Privacy

1. Privacy Chris Kellychris.kelly@bakernet.com iLaw July 5, 2002

2. One Descriptive Framework • Privacy in Space • Privacy in Decision • Privacy in Information

3. Value-laden Framework • Privacy as Secrecy • Privacy as Autonomy • Privacy as Control

4. Privacy as Secrecy • Key claim is that most additional observation is illegitimate • Common in the public parlance • Not really true in most social circumstances and public places • Observation provides benefits • Observation is always a risk in public places • Some value in anonymity • Costs too… • Current expectations (reasonable or not) threatened by changing economics and politics

6. Ellison • “Central databases already exist. Privacy is already gone” • Q: “In 20 years, do you think the global database is going to exist, and will it be run by Oracle?” • A: “I do think it will exist, and I think it is going to be an Oracle database. And we're going to track everything.”

8. McNealy • “You have zero privacy anyway. Get over it.”

9. Accountability balance • Observation and recording provide market-driven, consumer selected features • Leveraging purchase data, viewing information, etc. for consumer benefit through personalization • Complete absence of observation promotes antisocial behavior • Does not cause it, but removes threats to it • Observation and assessment have always been part of everyday life • Norms in basic social interaction • Law enforcement

11. Diffie on National ID Card • “Maybe this is just the scaling of society” • But if national ID cards will become the norm, at least offer a provision for reciprocity: Anyone who demands to see an ID card will be required to show theirs as well.

12. What constrains Big and Little Brother • There are legal, social, economic and architectural rules that regulate the balance • Law: U.S. Fourth Amendment and many similar international provisions, privacy laws • Norms: Surveillance kept from sensitive areas, public relations risks of being too intrusive, self-regulation • Market: Public relations risks, self-regulation, declining marginal value of basic data as it becomes abundant • Architecture: Can be leveraged to benefit pro-privacy values (e.g., P3P, do-not-call lists, “ADV” labeling combined with filtering)

13. The U.S. Constitution • Privacy as secrecy is a good thing • Constitutionally protected: “persons, houses, papers, and effects” in Fourth Amendment • But it has its limits • Accountability balance is built in: only “unreasonable” searches and seizures forbidden

14. Privacy as Control • Focus is not on preventing surveillance in the first instance, but on setting rules for data usage • Medical records, financial records as models • Fair Information Practices • Implementation of EU Data Protection Directive • Piecemeal approach of US law

15. Is cyberspace separate? • Certainly has changed the economics of and basic assumptions about data collection • Architecture as data-collection friendly

18. Moving away from separatism… • Real space and cyberspace are not really separate at all, or at least they won’t be for long • Need to make regulation of information flow the focus • Some protection of solitude (privacy as secrecy) in the name of control • But needs to be balanced to allow customer-driven personalization and accountability

19. …but context is still important • Law regulates people and their relations, and that context is mediated by the social context of place. • “people, not places” from Katz • But people are in places, relevant distinctions can be made • Example: no surveillance in the home