are exactly the same. With both, there’s a bit of “our” data that “we’ve” lost control over. In the case of copyright, it is the data constituting a copy of our copyrighted work; in the case of privacy, it is the data representing some fact about us. In both cases, the Internet has produced this loss of control: with copyright, because the technology enables perfect and free copies of content; with privacy, as we’ll see in this chapter, because the technology enables perpetual and cheap monitoring of behavior. In both cases, the question policy makers should ask is what mix of law and technology might restore the proper level of control. That level must balance private and public interests: With copyright, the balance is as I described in the last chapter; with privacy, it is as we’ll explore in this chapter.
The big difference between copyright and privacy, however, is the political economy that seeks a solution to each problem. With copyright, the interests threatened are powerful and well organized; with privacy, the interests threatened are diffuse and disorganized. With copyright, the values on the other side of protection (the commons, or the public domain) are neither compelling nor well understood. With privacy, the values on the other side of protection (security, the war against terrorism) are compelling and well understood. The result of these differences, as any political theorist would then predict, is that over the past ten years, while we’ve seen a lot of legislative and technical changes to solve the problems facing copyright, we’ve seen very few that would solve the problems of privacy.
Yet as with copyright, we could restrike the balance protecting privacy. There are both changes in law and changes in technology that could produce a much more private (and secure) digital environment. Whether we will realize these changes depends upon recognizing both the dynamics to regulation in cyberspace and the importance of the value that privacy is.
We will think about three aspects of privacy, and how cyberspace has changed each of them. Two of these three will be the focus of this chapter, but I begin with the third to help orient the balance.
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.”
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:
The Internet
