Privacy

Surveil Me!

Layers of public and private online

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In Manhattan, down near the corner of Bowery and 2nd Street, total surveillance has a cover charge.

At Remote Lounge, carousers forego the time honored tactic of walking up to strangers to deploy some cheesy pick-up line in favor of high-tech consoles decked out with remote-controlled cameras, joysticks, phone handsets, multi-channel monitors, and more buttons than the average fighter jet. Meat market shoppers can hop from camera to camera, calling up prospects or even buying someone a drink from their personal control panels. The more voyeuristically inclined can even listen in on whatever is picked up by the handset near the people they're watching. If you're into meta-surveillance, you can watch your own channel and see what the person at the other end of the camera is focusing on, scanning other channels in an attempt to divine who's watching… and what kind of comments, whether complimentary or snarky, they might be making.

The high-tech bells and whistles at Remote Lounge are mostly a novelty, an expensive variant on the low-fi crowd surfing and eavesdropping that are standard practice at a thousand other less tricked-out bars. More genuinely novel is the sort of human networking enabled by the increasingly popular Friendster network, where circles of friends can be Venn-diagrammed and browsed in a database that would boggle the mind of the most ardent Kevin Bacon fan. Users post photographs and personal profiles for the perusal of friends, friends of friends, and friends of friends of friends.

There's nothing new about posting personal information online—from webcams to weblogs, there have always been people ready and willing to share their lives, opinions, and kitten photographs with anyone who can master the intricacies of a mouse. But services like Friendster represent the ongoing expansion of self-advertising beyond a few early-adopters to the online population at large. Away messages in instant messaging programs allow us to keep friends and strangers constantly apprised of what we're up to, while phonecam weblogs edge us closer to the time when we can all be the stars of our own personal reality shows.

In a networked world, disclosure of personal information is not just a way of venting exhibitionist impulses. As telecommunications technology facilitates transactions between ever more dispersed and anonymous parties, it raises issues of reputation and trust. That's why social networks like Friendster and commercial ones like eBay both make use of user "testimonials" in an attempt to assure potential friends, mates, or buyers that the self-representations of other users are accurate. By opening up new transaction horizons, the Net has raised the value of disclosure.

This growing willingness to bare our souls to the world has created something of a rhetorical problem for privacy advocates. As communitarian critics of the privacy watchdogs never tire of quipping, most people will trade you their life story for a free Big Mac. If we're already putting more and more of our lives into the public domain, does it make sense to be worried about burgeoning state projects like LifeLog, which seeks to aggregate detailed pictures of people from thousands of individual data points, or the much-criticized Terrorism Information Awareness program?

Perhaps most of us aren't as protective of our information as the folks at, say, the Electronic Privacy Information Center. Yet this conflation of very different sorts of uses of information fails to accurately capture people's attitudes toward privacy. We may be willing to selectively reveal different facets of ourselves in different contexts: That doesn't mean we're all ready to star in individual versions of The Real World.

Unfortunately, that's a distinction that U.S. law fails to capture. In the 1976 Supreme Court case United States v. Miller, the justices determined that the Fourth Amendment rights of bank customers weren't violated by a requirement that banks release records to the government. After all, the Court reasoned, those customers had already made the information available to bank employees, eliminating the "reasonable expectation of privacy" that has been the standard of Fourth Amendment analysis since Katz v. United States in 1967. As legal scholar and judge Richard Posner has observed, this reasoning severely weakens the protection afforded by the Fourth Amendment, allowing a dodgy two-step: first, the government can require private entities to collect certain information from customers. Then, with the reasonable expectation stripped away by that disclosure, it can require that the information be handed over to government agencies.

The Katz decision was a muddled but necessary attempt to revise privacy jurisprudence away from the increasingly inadequate property bright-line that had been the standard previously. Before Katz, it was fairly simple to determine whether a "search" had occurred: If public officials crossed onto your property to gather information, they were engaged in a search. If they didn't, they weren't. But as technology increasingly divorced the ability to gather information from the need to physically intrude—Katz involved a listening device placed on a phone booth—it became increasingly clear that a property standard wouldn't necessarily safeguard spheres typically thought of as private. Hence the shift to a "reasonable expectation" standard.

The chief problem with the line of reasoning exemplified in Katz and Miller is that it makes use of a binary public/private distinction that is increasingly ill-suited to our binary coded world. Your profile on Friendster, for instance, is "public" in the sense that tens of thousands of people you don't know may have access to it. Yet it's private insofar as it is only visible by people approved as friends by your own approved friends (or one of their friends, or one of their friends).

As technology makes it easier for us to connect to one another, it also enables new methods of contract formation and reputation verification. That makes us more comfortable with the selective sharing of our lives, but it also sends potentially misleading signals about what our "reasonable expectations" are. As more of our lives go online, we need a privacy jurisprudence that can count higher than two.

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