By Mark Epstein 1/11/19
In 2008, “Black Mirror” creator Charlie Brooker warned of a future where the “marketing arm of OmniCorps Ltd.” tracks “the entire nation’s internet activity, viewing habits, credit card, use of public transport . . . in order to build an exhaustive database of consumer profiles.” Reflecting these concerns, his popular Netflix show often features surreal, but plausible, scenarios of corporate data collection such as androids resurrecting the deceased’s personalities from their social media histories, and aural implants, which record their users’ memories. Ironically, Black Mirror’s latest release, a film called “Bandersnatch,” uses new interactive video technology to let a giant corporation probe its 137 million subscribers’ activity to better market its services.
Unlike other tech giants, Netflix has faced little scrutiny of its privacy policies. In December 2017, its corporate Twitter account asked, “to the 53 people who’ve watched A Christmas Prince every day for the past 18 days: Who hurt you?” Google, Facebook, or Amazon would have faced massive outrage had they publicly mocked their users’ embarrassing information, but Netflix received only minor criticism from privacy advocates. Mr. Brooker meekly responded, “maybe not the wisest thing to tweet.”
Netflix’s CEO Reed Hastings said last April that the company was “substantially inoculated” from the privacy scandals affecting other platforms. There’s some logic to this double standard. People are less concerned about safeguarding what movies and television shows they watch than their private messages, web browsing history, and purchases. However, interactive programming changes this equation by giving Netflix more data than just the movie viewing history.
Set in 1984 Britain, “Bandersnatch” tells the story of Stefan Butler, a programmer designing a “choose your own adventure” style computer game. Just like the game, the Netflix program allows its viewers to control Stefan’s decisions. The choices begin with mundane options of breakfast cereal, but progress to whether Stefan uses LSD, commits suicide, murders his father, and whether he dismembers the corpse.
Netflix acknowledges it tracks its subscribers’ decisions within the show to “see what resonates with audiences and what doesn’t,” as Vice President for Product Todd Yellin explained. But the company does not merely aggregate viewing data to see what’s popular as TV producers analyze the Nielsen Ratings. Spokesman Jonathan Freidland said viewer data was most useful “not in picking the perfect content” but “marketing it more efficiently.” Interactive programming can enable Netflix to create a psychological profile of its users to market content more efficiently. If you chose to cut up Stefan’s dad’s body, then maybe you would like to watch a gory horror movie.
Implemented properly, data collection and personalized marketing does not inevitably lead to tech-dystopia and can benefit consumers. However, Netflix should offer subscribers more transparency and control over their data. The video distributor does not allow consumers any options over what data the company takes, how it’s used or whether to voluntarily grant any third parties access. At the very least, it should disclose how it is using the data from interactive programs and make that collection optional. If Netflix does not reform its privacy policies, “Black Mirror” and other interactive programming will make it step closer towards the OmniCorp Mr. Brooker warned against.
Mark Epstein is an attorney focusing on the tech and telecom sector. His articles on antitrust and technology law have appeared in the Wall Street Journal, Forbes, National Review, and US News & World Report.