Книга: Code 2.0

Privacy in Private

Privacy in Private

The traditional question of “privacy” was the limit the law placed upon the ability of others to penetrate your private space. What right does the government have to enter your home, or search your papers? What protection does the law of trespass provide against others beyond the government snooping into your private stuff? This is one meaning of Brandeis’s slogan, “the right to be left alone.[2]” From the perspective of the law, it is the set of legal restrictions on the power of others to invade a protected space.

Those legal restrictions were complemented by physical barriers. The law of trespass may well say it’s illegal to enter my house at night, but that doesn’t mean I won’t lock my doors or bolt my windows. Here again, the protection one enjoys is the sum of the protections provided by the four modalities of regulation. Law supplements the protections of technology, the protections built into norms, and the protections from the costliness of illegal penetration.

Digital technologies have changed these protections. The cost of parabolic microphone technology has dropped dramatically; that means it’s easier for me to listen to your conversation through your window. On the other hand, the cost of security technologies to monitor intrusion has also fallen dramatically. The net of these changes is difficult to reckon, but the core value is not rendered ambiguous by this difficulty. The expectation of privacy in what is reasonably understood to be “private” spaces remains unchallenged by new technologies. This sort of privacy doesn’t present a “latent ambiguity.”

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