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Privacy in Public: Surveillance

Privacy in Public: Surveillance

A second kind of privacy will seem at first oxymoronic — privacy in public. What kind of protection is there against gathering data about me while I’m on a public street, or boarding an airplane?

The traditional answer was simple: None. By stepping into the public, you relinquished any rights to hide or control what others came to know about you. The facts that you transmitted about yourself were as “free as the air to common use.[3]” The law provided no legal protection against the use of data gathered in public contexts.

But as we’ve seen again and again, just because the law of privacy didn’t protect you it doesn’t follow that you weren’t protected. Facts about you while you are in public, even if not legally protected, are effectively protected by the high cost of gathering or using those facts. Friction is thus privacy’s best friend.

To see the protection that this friction creates, however, we must distinguish between two dimensions along which privacy might be compromised.

There is a part of anyone’s life that is monitored, and there is a part that can be searched. The monitored is that part of one’s daily existence that others see or notice and can respond to, if response is appropriate. As I walk down the street, my behavior is monitored. If I walked down the street in a small village in western China, my behavior would be monitored quite extensively. This monitoring in both cases would be transitory. People would notice, for example, if I were walking with an elephant or in a dress, but if there were nothing special about my walk, if I simply blended into the crowd, then I might be noticed for the moment but forgotten soon after — more quickly in San Francisco, perhaps, than in China.

The searchable is the part of your life that leaves, or is, a record. Scribblings in your diary are a record of your thoughts. Stuff in your house is a record of what you possess. The recordings on your telephone answering machine are a record of who called and what they said. Your hard drive is you. These parts of your life are not ephemeral. They instead remain to be reviewed — at least if technology and the law permit.

These two dimensions can interact, depending upon the technology in each. My every action in a small village may be monitored by my neighbors. That monitoring produces a record — in their memories. But given the nature of the recording technology, it is fairly costly for the government to search that record. Police officers need to poll the neighbors; they need to triangulate on the inevitably incomplete accounts to figure out what parts are true, and what parts are not. That’s a familiar process, but it has its limits. It might be easy to poll the neighbors to learn information to help locate a lost person, but if the government asked questions about the political views of a neighbor, we might expect (hope?) there would be resistance to that. Thus, in principle, the data are there. In practice, they are costly to extract.

Digital technologies change this balance — radically. They not only make more behavior monitorable; they also make more behavior searchable. The same technologies that gather data now gather it in a way that makes it searchable. Thus, increasingly life becomes a village composed of parallel processors, accessible at any time to reconstruct events or track behavior.

Consider some familiar examples:

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