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Gary T. Marx, Professor Emeritus, M.I.T.
Abstract: In discussions on the ethics of surveillance and consequently surveillance policy, the public/private distinction is often implicitly invoked as a way to structure the discussion and the arguments. In these discussions, the distinction ‘public’ and ‘private’ is often treated as a uni-dimensional, rigidly dichotomous and absolute, fixed and universal concept, whose meaning could be determined by the objective content of the behavior. Nevertheless , if we take a closer look at the distinction in diverse empirical contexts we find them to be more subtle, diffused and ambiguous than suggested. The paper identifies a number of distinct meanings of the concepts. It argues that the public and private be treated as multi-dimensional, continuous and relative, fluid and situational or contextual concepts, whose meaning lies in how they are interpreted and framed. Those using the terms public and private would benefit from more clearly specifying which dimensions they have in mind and how they relate.
Given the rapidity of technical change in the face of a more obdurate culture and the sensationalism of the daily media, it is good to see this special issue devoted to electronic surveillance. Yet in its’ breadth, the concept of electronic surveillance is not very helpful. Everyday language terms such as “electronic surveillance” can inhibit scientific and normative understanding, unless careful definitions are offered. Just what is electronic surveillance? Does it refer to any form of surveillance using electrical power? Does it refer to the contemporary forms such as video and audio surveillance, location monitoring and computer records? Does it refer to itself, as when electric power grids or home appliances electronically monitor their own condition?A question well asked, is half answered.
I am interested in the impact of technology on the borders between the self and others and the conditions under which personal informational borders are seen to be legitimately and illegitimately crossed. A related interest is in the intended and unintended consequences of social control through technology. I have explored these themes in work on particular new surveillance technologies such as contemporary undercover policing, video and electronic location monitoring and Caller-ID.
While as a sociologist I am resolutely empirical, I am also concerned that looking just at a given technology can cause us to miss the larger vista and prevent seeing commonalties across, and systematic differences between technologies and responses to them. My emphasis here is not on a given technology. Rather within the cornucopia of types and issues this topic raises, I discuss the cross-cutting terms public and private. Ideas about what is public and what is private are key elements in many contemporary conflicts over personal information. The endemic issues of self and other and the personal and the social, go far beyond any given technology, or even technologies treated as a class.
The control of personal information is at the center of electronic surveillance controversies. This issue in turn is part of the broader topic of information and society. In considering control over information the level of analysis can involve the individual, small group or large organization and a rich variety of means and rationales for protecting and discovering information.
Elsewhere I specify some factors that are new about the new surveillance. (Marx 1988, ch. 10) 1 I have also sought to locate the new technologies within a broader context of surveillance in general. I argue that any surveillance ought to be judged by asking the 29 questions in table I. (Marx 1998) These questions involve ethical and social analysis of the tactic, the data collection context and the goals. Without claiming that they are morally equivalent, I argue that the more one can answer these questions in a way that affirms the underlying principle (or a condition supportive of the principle), the more ethical the use of the tactic is likely to be.
Underlying these questions are a cluster of value justifications. The most overarching and important is the Kantian idea of respect for the dignity of the person. When the self can be technologically invaded without permission and even often without the knowledge of the person, dignity and liberty are diminished. Respect for the individual involves not causing harm, treating persons fairly through the use of universalistically applied valid measures, offering meaningful choices and avoiding manipulation and coercion. These in turn depend on being adequately informed. Viewing personal information as a property right belonging to its’ subject (not unlike a copyright) is another justification, although autonomy over the use of one's information also shows respect for the person. Another major value is trust and its implications for community. When trust is violated through deception or the failure to honor agreements and implied contracts in data collection, the value of community is undermined.
Central to our acceptance or sense of outrage with respect to surveillance, regardless of how it is done, are the implications for crossing personal borders. I argue that when violations of personal borders occur, this involves one or more of four conditions:
Conceptualizing the Public and the Private
In the work described above I am guilty of what I now will argue against, the failure to adequately unpack the cross-cutting concepts of the public and the private which are central to personal border crossings. Public and private borders have legitimate and illegitimate crossing points and interstitial gray areas that are often in dispute or unclear.
Those making sweeping claims about either the death of privacy, or the public (and therefore presumably non-problematic) nature of the technology’s emissions and receptions, use the former terms as if their meaning was self-evident. It is not. The public and the private involve multiple meanings over time and across cultures, contexts, kinds of persons and social categories. Definitions and emphasis also vary by the fashions of the various scholarly traditions. The area may also involve a nest of contradictions and ambiguities with many examples falling or suspended between the cracks. Our scientific and normative understanding will be improved by greater clarity in the meanings attributed to the terms public and private.
I argue that rather than approaching the public and private as uni-dimensional, rigidly dichotomous and absolute, fixed and universal concepts, whose meaning is determined by the objective content of the behavior, they are best conceptualized as multi-dimensional (with dimensions sometimes overlapping or blurred and at other times cross cutting or oppositional), continuous and relative, fluid and situational or contextual, whose meaning lies in how they are interpreted and framed.
Yet structures can condition meaning. New technologies can be an important factor in altering the structural conditions and contexts within which individuals make their interpretations. Current controversies of course can often be classified as simply involving traditional value conflicts (e.g., as between the First and Fourth Amendments, the community and the individual or liberty and order). Consider for example the issue of prying journalists, adopted children seeking to discover their birth parents and disagreements over states selling arrest and conviction data. But other conflicts in addition involve confusion over new technological border crossings, blurrings and nestlings. The monitoring of e-mail and of computer broadcast signals, passive thermal imaging devices applied outside a private building, passive millimeter wave imaging devices that can see through clothes, vacuum-like breathanalyzers attached to a flashlight 2 or the internet posting of personal information about doctors who perform abortions are illustrations.
Where does (and should) the private person stop and the public person begin? These questions were relatively more settled before new technologies appeared that suddenly give meaning to here-to-fore meaningless, and therefore inadvertently protected, personal information. Consider for example the issues raised by technologies that measure brainwaves, body radiation and pheromones; bits of personal information widely scattered across space, time and contexts that take on new meaning by being aggregated; and personal information given meaning through comparisons to large data bases and computer matching and profiling.
Before turning to dimensions of the public and the private, let us briefly consider some related issues of personal style, organizational ethos, institutional sphere and control over personal decisions that add to the confusion. Individuals vary in how they communicate personal matters and in their general approach to concealment and revelation. For example we may say that someone is “a very private” person or the opposite –“an open book.” Common ideas about gender fit here--consider the belief that women more commonly share and reveal personal thoughts and feelings (particularly to each other) than do men. In that sense they are more “public” than men. But in showing greater modesty women could also be said to be more “private.”
There may also be regional variation. Thus persons on the West Coast, and in California in particular, are often stereotyped as being more forthcoming in expressing the personal. That also seems true of Americans in general relative to Europeans, and of Southern relative to Northern Europeans. There may be levels here. Thus many Europeans claim that American openness is only at a superficial level and once rapport and trust are established, deeper levels of personal revelation are found in Europe than in the United States.
Organizational cultures also fit here. Some for example have reputations for being “open”, “friendly”, “trusting”, and “supportive” and for widely sharing information. Others are the opposite. They are seen as “tight” and “formal” and information is hoarded and carefully controlled. This partly represents the type of organization –contrast a university with an intelligence or security agency, but it goes beyond this to organizational history and culture. Institutional settings can be considered. A distinction going back at least to the Greeks contrasts a “public” men’s sphere of work and governance with a “private” women’s and servant’s sphere of home and family. 3 (Arendt 1973, Habermas 1991)
Any broad discussion of the public and the private must consider the above as ambient background factors and elements of popular culture. They may be correlated with degree and form of information control. Yet they are of a different order than the more specific dimensions characterizing many contemporary controversies.
Also of a different order is the intermediate factor of control over personal decisions, such as those involving sexual preference, contraception, abortion and related matters. These are now generally treated by the courts as involving “private” decisions beyond the reach of state control, or at least state prohibition. Central to this is behavior and the broad contours of liberty, rather than issues around the protection or revelation of information as such. However information issues may be present as with the requirement that minors inform their parents before they are given birth control or have an abortion, or a prohibition on asking sexual preference in a job interview.
I argue that some of the mental cacophony associated with the rich variety of empirical configurations seen with electronic surveillance and other forms of information technology stems from the failure to differentiate between, and note the inter-relations of various dimensions of the public and the private. At a minimum we need to consider these with respect to:
Absent special circumstances (a prison, military facility, public housing) public streets and publicly owned land and structures are accessible in the sense that they may be entered and left at will. Entry and egress from privately held land is subject to the will of the owners and in principle can more easily be prohibited. In actual practice some public lands (e.g., very mountainous areas) are inaccessible and trees, shrubs and structures may block access in other settings. Much unfenced private land is accessible, as poachers and squatters know. But the emphasis here is on formal legal status.
There is of course variation and opposition within the broad labels public and private place. Such “places” are often divisible into zones or regions and front and back stage areas, where different rules apply. Thus a public park or street offers greater access and fewer restrictions than does a government building. But even in a park there are likely to be time periods when, and areas where, the public is excluded.
The status of a place may change depending on the time, special event, or emergency declarations. Many public parks “close” at sunset or in winter. Roads and beaches may be closed during an emergency. Curfews may keep all but emergency personnel off of public streets.
There are areas to be seen, but not touched or walked on, such as a flower bed or bird nesting area. The public will likely be excluded from other areas such as a supply yard. Bathrooms represent private areas within the broader public space. Stalls with doors within a bathroom are even more private. Conversely we can note the public within the private at least in relative terms when we consider “public” to involve visibility. Private places such as a home have areas which are more public e.g., a porch, entry way, living and dinning room, and external walls and the interiors viewable from street-facing windows. These contrast with less public areas such as a bedroom, bathroom, upstairs and less visible interior sections. 6
Even if the concept of public and private physical space is clearly understood, just where the lines are actually drawn (whether within or between areas) may be contested. Consider the issues around public roads or walkways that give access to quasi-private (or public) places such as shopping malls, universities or medical complexes. For example does the First Amendment right to distribute information in a “public” area extend to the side walk at the entry to a mall? Riparian rights to shores and water, and easements on private land can also confuse matters. The dividing line between kinds of property may shift with the tides in a literal, as well as a metaphorical sense. Some “public” waters may not be entered unless a life guard is present and/or an individual has demonstrated swimming proficiency.
Where the ground level demarcation of a public or private place is clear, the rules may not apply to the curtilage, underground or air space. Consider mining rights that can be sold independent of selling a piece of property. Conversely, the air space above land has often been excluded from some aspects of the notion of private property. 7 Thus reconnaissance planes with sensors that fly over chemical factories in search of pollution, or homes in search of hemp growing, have generally not faced Fourth Amendment restrictions. In the same fashion, although in an opposite direction, the White House is public property and accessible to the public (absent some reason justifying exclusion), but this only applies to the ground (and then to the public areas).The public is forbidden to fly a plane over or near it.
Public and private property information access as defined by law. This may involve rules regarding the availability of, or restrictions on, access to, and use of, particular kinds of information. This involves a dimension of availability for other kinds of “use” as against merely “being” or personally experiencing, as in the case of physical place and sense access. Legal rules guarantee and restrict access to information. They may do so categorically or only under limiting conditions.
Civil and criminal legal requirements mandate revelation or concealment in a broad array of contexts. Various rights to privacy and of publicity such as freedom of information acts, open meeting rules, disclosure rules, notification requirements, subpoenas, confidentiality protections, classification systems, official secrets acts and policies for expunging and sealing records illustrate this. 8 Government mandates the provision of personal information for census, tax, banking, licensing, regulatory and inspection systems.
Transparency for public places and records raises many interesting issues. Consider the web cam transmissions from inside a jail in Phoenix showing persons arrested but not convicted, the web posting of personal information (name, address, photo, offence) of convicted sex offenders or the name, address and social security number of police officers.
In some states it is illegal to appear in public wearing a mask as a result of anti-mask laws adopted to combat the Klan. Police must wear badge numbers and in many areas door-to-door solicitors must also be identified. In Florida arrest records, whether resulting in conviction or not, are available to the public. 9 The distinction between public and private data may merge as agencies such as the IRS purchase data from the private sector and private organizations repackage government data to sell.
Individuals are also carriers of general legal rights or obligations to conceal or reveal. These transportable rights may conflict with other expectations associated with being in a public or private place. For example the Supreme Court in its’ Katz decision, in extending the Fourth Amendment to persons beyond places, held that the right not to be overheard without a warrant applied to a phone booth, legally guaranteeing a right to private communication in a public place. Certain categories of professional are mandated to report (evidence of possible child abuse or bribe offers) regardless of where the information is encountered.
Non-spacially and non-physically anchored property may also be labeled as either private or public. For example note the private control and limitations offered by patents, trademarks and copyrights vs. those that have expired and become in the “public domain” or information that has always been there. 10 The legal area of intellectual property is growing rapidly as a result of recent developments in computerization and communication. Ownership and control over information usually permits selling, making copies and altering it.
That one has legal access to a public place or goods does not automatically imply control over other aspects. For example contrast a library book with a “privately” owned book. Garbage left on a public street, while in practice available to any passer-by, may not be legally taken without a license in some areas such as Beverly Hills, California. Money fallen off of an armored truck onto the street does not belong to any individual walking by who picks it up. 11 The public is welcomed to take home memories and photos but not flowers, plants, rocks or benches from parks. In many museums, plays and concerts open to the public, “sense-consuming” on the premises is encouraged, but making a permanent audio or visual recording for later “use” is prohibited, or if permitted, commercial use of it is not.
Ownership or control of the modalities of production, whether for material objects or communication, also relates. The legal support for employer monitoring of employee communications (whether telephone, faxes, email or the internet) lies partly in ownership over the means of communication and the fact that the work time has been purchased by the employer. 12
Just where the “publicness” or “privateness” quality resides is often blurred when we consider issues of goals and whether control rests with the state, a non-profit “public interest” group or a private group. Note disagreements about how to treat quasi-public/private places such shopping and industrial parks or the private provision of public services as with some police, prisons and schools. 13
Customary Expectations. Yet even in the clearest of locations as with a bench in a public park, expectations regarding private behavior (apart from the right to enter) are manifest. Allen (1988) for example notes that when venturing into a public area we hardly give up all expectations of privacy. Nissenbaum (1997) argues that individuals may have a continuing privacy interest in personal information beyond their immediate physical control as with their transactional data residing within organizations.
Manners bear on the topic. Certain things should not be done “in public” such as harassing, intrusive auditory and olfactory bodily expressions or unduly demonstrative romantic touching. But what is meant here is not usually defined by place as such, but “public view”. Manners specify what one may and may not do to, or around others when in their presence. Here what matters is that they are “accessible” and offer a public (that is co-present, visible) opportunity structure within which appropriate conduct may, or may not be demonstrated, e.g., not starring. This is independent of the kind of place. 14
Thus an expectation of disattending is violated if a man (other than the father) visually focuses on a woman who is breast-feeding in a socially, as against a legally, public area (that is an area where she is “available” to be observed) whether a park, subway, a restaurant or a home. Technology has no part of this. When a sense-extending technology, or the offender, is hidden feelings of violation are compounded.
The tactic of “upskirt” or “down blouse” secret videotaping of women in public settings is unseemly from a standpoint of manners, but in most jurisdictions it is still legal. 15
Consider also the signals in baseball sent from a catcher to a pitcher regarding what kind of pitch to throw. With legitimate entry to the game anyone who can see the signal is legally permitted to do so. This private in public issue was highlighted recently when it became known that the 1951 New York Giants surreptitiously used a telescope and a buzzer in the bleachers to inform their batters of what kind of pitch to expect. (New York Times, Feb. 12, 2001) While not breaking a formal rule, this violated mannerly expectations and a sense of fair play.
Other customary expectations involve the confidentiality and revelation associated with intimate personal relations. While usually not legally mandated as with spousal privilege, there are strong norms against sharing certain family and friendship information with outsiders. There are equivalent norms about the need to share personal information within primary relationships. Indeed informational borders are a central element in defining such relations relative to the more impersonal relations of strangers and in impersonal public settings.
It is ironic that while manners are a means of respecting the dignity of the other person, they may be least manifest in the close personal relations where the individual is free to let his or her “hair down” and “be one’s self.” In such settings respect for the other is shown by being honest in spite of conventions.
We lack an adequate conceptual language for the curious intertwinings of the public and the private in such contexts. Central to intimate relationships (whether in shared experiences or revealed information) is that they are “private” in the sense of being denied to outsiders, whether by barriers such as walls, doors and cloths or secret keeping and reticence. Yet for those within the relationship information is shared and in that sense is visible and known to a restricted “public”, even if we call it private. We need to differentiate information known only by the individual, from that shared with intimates, from that known by selected others as a result of formal relationships, from that which is universally or indiscriminately broadcast.
Senses access. We need to ask whether material can be seen, heard or smelled 16 apart from sense-enhancing technology and whether or not there are rules about the appropriateness of this access (whether as a free ride or as an external cost). 17 The seepage of sense data across geographic places is common and unavoidable. Here opportunity structures may conflict with expectations about the control of information. For example consider a person on a public street who looks in or videotapes through the unprotected window of a home, or loud music or cooking smells from a home that go to the street, or come from a public park into nearby homes.
Some personal information such as approximate height and weight, age, facial appearance, body adornment, skin color, gender, visible physical disability, clothes, voice and accent, car and license plate number, 18 and information about where persons are and who they are with at a given time, generally fall into the area of being “public” for those who see them, regardless of the kind of place, even if in some cases there are prohibitions regarding asking about (e.g., in an employment context) or recording these. 19 At least that is the case for those with normal sight and hearing. 20 In another context this is known as the “you can look, but you can’t touch” phenomenon.
However even with the “free” communication of basic information there are limitations and protections. The individual usually keeps certain things from the unaided senses of others such as parts of the body and undergarments covered by clothes, things in pockets, purses, packages and (in the case of smugglers) body cavities. Another thing that is generally withheld in public is one’s name.
Traditionally being in an urban area meant giving up some solitude, if often at a cost of gaining anonymity as a result of the greater density and presence of so many strangers. The advantages of anonymity was one meaning of the medieval phrases “city air makes one free” and why cities were a magnet for those seeking less confined social spaces. Yet with easily and inexpensively applied facial and voice recognition systems this may be changing 21 (for example note the facial scanning of those attending the 2001 Super Bowl). This may give rise to new proscriptions such as, “you can look and listen but absent cause, you can’t personally identify.” It is likely to be much more difficult to craft effective legal remedies for the use of such easily hidden technologies in public settings.
As a less than wealthy student, I recall “attending” many concerts at the open air Greek Theater in the Berkeley hills. Rather than buying a ticket, I simply climbed a tree on a hill behind the theater and enjoyed the concert, (although at that distance, the hearing was better than the seeing.) Those in high rise apartments around sports stadiums may also benefit from the leakage.
A first class letter is private in a way that a postcard is not. For the post card what is defining is the actual raw state accessibility of the content. 22 Short-wave radio transmissions have a mixed status here, perhaps like postcards. They may be legally intercepted by anyone with a receiver but (holding apart difficulties in enforcement), their information is not to be used or recorded (of course what “use” means is open to disagreement).
The state of public knowledge. Beyond information immediately available to the senses, other protected information may inadvertently become known to relevant publics. 23 Because of leaks, whistle blowing, mistakes, crime and investigative reporting, information often becomes available even when it is legally protected. Here we see the fluid or perishable nature of some private property definitions, once restrictions on access are transgressed and the information becomes widely known/available. After the toothpaste is out of the tube it doesn’t matter much who originally owned it. A kind of de facto information squatters’ rights can be seen. The CIA’s Pentagon Papers for example were classified and private or restricted knowledge (even if held by a public agency). Yet when Daniel Ellsberg released them to the New York Times they became public knowledge. In the same fashion a sexually explicit video tape in the safe of an actress is private property and information. Yet if this is stolen and released on the internet, it becomes public in the sense of being widely known about and known. A federal judge for example ruled that the posting of private photos (both re the owner and nature of the content) on the internet had already spread so widely that a suit by Dr. Laura Schlessinger to have the photos removed from the first Internet site to publish them was rejected. (Seattle Times, Nov. 29, 1998)
Social Status and Roles. Implicit in much of the above analysis has been an assumption that the rules regarding information are universalistic, that is that they apply to all. Yet many rules are particularistic and contingent, restricting some actors and enabling others. Individuals vary with respect to their right to enter and leave places, and gather, withhold and use information depending on their social characteristics and roles they play. Debates here are about whether the collector/user of information or the subject of it occupy social positions or categories appropriate to the action.
There are persons with special rights to know and reveal. Many professions for example have a literal license to discover, or be told personal/intimate information. They may also be required to report the information they discover, as with suspected child abuse or contagious diseases. Yet they may also have an obligation to protect the information and restrict access to it.
In other cases work conditions may bring an individual into contact with intimate details of an employer, as is the case with household workers. 24 The insider knowledge of butlers, valets and maids is a common theme in literature. While they may know, customary expectations and increasingly contracts forbid them from telling.
When a role involves acting as a “public servant” on behalf of the public interest, rather than on behalf of “private” interests, we see fewer restrictions on invasive (and involuntary from a standpoint of the subject) information gathering. However this is likely to be governed by procedures, reviews and public accountability, however indirect. 25
The intersection of public and private roles and places is an empirically rich and rarely studied topic. Public police for example under appropriate conditions can forcefully enter private property and search places that are private in both a legal and literal sense (e.g., a search of a person or a desk within a home) and under certain conditions can take intrusive actions in public place settings.
Conversely private police actions are generally restricted to the private settings of their employers. Yet within these private police may face far fewer restrictions in collecting information from individuals than do police in public roles (absent a warrant or direct observation of a felony). Here private police may act as agents of the owner, and as conditions of entering and remaining they can require searches and the revelation of personal information absent any probable cause or even reasonable suspicion. They may also engage in a broad range of deceptive tactics 26, many of which would doom a case in court if used by public police.
Relationships between private and public police are often blurred. (Marx 1987, Shearing 1992, Johnson 1992.) Shared information and tasks and symbiotic connections feeding their respective advantages may serve to neutralize some of the limitations both face. The line between them may also be hazy and fluid. Note private security agencies contracted to police public areas, off-duty public police hired by private interests, personnel movement between jobs or the temporary deputization of a citizen or commandeering of their vehicle in an emergency situation.
Publicly held corporations must provide information and face restrictions not faced by privately held businesses, e.g., on insider trading. Those seeking a license or certification from the state are required to provide information. A Wasserman test is required in most states before a marriage license is given, although this is not the case in Europe. Self-reporting may be required as when candidates for law enforcement or child guardian work submit information about arrests records.
In contrast are contexts in which individuals are explicitly prohibited from discovering or revealing information –e.g., questions not to be asked in employment interviews, protection for the identity of birth parents from their adopted children 27 and confidentiality agreements.
There are compromise situations where information must or may be provided, but anonymity is guaranteed. Note amnesty and “no questions asked” policies re the return of stolen goods, unregistered weapons and even unwanted babies 28). (Marx 1999) There are also situations, as with spousal privilege, in which an individual can not be compelled to reveal information.
The freedom of movement in public and private places and personal informational borders for children, the adjudicated, the incompetent and some categories of the sick and dependent (e.g., those subject to quarantine) are also generally weaker. They have far less autonomy in movement and in preventing their private informational borders from being crossed, at least by those charged with their control or protection. Children for example may face a curfew, be forbidden from entering a park without an adult and be denied information with sexual content. A trustee assigned to work in a park may be prohibited from leaving without permission. Those with injunction, parole or probation restrictions may also have curfews and be forbidden to go to certain places such as a public park where drug dealing occurs or the home of an abused partner.
The requirement that a prostitute, as mandated by a judge, reveal HIV status before sexual encounters is not effected by geographical location. As a result of protections negotiated by the Council of Europe, the personal data of Europeans traveling in the United States in principle have more privacy protection than do the same data of American citizens.
Beyond roles as such, context matters as well. Thus under the discovery rules in an adversarial process, the prosecution must reveal to the defense the kind of evidence it will introduce. Those testifying are sworn to tell the truth. Individuals may withhold information, but under penalty of being found in contempt of court (other than self-incriminating information protected by the Fifth Amendment). FDA regulations may mandate revealing consumer information about products and health and safety risks. Some consumer transactions bring obligations to reveal information on the goods involved, risks and conditions of the sale. 29
The characteristics of the subject of information collection and publication are also relevant apart from where the action is carried out, or who carries it out. The names of rape victims and juvenile offenders while part of a public record, may not be reported in the mass media. The legal rules and expectations around reporting on “public figures” are less stringent than for individuals not so defined. 30 If reporters used some of the invasive tactics applied to celebrities in reporting on the private details of persons not “in the public eye” their privacy would be violated under various tort protections. However even for celebrities there are limits. In Jackie Onassis’ case, a judge ruled that a particularly persistent photographer always stay at least 25 feet from her. 31
There is no single master determinant of expectations and behavior regarding the availability of personal information, whether involving the new, or traditional means. However a more systematic analysis is possible when we separate the observer from the observed (realizing that we all play both roles, although hardly in the same form or degree and this shifts over the life cycle). We can identify an individual who desires to know information (the seeker) and another about whom information is sought (the subject). For both we can consider normative expectations (whether legal or customary) regarding appropriate behavior. For the would-be-collector this may involve a requirement to gather or prohibit the gathering of personal information, or a broad discretionary zone.
For the subject it may involve a requirement to reveal or prohibit the revealing of personal information, or a broad discretionary zone. When information has been obtained there is the additional issue of how it is to be treated (e.g., are there then mandatory reporting or confidentiality requirements or discretion about what to do with the information?) When a map of the rules regarding the seeker’s behavior is considered in relation to the rules regarding the subject’s (whether this involves rights or obligations, prescription or proscription),we have a way of characterizing some of the main sources of variation.
Asking the following questions of a variety of cases regarding the location, expectations and character of personal information suggests a research strategy and can shed light on policy disputes.
This approach suggests a number of research questions and hypotheses. When as will often be the case, the expectations associated with one dimension conflict with another, it is necessary to acknowledge this and to be explicit about the relative importance we give to conflicting values and means of resolving disagreements. How do executive agencies, courts, legislatures, businesses and individuals weigh conflicting factors and with what rationales and consequences? Is there a tilt toward greater consistency and integration on the part of these factors that is continually being upset by social change and new technical developments? As the costs of failure have increased and powerful, inexpensive, low visibility, predictive (and often invasive) data collection tools have emerged, has the assessment of risk gained in importance as a factor in resolving conflicts between dimensions and in further weakening the “private”? Where personal information is readily available (whether involving seeing and hearing in the presence of another or radio transmissions or sounds that are simply in the air), are we more likely to see acceptance/tolerance, perhaps with some control through manners, rather than through formal legal controls? When the norms regarding both the seeker and subject of personal information are considered together under what conditions and how frequently do we see a rough equality or reciprocity, maximum imbalance or something in-between? How do cultures differ in how they define 32 and resolve conflicts in these areas? With globalization how will conflicts between cultures be resolved?
When the dimensions considered above are joined and given empirical illustration we have an elaborate conceptual framework which can hopefully add some clarity to current discussions in which individuals emphasizing a different factor, often are talking past each other. Certainly cyberspace and contemporary technologies raise new and challenging issues. But it is possible to over-emphasize what is distinctive and to miss parallels to traditional means.
A Chinese expression holds that, “clean water kills the fish.” Reality’s richness no doubt loses something when it is analytically parceled into too many abstract pieces. 33 Taken to its logical and aesthetic extreme, combining the various categories of actor, behavior and the various dimensions considered here would lead to hundreds of conceptual categories that not even a sociologist could love (some of course would be logically impossible and many would lack actual examples). Yet not to move beyond the murk or muck of popular descriptions has major drawbacks as well. It leaves public policy at an ad hoc level and scholarly knowledge non-cumulative and non-comparative. It is necessary to reflect on the process and appreciate the complexity, even if this makes for more tentative, less sweeping generalizations. Those using the p words when considering information technologies would benefit from more clearly specifying which dimensions they have in mind and how they relate.
Table 1: Questions To Help Determine
The Ethics of Surveillance
|A. The Means|
|1. Harm: does the technique cause unwarranted physical or psychological harm?|
|2. Boundary: does the technique cross a personal boundary without permission (whether involving coercion or deception or a body, relational or spatial border)?|
|3. Trust: does the technique violate assumptions that are made about how personal information will be treated such as no secret recordings?|
|4. Personal relationships: is the tactic applied in a personal or impersonal setting?|
|5. Invalidity: does the technique produce invalid results?|
|6. Awareness: are individuals aware that personal information is being collected, who seeks it and why?|
|7. Consent: do individuals consent to the data collection?|
|8. Golden rule: would those responsible for the surveillance (both the decision to apply it and its actual application) agree to be its subjects under the conditions in which they apply it to others?|
|9. Minimization: does a principle of minimization apply?|
|10. Public decision?making: was the decision to use a tactic arrived at through some public discussion and decision making process?|
|11. Human review: is there human review of machine generated results?|
|12. Right of inspection: are people aware of the findings and how they were created?|
|13. Right to challenge and express a grievance: are there procedures for challenging the results, or for entering alternative data or interpretations into the record?|
|14. Redress and sanctions: if the individual has been treated unfairly and procedures violated, are there appropriate means of redress? Are there means for discovering violations and penalties to encourage responsible surveillant behavior?|
|15. Adequate data stewardship and protection: can the security of the data be adequately protected?|
|16. Equality?inequality regarding availability and application:a. is the means widely available or restricted to only the most wealthy, powerful or technologically sophisticated? b. within a setting is the tactic broadly applied to all people or only to those less powerful or unable to resist c. if there are means of resisting the provision of personal information are these equally available, or restricted to the most privileged?|
|17. The symbolic meaning of a method: what does the use of a method communicate more generally?|
|18. The creation of unwanted precedents: is it likely to create precedents that will lead to its application in undesirable ways?|
|19. Negative effects on surveillors and third parties: are there negative effects on those beyond the subject and if so can they be adequately mediated?|
|20. Beneficiary: does application of the tactic serve broad community goals, the goals of the object of surveillance or the personal goals of the data collector?|
|21. Proportionality: is there an appropriate balance between the importance of the goal and the cost of the means?|
|22. Alternative means: are other less costly means available?|
|23. Consequences of inaction: where the means are very costly, what are the consequences of taking no surveillance action?|
|24. Protections: are adequate steps taken to minimize costs and risk?|
|25. Appropriate vs. inappropriate goals: are the goals of the data collection legitimate?|
|26. The goodness of fit between the means and the goal: is there a clear link between the information collected and the goal sought?|
|27. Information used for original vs. other unrelated purposes:is the personal information used for the reasons offered for its collection and for which consent may have been given and does the data stay with the original collector, or does it migrate elsewhere?|
|28. Failure to share secondary gains from the information: is the personal data collected used for profit without permission from, or benefit to, the person who provided it?|
|29. Unfair disadvantage: is the information used in such a way as to cause unwarranted harm or disadvantage to its subject?|
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1. The new surveillance is more intensive and extensive than previous forms and transcends distance, darkness, physical barriers and time; its records can be stored, retrieved, combined, analyzed and communicated with great ease; it has low visibility or is invisible; is often involuntary; emphasizes prevention ; is capital rather than labor intensive; involves decentralized control and triggers a shift from targeting a specific individual to categorical suspicion.
This may also be conceptualized in terms of broader societal themes involving the “maximum security society” consisting of dossier, engineered, transparent, actuarial, self-monitored and suspicious societies.
Some more recent considerations of the topic include Gandy (1993), Lyon (1994), Staples (1997), Brin (1999), Etzioni 1999, Rosen (2000), Garfinkel (2000), Smith (2000) and Froomkin (2000).
2. The active-passive distinction relates to questions of trespass and the Fourth Amendment. When the device simply takes what the individual offers traditional legal concepts give little privacy protection. Passive imaging devices can be contrasted with a Pentagon effort to develop “smart dust” containing sensors which would float in the air, easily entering screens and open doors for a variety of kinds of monitoring. The issue here would not be one of trespass but of invisibility and enforcement.
3. While this dichotomy is weakened by new conceptions of gender roles and by blurring of the line between work and home (day care centers at work or work computers at home), it remains an element of popular culture. Christina Nippert-Eng (1997) considers how individuals segment and integrate these worlds.
4. Of course apart from the status of property, the right to move geographically has often been controlled and restricted to those bearing appropriate travel documents, whether internal or external passports.
In a paper even more relevant today than when it was written Stinchcombe (1963) noted the centrality of public or private legal place for the production of crime statistics, police organization and practice.
The distinction can be associated with arrest for trespassing on private property. Yet ironically having only a public place to be may constitute the crime of vagrancy or loitering. The kind of person an individual is seen to be is defined by legitimate access to private property. Non-ownership or control of private space and the resulting de facto need to be in public space (to avoid charges of trespassing or breaking and entering), makes suspect individuals liable for other charges. The illogic and no-win situation in which this places those without resources has rarely been noted.
5. However these are sent and received from geographically identifiable places, although not necessarily fixed places, since the sender or receiver may be mobile.
6. These distinctions are hardly constant. In the early American home with few room partitions, no central heat, more people and less space there was little of what we today consider private areas. Yet today’s contemporary open floor plans increase the “public” space. However an accurate assessment would have to consider both the ratio of public to private space as well as the absolute amount of both. While the ratio may now be tilting more toward the public or open space the amount of private space may still have increased as a result of larger homes.
7. But air rights can often be sold.
8. Expunging raises fascinating issues re what or where reality is. An arrest actually occurs in the world but if it is expunged it is deemed not to have happened, not unlike a marriage that is annulled. Difficulties are compounded by the problems of removing information from far flung computers once it has migrated from its source. Contrast a note stuck on a bulletin board with a posting on a computer.
9. This form in which the arrested individual can not stop the information from being available is different from those in which the individual must reveal such information (as in applying for many jobs, e.g., as in law enforcement). In Florida as with other Freedom of Information Act data the information just sits there until someone chooses to access it.
10. Of course both of these are public but in a different sense. The former because they are controlled by government with a broad (in principle) “public interest” in the background and the latter because the public can use them at will.
11. It would be interesting to study the status of, and behavior with respect to, lost and found objects. Boats that break lose from their moorings are a different category and I think can more easily be claimed by their possessor. It would be interesting to learn about the “ownership” status of animals migrating from private to other private or public or common land. Poaching violations might be avoided by encouraging such migrations, although that may depend on the animal –horse, cow, sheep vs. deer, rabbit or raccoon. Wandering pets are another interesting category. The property status of other migrating forms such as heat, sound and other personal emissions could be usefully contrasted.
12. There are limits to this. The courts have generally not applied this principle to a home. Thus a spouse who wiretaps his or her own phone in search of suspected infidelity has committed a felony.
13. The question of just what is public or private in an age of such intertwining is continually contentious. At what point does a private organization become enough of a “state actor” to justify applying the U.S. Constitution and other federal laws? In a recent case the Supreme Court ruled that “the nominally private character” of an association regulating interscholastic sports in Tennessee’s secondary schools was overcorne by its “pervasive entwinement” with public institutions and officials. (Brentwood Academy v. Tennessee Secondary School Athletic Association, No. 99-901. N.Y. Times, Jan. 21, 2001.
14. Note the requirement to keep “private” parts just that, or the difference between sitting on a park bench and leaning to overhear two people whispering, as against listening to a soap-box oration from the same location. It is interesting to note that while one is forbidden to go “public” in public places as with nudity one can do this within a private place. A key factor is whether the availability of information is discriminate or indiscriminate.
15. Consider for example a Los Angeles case in which a man put a video camera in a shopping bag and then placed it on the ground to tape under a woman’s skirt. He was arrested and charged with disorderly conduct, but was acquitted. L.A. Times, Aug. 27, 1998.
16. Tasting and touching would seem to involve immediate physical co-presence, although one can imagine reaching across a barrier to touch or taste.
17. Of course the degree of availability may not be independent of the rules. A rich and almost never studied topic is how the properties of an activity effect whether or not rules emerge around it. The seeming impossibility of enforcement for some behaviors that are felt to be infractions may set limits on the kinds of rules and sanctions found. Degree of difficulty of enforcement may be a factor associated with amount of resources expended. But it can also be a factor in the absence of legislation or looking the other way, since to have rules that are very difficult to enforce can bring a variety of unintended consequences.
18. This is available regardless of whether the car is parked on a public street or a private driveway or parking lot. However since passage of the Drivers Privacy Protection Act of 1994 going from the ease of knowing a license plate number no longer translates into knowing who the car is registered to and where the owner lives. This act was inspired by the killing of an actress by a stalker who obtained her address from a private detective who used open motor vehicle records. It has also meant the end of “snoop books” such as those available in rural Nebraska counties which offered information on the who the vehicle was registered to. New York Times, J an. 13, 2001.
19. The fact that in a face-to-face context they are often obvious makes enforcement difficult since the attribute is known but is to be disregarded. This is not unlike a jury, which hears a devastating piece of evidence and then is told to ignore it.
20. This may not be as clear as it initially appears since these can be presented deceptively and there are entire industries devoted to helping people appear to be other than they would appear, were it not for their interventions, e.g., hair coloring or implant products.
21. The anonymity of the cash marketplace another taken for granted form of privacy that may also be changing, whether because of the move to a cashless society or because of widespread use of technology that scans serial numbers on currency noting its migrations.
22. Of course there are means of protecting this as well as breaking through barriers (in the case of the sealed letter material that may be sprayed on the envelope to make the contents visible).
23. When information is illegitimately known this may inhibit formal use (as with illegally gathered police evidence) and creates a market for the laundering of information such that what was previously known also can be shown to be known as a result of legitimate access. Use, as with the breaking of spy codes may also be inhibited because of an interest in not revealing to one’s opponent the effectiveness of the technologies being used.
24. This runs counter to the usual notion that differential information access reflects power differentials. However if we separate access from legitimate use then the conventional view applies. The role of servant conveys access but not the right to use the personal information. While the roles of higher status persons are more likely to involve a right to use, as well as access information.
25. Domestic wire-tapping for example can in principle only be done with a judge’s approval for a restricted period of time and under limits such as minimization. The results must either be presented in court, or if nothing incriminating is found, then the subject of the wiretap is to be notified. There has been very little empirical research on the topic.
26. D. Shulman (2000) considers how private detectives account for their use of deception.
27. Contrast the latter with the requirement in paternity suits that suspected fathers must provide their DNA. This calls attention to where requirements lie and to different forms such as individuals to each other, to organizations, to government as well as organizations and government to each other. The debatable legal treatment of the corporation as an “individual” does not eliminate important empirical and moral differences between individuals and organizations.
28. Florida for example has a law which permits parents to leave unwanted newborns at hospitals or fire stations, with no questions asked.
29. We are considering the individual level in contrast to that involving organizations and individuals (e.g., the obligation of a used car seller to offer information about prior problems and mileage) or obligations of organizations to each other. Scheppele (1988) offers one of the few systematic studies of these issues. There are interesting patterns depending on whether the repository is another individual, a second party involved in the transactions or a third uninvolved individual or organization that serves as a holding company.
30. Professional interest propels some journalists and social scientists to claim they should have the same rights to information collection and protection as doctors, lawyers and religious counselors.
31. Onassis v. Galella, 487 F. 2d 986 (2nd Cir.1973).
32. See for example among the few broadly comparative studies Hall (1966) and Moore (1984) and on contemporary data protection practices Flaherty (1989), Bennett (1992) and Regan (1995)
33. Note parallel to what was said of analyzing humor, it is like dissecting a frog, it dies in the process.
Top | Notes | Back to Main Page
Allen, A. 1988. Uneasy Access: Privacy for Women in a Free Society. Totowa, N.J.: Rowman and Littlefield.
Arendt, H. 1973. The Origins of Totalitarianism. New York: Harvest Books.
Bennett, C. 1992. Regulating Privacy: Data Protection and Public Policy in Europe and the United States. Ithaca, NY: Cornell University Press.
Brin, D. 1998. The Transparent Society. Reading, Ma.: Perseus Books.
Etzioni, A. 1999. The Limits of Privacy. New York: Basic Books.
Flaherty, D. 1989. Protecting Privacy in Surveillance Societies. Chapel Hill: University of North Carolina Press.
Froomkin, M. 2000. “The Death of Privacy?” Stanford Law Review. Vol. 52, no. 5.
Gandy, O. 1993. The Panoptic Sort. Boulder: Westview Press.
Garfinkel, S. 2000. Database Nation. Sebastopol, Ca.: O’Reilly.
Habermas, J. 1991. The Structural Transformation of the Public Sphere. Cambridge: M.I.T. Press.
Hall, T. 1966. The Hidden Dimension. New York. Doubleday.
Lyon, D. 1994. The Electronic Eye. Cambridge: The Polity Press.
Marx, G.T. 1988. Undercover: Police Surveillance in America. Berkeley: University of California Press.
Nippert-Eng, C. 1997 Home and Work: Negotiating Boundaries Through Everyday Life. Chicago: Univ. of Chicago Press.
Nissenbaum, H. 1997. “Toward an Approach to Privacy in Public: Challenges to Information Technology.” Ethics and Behavior 7:: 207-219.
Regan, C. 1995. Legislating Privacy: Technology, Social Values and Public Policy. Chapel Hill: University of North Carolina Press.
Rosen, J. 2000. The Unwanted Gaze. New York: Random House.
Smith, R.E. 2000. "Ben Franklin’s Web Site." Providence, RI: Privacy Journal.
Staples. W. 1997. The Culture of Surveillance. New York: St. Martin’s Press.
Stinchcombe, A. 1963. “Institutions of Privacy in the Determination of Police Administrative Practice.” American Journal of Sociology, vol. 69.
Schepple, K.L. 1988. Legal Secrets. Chicago: Univ. of Chicago Press.
Shearing, C. 1992. “The Relation Between Public and Private Policing.” In M. Tonry and N. Morris, Modern Policing. Chicago: Univ. of Chicago Press.
Shulman, D. 2000. “Professionals’ Accounts for Work-Related Deceptions.” Symbolic Interaction, Vol. 23, no. 3.
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