Turtles, Firewalls, Scarlet Letters and Vacuum Cleaners: Rules about Personal Information
In W. Aspray and P. Doty (eds.) Making Privacy; Scarecrow Press, vol. 9, no. 1/2, 2011.

Gary T. Marx, M.I.T.  |  Bio

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"You ought to have some papers to show who
you are," The police officer advised me.

"I do not need any paper. I know who I
am," I said.

"Maybe so. Other people are also
interested in knowing who you are."

            — B. Traven, The Death Ship

"You know what happens to nosy fellas?
They lose their noses."

            — R. Polanski to J. Nicholson in Chinatown

Thus the young and pure would be taught to look at her,
with the scarlet letter flaming on her breast...—as the
figure, the body, the reality of sin.

            — N. Hawthorne, The Scarlet Letter

As with the ant and the ram in a popular 1950s song, I began this paper with "high hopes" (Cahn and Van Heusen 1959). I sought to generate a morphology for the rules about personal information. 1 But the monumentality of the task overwhelms. My resulting low hopes are now merely to suggest the range of cases that such a mapping must organize and to suggest some questions and concepts toward this mapping. Identifying the major forms of variation in, and classifying the rules that apply to, personal information is necessary for systematic research.

The following examples give a glimmer of the many varied settings of information control in need of a conceptual home. While all are about personal information, each contains a distinctive analytic element (or elements) to account for. How can variation in expectations about the treatment of personal information be ordered and better understood? What patterns can be identified? This paper's goal is to bring some conceptual order to the multiple and often conflicting rules and settings involving personal information.

A sampling of informational control settings would include:

  • Persons refusing to participate in the U.S. census are subject to prosecution. (Title 13 of the United States Code) (individual must provide to state)
  • Under the Fifth Amendment of the United States individuals can refuse to answer questions that might incriminate them (the state cannot compel answers)
  • Truth Commissions in East Germany and South Africa permit citizens certain rights to learn about their dossiers under previous governments (government must provide information to individual)
  • Bank Sign: "For Security Purposes Please Remove Hat and Sun Glasses" (individual must provide image to private organization)
  • The wearing of face-covering burqa-style veils in public is prohibited in France as of April 2011 (individual must provide image in public place)
  • Under the Privacy Protection Act of 1974 (PL 93-579) and later legislation, credit card holders are entitled to know certain kinds of information that organizations have about them and must be notified if data about them are lost or stolen (private organization must provide information to individual)
  • Records bureaux in some states are prohibited from releasing birth information to adopted persons absent approval of the birth parents (state must not provide information to individuals about themselves)
  • Food inspectors for the Michelin and other restaurant guides are prohibited from revealing their occupation (individual representing private organization must not report information about self to another private organization or to other individuals)
  • Under the Intelligence Identities Protection act of 1982 (PL 97-200 50 U.S.C. § 421-426) it is a crime to reveal the identity of an agent in certain covert roles with a U.S. intelligence agency (individuals must not report information about others)
  • The famous "naked man" was arrested many times in Berkeley for walking down the street nude (individual must not offer personal information about himself to other individuals)
  • Emergency rooms must report gun shot wounds, and in many states dentists are required to report suspected child abuse if they see facial bruises (private agents must report personal information on others to the state)
  • A prostitute under court order is arrested for failure to inform clients she is HIV-positive (individual must provide information to another individual)
  • Prenuptial agreements may require full disclosure of all assets (reciprocal revelation by private parties required)
  • A job applicant sues for employment discrimination after being asked questions about racial background and sexual preference (organization must not seek information)
  • A daycare center is found civilly and criminally liable as a result of an inadequate background search of an arrested employee (private organization derelict in not seeking information)
  • In the United States it is legal to take a photo of another person in public, and property ownership and tax assessments are public records, but not income tax records, while in France it is illegal to take a photo without permission, and in most Scandinavian countries income tax records are public (variation in what is available to the public across cultures)
We might say that what we see is Hodgepodge City. Many disciplinary strands are needed for ordering and understanding the varied expectations around the control of information. Philosophy identifies values, law offers specific tools, psychology emphasizes perception and the functions of information for personhood, sociology calls attention to inequality and interaction, economics addresses the costs and benefits of information transactions, design and architecture treat space and the environment. The empirical examples above illustrate a range of rules about information behavior and expectations. Each of the disciplines encounters a different aspect. Rules may determine behavior, or if not, at least create conditions around which actors maneuver.

Questions about the control of personal information have become particularly salient with the spread of new surveillance technologies, e.g., computer monitoring, video cameras, cell phones, ambient sensors, Radio Frequency Identification (RFID) chips, and DNA tests. These new soft forms of surveillance with their lower visibility, lessened cost and greater intensity and extensity in data gathering, analysis and communication, bring new issues. But they also nestle within a more comprehensive set of questions and phenomena far transcending specific technologies and cutting across disciplines. 2 These forms need to be seen as part of broader information questions that do not involve particular technologies such as informing, contracting, liability and keeping secrets. The multi-faceted topic of privacy is too often treated on an ad hoc, descriptive basis as a result of the accidents of academic disciplines and whatever is newsworthy. Privacy is unfortunately frequently treated as if it were the only concern in information control. However, privacy, too, needs to be located within a broader framework of rules covering both the offering, as well as the withholding of information. Situating privacy within a larger field can temper intemperate claims about the death of privacy or privacy gone wild.

Rules requiring a subject to withhold or reveal, or an agent to seek or not seek, information can be explored in specific institutions and areas such as education, health, work, commerce, families, and government, and for specific behavior functions that cut across institutions such as identity, eligibility validation, and kinds of treatment. Rules appropriate to one context or time period may not be for another (Marx 2001a and Nissenbaum 2010). But before we examine variation based on context, content, or functions, we must first identify general properties that can be used to classify rules. The rules and expectations that define various information settings need elaboration and contrast. Information gathering and protection rules can involve various combinations of the individual, group or organization (whether state or non-state) as subjects and/or agents and various kinds of information. Rules may refer to types and forms of content (the what); to kinds of actor and action (the who) regarding the roles played; and to specific requirements such as timing (the when), appropriate means, the presence or absence of discretion and to how collected information is to be treated.

Rules vary in their procedural and substantive rationales: constitutional protections, legislation, judicial interpretations, regulatory rulings, organizational policies — or more informal manners and tradition which we often become only aware of when they are violated.

What are the normative conditions, correlates, and consequences of raising and lowering the curtain around the collection, distribution and treatment of information about a person? Given the focus on individual privacy at the conference where the papers in this volume were given, I will emphasize information about the person and formal rules, rather than informal expectations as with manners, agreements, and understandings. The questions raised by rules are part of a broader field of the sociology of information (Marx and Muschert 2007). Systematically identifying the major forms of variation in information rules and exploring the correlates, causes, and consequences is central to scientific understanding (whether descriptive or explanative) and to public policy. This identification requires a conceptual framework.

This paper is organized around a framework for analyzing the rules about personal information based on answers to eight questions. I discuss each of the questions in turn:

  1. What kind of information is present? (personal/private or impersonal/public)
  2. To whom does a rule apply? (subject, agent or both)
  3. Who has the information? (subject, agent, both, neither)
  4. What kind of behavior does the rule involve? (closure or disclosure of information, reveal or conceal for the subject, seek or do not seek for the agent)
  5. What is the nature of the rule's requirement? (prescription, optional, or proscription)
  6. Are the goals of the subject and agent shared or in conflict?
  7. Do different or identical rules apply to subjects and agents? (asymmetrical or symmetrical)
  8. Is information protected or available as a result of a rule or a property of the information and setting?
Types of Personal Information (Question 1)

What is personal information? The definition is central to our individualistic culture which gives special protection to the personal as vital to human dignity and private property. There is often a lack of agreement about what personal information is, given its several forms and haze in the criteria for deciding where a given instance fits into any organizational scheme. Personal information may partly be understood by contrast to what it is not, that is, non-personal information. The weather or the cost of pork bellies informs about things not persons.

The broad category treated in this paper —information about persons — has several forms and is inclusive of the narrower concepts of personal and impersonal information. It can mean impersonal information which is widely shared and non-differentiating such as drivers of SUVs. It may be impersonal because it can not be directly connected to an identifiable and/or locatable individual. It can be personal in involving a name and location or merely an identifiable person. But in another sense such information need not be "personal" as in intimate, sensitive, or stigmatizing. The latter forms bring special qualities.

Personal information may refer to facts of biography and experience; information an individual has about others or other topics, e.g., who pulled the trigger, secret ingredients in a product; a property or ownership right in some information; and scents and sounds associated with an individual (Marx 2006b). 3 Such distinctions offer a means of exploring different patterns of rules, e.g., those regarding sensitive information and even non-sensitive personal information will likely differ from those in which the individual has varying degrees of anonymity. In many instances, a person's email address is likely to be less accessible to others than a home address. Analyzing such variation is needed, but in this paper information about persons is used in its broadest sense as information linkable to the individual. An issue for future papers is comparing the rules for various kinds of personal information with those pertaining to other forms such as population aggregates in which data are not directly linked to a given person. The rules for data involving persons also need to be compared to rules about data that do not involve persons. The latter rules, when not addressing proprietary information are likely to be less stringent than rules for information about persons.

Subjects and Agents (Question 2)

Does a given rule apply to the subject or to an agent? The subject is the person to whom the information pertains. While the emphasis in this paper is on an individual subject, the information of interest may apply to others as well, as with shared family DNA, intimacies, or conspiracies.

The agent refers to another party as potential or actual possessor of information about the individual. The agent as collector (or recipient a broader term) may be acting only as an individual or for an organization. The agent may be the end-user or merely a conduit for yet another entity: a third party repository. 4

Individuals and organizations go back and forth between being subjects, agents of discovery, and repositories of information for and about others. Sometimes a person plays all three roles simultaneously. This is the case when investigators or inspectors seeking information about others must first identify themselves, or in sequence, as when an agent becomes a repository as a result of gathering data. 5 Such agents are also subjects of their organizations' internal control efforts. The hybrid category of the informer is an interesting variant. Informers are agents reporting on subjects, but their unique access to hidden information means that they often need to be participants and hence are also self-reporting subjects. The roles may also be joined. Consider self-surveillance, as when an individual serves as both subject and agent, e.g., with some forms of health monitoring. Another variation involves self-initiated invitations from subjects to agents. An example is the "How am I driving?" signs on commercial vehicles that list an 800 number to call. 6

Control of the subject's information may reside with authorized intermediaries. That is the case when a person's cooperation or permission is needed for access to information about another, e.g., a minor, a trustee, exhumation of a relative's grave, or releasing papers of the deceased. Second-party reporting for birth and death records fits here. In neither case is the subject of the information responsible for reporting. 7 From a standpoint of control, the agent has the information or is entrusted to grant permission for it to be discovered, often by another agent.

Rules, sanctions, validity, and accountability may differ for second party reporters as against direct collection or reporting from the subject. This difference is part of a broader question involving who has responsibility for decisions about discovering, reporting and protecting information and the quality of the information.

Who Knows and/or Wants to Know or Discover? (Question 3)

Information about a subject may or may not be known by the individual, the individual's direct permission and literal cooperation may or may not be required, and subjects and agents (whatever the role requires) show variation in whether they desire to follow the rule.

The instance in which the subject alone has information contrasts with situations where someone else (or an organization) also has it, as well as with settings where others have information the subject lacks but desires. As an example of the latter, consider individuals denied access to personal information that pertains to them as with risk scores held by financial institutions or (in some states) access to adoption records. Whether the subject can see a letter of recommendation for a job or academic appointment raises some related issues.

The subject may be unaware that particular information exists. As once said, there are things "we know we don't know" as well as "unknown unknowns." Information repositories may not wish to reveal that they have personal information (dossiers, blacklists) or that individuals fit in a given category, such as living in an area with exposure to unsafe levels of chemicals, or having been an unwitting subject of secret experiments. 8

An organization may acknowledge the existence of a record, but not its basis or content. A rule may require that subjects receive notice, there may be leaks, or action taken may reveal the existence of the data, as with persons who discover they are on no-fly lists only when they are denied the right to board at the airport.

The varieties of fit between what the rules require or make possible and what the subject and agent desire offers a rich area for analysis. The individual may or may not wish to know, as with some carriers of a genetic potential for disease such as Huntington's chorea or learning the sex of an embryo.

Situations where the agent desires to know specific information contrast with those in which the agent is indifferent, or has a strong interest in not knowing. There are a variety of reasons why agents may not wish to know when they are expected to. 9 Possessing information may trigger rules which require agents to act in ways they prefer not to. The information may reflect badly on those whom agents wish to protect. There are many fascinating questions here around the sociology of ignorance and the actions taken to avoid toxic information and types of unwanted information. The expression, "you don't want to know" suggests a qualification to the cliché that knowledge is power. As the story of Adam the apple eater suggests, there are times when it might be better for the agent not to know.

Kinds of Behavior and Mandates (Questions 4 and 5)

The next two questions involve the kinds of behavior the rule specifies (reveal or conceal) and the conditions for this (always, discretionary, never). Since these are so interwoven (even if analytically distinct) they are treated here as a unit.

For the subject the central kinds of behavior involve either revealing or withholding (or at least not volunteering) data. For the agent central behaviors are seeking to discover or not to discover data. Once data are in possession of the agent additional rules may involve protecting, sharing, merging, altering, repurposing, preserving, or destroying data.

Most contemporary discussions treat privacy only as a discretionary right of the subject connected to the information and divorce it from other key elements of information control. Privacy rights are like a turtle that can choose to expose its head or keep it within. Such rights can be used or waived. 10 For the latter, consider a prospective employee who chooses to reveal personal details, e.g., about life style or ethnicity, that a job interviewer is prohibited from asking about. The right not to offer any information may be asserted even when there is no incriminating, embarrassing, or strategically disadvantageous information to protect. During the red scare of the 1950s some persons refused to cooperate with investigating committees out of principle, rather than because they had an affiliation to hide. 11 The concept of choice inherent to privacy as a normative phenomenon is possible only when the agent is under an obligation to neither compel, nor to prevent, disclosure and the subject has discretion regarding revelation. 12

But as fundamental as privacy's freedom to choose is to modern notions of the democratic citizen, it formally reflects only one of several elements in the control of personal information. Equally important to a robust understanding of privacy are the subject's and others' obligation to withhold or reveal and the agent's obligation to seek or not to seek.

Rather than discretion, some rules involve a prohibition or restriction on revealing information. Consider contractual restrictions, gag orders, secrecy agreements, and rules about confidentiality, classification, leaks and who within an organization is authorized to speak to outsiders —the First Amendment not withstanding. There may be an obligation of secrecy on the part of the subject (or repository) not to tell. This moral firewall may apply to the information itself or to the fact that information exists. This instance shares with an exercised privacy right the limitation of information sharing and its denial to others. But unlike the right to privacy, the obligation to keep the secret cannot be waived.

A related aspect of this rule involves limits on subjects as potential agents of expression who are not to unduly intrude on others. Note expectations regarding modesty in dress, closing bathroom and bedroom doors, prohibitions on breast feeing in public, limits on obtrusive cell phone use, smoking or wearing perfume in public, or on a neighbor's loud music or wafting cooking smells. 13

An element of information control opposite from privacy (and its less inclusive kin secrecy) is a subject's obligation of publicity or better disclosure (or revelation). 14 Thus Hawthorne's novella The Scarlet Letter and examples of convicted drunk drivers and sex offenders and those quarantined for health reasons from current times are examples of rules mandating the revelation of personal information. Here the subject must reveal. This broadcasting (whether narrow or broad) shares with an unexercised privacy right the disclosure of information, but in contrast to the unexercised right which can be waived, revelation is mandatory. 15 The appropriate metaphor for the subject here is a propelling porcupine rather than a turtle.

What rules apply to the potential agent of discovery or a data repository? What does a rule imply about the discovery, treatment and communication rights and obligations of an agent who does not have the information? Must information be sought, is there a prohibition on seeking it, or is deciding at the discretion of the agent? What rules appear once a repository is in possession of data?

The rules may exclude the agent from any access, or limit the agent from compelling and sometimes even from asking or seeking information. There may be a firewall around the agent, as well as the subject or the repository. When the agent can seek information the metaphor for rules and tools is a vacuum cleaner with either a broad or a narrow nozzle. Discovery, like fly paper, can gather whatever is in range or have the precise and restricted focus of a laser.

The subject may have a right to withhold or offer information, or the subject may have an obligation to withhold or offer information. We can also ask whether the rule requires or prohibits a given behavior and about the breadth of the rule. Beyond whether the rule involves disclosing, protecting, seeking, or not seeking information, we can ask if the expectation the rule creates is universal/categorical or applies only under restricted circumstances (situationally specific). When personal information is subject to rules regarding protection or revelation, or an agent is prohibited from or required to seek it, are such things demanded under all or under restricted conditions?

Whatever the kind of behavior that is involved or whether the rule says "must" or "must not," we must attend to the conditions for the behavior and rule enforcement. Some information protection rules, techniques, and environmental conditions are broad and seamless always applying categorically to the righteous and the unrighteous. They present a nearly impenetrable barrier to data going out or coming in or no barrier at all when the mandate is to always reveal or seek to discover. More commonly, information rules are bounded by limiting, rather than absolute conditions. They tend to be contextual and contingent, rather than rigidly universal in their prescription or proscription; borders are filtered rather than absolute. 16 Here we see rules about rules themselves rather than about content. Such rules indicate what data collection means can be used and under what conditions.

Consider for example criminal justice. Leo and Skolnick (1992) note how the acceptability of the police use of deception to gain information varies depending on where in the processes of being in custody and interrogation the deception takes place. Deception apart, police are generally free to ask (and subjects may ignore) any questions before an arrest has been made. The rules change after arrest and also in the court room under the hammer of the oath. During a trial a prosecutor can ask, but the accused can not be compelled to testify. Witnesses can refuse to testify but risk being held in contempt of court. These constraints of course lead to numerous end runs as with undercover police efforts to voluntarily illicit what would otherwise be withheld or not permitted with conventional inquires. (Marx 1988, Ross 2004, Joh 2009).

After mapping the rules related to questions 4 and 5, we need to ask are they honored. Understanding the correlates of greater and lesser fit between the rules and behavior is central for public policy. What factors condition varying connections between the rules and behavior? In situations where agents are prohibited from discovering personal information, but do so anyway, we see privacy violations. When they fail to inquire and are required to, we may see incompetence. Many U.S. states now recognize a civil action involving "wrongful birth" as a result of a doctor's failure to diagnose or disclose the risk of having a child with severe genetic or congenital abnormality. The expectations involve both asking (as in assessing or testing) and telling the subject.

Subjects violating the rules may also be invading the privacy of others by revealing when they should not and be acting irresponsibly by withholding when they are expected to reveal. 17

A related issue involves enforcement of sanctions that may be associated with a rule's violations whether by subjects or agents. How do the sanctions for violations of, or rewards for, conformity to rules differ by type and context (contrast the failure to tell or the failure to ask when these are mandated)? Seeking unauthorized information, successfully obtaining it, making a record, informing others, or using the information can constitute distinct violations. 18

Different legal resources such as civil and criminal penalties can be applied to violations, and law and other policy instruments may also offer positive incentives for conformity. For example if the subject does reveal information is there a penalty for not telling the truth, whether by outright lying, prevaricating, or deceptively withholding? Responses to untruthfulness are likely to vary by whether revealing information is optional or mandatory, or involves an oath. The latter two alternatives are likely to be accompanied by more costly sanctions. How do penalties for lying, refusing to answer when that is required, or revealing when that is prohibited compare? How do sanctions for subjects compare to those for agents?

Sanctions for discovered (and acted upon) violations can vary from not receiving something desired such as a loan or a license, to loss of a job, fines, and civil and criminal penalties. Just how these are distributed across types of violations for the different roles is an important question. Under what conditions do responses to violations emphasize compensating those harmed by the violation rather than sanctioning those responsible?

A full treatment of rules for privacy of personal information must also analyze illegitimate forms of information control such as blackmail in which threats are brought to bear on either a subject or an agent to protect information. Unlike the incentives for offering information, the logic is reversed here with rewards for not telling.

The compliance means for rule conformity contrast with means where the subjects have discretion to withhold or reveal information. Where individuals have a right of privacy (the option of whether to reveal information) means of compliance may involve soft surveillance appeals to values, tangible rewards, convenience, and low visibility automated data collection. 19 Those signing non-disclosure agreements are essentially rewarded with jobs and related benefits for not revealing — in contrast to those trading information for consumer goods, as with frequent shopper cards.

Shared and Oppositional Goals and Symmetry and Asymmetry in Rules (Questions 6 and 7)

Information control settings can be viewed as a social system that at a minimum involves an interacting subject and agent. 20 The rights and obligations of information closure and disclosure need to be seen in their systematic relationship to each other for both subjects and agents. The systematic and interactive qualities of information control can be seen when the variables defined above are combined in various ways to classify information settings.

The logical possibilities here are very large. For example combining the kind of behavior (reveal, conceal, seek, do not seek) with the direction of the rule (prescribe, optional, proscribe) for subjects and agents yields nine (9) analytically distinct combinations although some of these will be empirically barren. By far the largest number of instances are in the cell that involves the discretion of subjects and agents. There we often see an exchange/contractual model with genuine choice as subjects willingly cooperate. Or there may be a specious choice as in an offer that cannot be refused because the costs of opting out or in are too great. The gathering of data may also simply reflect the practical difficulties of protection. Soft, low visibility means of data harvesting, often done without the subject's knowledge or consent, take advantage of such situations.

Asking and Telling

Table I brings together subjects and agents with what the rules require. The table calls attention to four situations based on rules for withholding or offering information by the subject and for asking or not asking (more broadly seeking or not) for information by the agent.

Table I: Four Types Based on Rules for Subject and Agents









  Do ask

  1. Do tell, do ask (public health doctor/patient)
  1. Don't tell, do ask (spies, games)

Don't ask

  1. Do tell, don't ask (employees report threats, company can't ask about family troubles)
  1. Don't tell, don't ask (military's policy on gays)

What is the historical trend regarding the relative size of these categories? A growth of organizations and social complexity, doom-saying, death of privacy perspective would argue that the number of areas (and the amount of information within them) in which individuals must reveal personal data is increasing relative to the number of areas where information is optional or protected. That pattern would be suggested if cell 1 in Table 1 in which subjects must disclose and agents can (or must) ask, is increasing in size relative to cell 4 in which subjects have discretion to reveal or withhold and agents are prohibited from asking. If that is the case, is the declining power of the individual matched by the weakening power of the individual to know about organizations? In contrast, a view that emphasizes the gradual growth of civil liberties over the last century would argue that the ratio of cell 1 Table 1 to cell 4 goes in the opposite direction — the power of agents declines and citizens' discretion to reveal or withhold information increases. A related question involves trends in the protection of data that have been gathered, apart from the conditions for data collection. What would measuring the connections over time between rules regarding freedom of information, disclosure and privacy protection reveal about whether personal information is more or less available to individuals — whether about themselves or others?

But any conclusions about historical trends would also have to consider the development of rules for protecting repository information. Thus, while it is likely that there are ever more occasions in which personal information must be revealed or can be demanded, it is also possible that, as the expansion of privacy laws and protections would suggest, there are ever stronger safeguards for the information that is collected. Rules for collection and subsequent protection are part of a system and may move in tandem. 21 Rules often contain contradictory elements in efforts to mediate value conflicts. Thus freedom of information laws designed to make information available also are stuffed with exemptions to protect information. Distinct rules also conflict such as those designed to protect whistle blowing and freedom of speech vs. those designed to protect privacy and confidentiality.

This question could additionally be read to concern the specific "amount" of personal information that must, or must not, be offered or asked for, as opposed to concern with the proportion taken of potentially available information. Thus it is possible that, while ever more information must be given up by individuals, the proportion of the information that could possibly be known has been declining and the proportion protected by rules is increasing. A measure of surveillance slack which considers the extent to which personal information is obtained (both legitimately and illegitimately) in relationship to the amount of information that could be obtained given available technology and ways of behaving is needed for comparing time periods or settings (Marx 2002).

When a subject has a right (and a desire) to withhold and the investigator cannot directly ask but is motivated to find out, information may be independently found apart from the subject — whether in violation of the letter or spirit of the rules or in creatively getting around them. The skilled investigator may be able to manipulate the subject into providing information as with confessions in criminal justice whether true or false (Leo 2007).

Table II (engaging questions 6 and 7) highlights four situations determined by whether the interaction involves cooperation or conflict or is unidirectional or bidirectional.

Table II: Direction and Nature of the Interaction










  1. Prenuptial agreements
  1. Spies, games


  1. Doctor and patient
  1. Law enforcement, some licensing and registration

I am particularly interested in the unidirectional conflict setting emphasized by Erving Goffman (1963, 1969) in which information the subject does not wish to reveal is of interest to the agent who does not know. For the agent to know there must be revelation by the subject or independent discovery through other means such as undercover tactics, informers, vital tests, accidents, and inferences. 22 This kind of conflict is common both within hierarchical organizations and between organizations and the individual. Examples of a unidirectional conflict can include an employer interested in the off-duty behavior of employees, an insurance company (the agent) interested in learning about clients' prior health conditions, a subject's interest in withholding such information, a voyeur, and an unwilling or unwitting subject or a parent and a rebellious teenager. 23

In contrast, in the case of unidirectional cooperative settings subjects and agents share the goal of non-discovery/not knowing or of revelation/knowing. In the doctor-patient case illustrated by Table I, cell 1. major goals are ideally shared. 24 The doctor is expected to ask, and the patient to reveal. Cooperative examples can also be seen when the shared goal involves protecting information. Thus in Table I cell 4 the agent is expected to not ask and the subject not to reveal. Consider the meshing of goals in the military's "don't ask, don't tell" policy regarding homosexuality. Whatever their private beliefs, the parties as military role players have a shared (cooperative) interest in protecting information about sexual behavior. 25

In the reciprocal bidirectional case there is usually greater equality between the parties, the rules they are subject to, and their resources to protect and discover. The parties mirror each other in pursing equivalent goals within a common rule environment. Depending on how the kaleidoscope is turned, an actor will be seen as an agent or a subject. In conflict settings the parties seek to protect their own and to discover their opponent's information. Consider games such as poker, the actions of national intelligence agencies, and competitive businesses. The rules may be formal as with games and legal contracts, or the rules may be looser as with unwritten understandings among business competitors or national security agencies.

In cooperative settings the rules require mutual revelation. Prenuptial agreements in which parties disclose their assets and health or commercial disclosure agreements for partners are illustrative. (Table II cell 1)

Types of Border (Question 8)

As the discussion above suggests, whether information is known or sought is related to kinds of rules. The rules in turn reflect the kind of information and the environment in which information is found.

How does concealed or revealed information which results from a specific rule (a cultural border or anti-border) differ from that whose status is a consequence of the natural environment involving the presence or absence of a physical border? Barriers such as distance, darkness, time, dense undergrowth and disaggregated data have traditionally protected information. In their absence information is immediately available to anyone with normal senses and cognition, for example, seeing a person's unmasked face or observing his apparent gender, height, and age.

The relationships between properties of the physical world and the presence of rules are understudied. Some natural conditions mean there is no need for a protective rule (when protection is deemed appropriate), at least until technology manages to pierce these protective borders which appear by default. In other cases this very protection can create a perceived need to have a rule and/or technology that overcomes the border.

Table III: Borders and Information






No (Soft)

Yes (Hard)


  No (Open)

  1. Looking at a person speaking to you, city borders
  1. Sense limitations (darkness, distance, walls)

Yes (Closed)

  1. Staring, backstage regions, privacy and confidentiality expectations, religious and sacred areas
  1. Convents, military bases, vaults

Table III highlights four situations that result from considering the presence or absence of cultural and a physical borders with respect to the flows of personal information. An example of where both cultural and physical borders are present is a prison. (cell 4) In the absence of either border, only manners and limits on the senses prevent seeing and making inferences about a person encountered on the street or overhearing the conversation of nearby persons. (cell 1) Anti-stalking laws and manners, e.g., "don't stare," illustrate cultural borders in the absence of a physical border. (cell 3) Being beyond the range of another's unaided seeing or hearing protects information even in the absence of rules. (cell 2 )

Of course physical and cultural barriers are not independent, although in general more academic attention goes into understanding how the latter alters the physical than how the physical conditions the culture. Constructed environments may seek to create conditions of openness or blockage found in natural environments.

Much energy and invention go into developing impermeable or permeable borders in an effort to hide what would otherwise be in plain sight or easy to discover, or to reveal what is not. Regarding revelation, consider infra-red technology that enables night vision; x-rays that "see" through barriers such as clothes; skin and luggage; cutting trees and foliage to increase visibility; merging data widely dispersed in time, place and form; and even having a lip reader with binoculars intercept communication too far away to be overheard — whether for law enforcement or in sports. 26 A bank's prohibition of wearing sunglasses and hats also fits here, as do prohibitions on carrying concealed weapons, requirements for see-through school backpacks and uniforms without pockets and standards for how technologies are to be made. 27

In other cases the easy availability of information may create incentives for protecting it and rules that require such protection. High walls, encryption for communication, and masks, plastic surgery, elevator shoes, and false IDs for individuals are examples of protecting what otherwise could be seen. Interesting examples of blocking what would otherwise be available can be seen with witnesses who testify behind a screen and whose voices are altered or some symphony orchestras that audition performers behind a screen hiding their appearance in order to work against discrimination based on gender or race. Even when the environment provides information or an opportunity to express it, self-control, manners, concern over reciprocity and a sense of honor or an oath may mean forgone opportunities to observe or share information in the absence of laws, e.g., averting the eyes not to embarrass others, speaking softly in public, or suppressing a cough during a performance, not gossiping.

The qualities of the data itself offers another area for inquiry. How does whether data are in visual, auditory, olfactory, numerical, or narrative form condition the kind of rule we develop about such information? Similarly, how do the kinds of tools needed to collect, reproduce, and communicate information affect the kind of rule we invoke about that information? It is a truism to note that rules are related to motivations and literal possibilities to behave in ways that the rules seek to control. Yet rules also show some realism in not trying very hard to regulate things that are almost impossible to regulate. Note the hollowness of a judge telling a jury to ignore something it has just seen and heard. In our culture there are few rules about information gained through overt, direct hearing and seeing, although there are rules about recording, sharing, or using such data.


This chapter has considered eight questions involving rules about the broadly defined topic of personal information. These questions involve (1) the kind of information, (2) the role played as subject or agent, (3) who has the information, (4) whether the behavior involves closure or disclosure and (5) is prescribed, optional or proscribed, (6) whether the goals of the subject and agent are shared or in conflict, (7) whether the rules are asymmetrical or symmetrical, and (8) borders involving the properties of the information, rules, and the environment.

William James suggested that to phrase a question well already provides half of the answer. I am not sure about that fraction, but good questions certainly are helpful in raising new questions. I hope the questions raised here and the distinctions above can be further analyzed and can guide research.

The multi-dimensional nature of personal information and the extensive contextual and situational variation occur within dynamic settings of social conflict. These many dimensions prevent any simple conclusions with respect to explanation and judgment regarding the rules about personal information. Such complexity serves us well when it introduces humility, qualification and research, but not if it immobilizes. Answers, however temporal and qualified, depend on asking appropriate questions. The sign posts provided by specifying concepts are not a detailed map, but they are the building blocks out of which one can emerge.

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  1. I will use the terms "information" and "data" as interchangeable, although for some purposes a distinction between "raw" data and "constructed" and "interpreted" information is needed.

  2. However contrasting new and traditional information tools with an emphasis on the attributes that differentiate these is a major question. Marx (2002) suggests a number of dimensions for contrasting traditional and the new surveillance.

  3. That article notes distinctions based on whether information is private or public with regard to its degree of immediate availability to an agent and is personal or impersonal. Using a series of smaller concentric circles I further differentiate information that is individual, private, sensitive, and unique, and involves a core identity.

  4. This area can be further differentiated by adding the sometimes independent categories of the initiator and/or sponsor of the activity. The more distinct the categories the more challenging the policy and ethical questions.

  5. Thus once agents have information about others those agents may become subjects for other agents and data warehouses who seek "their" data (about someone else) for secondary uses. There are far fewer restrictions in the United States on the ability of third parties to obtain and use such information than is the case in Europe.

  6. Such report-based data are data about the person driving, but the reporting and interpretation involved in the data are clearly distinct from information about the driver such as age or location.

  7. Birth records offer a nice example of the blurry borders of co-produced personal information. Babies left on doorsteps, the filing of false records or the failure to file in order to avoid taxation, military service or parental responsibility, raise research questions about the degree of compliance with this rule, but do not negate the rule.

  8. Examples of such experiments and deceptions include the CIA experiments with LSD (Albarelli 2009) and work at the Tuskegee Institute on syphilis (Reverby, 2010).

  9. These instances offer interesting contrasts with situations where subjects are mandated to reveal but prefer not to and those where subjects must not reveal but would like to. Consider also the related cases where agents are expected to reveal but do not as with discovery in the legal system. In the case of a criminal justice trial, discovery requires the prosecution to provide information to the defense. If the defense can show it was denied appropriate information the case will be dismissed. That gives prosecutors an incentive for following disclosure rules. However, offering such information may undercut its case and may be withheld if its existence is unlikely to be otherwise known. Police may fail to report information to prosecutors that would work against conviction such as with the role of an informant (Natapoff 2010).

  10. A different aspect of privacy, often referred to as solitude or being let alone, involves the right to control information or data more broadly defined from crossing into one's personal borders. The discretionary curtain can be adjusted to keep information from coming in, as well as from going out. There are, however, some limits here as well. Note two-way public address systems in schools which are always on and constructing communication tools so they can receive emergency messages. With regards to the latter, the Federal Emergency Management Administration can send safety warnings that override whatever communications device is in use. Efforts are underway through the Digital Emergency Alert System to allow transmission of emergency alerts to computers, cell phones and pagers beyond their current availability to radio and television. There are also efforts to create an automatic alarm turn-on capability for devices not in use.

  11. Communication rights to freedom of speech and association are of course also interwoven with the expression or withholding of personal information as with the case of membership lists. Note NAACP v. Alabama ex rel. Flowers, 377 U. S. 288 (1964), in which the Supreme Court held that it was illegal for the state to demand a list of NAACP members. In a curious twist the Spanish Data Protection Agency in its public relations efforts justifying Spain's new mandatory national identity card claims that the card goes along with the citizen's right to a national identity. (Ouzeil, 2010). All countries may require those crossing borders to assert this identity, whether and when pedestrians must also do this shows enormous regional variation that may be declining. The well known demand for, "your papers please" has become internationalized. Author B. Traven (1991) would not have appreciated a 2010 Arizona law requiring local police to verify immigration/citizenship status.

  12. Whether the agent can even ask the subject questions is another variable. In the arrest situation the answer is "no" unless the right is waived or an attorney is present, while in criminal justice trials the prosecutor is free to ask, but cannot compel disclosure.

  13. Then of course there is the neighborly expectation of control over sounds associated with love making. Consider the British couple who received a conviction for breaching a noise abatement notice. A neighbor complained that she was frequently late to work because she overslept as a result of, "having been awake most of the night because of the offending noise." Equipment installed in the complainant's flat by the local city council recorded noise levels up to 47 decibels. Laws and expectations conflict. The offending couple argued they had done nothing wrong and under the Human Rights Act they were entitled to respect for their private and family life. BBC (2009)

  14. Publicity follows easily from privacy. But in a strict sense the oppositional meaning of publicity here is made "public" as in known to another, rather than publicity as in something widely broadcast. How large the public is when the disclosure of information if obligatory and the rules (if any) that apply to the recipient of the information are related facets.

  15. Private and public (or better non-revelation and revelation or closure and disclosure) as used here refer to rules rather than the status of the information. When the rules are not followed, information intended to be private may become known as with leaks, and, when disclosure rules are violated, e.g., not reporting conflicts of interest, what is intended to be public remains private. (Marx 2001a)

  16. The filters around information can be located by asking if the subject is required to always reveal personal information or only if asked. If the subject has discretion not to disclose, is it necessary to opt out of disclosure by a formal request? Requiring subjects to opt out of data provision is the preferred policy of many organizations. That policy permits honoring the privacy of the subject but tilts against the subject's taking the requisite action to protect privacy. Opt out can also be seen when callers are offered the opportunity to request that a telephone conversation with a company not be recorded. A related phone control issue can be seen in forms some doctor's offices give out asking seeing instructions about whether and what kind of messages to leave on patient's answering machines.

  17. The behavioral and cultural ways that subjects seek to neutralize information rules are treated in Marx (2003).Non-disclosure and gag requirements for example can be overcome by anonymous communication. Note the obvious violations of confidentiality and non-disclosure agreements in the spate of political tell all books such as Game Change, (Heilemann and Halperin 2010). According to one account "discretion is on the wane and disclosures on the rise" as a result of new markets created by Internet communication (New York Times, Jan. 17, 2010). The formal rules may be buttressed by and reflective of the culture as well as undermined by it.

  18. whether pertinent actors see a violation in any particular circumstance will partly depend on how behavior is interpreted by authorities. The lines between rule conformity and violation are often hazy given the differences between intangible information and tangible material; you know if your wallet has been stolen, but when is a leak a leak? From one viewpoint, in the Watergate case Mark Felt (Deep throat) clearly broke the law and departmental regulations in giving information about the ongoing Watergate investigation to Washington Post reporters Woodward and Bernstein. But from another perspective, he did not, since he spoke only in general terms and offered no names or specific details about the FBI's investigation. Rather he offered broad hints and some confirmation of whether the reporters were on the right track. Much of the information the reporters had also came from other sources, which may have protected them from committing crimes. The interpretive borderland is even blurrier here, although, as with conspiracies, intent may matter apart from overt behavior in itself. (Woodward 2005).

  19. Note two meanings of "optional" here —one refers to tolerance by the rules and the other to the capability of violation. With hard-engineered forms of surveillance, there is an effort to eliminate the possibility of withholding personal information. Soft forms of surveillance, on the other hand, try to alter incentives so individuals either follow the rule or use their option in a way desired by an agent. Included here is an appeal to ethics and conscience. Consider the "Public Health Questionnaire" given out by a cruise line to passengers regarding recent fever, coughs etc in which passengers are asked (in the absent of any legal requirement to provide the information) to sign the document which states, "I certify that the above declarations is true and correct and that any dishonest answers may have serious public health implications."

  20. It takes two to tango, but sometimes persons can dance alone. At times the interaction will be only in the imagination of the subject or the agent. Consider a person with a secret taking protective action based on anticipating potential moves of an agent or an agent taking steps to avoid discovery.

  21. Persons who wish to give blood, for example, donate, as an advertisement promises, in an "individual booth arranged to preserve confidentiality." They are required to provide health histories and the blood sample is tested. If tests show that blood is HIV-positive, the individual receives confidential notification, and the data are protected.

    Decades earlier another blood issue appeared with the development of a test for syphilis. Concerned about a potential syphilis epidemic and protecting the unborn in the 1930s and 1940s many states adopted laws requiring a blood test before a marriage license could be granted, Now only a handful of states have that requirement. Few cases were discovered and the testing was not seen as cost-effective. This offers an interesting causation issue as the technology enables and then undermines the collection of personal information. Blood testing is routinely done on a voluntary basis in the case of pregnancy.

  22. Marx (1984) considers a variety of tactics involving deception, coercion, volition, inference, and uncontrolled contingencies for discovering information individuals and organizations do not wish to reveal.

  23. A less common form of information control interaction reverses the direction. Consider a case where the subject wishes to reveal and the rules prevent the agent from knowing or the agent at least wishes to avoid knowing.

  24. Elements of conflict (or at least potential conflict) can also be seen. Note the lack of reciprocity in doctors' requiring that patients provide extensive personal information and a photo ID, and agree to database searches to see if they have previously sued a doctor. Patients do not usually request equivalent information from doctors, e.g., that doctors submit to a database search regarding malpractice, drug abuse, sexual improprieties, or license revocations, nor are the doctor's credentials verified to protect against falsification and impersonation.

  25. While not quite a conspiracy of silence, there are unstated or only minimally acknowledged reasons to look the other way and not know or acknowledge what is known or suspected. In this case the military agent has an interest in following the "don't ask" rules and the military subject in following the "don't tell" rules.

  26. Consider the famous (infamous?) case of the 1951 play off game between the N.Y. Giants and the Brooklyn Dodgers in which the home run hitting batter (Bobby Thomson) apparently learned what pitch to expect based on radioed communication from a coach with binoculars in the bleachers who read the catcher's signal to the pitcher. (Prager 2008)

  27. The 1994 Digital Telephony Act also known as CALEA (103-414, 108 Stat. 4279, codified at 47 USC 1001-1010) for example, requires that digital communication devices be built to permit eavesdropping. More recently there has been an effort to create new legislation that would require Internet companies that provide communication such as Gmail, Facebook, Blackberry and Skype to be technically capable of quickly complying with a wiretap order. (New York Times, Oct. 23, 2010.)
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