Discrimination

Tinder Shows Discrimination Can Take All Shapes In The Internet Age

Caleb Holtz, MJLST Staffer

On January 20th Tinder Inc., the company responsible for the popular dating mobile app, filed a proposed settlement agreement worth over $17 million. The settlement seeks to settle claims that Tinder charged older users more to use the app solely because of their age. Interestingly, while many people think of age discrimination against a group for being too old as being solely the concern of AARP members, this discrimination was against people over the age of 29. This is because of the relatively low threshold in California as to what can constitute age discrimination under California civil rights and consumer protection laws.

Discrimination is incredibly common in the Internet age, at least partially because it is so easy to do. Internet users develop a digital “fingerprint” over time and usage which follows them from website to website. Data contained within a digital “fingerprint” can contain information from “websites you visit, social platforms you use, searches you perform, and content you consume.” Digital fingerprinting is becoming even more common, as enterprising trackers have discovered a way to track users across multiple different browsing applications. When this information is combined with data users willfully give out on the internet, such as personal data on Facebook or Tinder, it is incredibly easy for companies to create a profile of all of the users relevant characteristics. From there it is easy to choose on what grounds to distinguish, or discriminate, users.

Discrimination in this manner is not always necessarily bad. On the most positive end of the spectrum, institutions like banks can use the information to discern if the wrong person is trying to access an account, based on the person’s digital fingerprint. More commonly, internet companies use the data to discriminate against users, controlling what they see and the price they are offered. A quintessential example of this practice was the study that found travel websites show higher prices to Mac users than PC users. Advocates of the practice argue that it allows companies to customize the user experience on an individual basis, allowing the user to see only what they want to see. They also say that it allows businesses to maximize efficiency, both in terms of maximizing profits and in terms of catering to the customer flow, which would therefore lead to a better user experience in the long run. To this point, the argument in favor of continuing this practice has generally won out, as it remains generally legal in the United States.

Opponents of the practice however say the costs outweigh the benefits. Many people, when shown just how much personal data follows them around the internet, will find the practice “creepy”. Opponents hope they can spread this general sentiment by showing more people just how much of their data is online without their explicit consent. This idea has support because, “despite its widespread use, price discrimination is largely happening without the knowledge of the general public, whose generally negative opinion of the practice has yet to be heard.”

More serious opponents move past the “creepiness” and into the legal and ethical issues that can pop up. As the Tinder case demonstrates, online discrimination can take an illegal form, violating state or federal law. Discrimination can also be much more malicious, allowing for companies looking for new employees to choose who even sees the job opening, based on factors like race, age, or gender. As Gillian B. White recently summarized nicely, “while it’s perfectly legal to advertise men’s clothing only to men, it’s completely illegal to advertise most jobs exclusively to that same group.” Now, as the Tinder case demonstrates, in certain scenarios it may be illegal to discriminate in pricing as well as job searches.

So what can be done about this, from a legal perspective? Currently in the United States the main price discrimination laws, the Sherman Antitrust Act, the Clayton Act, and the Robinson-Patman Act were created long before the advent of the internet, and allow for price discrimination as long as there is a “good faith reason”. (Part of the trouble Tinder ran into in litigation is a judge’s finding that there was not a good faith reason to discriminate as they were). There are also a plethora of discrimination in hiring laws which make certain discrimination by hiring employers illegal. Therefore the best current option may be for internet watchdog groups to keep a keen eye out for these practices and report what they come across.

As far as how the law can be changed, an interesting option exists elsewhere in the world. European Union data privacy laws may soon make some price discrimination illegal, or at the very least, significantly more transparent so users are aware of how their data is being used. Perhaps by similarly shining sunlight on the issue here in the states, consumers will begin forcing companies to change their practices.