analytics, visualization, machine learning,
and data mining, as well as modeling and simulation to keep up with the
volume and speed of data. Goerge describes the creation of a data ware-
house that links data on multiple services provided by the public sector
to individuals and families as a way to highlight both the opportunities
and the challenges in a city’s use of data. He identifies the key issues that
need to be addressed – what data to develop and access from counties,
states, the federal government, and private sources; how to develop the
capacity to use data; how to present data and be transparent; and how best
to keep data secure so that individuals and organizations are protected –
as well as the key barriers. Elias provides a broader perspective than sim-
ply the United States by noting that many of the legal and ethical issues
associated with big data have wider relevance. Much can be learned from
examining the progress made in Europe toward developing a harmonized
approach to legislation designed to provide individuals and organizations
with what has become known as the ‘right to privacy’. The legislative
developments have had and are continuing to have substantial impact on
cross-border access to microdata for research purposes; that impact is also
examined.
Greenwood, Stopczynski, Sweatt, Hardjono and Pentland explore the emer-
gence of the Big Data society, arguing that the ‘personal data sector’ of the
economy needs productive collaboration between the government, the
private sector, and the citizen to create new markets – just as the automo-
bile and oil industries did in prior centuries. They sketch a model of data
access that is governed by ‘living informed consent’, whereby the user is
entitled to know what data are being collected about her by which enti-
ties, empowered to understand the implications of data sharing, and finally
is put in charge of any data-sharing authorizations. They envision the
establishment of a New Deal on Data, grounded in principles such as the
xvi Editors’ Introduction

opt-in nature of data provision, the framing of data usage boundaries, and
the credentialing of parties authorized to access data.
Landwehr takes a very pragmatic approach. He notes that, regardless
of what data policies have been agreed, access must be allowed through
controls engineered into the data infrastructure. Without sound technical
enforcement, incidents of abuse, misuse, theft of data, and even invalid
scientific conclusions based on undetectably altered data can be expected.
He discusses what features access controls might have – delineating the
characteristics of subjects, objects, and access modes – and notes that
advances in practical cryptographic solutions to computing on encrypted
data could change the picture in the future by reducing the need to trust
hardware and system software. Advances in methods for building systems
in which information flow, rather than access control, is the basis for
policy enforcement could also open the door to better enforcement of
comprehensible policies.
Wilbanks is similarly practical. He provides an overview of frameworks
that are available to permit data reuse and discusses how legal and technical
systems can be structured to allow people to donate their data to science.
He argues that traditional frameworks to permit data reuse have been
left behind by the mix of advanced techniques for re-identification and
cheap technologies for the creation of data about individuals. He surveys
the approaches developed in technological and organizational systems to
‘create’ privacy where it has been eroded while allowing data reuse, but
also discusses a new approach of ‘radical honesty’ toward data contribution
and the development of ‘portable’ approaches to informed consent that
could potentially support a broad range of research without the unintended
fragmentation of data created by traditional consent systems
Kreuter and Peng open Part III, on the statistical framework, with a dis-
cussion of the new statistical challenges associated with inference in the
context of big data. They begin by noting that reliable statistical inference
requires an understanding of the data-generating process. That process is
not well understood in the case of big data, so it is important that re-
searchers be given access to the source data so that coverage and quality
issues can be identified and addressed. Standard statistical disclosure limi-
tations are unlikely to work, because an important feature of big data is the
ability to examine different, targeted populations, which often have unique
and easily re-identifiable characteristics. Karr and Reiter explore the inter-
actions between data dissemination, big data, and statistical inference. They
identify a set of lessons that stewards of big data can learn from statistical
 Editors’ Introduction xvii

agencies’ experiences with the measurement of disclosure risk and data

utility. Their conclusion is that the sheer scale and potential uses of big data
will require that analysis be taken to the data rather than the data to the
analyst or the analyst to the data. They argue that a viable way forward for
big data access is an integrated system including (i) unrestricted access to
highly redacted data, most likely some version of synthetic data, followed
with (ii) means for approved researchers to access the confidential data
via remote access solutions, glued together by (iii) verification servers that
allow users to assess the quality of their inferences with the redacted data
so as to be more efficient with their use (if necessary) of the remote access
to the confidential data. Dwork concludes with a vision for the future. She
shows how differential privacy provides a mathematically rigorous theory
of privacy, a theory amenable to measuring (and minimizing) cumulative
privacy loss, as data are analyzed and re-analyzed, shared, and linked. There
are trade-offs – differential privacy requires a new way of interacting with
data, in which the analyst accesses data only through a privacy mecha-
nism, and in which accuracy and privacy are improved by minimizing the
viewing of intermediate results. But the approach provides a measure that
captures cumulative privacy loss over multiple releases; it offers the possi-
bility that data usage and release could be accompanied by publication of
privacy loss.

Thanks As with any book, we have benefited enormously from the

support and help of many people. Our editor, Diana Gillooly, has worked
tirelessly and efficiently at all phases – going well beyond the call of duty.
Our referees took time out of their busy schedules to give thoughtful, con-
structive guidance to the authors. They include Micah Altman, Mike Batty,
Jason Bobe, Aleksandra Bujnowska, Fred Conrad, Josep Domingo-Ferrer,
Stephanie Eckman, Mark Elliot, Martin Feldkircher, Simson Garfinkel,
Bob Goerge, Eric Grosse, Patricia Hammar, David J. Hand, Dan Har-
nesk, Kumar Jayasuriya, Gary King, Frauke Kreuter, Tom Kvan, Bethany
Letalien, William Lowrance, Lars Lyberg, Tim Mulcahy, Kobbi Nissim,
Onora O‘Neill, Kathleen Perez Lopez, Carlo Reggiani, Jerome H. Reich-
man, Guy Rothblum, Subu R. Sangameswar, Fred Schneider, Aleksandra
Slavkovic, Tom Snijders, Omer Tene, Vincenc Torra, Paul Uhlir, Richard
Valliant, and Felix Wu.
The book was sponsored by New York University, through the Center
for Urban Science and Progress. Konstantin Baetz, Veronika Zakrocki,
Felicitas Mittereder, Reinhard Sauckel, Dominik Braun, Shaylee Nielson,
xviii Editors’ Introduction

and Christian Rafidi provided superb administrative support, Mark

Righter in NYU General Counsel’s office provided legal assistance, and
Ardis Kadiu of Spark451 gave assistance with our project website. The
book was also supported by the Privacy and Confidentiality Subcommittee
of the American Statistical Association and the Institute for Employment
Research of the German Federal Employment Agency.
We are also very grateful to Steve Pierson, American Statistical Associ-
ation; Kim Alfred, CUSP; and Kelly Berschauer, Microsoft Research, for
their help with outreach to key stakeholders.

NOTES

1. ‘Big data’ is given many definitions. One fairly representative version says that
the term “refers to large, diverse, complex, longitudinal, and/or distributed data
sets generated from instruments, sensors, Internet transactions, email, video, click
streams, and/or all other digital sources available today and in the future” (NSF
BIGDATA solicitation http://www.nsf.gov/funding/pgm_summ.jsp?pims_
id=504767&org=CISE). Another uses the velocity, volume, and variety rubric:
“data is now available faster, has greater coverage and scope, and includes new
types of observations and measurements that previously were not available”
(L. Einav and J. D. Levin, “The Data Revolution and Economic Analysis,”
National Bureau of Economic Research Working Paper, No. 19035, Cambridge,
MA, 2013, retrieved from http://www.nber.org/papers/w19035).
2. For a survey of statisticians’ opinions on the privacy and ethics related to
data collections, see http://blog.revolutionanalytics.com/2013/09/statistician-
survey-results.html.
3. For a good review of the role of statistics in the Greek financial cri-
sis, see http://www.ft.com/cms/s/0/82b15932-18fe-11e1-92d8-00144feabdc0
.html#axzz2g7W3pWOJ.
4. D. Kahneman, Thinking Fast and Slow (New York: Farrar, Straus and Giroux,
2011).
5. See http://www.census.gov/aboutus/#.
6. J. Groen, “Sources of Error in Survey and Administrative Data: The Importance
of Reporting Procedures,” Journal of Official Statistics 28, no. 2 (2012): 173–198.
7. J. M. Abowd and L. Vilhuber, “National Estimates of Gross Employment and Job
Flows from the Quarterly Workforce Indicators with Demographic and Industry
Detail,” Journal of Econometrics 161, no. 1 (2011): 82–99, retrieved from http://
ideas.repec.org/a/eee/econom/v161y2011i1p82-99.html.
8. T. Hey, S. Tansley, and K. Tolle, The Fourth Paradigm: Data Intensive Scientific
Discovery (Redmond, WA: Microsoft Research, 2009).
9. Einav and Levin, “The Data Revolution and Economic Analysis.”
10. E. Ostrom, Governing the Commons: The Evolution of Institutions for Col-
lective Action (Cambridge, UK: Cambridge University Press, 1990).
11. See http://en.wikipedia.org/wiki/AOL search data leak.
 Editors’ Introduction xix

12. See; e.g., http://www.theguardian.com/commentisfree/2013/may/04/adp-

forecasting-monthly-bls-jobs-reports.
13. Many of the issues associated with the role of Institutional Review Boards are high-
lighted in a recent National Academies’ workshop http://sites.nationalacademies
.org/DBASSE/BBCSS/CurrentProjects/DBASSE_080452.
Part I Conceptual Framework

This part begins by considering the existing legal constraints on the col-
lection and use of big data in the privacy and confidentiality context. It
then identifies gaps in the current legal landscape and issues in designing
a coherent set of policies that both protect privacy and yet permit the
potential benefits that come with big data. Three themes emerge: that
the concepts used in the larger discussion of privacy and big data require
updating; that how we understand and assess harms from privacy viola-
tions needs updating; and that we must rethink established approaches to
managing privacy in the big data context.
The notion of ‘big data’ is interpreted as a change in paradigm, rather
than solely a change in technology. This illustrates the first central theme
of this part of the book. Barocas and Nissenbaum define big data as a
“paradigm, rather than a particular technology,” while Strandburg differ-
entiates between collections of data, and collections of data that have been
“datafied,” that is, “aggregated in a computationally manipulable format.”
She claims that such datafication is a key step in heightening privacy con-
cerns and creating a greater need for a coherent regulatory structure for
data acquisition. Traditional regulatory tools for managing privacy – notice
and consent – have failed to provide a viable market mechanism allowing
a form of self-regulation governing industry data collection. Strandburg
elucidates the current legal restrictions and guidance on data collection in
the industrial setting, including the Fair Information Practice Principles
(FIPPs) dating from 1973 and underlying the Fair Credit Reporting Act
(FCRA) from 1970 and the Privacy Act from 1974. Strandburg advocates
a more nuanced assessment of trade-offs in the big data context, moving
away from individualized assessments of the costs of privacy violations.
The privacy law governing the collection of private data for monitoring
purposes should be strengthened, in particular, a substantive distinction
should be made between datafication and the repurposing of data that was
collected as a byproduct of providing services. Additionally, she suggests
taking a substantive approach to the ideas of notice and consent in particular
to clarify their meaning for large entities.
2 Conceptual Framework

The inadequacy of assessment of harm from privacy breaches is another

major theme of this part, extending it from the level of the individual to
that of groups or classes, and even society as a whole. Acquisti notes that this
requires a greater understanding of the breadth of types of privacy breaches
and of the nature of harm as diffused over time, and an improved valua-
tion of privacy in the big data context. Consumers may value their own
privacy in variously flawed ways. They may have incomplete information,
for example, or be given an overabundance of information that renders
processing impossible, or use heuristics that systematize deviations from
rational decision making. Acquisti notes that privacy protection can both
potentially increase and decrease economic efficiency in the marketplace,
and that deriving benefits from big data may not conflict with benefits
from assuring privacy protection.
In order to address these issues, several authors ask us to rethink traditional
approaches to privacy. This is the third overarching theme of this part of the
book. Barocas and Nissenbaum argue that the concepts of anonymity and
informed consent do not create solutions to the privacy issue. As datasets
become increasingly linked, anonymity is largely impossible to guarantee
in the future. This also implies that it is impossible to give truly informed
consent, since we cannot, by definition, know what the risks are from
revealing personal data either for individuals or for society as a whole.
The use of privately collected data is largely unregulated. Ohm describes
the few regulations that do apply – such as the Health Insurance Portability
and Accountability Act (HIPAA), the Privacy Act, and the Fair Credit
Reporting Act (FCRA) – and explains that the United States employs a
‘sectoral’ approach to privacy regulation, in that different economic areas
have separate privacy laws. Ohm also calls into question the traditional
notion of notice in the case of big data. To whom are you to give notice,
and for what? The results of big data analysis can be unpredictable and
sometimes unexplainable, another reason it is difficult to assess privacy
risks accurately in the big data context.
Ohm advocates a new conceptualization of legal policy regarding pri-
vacy in the big data context, guided by five principles for reform: (1) rules
must take into account the varying levels of inherent risk to individuals
across different datasets, (2) traditional definitions of personally identifiable
information need to be rethought, (3) regulation has a role in creating
and policing walls between datasets, (4) those analyzing big data must be
reminded, with the frequency in proportion to the sensitivity of the data,
that they are dealing with people, and (5) the ethics of big data research
must be an open topic for continual reassessment.
 Conceptual Framework 3

In the final chapter, Stodden focuses on the theme of research integrity

in the big data context. She notes a conflict between research requirements
regarding the replication of computational results, which can require data
access, and traditional methods of privacy protection via sequestration.
She advocates establishing ‘middle ground’ solutions whenever possible
that maximize verification of computational findings, while taking into
account any legal and ethical barriers. Permitting authorized researchers
access to confidential data within a ‘walled garden’ can increase the ability
of others to independently replicate big data findings, for example. Two
principles are presented to help guide thinking regarding reproducibility
and verification in big data research: the Principle of Scientific Licensing
and the Principle of Scientific Data and Code Sharing. That is, in the
scientific context, legal encumbrances to data sharing for purposes of
independent verification should be minimized wherever possible, and
access to the data and methods associated with published findings should
be maximized subject to legal and ethical restrictions.
 1②Monitoring, Datafication, and
Consent: Legal Approaches to
Privacy in the Big Data Context
Katherine J. Strandburg

Introduction
Knowledge is power. ‘Big data’ has great potential to benefit society. At
the same time, its availability creates significant potential for mistaken,
misguided, or malevolent uses of personal information. The conundrum
for law is to provide space for big data to fulfill its potential for societal
benefit, while protecting citizens adequately from related individual and
social harms. Current privacy law evolved to address different concerns and
must be adapted to confront big data’s challenges. This chapter addresses
only one aspect of privacy law: the regulation of private sector acquisition,
aggregation, and transfer of personal information.1 It provides an overview
and taxonomy of current law, highlighting the mismatch between current
law and the big data context, with the goal of informing the debate about
how to bring big data practice and privacy regulation into optimal harmony.
Part I briefly describes how privacy regulation in the United States has
evolved in response to a changing technological and social milieu. Part II
introduces a taxonomy of privacy laws relating to data acquisition, based on
the following features: (1) whether the law provides a rule- or a fact-based
standard; (2) whether the law is substantive or procedural, in a sense defined
below; and (3) which mode(s) of data acquisition are covered by the law. It
also argues that the recording, aggregation, and organization of information
into a form that can be used for data mining, here dubbed ‘datafication’,
has distinct privacy implications that often go unrecognized by current law.
Part III provides a selective overview of relevant privacy laws in light of
that taxonomy. Section A discusses the most standards-like legal regimes,
such as the privacy torts, for which determining liability generally involves
a fact-specific analysis of the behavior of both data subjects and those
who acquire or transfer the data (‘data handlers’). Section B discusses the
Federal Trade Commission’s (FTC’s) ‘unfair and deceptive trade practices’
standard,2 which depends on a fact-specific inquiry into the behavior of
6 Strandburg

data handlers, but makes general assumptions about data subjects. Section
C discusses rule-like regimes, such as the Privacy Rule3 of the Health
Insurance Portability and Accountability Act4 (HIPAA Rule). Part IV
points out some particular features of the mismatch between current law’s
conceptualization of the issues and the big data context, using the taxonomy
developed in Part II as an aid to the analysis. It then makes several suggestions
about how to devise a better fit.

I. The Evolution of U.S. Privacy Law

Outside of the law enforcement context, privacy law was erected on the
foundation of Warren and Brandeis’s famous 1890 article, The Right to
Privacy.5 The privacy torts built on that foundation were concerned pri-
marily with individualized harms of emotional distress, embarrassment,
and humiliation arising out of ‘intrusion upon seclusion’ or ‘public dis-
closure of private facts’. Privacy law also aimed to protect confidentiality
in certain kinds of relationships, often involving professional expertise, in
which information asymmetry and power imbalances create a potential for
exploitation. These torts provide compensation for individualized injuries
caused by egregious deviations from social norms. In principle, and often
in fact, the tort paradigm employs a highly contextualized analysis of the
actions of plaintiff and defendant and the relationship between them.
In the 1970s, the development of digital computers and the increasing
complexity of the administrative state led to an expansion in ‘computer-
based record-keeping operations’ by governments and certain other
large institutions, such as banks. This expansion raised fears of misuse,
unfairness, lack of transparency in decision making, and chilling of
autonomous behavior distinct from the concerns about emotional distress
and reputation at the heart of the privacy torts. Fair Information Practice
Principles (FIPPs), which have become the mainstay of data privacy law,
were developed during this period as an approach to those issues. The Fair
Credit Reporting Act (FCRA),6 adopted in 1970, and the Privacy Act of
1974,7 regulating data use by government agencies, were based on FIPPs.
A set of five FIPPs were proposed in 1973 in a report commissioned by
the Department of Health, Education, and Welfare (HEW Report):

1. There must be no personal data record-keeping systems whose very existence

is secret.
2. There must be a way for a person to find out what information about the person
is in a record and how it is used.
 Monitoring, Datafication, and Consent 7

3. There must be a way for a person to prevent information about the person
that was obtained for one purpose from being used or made available for other
purposes without the person’s consent.
4. There must be a way for a person to correct or amend a record of identifiable
information about the person.
5. Any organization creating, maintaining, using, or disseminating records of
identifiable personal data must assure the reliability of the data for their intended
use and must take precautions to prevent misuses of the data.8

These principles, along with three sets of related ‘safeguard

requirements’,9 attempted to cope with the scale of data collection by
substituting transparency and consent for the individualized fact-specific
approach of the privacy torts. The HEW Report recognized the difficulty
of legislating substantive rules in light of the “enormous number and vari-
ety of institutions dealing with personal data,” arguing that institutions
should be “deterred from inappropriate practices, rather than being forced
by regulation to adopt specific practices.”10
Another important version of FIPPs was formulated by the OECD in
1980 (OECD FIPPs), articulating eight principles, which expanded on
the HEW FIPPs and include a “Collection Limitation Principle” that
there “should be limits to the collection of personal data,” a “Data Qual-
ity Principle” that data collected should be “relevant to the purposes
for which they are to be used” and “accurate, complete and kept up-
to-date,” and a “Purpose Specification Principle” that purposes should
be specified in advance and “subsequent use limited to the fulfillment
of those purposes or such others as are not incompatible with those
purposes.”11
At the turn of the 21st century, the FTC, which has taken the primary
role in commercial privacy regulation, recommended a rather slimmed
down set of FIPPs for online privacy:

(1) Notice – Web sites would be required to provide consumers clear and con-
spicuous notice of their information practices. . . .
(2) Choice – Web sites would be required to offer consumers choices as to how
their personal identifying information is used beyond the use for which the
information was provided (e.g., to consummate a transaction). . . .
(3) Access – Web sites would be required to offer consumers reasonable access
to the information a Web site has collected about them, including a reason-
able opportunity to review information and to correct inaccuracies or delete
information.
8 Strandburg

(4) Security – Web sites would be required to take reasonable steps to protect the
security of the information they collect from consumers.12

In practice, outside of a few sectors, such as health care, the FIPPs

approach in the United States has been whittled down to a focus on
procedures for ensuring notice and consent. What explains this progres-
sion? Cheap and ubiquitous information technology makes large-scale data
aggregation and use possible for a wide variety of private sector entities in
addition to the government agencies and large institutions, such as banks,
that were the subject of privacy concerns in the 1970s and 1980s. The
resulting expansion of private sector data collection and use has compet-
ing implications for privacy regulation. On the one hand, the acquisition
and use of an increasing quantity and scope of personal information by an
increasingly large and various set of private entities heightens privacy con-
cerns relating to data security and breach, accountability and transparency,
and unpredictable data uses. On the other hand, substantive regulation of
a large and diverse array of private sector entities is politically controver-
sial, regulations that effectively span the field of data handlers are hard to
devise, and monitoring the data practices of such a large number of players
is difficult and expensive.
As a result, the trend was to assume (or at least hope) that notice and
consent would provide a market mechanism for encouraging industry self-
regulation of data privacy. In light of recent acceleration in data collection
and the development of big data approaches to mining aggregated data, it
now is widely recognized that the notice and consent paradigm is inad-
equate to confront the privacy issues posed by the big data explosion.13
The notice and consent paradigm assumes that citizens are able to assess
the potential benefits and costs of data acquisition sufficiently accurately
to make informed choices. This assumption was something of a legal fic-
tion when applied to data collected by government agencies and regulated
industries in the 1970s. It is most certainly a legal fantasy today, for a variety
of reasons including the increasing use of complex and opaque predictive
data-mining techniques, the interrelatedness of personal data, and the
unpredictability of potential harms from its nearly ubiquitous collection.14

II. A Taxonomy of Privacy Laws Relevant to Data

Acquisition
As mentioned in the introduction, it is useful to organize this selective
overview of U.S. privacy law relating to data acquisition and transfer
Another random document with
no related content on Scribd:
 Many slaves on this continent are oppressed, [Sidenote:
and their cries have reached the ears of the Woolman on
most High. Such are the purity and certainty of slave holding]
His judgments, that He can not be partial in our
favor. In infinite love and goodness He hath opened our
understandings from one time to another concerning our duty
to this people; and it is not a time for delay. Should we now be
sensible of what He requires of us, and through respect to the
interest of some persons, or through a regard to some
friendships which do not stand on an immutable foundation,
neglect to do our duty in firmness and constancy, still waiting
for some extraordinary means to bring about their
deliverance, it may be by terrible things in righteousness, God
may answer us in this matter.[1164]
Man is born to labor, and experience abundantly sheweth
that it is for our good; but where the powerful lay the burden
on the inferior, without affording a Christian education, and
suitable opportunity for improving the mind, and a treatment
that we in their case should approve, that themselves may
live at ease and fare sumptuously, and lay up riches for their
posterity, this seems to contradict the design of Providence
and, I doubt not, is sometimes the effect of a perverted mind;
for while the life of one is made grievous by the rigor of
another, it entails misery to both.[1165]

While speaking of the life and work of the two [Sidenote:

above mentioned Quaker reformers, one other Anthony Benezet;
person seems to call imperatively for attention. His his influence
through books,
work was equally widespread and the public was pamphlets, etc.]
kept open to his influence through several of his
books and pamphlets published on the subject of slaves and
slaveholding.[1166] A French Hugenot by birth, Anthony Benezet
came early to America, where he was a staunch member of Friends,
and in whose society he performed a continuous service for the
freedom and education of the Negroes, until the time of his death in
1784.[1167] His immediate connection with the Negro School,
established by Friends in 1770[1168] will be considered more fully
elsewhere. The arguments advanced by him against slavery are
based on the grounds of practicality and justice. The system is
injurious to the slave and the master, and inconsistent with the ideals
of a free community. We, ourselves, must agree with him in his
position as set forth in the following selection.
[Sidenote: Extract
The bondage we have imposed on the from Benezet]
Africans is absolutely repugnant to Justice. It is
highly inconsistent with civil policy: First, as it tends to
suppress all improvements in arts and sciences, without
which it is morally impossible that any nation should be happy
or powerful. Secondly, as it may deprave the minds of the free
men, steeling their hearts against the laudable feelings of
virtue and humanity. And lastly, as it endangers the
community by the destructive effects of civil commotions;
need I to add to these what every heart, which is not callous
to all tender feelings, will readily suggest—that it is shocking
to humanity, violative of generous sentiment, abhorrent utterly
from the Christian religion; for as Montesquieu very justly
observes, “We must suppose them not to be men, or a
suspicion would follow that we ourselves are not Christians.”
There can not be a more dangerous maxim than that
necessity is a plea for injustice. For who shall fix the degree of
this necessity? What villian so atrocious who may not urge
this excuse; or, as Milton has happily expressed it,—“and with
necessity, the tyrants plea, excuse his devilish deed”?[1169]

Besides the three representatives mentioned, [Sidenote: George

there were a host of others, many of them still Keith and other
earlier but perhaps none who exercised so great an antagonists
slavery]
of
influence. Among those worthy of mention were
George Keith, a dissenter among Quakers, but one of the earliest
teachers in Philadelphia, and a very ardent antagonist of slavery.
Others, whose zeal outran their discretion, such as Ralph Sandiford,
Benjamin Lay,[1170] and William Southeby, might be profitably
discussed here, but lack of space eliminates their consideration. Still
other itinerant ministers, Banks, Pennington, and Chalkley, though
not so precipitous in their actions as the three above named, were
none the less worthy spokesmen of the cause.

THE CHURCH ORGANIZATION AND THE NEGRO

QUESTION
Under this head it is intended to present, (1) the [Sidenote: Study
activity of the society as an organization, and (2) of the meeting
the establishment of Negro education in the various records
to Negro
referring

meetings where any record of it remains. In doing education]

so, let the reader keep in mind the principles set
forth previously by the three representatives who have been
mentioned as leaders in the cause of Negro education and liberation.
As is quite naturally expected, after this brief [Sidenote: The
introduction to the belief of the Quaker leaders, we meeting
find that the society placed itself as a unit opposed organization
against slave
to the perpetuation of bondage among the Blacks. traffic]
Friends were astonished to find, when they arrived,
that slavery existed in Penn’s colony, and as early [Sidenote:
Germantown
as 1688 those settled at Germantown entered a memorial against
memorable protest against it.[1171] Five years later it]
George Keith, a Quaker who a few years later
came into disfavor with the society, entered a vigorous denunciation
of the practice of holding slaves.[1172] The general tenor of these
protests is against perpetual bondage, their idea being that since it
already existed, there should be a time limit set at the expiration of
which all those held should become free.
It would have been possible for individual protests and those of
smaller meetings to have gone on indefinitely and still have
accomplished but little in the way of influencing others. Similar
expressions from a central organization, speaking with some
semblance of authority, could have accomplished much more, and
did so, though not till some years later. The advices issued by the
yearly meeting were usually in the nature of reproof, scarcely or
never mandatory. One of the earliest was drawn up at the yearly
meeting in 1727 and sent to the meetings subject thereto.
[Sidenote: Yearly
It is the sense of this meeting that the Meeting regarding
importation of negroes from their native country slave trade]
and relations by Friends, is not a commendable
or allowable practice, and is therefore censured by this
meeting.[1173]

It is difficult to understand how any communication of this nature

could have force in a situation that seemed to demand something in
the way of command. But when it is recalled with what persistence
such advices were given, and again repeated in the appropriate
meetings, and that they were received by the monthly and
preparative meetings very much as dutiful children would listen to
the advice of father or mother, then the influence exerted by them
does not seem so strange.
Moreover, there is ample evidence in the reports [Sidenote:
of various meetings at all times that the advices of Reports made to
the yearly meeting were being followed with yearly meeting
concerning
considerable success. Philadelphia reported (1756) slaves]
that they knew of no Friends who had been
concerned in importing Negroes or other slaves.[1174] By 1772 the
yearly meeting reported by way of letter that, due to the
discouragement of the practice of slaveholding on the part of Friends
in the colonies, it had greatly diminished in some parts, and in others
disappeared almost altogether, as was true in the case of
Pennsylvania.[1175] For the sake of more complete illustration of the
type of expression issued, the following is quoted more at length.
[Sidenote:
We fervently warn all in profession with us Warning of 1758
that they be careful to avoid being in any way against being
concerned with
concerned in reaping the unrighteous profits slaves]
arising from the iniquitous practice of dealing in
 Negroes and other slaves; whereby in the original purchase
one man selleth another, as he doth the beast that perisheth,
without any better pretension to a property in him than that of
superior force; in direct violation of the gospel rule, which
teaches all to do as they would be done by and to do good to
all; being the reverse of that covetous disposition, which
furnishes encouragement to those poor ignorant people to
perpetuate their savage wars, in order to supply the demands
of this unnatural traffic, whereby great numbers of mankind,
free by nature, are subjected to inextricable bondage; and
which hath often been observed to fill their possessors with
haughtiness, tyranny, luxury, and barbarity, corrupting the
minds and debasing the morals of their children, to the
unspeakable prejudice of religion and virtue, and the
exclusion of that holy spirit of universal love, meekness, and
charity, which is the unchangeable nature, and the glory of
true Christianity. 1758.[1176]

The reader will have noticed that the chief [Sidenote:

emphasis is placed upon the wrongfulness of Freedom had to
bartering slaves; this may be explained by saying come before their
education]
that that was the first problem they had to face. Not
until they were able to secure the Negroes’ [Sidenote: Local
freedom could an education be of much value to meetings
persistent in their
him, for all that he made of his life belonged to his investigation of
master. But as soon as he became free, there slave conditions]
arose other needs, other desires. New prospects
opened before him, and there was a possibility that he might
accomplish something for himself and his posterity. This was
realized by the church organization and it followed the move for
freedom by emphatic requests that the meetings take care of the
spiritual and intellectual education of the negroes. The following will
illustrate very clearly the insistence with which the local church
investigated the activity of its members, and the penalty levied on the
disobedient one. In 1759, it was reported that ... had purchased
several Negroes; this being a breach of discipline, two members
were appointed to speak with him on the subject, according to their
custom. The final report on his case was made in 1762. They may
be praised for longsuffering and condemned for inefficiency.

... appeared at this meeting and after much weighty advice

given him in that affair, it is left for him weightily to consider
whether he can not find freedom to bring up such of his
negroes as are young in useful learning, endeavoring to
instruct them in the principles of Christianity, and at a proper
age, if they desire it, to set them free, and if otherwise, that he
can not have the unity of Friends.[1177]

Instances similar to this one are almost without number; reference

is made to a few of them only.[1178] The work of each of the
particular meetings is more completely brought out in the following
pages.
Of all meetings in the Philadelphia Yearly [Sidenote: No
Meeting, there were none which accomplished early school
more for the education of the Negro than did recorded]
Philadelphia Monthly. As has already been noted [Sidenote:
elsewhere in this work, there was quite early a Meetings for
considerable interest manifested by the meeting in Negroes]
regard to the question of servitude, and also the
masters’ care in giving them Christian instruction.[1179] There is no
record to show that at these early dates there was any permanent
school; all care was, without question, left to those who had Negroes
in their employ, education being tutorial entirely. The master’s care
was well guarded by the meeting’s committee on Negroes, however,
and in this way a central responsible party was provided. In addition,
there was also established a meeting which was held once each
three months in the interest of Negroes.[1180]
In 1770 there came to the front a definite [Sidenote:
movement for the establishment of a systematic Committee
means of educating Negro children. The proposal appointed
Negroes]
on
for its consideration, made first month, 26th, was
referred to the meeting in second month for action.[1181] On that
occasion, there being expressed a definite sentiment in favor of
action, a committee was appointed consisting of twenty-two
members with permission for any other Friends to attend its
deliberations who cared to do so.[1182] The date for the committee
meeting was set by the monthly meeting. At the subsequent monthly
meeting, the committee made its first report, which being acceptable
to all was approved, and further steps were taken to secure
immediate action. A digest of the report and proposals of the
committee is here presented.[1183]
1. The instruction of Negro and mulatto children [Sidenote: Digest
in reading, writing, arithmetic, and other useful of committee’s
learning—sewing and knitting, according to their report]
capacity, is to be provided.
2. The instruction is to be under the care of Friends.
3. The monthly meeting to nominate a committee of Friends,
whose duties are:

a. To employ a suitable master or mistress for not more

than thirty children at once.
b. To have the charge of admitting pupils to the school.
c. A subscription of £100 a year for three years to be
promoted.
d. To employ another master or mistress if necessary and
funds adequate.
e. To visit the school at least once a month, and to observe
the improvement and conduct of the pupils.
f. Rules to be prepared for teachers and pupils; provision
for attendance at religious services at least on Sunday.
g. The committee to appoint a treasurer from its number
who is to make payments upon an order signed by at least
four of them.
 h. Four members are sufficient number to transact
business; in difficulties, they are advised to consult the
monthly meeting.
i. To keep a record of proceedings, receipts, and
expenditures, and make a report to the meeting once a year
or more.

4. The children of free Negroes and mulattoes are to be given

preferment.
5. Tuition to be free of any expense to the parents.
6. If enrollment of such children is not large enough, the committee
may admit others according to their judgment.
Acting upon the recommendations incorporated [Sidenote:
in the report, a subscription paper was at once Subscriptions for
school solicited]
prepared, and the campaign for funds began.[1184]
A committee of the following named Friends was [Sidenote: Moses
appointed to assume the direction of the school Patterson in the
agreeable to the articles of the report, viz.; Israel Negro school]
Pemberton, Samuel Emlen, James Pemberton,
Richard Blackham, John Drinker, Hugh Forbes, and Edward Jones.
[1185] Their term of service was stated as “until a new nomination be
made by this meeting” and any vacancy occurring in the meantime
was to be filled in the same way.[1186] Only three months later (sixth
month) the committee of seven reported they had agreed with Moses
Patterson as teacher, hired a house, and that a number of children
were already admitted for instruction.[1187] In first month of the
following year the committee requested permission to erect a school
for the use of the Blacks, on the same lot occupied by the
almshouse. The request was at once granted.[1188]
Though it was originally stated that the [Sidenote: Full
committee should report once a year to the monthly yearly reports not
meeting, there was by no means a full report made]

recorded in the minutes each year. They are

adequate enough, however, to furnish some idea of the progress
made with the school.
The details of a few reports will be presented. It [Sidenote:
appears from the records that the committee’s Reports taken as
reports were always made the basis of judgment as aschool’s measure of the
success]
to whether the meeting would continue the school
or abandon it.[1189] Fortunately, the reports were usually favorable,
excepting in matters of financial consideration; in this respect there
was quite often a shortage.[1190] In the report of the first twelve years
there is little that deserves repetition. The school continued regularly,
according to statements made at intervals, and all things seemed to
convince Friends that it was worthy of their support. Let us note the
condition of the school at the end of twelve years, 1782.
For the five years preceding the instruction had [Sidenote: John
been under the care of John Houghton, who, Houghton and
unfortunately, had to retire because of failing Anthony Benezet]
health.[1191] His place was taken two months later
by Anthony Benezet, a teacher of great merit, and one who perhaps
had the welfare of the Negro more at heart than any other man in the
colony.[1192] At his suggestion, the school was removed from the
house erected for that purpose and established in his own home.
Great tribute was paid to the character of the work done by
Houghton, with special reference to his painstaking visiting of
families, seeking thus to increase the interest of parents, and
ultimately the school attendance. It is stated that during the five
years he was employed, two hundred and fifty children and grown
persons had entered the school.[1193] The chief value derived,
according to the committee’s view, was the increased appreciation
aroused among the Whites for the Blacks. They were forced to
realize that the Negro had talents which might be developed as their
own, giving him an insight into greater possibilities which were not
beyond his reach.
The report on the financial status was not so [Sidenote:
hopeful. The fees for the master, for the years Financially the
1779, 1780, and 1781 were eighty, ninety, and one school was no
success]
hundred pounds respectively; in addition, there was
the expense of odd jobs of work, wood for winter [Sidenote:
Payments in
use, and also the item of books.[1194] To increase depreciated
the difficulties arising from mere items of expense, money]
there was introduced another factor, the payment [Sidenote:
to the treasurer of paper money which had greatly Legacies and
depreciated in value since it was subscribed.[1195] subscriptions
used for support]
The result of the experiment, up to date, financially,
was a deficit of £74/7/10. A part of this amount was covered by
outstanding subscriptions, a considerable number of which could not
be collected.[1196] The meeting was appealed to, to make up the
deficit as usual by subscription. This method, though commonly
resorted to, was in most places supplemented by special legacies
left to trustees for any purpose the donor might designate.[1197]
Legacies for schools were particularly urged by the quarterly and
yearly meetings.
In 1784 there seems to have been but one [Sidenote:
school for the Blacks, the one taught by Benezet. Irregular
The report stated that there was a decided need for attendance]
another one in the near future; in 1786 it appears
by answers to the queries that the school has been added and that
both are supported by the voluntary contributions of Friends.[1198]
The attendance problem was evidently not yet solved satisfactorily; it
would perplex a teacher to-day. About one hundred were under the
instruction of Benezet in 1784, but only fifteen to thirty-five generally
attended.[1199] The progress of this number in reading, writing, and
arithmetic was deemed satisfactory, though it was admitted it might
be improved with more regular attendance.
The salary paid Benezet at this time was £100 [Sidenote: Salary
plus the £20 which was allowed as the rent for his paid Benezet]
dwelling, which he continued to use as a school
house.
From 1786 two schools continued. In 1790 the [Sidenote: Two
incumbent of the master’s position was Daniel Britt; Negro schools
the mistress of the other was Sarah Dougherty. The under Daniel Britt,
latter served only to sixth month, 1790, at which Sarah Dougherty,
time she was replaced by Elizabeth Meccum who and Elizabeth
Meccum]
later became the wife of Daniel Britt.[1200] Though
there was a very large enrollment at this time, the [Sidenote: School
receives gift from
actual attendance was between eighteen and thirty England]
in each of the schools.[1201] The instruction
continued as above stated and was recognized on the whole as
satisfactory, its only failure being due to irregular attendance,
occasioned by illiberal masters, who detained the Negroes in their
service. The master’s salary for the year, £100, was double that paid
to the mistress. Finances were generally in a bad state, though they
had been considerably augmented by a generous gift of £175 from
England, and a special donation by William Craig.[1202] In spite of
this, the committee was still indebted to the estate of Anthony
Benezet to the extent of about £100.[1203] These difficulties do not
seem to have been insuperable, however; the regular annual income
(about 1784) was fairly well established, being derived from the
rental of property and grounds.[1204]
Under the direction of Daniel Britt and his wife [Sidenote:
the school continued to progress; most gratifying Regular
was the increase of the regular attendance to about attendance
eighty]
about

eighty, which was as large as could be conveniently

accommodated in the two schools.[1205] The [Sidenote: Elisha
services of Britt and his wife ceased in the period Pickering, master]
from 1795 to 1798, the latter having died and the
former being aged and infirm. The master’s place was taken by
Elisha Pickering, at a salary now grown to £150 per year. That of the
mistress still remained at the mark of former years, £50. The amount
of annual rents had increased to £190/9/11 and besides this there
was an interest from £146/7 which was a part of the bequest of
Anthony Benezet.[1206] The annual expenditures were estimated at
£230, which considerably exceeded the income. It was customary to
require tuition for the children whose masters were “bound by
indenture to give them school learning,” and from this source was
eked out the sum necessary to defray expenses.[1207] There is found
no statement in the committee’s reports to indicate the amount of
tuition usually demanded. The following bill may be of interest,
however, since it shows various items of expenditures of the school
committee.[1208]
Committee of education, to Othneil Alsop, Dr.

1797 9-23. Cash advance to Bustill $ 10.00

9-30. Paid J. Schæffer for 4 benches for North
Liberties School 3.50
24 printed alphabets .27
6 spelling books 1.50
10-2. Paid A. Williams quarter’s salary 25.00
10-28. Advanced Cyrus Bustill 10.00
11-6. Two cords of wood, hauling, etc. 12.35
Total $62.62

From available records it is impossible to give [Sidenote:

more than an elementary knowledge of how the Summer and
school was run. Nothing is found concerning the winter sessions]
inner organization. We can know its purposes, its
means at command for attaining them, and approximately the
number of children it was able to reach. The length of school term is
not quite clear; it seems evident that there were summer and winter
sessions, how long we do not know, and that there was scarcely any
interruption of their continuity. Occurrences which caused an
interruption of the session usually were commented on in the
committee’s reports.[1209] A summary of the report showing the
status of the schools in 1800 is given below.[1210] At that time they
were under the direction of committees of the northern, central, and
southern districts.
1. Benjamin Mears, master at $500 a year; [Sidenote: Status
Elizabeth Meccum, mistress at £50 per year. of Negro schools
in 1800]
2. Schools have been kept open throughout the
year 1798-99 with the exception of twelve weeks on account of
sickness.
 3. The attendance, from seventy to eighty day scholars, winter and
autumn.
4. Some applicants for admission have been refused because of a
lack of room; room enough for all in summer.
5. Finance:

a. Total bequest of Anthony Benezet, plus that which

was owing to him at the time of his death, makes
an income of £193/4
b. Annual amount of donations from other sources £117/5/11
Total £220/9/11
In hands of treasurer £ 8/12/6

For two reasons it has been thought advisable to present as fully

as possible the situation in regard to the Negro’s education in
Philadelphia. First, they were present in Philadelphia in so
considerable numbers that it necessitated a complete organization
on the part of the society if any aid was to be offered; second, the
method of dealing with them was closely followed in other localities,
in case there were sufficient numbers to warrant it. The activity of
other monthly meetings in this question of oversight and education of
the Negro will be touched upon briefly.
As was above suggested, and will be shown [Sidenote: Not
more explicitly hereinafter, there were many of the enough Negroes
country districts where the Negro problem scarcely for a separate
school]
existed.[1211] In many others the number of the
race was so small that a separate school was entirely out of the
question; but more was needed than the mere presence of a White
school, to make certain that they received even the rudiments of an
education. A constant readjustment of the general ideal of attitude
toward them was necessary for each individual community. The
details of information concerning the work of each meeting was
interesting enough, but perhaps it will be more instructive to point out
and illustrate the general characteristics which applied to most, or at
least a large number of them.
 As a general rule, if Negro inhabitants were [Sidenote: Negro
numerous, a committee was delegated to the education usually
delegated to a
service of their care and education.[1212] In some committee]
places this was made a standing committee having
specified duties; in others, the committees were appointed only to
investigate conditions and make a report, so that further action might
be taken by the meeting. It may be well to note the type of this
service which the committees were required to perform. The duties,
performed by the two kinds of committees, were but slightly
differentiated; the chief difference lay in the length of the term of
service.
The first task for them was to actually visit the [Sidenote: Seven
Negro families within the compass of the particular duties for the
committees to
meeting;[1213] the second, to determine as exactly perform]
as possible the economic status of the home;[1214]
the third, to ascertain the number of children capable of receiving
schooling;[1215] fourth, to inform themselves as to the attitude of the
parents towards their children’s education;[1216] fifth, to deal with
members of Friends who possessed slaves or paid servants,
endeavoring to point out to them the obligation for their education,
and also for their freedom;[1217] sixth, to inform themselves as to the
occupation pursued by the Negroes, if any;[1218] and finally, to make
a report of conditions, in such shape that it might be transmitted to
the quarterly meeting, and outline the plan of procedure, according
to the demands of the situation.[1219] From such a range of
information, considering the characteristic thoroughness of the
people, it must be inferred that they were able to understand the
needs, which is always a first requisite for their satisfaction.
Moreover, the knowledge that the quarterly meetings demanded
written statements of what they had done always worked to facilitate
prompt action as soon as the situation was defined. Rather late in
the century, 1779, the yearly meeting became insistent as to the
treatment of those who held slaves, though the punishment for
failure to educate them was not so drastic. Extracts sent to the
meetings in that year required that all members holding slaves
should be disowned.[1220] Instances where this punishment was
used are not wanting.[1221]
The financial burden of Negro education usually [Sidenote:
fell on the local meeting. Those owning slaves Support similar to
were required to pay for their education, but when that of other
schools]
they became free, as most of them did by the time
of the Revolution, it was impossible for them to pay for themselves.
This burden, which the society assumed, was usually met: (1) by
subscription,[1222] (2) by special legacies, and (3) by income from
investments in property. In the smaller localities, the first was the
predominate means; in the larger, such as Philadelphia, a larger
proportion was derived from the second and third,[1223] though the
first was common to all.
The situation at Exeter Monthly Meeting seems [Sidenote: Negro
to have been well disposed of, if one may judge by education at
the brevity of their annals. Writing, 1764, in answer Exeter]
to an inquiry on the part of Philadelphia Quarterly
Meeting, to which they belonged, they report:

But one negro amongst us, who has sufficient food and
raiment, but his religious education is still neglected, which is
now under notice.[1224]

In 1758 they had reported two Negroes only, and with substantially
the same comments.[1225] The report may either mean they had no
problem at the outset, or that they were remarkably successful in
their attempt to solve it.
Radnor Monthly Meeting reported in 1756 that [Sidenote:
they were clear with respect to buying, importing, Radnor]
disposing of, or holding slaves,[1226] and continued [Sidenote: No
substantially the same report until 1768.[1227] They early mention of
were all, according to reports, well fed and clothed their schooling at
Radnor]
and many attended meetings,[1228] but no
statement is made at that early date concerning any attempt to
educate them. From sundry reports after 1768 it seems necessary to
assume that the earlier reports were not entirely accurate in stating
that the meeting was “clear” of slaves. Without this assumption, it is
difficult to understand the great increase in the cases of discipline for
that offense. This increase was doubtless due to a closer scrutiny of
the Negro question than had been formerly customary.
Beginning with 1768, there were several cases [Sidenote: Report
reported of dealing in slaves, either buying, selling, of committee on
slaves]
or holding. First, there was “one slave sold,”[1229]
and two years later the records state “none imported but some
purchased and some sold since last account.”[1230] It was further
admitted (1770) that “nothing has yet been done by us in visiting
those who hold slaves,”[1231] but a few years later (1776) there is
ample evidence cited that they attended to each individual case;
there are several instances where expulsion from the society was
threatened,[1232] and actually carried into execution.[1233] In 1778
the committee on slaves reported: (1) they had visited all members
holding slaves, (2) obtained manumissions from David Harvard for
two slaves, (3) Anthony Tunnis also released a slave, and (4)
mentioned two other cases for consideration—(a) that of John
Harvard, holding one slave though he admits it to be wrong, and (b)
that of Samuel Harvard who refuses to set free a Negro man aged
forty, though he condemns the slaveholding practice.[1234] In 1780
the meeting reported none imported, sold, or purchased, and almost
none held,[1235] and by 1790 even the latter had disappeared.[1236]
There was at this time constant oversight of the [Sidenote: Some
freed Negroes and some of the children were given schooled without
the opportunity of schooling without charge to the charge]

parents.[1237]
Negro slavery flourished early in Bucks County, [Sidenote: Slavery
[1238] and still continued to persist until after the in Bucks County]

abolition in 1780,[1239] which resulted in a gradual

diminution of slavery throughout the state. A little later we shall
notice the distribution of slaves as indicated by the registration which
was required by the law in 1782.[1240]
The presence of Negroes in the compass of [Sidenote: Slaves
Middletown is first made known through the record mentioned at
of 1703 which stated that Robert Heaton and Middletown 1703]
Thomas Stackpole were appointed to fence off a
portion of the ground to bury Negroes in.[1241] The first reference to
their liberation (other than by death) is the case of Jeremiah
Langhorne, who in 1742 freed all of his Negroes, the entire number
being about thirty or forty.[1242] Just how frequently such liberations
occurred and how generally they were participated in by Friends is
not accurately ascertainable from the records, but by the year 1782
just following the stringent abolition act we have the following report:
[Sidenote: No
We have none to charge with buying or slaves held; the
holding slaves, and care is taken to give the children schooled]
young ones learning and some care has been
taken to encourage them in a religious and virtuous life.[1243]

In 1783 a similar report issued from the monthly meeting, stating

that a noteworthy care was evident among them for the Negroes,
both old and young, but that a more considerable care was
necessary to be taken in regard to their education.[1244]
In 1759 Buckingham Meeting appointed John Ely [Sidenote:
and Isaac Pickering to speak with one of their Buckingham]
members who had purchased slaves.[1245] This [Sidenote: Negro
was done because it was a conflict with the to be educated
discipline. The burden of their advice is that he and given
should bring up the young Negroes in useful religious instruction]
learning and Christianity, and later set them free if
they desired it. There is nothing further to indicate [Sidenote: No
the nature of the education, and since there is no evidence of
separate Negro
evidence of a school for them, it was probably in school]
their homes or in connection with the White
schools. No other references are found which point to any progress
until 1778 when the meeting appointed Thomas Watson and Oliver
Paxson to advise and assist the free Negroes in their religious duties
and also in regard to their school education.[1246] This appointment
was made in accordance with the more stringent regulations which
were given out by the quarterly and yearly meetings in 1777.[1247]
These regulations requested only that committee be appointed to
look into the status of the Negroes and seek to better their
conditions, but the one next following, 1779, required those holding
slaves to be disowned.[1248]
The records of Bucks Quarterly Meeting are in [Sidenote: Slave
very substantial agreement with those of the holding debated
individual meetings, Falls, Wrightstown, Middletown in meeting]
and Buckingham, which constituted it.[1249] The
question of the rightfulness of buying or owning slaves seems to
have come first to a conscious consideration about 1730, when it
was debated in the meeting.[1250] They were unable to come to a
decision in the matter and accordingly referred it back to the yearly
meeting.[1251] Though unsuccessful in debating the question
satisfactorily, their practical success seems to have been very
commendable, for in 1766 there is reported only one Negro
purchased lately throughout the quarter.[1252] This does not mean
that no Negroes were held, for as will be shown later there were
many in that region; it does mean, however, that their control of any
increase in slaves was very satisfactory to the yearly meeting’s
demands. By 1772 the record has still been greatly improved, as
they report:

clear of importing or buying negroes as far as appears, but

their religious education is not so strictly attended to as the
import of the query seems to require.[1253]

Though all indications are to the effect that slave purchasing was
near the minimum, the meetings were clearly not satisfied.
Committees were at all times kept by both the quarterly and monthly
meetings,[1254] to visit with those who held slaves to persuade them
to give them their freedom. The committee for this service in the
quarterly meeting reported in 1777:
[Sidenote: Report
We of the committee appointed by the of committee on
quarterly meeting in order to treat with our slaves]
members who hold their fellowmen in bondage,
in connection with the several meetings committees, now
report that there has been considerable time spent in laboring
with them in order to convince them of the evil of the practice,
which labors of love have been by some kindly received, and
they have complied so far as to give those they had in
bondage their liberty by instruments of writing ... but there are
others who still persist in holding them as slaves,
notwithstanding the repeated care and labor of Friends
extended towards them.[1255]

The next report made in the eleventh month of [Sidenote:

the year is substantially the same, several slaves Meetings set up
having been “manumitted or set free,” and, also, for Negroes]
the defiant attitude being still present among some
members.[1256] The similarity of these reports continues till the very
last years of the century, with however a few additions. At some time
prior to 1795, not more than three years, there were established
meetings for Negroes which were held at stated times, always under
the direction of Friends.[1257] In 1799 the quarterly meeting was able
to report “no slaves among us” and that “some care” is extended to
those set free.[1258]
Very early, the meetings were urged to give their [Sidenote: No
attention to the religious and school education of mention made of
separate school]
the negroes that were in their possession,[1259] but
a majority of the reports from meetings are to the [Sidenote: Social
effect that this did not receive satisfactory attention. approval given
[1260] No evidence remains in any records to show those who freed
slaves]
that there was a separate school ever established
for Negroes, and it is quite possible that there never was during the
18th century. The demands transmitted through Bucks Quarterly
were not so strictly enforced in regard to education as in regard to
liberation, and it is more than probable that it was in most cases
determined by the individual conscience than by the group. In regard
to forcing liberation by public opinion, there are many examples
where individuals were singled out and threatened with ejection from
the society if they refused their slaves freedom,[1261] but there are
few references to such action taken for failure to educate them; there
are, however, occasional ones mentioned. Most references to their
education were in the nature of advice, which doubtless was
followed in many cases,[1262] and disregarded in many more.
In spite of the continuous exertions of the [Sidenote:
Friends’ meetings to keep down the number of Registration of
slaves purchased, and to increase the number of 1782 showed
large proportion of
liberations among those already possessed by their slaves in Quaker
members, it appears from an investigation of the townships]
matter made by Davis, that almost one-third of the
total number of slaves in 1782 (Bucks County) were to be found in
the townships Falls, Middletown, Lower and Upper Makefield, Bristol
and Wrightstown, where the Quakers were most numerous.[1263]
The entire number of slaves registered in 1782 was five hundred and
twenty, and this may be regarded as fairly accurate since failure to
register them meant the loss of the slave.[1264] The number
registered in the townships where Baptists and Presbyterians were
settled, Warwick, Warrington, New Britain, Newtown and Bedminster,
was very small, while the German districts registered but thirty-two.
[1265]

The meetings constituting Western Quarterly [Sidenote: Early

Meeting (Chester County), Kennett, London Grove, records of slave
and New Garden have very meagre references to holding meagre]
slaves or slave holding up to about 1770. One of
the monthly meetings, London Grove, was not established until
1792,[1266] and between that date and 1800 made no reports of any
consequence.