CODE by Lawrence Lessig

Author:Lawrence Lessig [Lessig, Lawrence]
Language: eng
Format: epub
Published: 2011-09-15T20:47:28+00:00

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privacy

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PRIVACY IN PUBLIC: DATA

The story I’ve told so far is about limits on government: What power should the government have to surveil our activities, at least when those activities are in public? That’s the special question raised by cyberspace: What limits on

“digital surveillance” should there be? There are, of course, many other more traditional questions that are also important. But my focus was “digital surveillance.”

In this part, I consider a third privacy question that is closely related, but very distinct. This is the question of what presumptive controls we should have over the data that we reveal to others. The issue here is not primarily the control of the government. The question is thus beyond the ordinary reach of the Fourth Amendment. Instead, the target of this control is private actors who have either gathered data about me as they’ve observed me, or collected data from me.

Again, let’s take this from the perspective of real space first. If I hire a private detective to follow you around, I’ve not violated anyone’s rights. If I compile a list of places you’ve been, there’s nothing to stop me from selling that list. You might think this intrusive. You might think it outrageous that the law would allow this to happen. But again, the law traditionally didn’t worry much about this kind of invasion because the costs of such surveillance were so high. Celebrities and the famous may wish the rules were different, but for most of us, for most of our history, there was no need for the law to intervene.

The same point could be made about the data I turned over to businesses or others in the days before the Internet. There was nothing in the law to limit what these entities did with that data. They could sell it to mailing list companies or brokers; they could use it however they wanted. Again, the practical cost of doing things with such data was high, so there wasn’t that much done with this data. And, more importantly, the invasiveness of any such use of data was relatively low. Junk mail was the main product, and junk mail in physical space is not a significant burden.

But here, as with “digital surveillance,” things have changed dramatically.

Just a couple stories will give us a taste of the change:

• In the beginning of 2006, the Chicago Sun-Times reported22 that there were websites selling the records of telephone calls made from cell phones. A blog, AmericaBlog, demonstrated the fact by purchasing the cell phone records of General Wesley Clark. For around $120, the blog was able to prove what most would have thought impossible: that anyone with a credit card could find 0465039146-01 12/5/06 12:28 AM Page 216

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CODE 2.0

something so personal as the list (and frequency and duration) of people someone calls on a cell phone.

This conduct was so outrageous that no one really stood up to defend it.

But the defense isn’t hard to construct. Wesley Clark “voluntarily” dialed the numbers on his cell phone.

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