Privacy In Public Space: Conceptual And Regulatory Challenges [1st Edition] 178643539X, 9781786435392, 1786435403, 9781786435408

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Privacy in Public Space

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ELGAR LAW, TECHNOLOGY AND SOCIETY Series Editor: Peter K. Yu, Drake University Law School, USA The information revolution and the advent of digital technologies have ushered in new social practices, business models, legal solutions, regulatory policies, governance structures, consumer preferences and global concerns. This unique book series provides an interdisciplinary forum for studying the complex interactions that arise from this environment. It examines the broader and deeper theoretical questions concerning information law and policy, explores its latest developments and social implications, and provides new ways of thinking about changing technology. Titles in the series include: Copyright Law and the Progress of Science and the Useful Arts Alina Ng Transnational Culture in the Internet Age Sean A. Pager and Adam Candeub Environmental Technologies, Intellectual Property and Climate Change Accessing, Obtaining and Protecting Abbe E.L. Brown Privacy and Legal Issues in Cloud Computing Edited by Anne S.Y. Cheung and Rolf H. Weber Intellectual Property and Access to Im/material Goods Edited by Jessica C. Lai and Antoinette Maget Dominicé The Legal Challenges of Social Media Edited by David Mangan and Lorna E. Gillies Digital Democracy in a Globalized World Edited by Corien Prins, Colette Cuijpers, Peter L. Lindseth and Mônica Rosina Privacy in Public Space Conceptual and Regulatory Challenges Edited by Tjerk Timan, Bryce Clayton Newell and Bert-Jaap Koops

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Privacy in Public Space Conceptual and Regulatory Challenges

Edited by

Tjerk Timan Scientist Integrator Strategy and Policy, TNO, the Netherlands

Bryce Clayton Newell School of Information Science, University of Kentucky, USA

Bert-Jaap Koops Tilburg Institute for Law, Technology and Society (TILT), Tilburg University, the Netherlands

ELGAR LAW, TECHNOLOGY AND SOCIETY

Cheltenham, UK + Northampton, MA, USA

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© The Editors and Contributing Authors Severally 2017 Cover image: Aviv Ben on Unsplash All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2017947239 This book is available electronically in the Law subject collection DOI 10.4337/9781786435408

ISBN 978 1 78643 539 2 (cased) ISBN 978 1 78643 540 8 (eBook) Typeset by Columns Design XML Ltd, Reading

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Contents List of contributors

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Introduction: conceptual directions for privacy in public space Tjerk Timan, Bryce Clayton Newell and Bert-Jaap Koops PART I

1

PHILOSOPHICAL AND EMPIRICAL INSIGHTS

1 Conceptualizing space and place: lessons from geography for the debate on privacy in public Bert-Jaap Koops and Maša Galicˇ 2 Hidden in plain sight Michael Nagenborg 3 Privacy in public and the contextual conditions of agency Maria Brincker 4 A politico-economic perspective on privacy in public spaces Karsten Mause 5 Visually distant and virtually close: public and private spaces in the Archives de la Planète (1909–1931) and Life in a Day (2011) Julia M. Hildebrand PART II

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LAW AND REGULATION

6 Exposure and concealment in digitalized public spaces Stephen B. Zhao 7 Covering up: American and European legal approaches to public facial anonymity after SAS v. France Angela Daly 8 Privacy Impact Notices to address the privacy pollution of mass surveillance A. Michael Froomkin 9 Privacy in public spaces: the problem of out-of-body DNA Albert E. Scherr

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10 The Internet of other people’s things Meg Leta Jones 11 Conclusion: the need for privacy in public space Tjerk Timan Index

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Contributors Maria Brincker is an Assistant Professor of Philosophy at the University of Massachusetts, Boston. She has published on a range of topics having to do with concrete aspects of our sensorimotor embodiment and our cultural embeddedness, and how these dynamically shape our minds and agency. She holds a PhD from the CUNY Graduate Center and was previously an Arts and Neuroscience Fellow at the Italian Academy at Columbia University. Angela Daly is Vice Chancellor’s Research Fellow in Queensland University of Technology’s Faculty of Law and a Research Associate in the Tilburg Institute for Law, Technology and Society (TILT), the Netherlands. She is a comparative socio-legal scholar of technology and is the author of Socio-Legal Aspects of the 3D Printing Revolution (2016) and Private Power, Online Information Flows and EU Law: Mind the Gap (2016). She holds a PhD in Law from the European University Institute, and previously was Postdoctoral Research Fellow in Media and Communications Law at the Swinburne Institute for Social Research. A. Michael Froomkin, the Laurie Silvers and Mitchell Rubenstein Distinguished Professor of Law, received an MPhil. degree from Cambridge University in 1984, and a JD from Yale Law School in 1987. He clerked for Judge Stephen F. Williams of the US Court of Appeals for the District of Columbia Circuit and for John F. Grady, chief judge of the Northern District of Illinois. Professor Froomkin joined the University of Miami faculty after working in the London office of the Washington, DC, firm of Wilmer, Cutler & Pickering. Maša Galicˇ is a PhD researcher at the Tilburg Institute for Law, Technology and Society (TILT), the Netherlands. Her academic research primarily focuses on the right to privacy in the context of data-driven surveillance of physical public space. She was awarded the VIE prize by the Dutch Association for Intellectual Property for the best publication by a young scholar enhancing the understanding of IPR in the Netherlands in 2015/2016. vii

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Julia M. Hildebrand is a doctoral candidate in Communication, Culture, and Media at Drexel University in Philadelphia. She holds an MA in Comparative Media Studies from the University of Regensburg, Germany. For her dissertation, she explores the aerial views obtained with consumer drones and the polarizing discourses surrounding the practice. Also working at Drexel’s Center for Mobilities Research and Policy, she positions her research at the intersections of critical media studies and mobilities theory. Meg Leta Jones is an Assistant Professor in the Communication, Culture and Technology program at Georgetown University where she researches rules and technological change with a focus on privacy, data protection, and automation in information and communication technologies. She is also an affiliate faculty member of the Science, Technology, and International Affairs program at Georgetown’s School of Foreign Service, the Center for Privacy and Technology at Georgetown Law Center, and the Brussels Privacy Hub at Vrije Universiteit Brussel. Bert-Jaap Koops is Professor of Regulation and Technology at the Tilburg Institute for Law, Technology and Society (TILT), the Netherlands. His main research fields are cybercrime, cyber-investigation, privacy and data protection. He is also interested in ‘code as law’ and regulatory implications of human enhancement, robotics, and neuroscience. In the 2016/17 academic year, he was Distinguished Lorentz Fellow at the Netherlands Institute for Advanced Study (NIAS). Karsten Mause is Assistant Professor of Political Economy in the Department of Political Science at the University of Muenster, Germany. His research focuses on the political economy of governance and various other subfields of political economy. Michael Nagenborg holds a doctoral degree in philosophy (University of Karlsruhe, Germany). His doctoral thesis was on Privacy and ICT. From 2007 to 2013 he was a member of the Research Centre for Security Ethics at the International Centre for Ethics in the Sciences and Humanities (University of Tübingen, Germany). He was also a member of the management committee of the COST action Living in Surveillance Societies (LiSS) and a board member of the International Society for Ethics and Information Technologies (2014–2016). Bryce Clayton Newell, JD, PhD, is an Assistant Professor at the School of Information Science at the University of Kentucky (United States). Albert E. Scherr is a nationally recognized authority on forensic DNA evidence. Since 1990, he has served as the lead attorney in numerous

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pretrial hearings in homicide, robbery and sexual assault cases to determine the admissibility of forensic DNA evidence. He was the principal investigator on a two-year NIH grant to study genetics, police investigation and Constitutional privacy. He also co-designed and taught a national model, NIH–funded Summer Faculty Institute at Dartmouth that educates undergraduate faculty from around the country in the ethical, legal and social issues of the Human Genome Project. He has lectured to judges, attorneys, educators and others regionally and nationally on a variety of genetics and law issues. Tjerk Timan is Strategy and Policy Researcher at TNO; before, he was a Postdoctoral Researcher at the Tilburg Institute for Law, Technology and Society (TILT), the Netherlands. His research areas include surveillance, privacy, regulation of technology and human-technology interaction. His current work focuses on data science, privacy and technology forecasting. Stephen B. Zhao is a Senior Research Fellow at the STeP (Security, Technology and e-Privacy) Research Group, Faculty of Law, University of Groningen, the Netherlands. Trained as a legal philosopher, his research fields include comparative data and privacy protection law, comparative defamation law, Internet governance, Rule of Law and human rights.

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Introduction: conceptual directions for privacy in public space Tjerk Timan, Bryce Clayton Newell and Bert-Jaap Koops Since its start, the twenty-first century has posed new challenges to privacy—challenges that have affected many areas of professional practice and are straining legal doctrines drafted in the previous century. At a conceptual level, the private space/public space dichotomy also increasingly fails to capture and describe privacy problems in a satisfying manner. This volume is aimed at addressing these challenges, by exploring and developing a research agenda on privacy in public space that crosses disciplinary boundaries. It includes contributions from primarily legal and philosophical scholars, but because the issues raised by privacy in public space extend well beyond disciplinary borders, it also features contributions that draw on geography and other social sciences. Each of these chapters contributes to the debate about what privacy in public is or can be from a different angle, by providing new arguments, concepts, ideas or insights. Bringing together law and philosophy seems particularly fitting for an exploration of this topic; while the legal contributions draw on actual real-world examples to lay bare the problems of privacy in public space, the philosophical contributions explore how we can better conceptualize privacy in public space by drawing on examples, normative argumentation and existing empirical research. The central theme of this introductory chapter is to explore conceptual paths for thinking about privacy in public. The authors in this volume have given various accounts of what privacy in public space is or can be, and discussed ethical, social and legal problems that arise when the private (information, activity, etc.) enters public space. Due to the proliferation of information and communication technologies (ICTs), more and more aspects of our private lives are spilling over into public space. We carry phones, laptops and other wearable computing devices— each of which potentially contains large amounts of personal (private) data—with us as we traverse a variety of public and private spaces each 1

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day. Additionally, by connecting to wired or wireless networks (3G/4G, WiFi, etc.), which our devices often do automatically, even without our knowledge, we automatically bring all sorts of things into (virtual) public space that would normally be safely stored in private places under our control (e.g. at home) and therefore be relatively inaccessible to others. At the same time, the make-up of the public space we move through has been changing; it is becoming more sentient, empowered by the proliferation and increasing sophistication of embedded sensors and surveillance technologies (such as smart CCTV, WiFi, cellular networks, wireless mesh technologies, audio sensors, and automatic license plate readers). In this chapter, we summarize and highlight the key insights made by the authors in the succeeding chapters and draw connections between the chapters.

1. PRIVACY IN PUBLIC: DIRECTIONS FROM THE BOOK The chapters in this volume show several similarities in pointing out what privacy in public is, or can be, and how we should think about it conceptually. One common theme that emerges from many contributions is that context is important. Whereas privacy is often defined (including by legal scholars) in a de-contextual and abstract manner, there is a need to study privacy locally and in context. Doing so can enrich often-static legal definitions of privacy and generate new and novel directions for thinking about privacy, both conceptually and in terms of the law. The need for studying privacy in context primarily stems from an increasingly intertwined public and private context, facilitated by ICTs and other, related new technologies. This is creating new situations in which current legal protections no longer suffice. Ever since Helen Nissenbaum introduced the concept of contextual integrity,1 many privacy scholars have engaged with this concept, debating where and how contextual integrity would work. Having originated as a theoretical insight, and maybe as a direction for dealing with privacy in the twenty-first century, the idea of contextual integrity remains difficult to translate into (legal) practice. Some authors in this volume, such as 1

H. Nissenbaum, ‘Privacy as Contextual Integrity’ (2004) 79 Washington Law Review 119. See more extensively, H. Nissenbaum, Privacy in Context (Stanford Law Books, 2010).

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Brincker and Hildebrand, have provided theoretical advancements on context and contextual integrity as a starting point for thinking about privacy. In this respect, many authors in this volume delve into what contextual privacy means and attempt to make this endeavor as concrete as possible. More precisely, they provide notions of action and agency as tentative answers to the question how to take context and contextual integrity into account when talking about privacy. The chapters show numerous contexts in which privacy in public is at stake, from DNA traces we automatically ‘leak’ into public space by just being there to the proliferation of smart devices in public space that blur the boundaries between public and private information and the storing and sensing thereof. Moreover, the authors discuss cases that reveal shifts in ownership of public space, an increasing privatization and social sorting, cases of masking and the social boundaries of being allowed (or not) to cover one’s face in the crowd, and examples of economic and filmic analysis of how privacy in public is negotiated. It seems difficult to transpose conceptual notions such as context and agency into particular privacy laws, especially because the terms have not been appropriated and used in legal practice and academic philosophy in the same way. In the following sections, we survey the new directions proposed by the authors in this book, grouped by key themes, in order to try and find a common language for privacy in public space.

2. ROLE OF CONTEXT IN PUBLIC SPACE In Chapter 3, ‘Privacy in public and the contextual conditions of agency,’ Maria Brincker identifies what she sees as a flaw in Nissenbaum’s notion of contextual integrity. Brincker states that without taking the actions and agency of the people and things that are part of a certain context into account, the notion of context does not help much in understanding what this context is exactly made up of. Consequently, Brinker argues, we cannot truly understand or classify possible privacy zones, or breaches thereof. Harkening back to Warren and Brandeis, Brincker recalls that their article featured the argument that privacy harms are mental, rather than physical, in nature. She continues by stating that privacy should be regarded as relational, and not only contextual; the relations between people and between people and things matter, because they influence what individuals can do in a particular context—their agency. The connection with privacy harms is that this agency is not only to be found in objectively observable actions, but also in the mind. Brincker asks,

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‘what if the nature of our mind and agency is more procedural, more embodied, more culturally and socially embedded than what has hitherto been acknowledged in the privacy debate and law?’2 Indeed, according to Brincker, the problem with current scholarship addressing privacy from a legal perspective is that it considers ‘norms and codes of social conduct as somehow neutral and thus non-negotiable’, which is highly problematic. Accordingly, we should not only account for context when dealing with privacy, but also actors’ agencies within this context insofar as they (rather than the context itself) shape privacy settings. To exemplify Brincker’s point, consider for instance the difference between classical public CCTV setup in a city center versus a body-worn police camera: at face value, and even maybe legally, the body-worn camera and the CCTV represent the same thing, namely a state-owned visual and audio recording device in a public space, serving as a surveillance instrument; the similarity could suggest that the same privacy laws should apply. Yet, in practice, these two technologies introduce very different ways of acting and agency: in the case of CCTV, with static cameras stuck to a wall, a citizen cannot talk back nor avoid the potential gaze of the camera. In the case of the body-worn police camera, a citizen can ‘read’ the camera, and the direction of the gaze. Moreover, when being subject to recording, an official warning to the subject should be in place.3 Even though CCTV and body-worn cameras might look similar at first sight, the two technologies implicate possible threats to privacy in different ways. With CCTV, the threat often lies in the lack of knowledge about exactly where the cameras are and how they work, and if they work at all:4 they are at a distance and often unrecognizable. In contrast, with the body camera and other types of mobile cameras such as smartphone cameras, the perspective of the surveillance technology5 used in public space is also literally changing, because they come in closer vicinity of the subject of surveillance. In fact, with the ability to make more dynamic, intimate and close-up visual 2

Brincker, Chapter 3. In most countries, see e.g. the code of conduct for the UK police regarding bodycameras, available at http://library.college.police.uk/docs/college-ofpolicing/Body-worn-video-guidance-2014.pdf (accessed 6 January 2017). 4 See T. Timan and N.E.J. Oudshoorn, ‘Mobile Cameras as New Technologies of Surveillance? How Citizens Experience the Use of Mobile Cameras in Public Nightscapes’ (2012) 10 Surveillance and Society 167. 5 R.K. Lippert and B. Clayton Newell, ‘Introduction: The Privacy and Surveillance Implications of Police Body Cameras’ (2016) 14 Surveillance and Society 113. 3

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and/or audio recordings with mobile cameras and to share these recordings immediately,6 the set of norms and values around what we deem ‘normal’ behavior in public space is also changing. Although Brincker does not mention the metaphors of bubbles or spheres of privacy, the call to take context and agency into account does hint at some form of control of agents over what happens in their surroundings and thus at a certain delineation of privacy in public space. The subject of the potential encounter or infringement of privacy should have a say within a given context in respect to what they share, disclose or keep hidden. In Chapter 5, ‘Visually distant and virtually close: public and private spaces in the Archives de la Planète (1909–1931) and Life in a Day (2011)’, Julia Hildebrand shows, via a historical media comparison, that the role of the camera and the viewpoint of the infringer also determine the boundaries of an (invisible) sphere or bubble—boundaries that are and can be manipulated under the auspices of different types of cameras. By comparing two projects from two different eras that both try to capture daily life around the world on camera, Hildebrand shows how norms of what is private in public space have changed. Her cases include a documentary film-maker in the early twentieth century and a YouTubebased documentary in the early twenty-first century. Hildebrand proposes that the process of filming and narration have completely altered over the course of the century, and that turning the camera inwards onto ourselves allows viewers or spectators to enter a private sphere. She argues that the ‘personal space afforded by communication technologies is applicable in the sense that such boundaries are established from the external gaze in respect of privacy as something akin to a spatial bubble’.7 Even though several authors from different disciplines have tried to capture what is happening here (e.g. therapy culture,8 interiority,9 desirable visibility and empowering exhibitionism10), Virilio’s11 explanation that this entrance into the private sphere via a mobile camera is not only a visual 6

T. Timan and A. Albrechtslund, ‘Surveillance, Self and Smartphones: Tracking Practices in the Nightlife’ (2015) Science and Engineering Ethics 1, available at http://doi.org/10.1007/s11948-015-9691-8 (accessed 6 January 2017). 7 Hildebrand, Chapter 5. 8 M. McLuhan, Understanding Media: The Extensions of Man (MIT Press, 1994). 9 K. Ball, ‘Exposure: Exploring the Subject of Surveillance’ (2009) 12 Information, Communication and Society 639. 10 H. Koskela, ‘Webcams, TV Shows and Mobile Phones: Empowering Exhibitionism’ (2004) 2 Surveillance and Society 199. 11 P. Virilio, ‘Speed and Information: Cyberspace Alarm!’ (2009) Ctheory 8.

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experience but also a form of tele-contact is a fruitful one. If privacy, and particularly privacy in public, is relational, then the norms and values connected to privacy are indeed also changing, and thus altering what is expected within a context. As Hildebrand puts it, ‘[e]lectronic media have shrunken the distances between places and people, but also extended traditional sights and insights, eventually causing us to rethink “your own business”’.12 Consequently, one of the key questions addressed by the authors in this volume is how to open up and reconsider the public space/private space distinction and how to think of new ways to regulate and protect privacy in public space.

3. REGULATION AND GOVERNMENTALITY IN PUBLIC SPACE If we are to take into account the specificity of all the contexts, relations and forms of agency in which privacy concerns arise, how are we to regulate at a general level? One viewpoint of thinking about regulation in public space is provided by Karsten Mause, (Chapter 4, ‘A politicoeconomic perspective on privacy in public spaces’) who introduces economic theory and the concept of property to conceptualize what privacy in public is and might be(come). He shows how public space has never been an equal or homogeneous space, asserting that ‘a “public space” is not created by nature; what is a public or private space is defined by those actors which have the property rights over the particular space’.13 Discussing different stances from economic theory, Mause offers different ways of thinking about responsibilities that might help framing new or emerging privacy harms in public space, and enhance our understanding who should intervene or regulate in those cases. The liberal-individualistic standpoint argues that ‘individuals themselves can already do a lot in this respect. However, if someone does not invest any time, effort or money in self-protection, then they should not be too surprised if they become the victim of some kind of invasion of privacy’.14 From this perspective, the regulation of privacy in public space would be up to individuals and their understanding of the risks involved in interacting with possible privacy-infringing technologies. Countering 12 13 14

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Hildebrand, Chapter 5. Mause, Chapter 4. Ibid.

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Mause’s argument, however, not all technologies can be or are usercontrolled, and, as argued by Froomkin, the reasonable expectation test is shown to be increasingly unsatisfactory as a principle of regulation.15 Another perspective for regulation is to have government step in to regulate technologies in public space. However, the market-liberal perspective that can be witnessed in many current forms of government, would entail also the conviction that ‘more government action seems to be not necessary to enable individuals to make use of the mechanisms of “self-protection” and “legal protection” in order to protect their privacy in public spaces’.16 Mause asks how different governance mechanisms could work to protect privacy in public, including the question to what extent the state is necessary to protect citizens’ privacy in public spaces. The two faces of government in both safeguarding privacy and posing a threat to our privacy in (private and) public spaces through its (securitizing) ‘protective’ role leaves us with an uneasy feeling,17 which requires careful investigation and deliberation. From a different perspective, Bert-Jaap Koops and Maša Galicˇ in Chapter 1, ‘Conceptualizing space and place: lessons from geography for the debate on privacy in public’, delve into the discipline of human geography to look for conceptual directions that may inform the regulation of public space. They find that, while legal reasoning is fixed in a static and ‘objective’ understanding of private and public space, geography offers a much richer and more complex understanding of these notions: geography scholars have grappled for decades with the difference between spaces and places, what constitutes public space, and how public spaces are regulated. One useful observation for legal scholars is that due to technological developments, public space is changing from a space of clearly delineated, static places to a space of flows18—a network society.19 This also changes how we think of a place: the authors argue that our social lives are increasingly taking place (also) via social media, instead of (only) in physical places per se. However, place-making in this network society of (information) flows does not happen in a vacuum; rather, it is a new layer on top of physical space. Herein lies the problem of privacy in public space: if social media and other forms of digital information start to mix with the make-up of public spaces that transcend 15

See Froomkin, Chapter 8. Mause, Chapter 4. 17 Ibid. 18 Freely interpreted from Koops and Galicˇ, Chapter 1. 19 M. Castells, The Rise of the Network Society: The Information Age: Economy, Society, and Culture (John Wiley & Sons, 2011), vol. 1. 16

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physical boundaries of walls, fences and other physical boundaries, what does this do to the privacy expectations in spaces? Here, Koops and Galicˇ make a useful point, namely that ‘since the public and the private spheres are interdependent and establish each other, the implications of privatization and securitization of public space for privacy also require reflection. Public spaces should not be conflated with public actions, nor should private spaces be conflated with private actions’.20 This means sometimes we perform acts in public space that are private, or not meant for everyone to witness or be a part of (for instance, talking with another person), while we also sometimes do things in the home that are public (see, for instance, the Life in a Day project mentioned by Hildebrand, where people broadcast part of their life from their home for the entire world to see). Koops and Galicˇ show, however, that acts in public space are increasingly regulated and that the range of behavior that is allowed in public space is narrowing. Often, these regulations are not targeted at people as such, but rather to particular spaces. As put by Koops and Galicˇ, these are measures that: include zero-tolerance policing, widespread surveillance and new public nuisance laws with legal instruments such as anti-social behaviour (ASBOs) and public space protection orders (PSPOs). PSPOs, for example, allow for broad powers of local councils to criminalize behaviour that is not normally criminal. PSPOs are also not directed at individuals; rather, they are geographically defined, making predefined activities within a mapped area prosecutable. Such regulation of public space discourages a wide range of spirited expression (labelled as ‘anti-social’ or ‘escalating behaviour’) and encourages stereotyped behaviour and ‘social neutrality’ in general.21

Stephen Zhao’s description (Chapter 6, ‘Exposure and concealment in digitized public spaces’) of using such legal instruments to ‘privatize’ a particular part of a city or square to disallow political protests22 exemplifies the fact that these legal instruments can have a profound effect on what can be done in a public space. Koops and Galicˇ further argue that the practices of how places are made—and by whom they are made—need to be studied empirically if we want to truly rethink how to create sensible regulation for privacy in public. Drawing on urban geography and surveillance studies can be informative in this endeavor, because of the insights they bring about how public spaces are dynamic and that a proper (legal) analysis should 20 21 22

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Koops and Galicˇ, Chapter 1. Ibid. Zhao, Chapter 6.

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account for combinations of things, people and places, since each combination constitutes new situations and different expectations of privacy in public. Zhao points out that many public spaces are semipublic in the sense that they might be privately owned or only accessible to some part of the public; for example, highways (requiring a driver’s license) and airports or train stations (requiring a valid ticket to reach the departure gate or platform). While regulation of such spaces has to do with ensuring a level of safety (dealing with fast-moving physical objects), access to places like shopping malls and plazas is also selective, and increasingly so. Here, however, the motives for disallowing access are not based on safety in the strict sense, but on surveillance and sifting out those who might show certain unwanted behavior—think of skateboarders or homeless people being banned from a public shopping street. Zhao further observes that the purposes of a place need to be at the core of its public-ness: The principal purposes of a public space determine the main involvement that is an intrinsic part of social occasion or the meaning of what is going on in that public space; such a main involvement is taken as preferential and prescribes an associated obligation for public space users.23

In other words, in order to properly participate in a certain public place, one must be aware of the rules attached to that place. Where not knowing these rules can also be a part of the excitement or social learning, a commonly known or general sense of the social conventions or rules in a public space makes that space generally approachable, usable. Zhao states that the process of access to, or acceptance within, a place involves a mechanism regarding how much a person gives away and shares, and how much is concealed. He continues: A good starting point to understand the impact of digitalization on privacy expectation would be to analyse the significance of exposure and concealment in public space … In this sense, concealment of personal information (as a dimension of the privacy concept) allows and supports plurality in community by eliminating the need for collective choice or an official public stance.24

A bit of fuzziness is needed in the contexts and rules of public space, in order to foster plurality and different types of public spaces to emerge. Regulation of public spaces and privacy in those spaces has to do with levels of concealment, with rules of engagement in particular places, and 23 24

Ibid. Ibid.

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with allowing for certain levels of deviant or non-standard behavior without triggering (automated) alarm bells. However, how do rules and regulations, or technologies that mediate these regulations, actually infringe privacy of individuals or groups? Recall that Warren and Brandeis’s article on the right to privacy25 asserted that mental harms need to be accounted for, since they are perhaps even more injurious than non-mental privacy intrusions that the law did not already adequately cover. One of their main examples deals with a picture being taken and used in ways the subject of the picture did not consent to, leading to emotional or psychological stress and/or reputational damage due to misuse of the image. Where this example concerns a human photographer in public space, in which the act of recording and the uncertainty of what would happen after the recording were at the basis of the mental harm, it seems that, with the introduction of more obscure and distant forms of sensing, the act in itself (of taking ‘data’ rather than ‘pictures’) might be less impactful, because less visible and unknown. Yet the uncertainty of what will happen with this data once captured might be increasing, thereby also possibly increasing the level of mental harm. Contemporary examples mentioned by Zhao and others in this volume refer to technologies that take footage or measure other factors from a distance, the subject often being unaware of this sensing. This brings us to another prevalent theme in the book: the body.

4. THE BODY AS INTERFACE IN PUBLIC SPACE Several authors, including Angela Daly (Chapter 7, ‘Covering up: American and European legal approaches to public facial anonymity after SAS v. France’) and Michael Nagenborg (Chapter 2, ‘Hidden in plain sight’), provide examples of the body as a locus of surveillance, and as an interface for sensing technologies in public space. On the one hand, it seems logical that the body is at the center of ‘privacy in public’ deliberations, since it is closest to what people are or have and is necessarily carried along when moving in public. On the other hand, we have seen that, in network societies, privacy may be more closely linked to a tele-presence and to information flows than to particular physical places. Yet, the body is in itself a physical place, or entity, moving around in public spaces. While this is nothing new, technology that can sense and measure aspects of the body from a distance is. Consider, for 25 S.D. Warren and L.D. Brandeis, ‘The Right to Privacy’ (1890) Harvard Law Review 193.

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instance, smart CCTV cameras that can run facial recognition software, possibly in real-time; WIFI-tracking systems in shops tracking mobile phones that are often carried close to the body;26 gait analysis that turns walking patterns into unique identifiers;27 infra-red cameras at airports that link the temperature of individuals to diseases or a (dangerous?) level of nervousness;28 and DNA collecting devices that can analyze virtually any bodily trace in public.29 These technologies raise the question as to what extent remote body-sensing technologies introduce new privacy infringements in public. They also beg the question to what extent we can hide our body language, faces or body material in public spaces from such sensing devices. Several authors in this volume mention masking as an interesting concept of renegotiating privacy in public space.30 Whereas the reasons for covering one’s face or facial features might differ from religious to protest reasons, the result of obfuscating your face is that it might make you unrecognizable to distant-sensing devices. On the other hand, masks and other forms of face-covering also make one stand out in a crowd. Daly discusses the SAS v. France case on the banning of face-coverings. The key issues here are what degree of facial concealment is acceptable in a society, and what minimum requirements are necessary to ensure ‘respect for the minimum requirements of life in society’ or ‘living together’.31 Legally banning face-covering clothing highlights issues relevant for conceptualizing privacy in public: although politically interpreted as laws against wearing a niqaab, the law in general is aimed at all sorts of face-covering clothing. The arguments presented in this case are relevant for privacy in public space, highlighting the tension between, on the one hand, freedom of expression and religion and, on the other, a level of openness and minimal requirements of living together, which, according to the French state, includes being able to ‘read’ someone’s face. In this case, however, ‘a blanket ban on facial coverings was not 26

A.S.Y. Cheung, ‘Location Privacy: The Challenges of Mobile Service Devices’ (2009) 30 Computer Law and Security Review 41. 27 See L. Lee and W.E.L. Grimson, ‘Gait Analysis for Recognition and Classification’ in Automatic Face and Gesture Recognition, 2002, Proceedings, Fifth IEEE International Conference (IEEE, 2002). 28 See e.g. T.C. Ormerod and C.J. Dando, ‘Finding a Needle in a Haystack: Toward a Psychologically Informed Method for Aviation Security Screening’ (2015) 144 Journal of Experimental Psychology: General 76. 29 See Scherr, Chapter 9. 30 Nagenborg, Chapter 2; Daly, Chapter 7. 31 See Daly, Chapter 7.

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[considered] necessary, except in circumstances where there was a “general threat to public safety” which the French government had not shown’.32 Daly compares this case with anti-masking laws in the United States that are often used to disallow protests and aimed at the need (for law enforcement) to identify citizens in public space. Daly concludes that, as a result of the SAS v. France case, ‘a state cannot regulate mask-wearing solely because it is frightening to other people’.33 Masking is also a key theme in Nagenborg’s chapter, in which he offers a historical-philosophical analysis of the mask and the act of masking. The mask guarantees both anonymity and recognizability—the mask makes one stand out—and it is often worn to be recognized, although with a particular persona or message attached to it. A recent example is the Guy Fawkes mask,34 used in protests to identify with the Anonymous activist/hacker group, which exemplifies this double role of masking. Masking is, however, one particular way to disguise oneself in public space, and Nagenborg also discusses other forms of obfuscation, such as anti-drone hoodies or certain types of face-paint to fool facial recognition software. Nagenborg calls these sensing technologies anthropotelemetric, which he explains as ‘a kind of surveillance that allows taking measurements on the human body from a distance’.35 Where the distant measuring and assessment of the face in particular, and other parts or attributes of the body more in general, might be seen as the last step towards ubiquitous recognizability, the body can also form a new place of resistance: ‘“passive sabotage”—not by destroying the technological surveillance systems, but by denying anthropotelemetric surveillance access to the site on which it operates: our bodies’.36 Another aspect of body-related surveillance is offered by Albert Scherr in Chapter 9, ‘Privacy in public spaces: the problem of out-of-body DNA’, where he examines the limited legal protections against DNA tracing by, for instance, law enforcement agencies37 in the United States. The development of DNA tracing technology allows users to capture and analyze DNA to such a level of detail that all sorts of personal details can 32

Ibid. Ibid. 34 See G. Coleman, Hacker, Hoaxer, Whistleblower, Spy: The Many Faces of Anonymous (Verso Books, 2014). 35 Nagenborg, Chapter 2. 36 Ibid. 37 Scherr also mentions private detectives and amateur genealogists as parties interested in DNA tracing. 33

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be identified and, to a certain degree, an individual’s physical characteristics can also be derived. Out-of-body DNA is seen by many courts as waste material: something one has given away and is thus free for the taking and analyzing. This is problematic, since ‘out-of-body DNA retains a kaleidoscope of information and identity that is personal, powerful, intimate, shared and timeless. It is also information that is useful to others for various identification, research and commercial purposes’.38 While people can protect themselves to some extent from distant (visual) sensing technologies, it is much more difficult to prevent leaving DNA traces in public space. Scherr argues that US courts have applied the reasonable expectation of privacy test wrongly in out-of-body DNA cases, and that, at a minimum, more public awareness and access to information is needed if this type of DNA tracking is to stand this test. A recurring theme in the chapters by Daly, Nagenborg and Scherr is the level of individuals’ control over actions in public space. In their contributions, they describe situations that are changing from being harmless to ‘worth recording’ (a veil, a DNA trace, a mask). All three chapters discuss the changing nature of ‘being in public space’ and possible new technological ways of being read or sensed in public space from a distance, or over time. This can lead to new or more severe privacy infringements, and legal frameworks currently in place are often inadequate to provide proper protection against these infringements. Moreover, technological developments in remote sensing and DNA analysis go hand in hand with a changing political climate in the European Union and the United States, allowing for more state interference in public space. Where some technologies of measuring the body have sparked new forms of resistance or protection by citizens themselves, technologies such as DNA tracing call for a stronger response from law-makers. This brings us to the fourth theme that can be carved out of the rich variety of chapters: the developments in law and regulation regarding privacy in public and the main challenges for regulators in protecting privacy in public space.

5. PRIVACY MITIGATION AND REGULATION IN PUBLIC SPACE The role of regulators in shaping privacy in public space ranges from creating new privacy-protecting laws to transparency obligations and 38

Scherr, Chapter 9.

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other forms of regulation. To meet the challenges highlighted by Scherr in applying the reasonable-expectation test for privacy in public (more public awareness and access to information), Michael Froomkin (Chapter 8, ‘Privacy impact notices to address the privacy pollution of mass surveillance’) draws inspiration from another legal domain that might prove fruitful as a basis for thinking about regulating privacy in public space: environmental law. A prominent feature of environmental law in the United States is Environmental Impact Statements (EISs). These are disclosures or notices on development plans of, for instance, industry, with a focus on the project’s impact on the environment. The notices are publicly available and allow citizens to have a say. Moreover, these EIS requirements call for regular (for instance, yearly) reporting on the impact of the project on the environment.39 Projecting the logic of EIS onto privacy and surveillance questions, Froomkin asserts that ‘surveillance is polluting our privacy’, and that the current privacy doctrine in the United States lacks a proper instrument to deal with the proliferation of mass surveillance. Instead of looking at the European model, such as Privacy Impact Assessments and compliance enforcement with EU data protection regulations, the United States could adopt Privacy Impact Notices (PINs) that are a variant of the EISs. These PINs would ‘describe the costs and benefits of proposed surveillance. This will not only enrich public debate but will also help identify the aspects of data collection that may need regulation’.40 PINs could form a new tool to enforce privacy laws and provide a potential economic benefit: not only would we gain insights into the actual costs of (a loss of) privacy; companies in turn could also use these notices to their competitive advantage. Both Meg Leta Jones (Chapter 10, ‘The Internet of other people’s things’) and Froomkin warn the reader of the speed of proliferation of novel ICTs and the upcoming Internet of Things (IoT), in which it will be difficult to distinguish public from private data and content from metadata. In her contribution, Jones, dubbing the coming world of connected devices an Internet of Other People’s Things, explores the differences and pros and cons of data protection regulations in the United States and the EU and how well these legal instruments would work in a context of IoT and smart publics. One clear difference is the focus on regulation for companies that does not block innovation (US) versus a stronger protection for end-users (EU). An underlying question for privacy in public is who the actors or stakeholders are in publicly 39 40

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deployed technologies and who owns data produced in or taken from those spaces. When boundaries between data controllers and data processors are blurring, the current models of privacy regulation are under pressure. The EU framework focuses on end-users’ informed consent and lifecycle data management, the latter meaning that the data processor should inform end-users about all processing of one (set of) data throughout the entire life of that data.41 Such regulation, Jones argues, could seriously affect technological innovation. Yet, in an Internet of devices that might not all interact with us via screens (rather, for instance, via voice, facial or gesture recognition), the EU approach might offer a more stable way forward, because it is not based only on a narrow interpretation of consent (as would be the case in the United States). In general, the regulation of privacy in public space is, in both the EU and US systems, pivoting around data collection, often not acknowledging that privacy infringements might go beyond data collection and processing and can be found also in acts of recording, monitoring or manipulating possible (inter)actions in public space. It can prove fruitful for the discussion of privacy in public to develop a sense of what the consequences are of privacy-infringing technologies in public space from a broader social-ethical perspective, rather than merely through the lens of data protection. One way of doing so is to ask what the role of privacy in public is or can be. That question will be discussed, from different angles, in the chapters that follow.

41 See P. Korenhof, J. Ausloos, I. Szekely, M. Ambrose, G. Sartor and R. Leenes, ‘Timing the Right to be Forgotten: A Study into “Time” as a Factor in Deciding about Retention or Erasure of Data’ in S. Gutwirth, R. Leenes and P. De Hert (eds), Reforming European Data Protection Law (Springer, 2015).

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PART I

Philosophical and empirical insights

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1. Conceptualizing space and place: lessons from geography for the debate on privacy in public Bert-Jaap Koops and Maša Galicˇ* 1 INTRODUCTION The debate taking place in the fields of law, philosophy and Science and Technology Studies (among others) about privacy in public focuses on whether and to what extent privacy can, or should be, protected when people move ‘in public’, that is, ‘in public space’ or ‘in public places’. Many participants in the debate have some intuitive understanding of ‘public space’, but may not be aware of the rich literature on the concepts of ‘space’ and ‘place’ and the analysis of private and public places. When ‘[s]pace is the everywhere of modern thought’1 and our historical moment is, above all, the ‘epoch of space’,2 we should make some effort to understand what this thing called space is and what it does, and how the spatial context around us influences our lives—including our privacy expectations when moving around ‘in public space’. We think that the debate on privacy in public can benefit significantly from scholars in various fields acquiring a deeper understanding of how space and place can be conceptualized—and what this conceptualization may mean for the challenges and regulation of privacy in public. Insights from geography that inform us about questions of power related to public space and the relevance of place and space for identity-building are particularly relevant to the debate on privacy in public. Such insights tell

* The research for this chapter was made possible by a grant from the Netherlands Organisation for Scientific Research (NWO), project no. 453-14004. 1 M. Crang and N. Thrift, ‘Introduction’ in M. Crang and N. Thrift (eds), Thinking Space (Routledge, 2000) 1. 2 M. Foucault, ‘Of Other Spaces’ (1986) 16 Diacritics 22. 19

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us that the common (legal) division of the social world into public and private is not a natural division; rather, it is an expression of power, as is evident, for example, in the ongoing privatization and securitization of public space. The public and the private spheres of life are, as geographers have convincingly argued, interdependent and establish each other. Moreover, geographers have shown how place and identity are closely intertwined in a process of co-production. In today’s networked world, the narratives people use to understand themselves in the world, which are constitutive of their identities, are associated with multiple places and movements, and thus they are as equally formed through people’s experiences in public places as they are through living at home. Yet the law continues to assume a fixed and clear-cut distinction between private space (carrying a strong reasonable expectation of privacy) and public space (which carries far less reasonable expectation of privacy). Geography’s insights should thus inform law, governance and other fields of academic research that are determining the value and level of privacy protection in public space. In this chapter, we aim to open up key insights from the literature on space and place that are relevant for the debate on privacy in public. In line with this book’s theme, the focus is on physical space rather than digital space, although we will make some remarks about the interactions between physical and digital spaces. We draw principally from human geography, as this field occupies a central position in a broader range of disciplines (such as sociology, cultural studies and philosophy) that experienced a ‘spatial turn’ in the later twentieth century.3 We must warn the reader, however, that neither of us is a specialist in geography. Rather, we have studied the literature on space and place from the perspective of legal scholars thinking about current privacy challenges. The result is a chapter that discusses key insights from geographic literature as understood by two outsiders who have benefited from reading this literature. It might be seen as a response to Tim Cresswell (who presents his introduction to the concept of place as ‘an offering, from the place of geography, to the wider world’),4 showing how the world of regulatory scholarship can benefit from this offering to inform an important contemporary social problem that confronts many academics in nongeographically-informed fields.

3 B. Ward and S. Arias (eds), The Spatial Turn: Interdisciplinary Perspectives (Routledge, 2008). 4 T. Cresswell, Place: An Introduction (2nd edn, Wiley Blackwell, 2015) xii.

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After an introduction to geography, space and place, we discuss several key themes, roughly structured at three levels of analysis (descriptive, constructivist and phenomenological).5 This structure serves as a heuristic to discuss the things we find relevant, connected to three major overarching themes (context, power and identity). We do not claim that these themes belong uniquely to any one level of analysis or any single school of thought; for example, structuralists also write about identity, and phenomenologists write about power. We follow themes rather than different analytic frameworks, discussing scholars from different schools within each section. We end by drawing some conclusions for the debate on privacy in public.

2 A BIRD’S-EYE VIEW OF SPACE AND PLACE IN GEOGRAPHY 2.1 Ultrashort History of Geography Thinking about space has obvious roots in philosophy. Descartes, for instance, sees space as intrinsically related to the dimensionality of masses (or bodies) in space (the notion of Cartesian space). Newton saw space as an independent, three-dimensional, infinite container for matter. In contrast to these absolute conceptions of space, Leibniz posited that space is fundamentally relational: space does not exist in itself, but rather is the relation between bodies.6 Geography emerged in the eighteenth century as a distinct discipline. The field of geography is usually divided into physical geography (the study of the natural environment) and human geography (the study of the cultural or constructed environment). In this chapter, we focus on the latter branch. In the nineteenth and early twentieth centuries, human geography was dominated by regional geographers who tried to capture what makes a certain region of the world special. Around 1960, a positivist school emerged, using quantitative, statistical approaches to geography. While these traditions largely applied a Newtonian conception of space, various approaches arose in the 1970s that can be thought of as ‘critical geography’, involving a more Leibnizian understanding of space. For instance, behavioural geography looks at how people make places; humanist geography studies people and their condition, approaching

5 6

Cf. n. 9 above and surrounding text. R.T. Tally, Jr, Spatiality (Routledge, 2013) 27–8.

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geographic concepts through phenomenology or the lens of human experience; and structural or ‘radical’ approaches study geography using, for example, Marxist or feminist theory. These are followed by postmodern and post-structural approaches.7 Recently, an ‘intellectual project’ of legal geography appears to be emerging, which researches the interconnections between law and spatiality, especially their reciprocal construction.8 As in most disciplines, approaches or schools usually do not replace each other, but continue to exist with their own traditions, thinking and advances, and sometimes combine into new approaches. Although geography is therefore very diverse, three basic approaches can be distinguished at different levels of analysing place: (1) a descriptive approach (dominant in regional studies, with a ‘neutral’, Newtonian conception of space); (2) a social-constructionist approach (dominant in ‘radical’ and post-structural streams, focusing on how place is constructed under a variety of structural conditions); and (3) a phenomenological approach (dominant in humanist and behavioural streams, ‘seeking to define the essence of human existence’ in terms of being ‘in-place’, and more interested in ‘Place’ than in ‘places’).9 Of course, these levels of analysis often overlap, but the classification provides a useful heuristic to structure our discussion of the varied insights that geography can bring to academic thinking in law and governance. However, before diving directly into this discussion, we outline the basic concepts of ‘space’ and ‘place’ in the following section. 2.2 Duality of Space and Place In popular speech (and in many academic disciplines where scholars are unaware of geographic theory, including law), the terms ‘space’ and ‘place’ are often used interchangeably. One important contribution from geography is a more precise meaning of each of these terms. Although the conceptual debate is ongoing, there is a rough consensus that space is a more abstract concept than place.10 ‘Space’ is associated with the

7

P. Hubbard and R. Kitchin, ‘Introduction: Why Key Thinkers?’ in P. Hubbard and R. Kitchin (eds), Key Thinkers on Space and Place (2nd edn, Sage, 2011) 12. 8 I. Braverman, N. Blomley, D. Delaney and A. Kedar, ‘Introduction’ in I. Braverman et al. (eds), The Expanding Spaces of Law: A Timely Legal Geography (Stanford University Press, 2014). 9 Cresswell (n. 4) 56. 10 Ibid. 15.

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Newtonian, container-like conception of the physical world, in which matter is located somewhere along three dimensions,11 a conception that resonates with our intuitive understanding of space (or place). Combining the structuralist insight that space is socially produced and not given12 and the humanist insight that ‘people do not live in a framework of geometric relationships but in a world of meaning’,13 it becomes clear that spaces often function in specific ways, with distinct characteristics and meaning in particular contexts. Then, space becomes place. Hence, ‘the most straightforward and common definition of place’ is: ‘a meaningful location’.14 Interestingly, the distinction between space and place thus mirrors the distinction between data and information, where ‘information’ is commonly conceptualized as ‘meaningful data’.15 As Tuan has shown, the concepts of space and place can be correlated with movement and stability: a space can become a place when we stand still and observe, while place is ‘essentially a static concept’ and can, in that sense, also be defined as ‘whatever stable object catches our attention’.16 As places are spaces we (come to) know and value, they form a basic condition of life: From the security and stability of place we are aware of the openness, freedom and threat of space, and vice versa. Furthermore, if we think of space as that which allows movement, then place is pause; each pause in movement makes it possible for location to be transformed into place.17 One can thus see the home as the ideal type of place: the most meaningful, valued, stable and safe space a person might inhabit. In contrast, public space is often the space for moving between places, such as commuting from home to the office (although parts of public space are, of course, also meaningful, for instance, as places for politics or of private memory, see 4.1 and 5.1 below). However, place and space are not discrete, mutually exclusive concepts; rather, they form a spectrum

11 12

Hubbard and Kitchin (n. 7) 4. Seminally, H. Lefebvre, The Production of Space (Blackwell, 1991). Cf. 4

below. 13 Hubbard and Kitchin (n. 7) 6, referring to Yi-Fu Tuan’s central contribution, e.g. in Yi-Fu Tuan, Space and Place: The Perspective of Experience (University of Minnesota Press, 1977). 14 Cresswell (n. 4) 12; similarly I. Altman and E.H. Zube (eds), Public Places and Spaces (Plenum Press, 1989) 2. 15 L. Floridi, Information: A Very Short Introduction (Oxford University Press, 2010) 21–2. 16 Tuan (n. 13) 179 and 161. 17 Ibid. 6.

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with place at one end and space at the other, which is ‘simultaneously a continuum linking experience to abstraction’.18 Space and place are intrinsically related concepts: they constitute each other. A place takes meaning from the spaces outside it, and spaces are relevant in relation to the places they surround.19 In logical terms, space would seem to be the primal concept: you first need a space that you can then fill with meaning, in order to get a place; for example, the act of giving a name to a space (such as New Amsterdam or The Hebrides) is often a key step in creating a place. In existential terms, however, place is the primal concept:20 we exist only through being-in-the-world, as argued by Heidegger. Being is more than just being in place as a container: it is Dasein: being there or being in.21 For humans, this implies that dwelling, involving a continuity between a person and a place, is fundamental to human existence: ‘[d]welling is the manner in which mortals are on the earth’.22 Heidegger’s ‘claim for the existential importance of residing with things in a sustained and absorbed fashion’23 reinforces the notion of place, and particularly the dwelling (both the building and the activity), as a stable, safe, fixed place. This may be ‘romantic and nostalgic’,24 but still has value in seeing human existence as fundamentally residing near things, a conception that—in a world where things are increasingly mobile—can imply, in contrast to Tuan’s association of place with stasis, that place can also be dynamic and mobile (see 5.2 below). From the above, it becomes clear that place has two main components: materiality and meaning.25 The materiality of a place consists of two aspects: location, i.e. being situated at certain coordinates on Earth (or elsewhere) (which need not be fixed: ships and camps can also be places);26 and locale, i.e. the ‘material setting for social relations’, which is the shape or form that a place takes.27 The meaning of a place is the ‘subjective and emotional attachment people have to place’, or the ‘sense

18

Cresswell (n. 4) 37. Ibid. 48. 20 Ibid. 50. 21 Ibid. 27. 22 M. Heidegger, ‘Building Dwelling Thinking’ in D. Farrell Krell (ed.), Basic Writings: Martin Heidegger (revised edn, Routledge, 1993) 343, 350. 23 Cresswell (n. 4) 27. 24 Ibid. 37. 25 Ibid. 46. 26 Ibid. 37. 27 Ibid. 12–13. 19

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of place’.28 A third dimension along which places can be studied is a temporal one, since aspects of places change every day, which may or may not change the sense of place; there are ‘territorializing forces’ that make a place cohere, creating a stronger sense of place, and de-territorializing forces that pull a place apart, making it a different type of place or space.29 This dimension is analysed, for example, in the debate on time-space compression (see 5.2 below). Beyond the distinction between place and space, particularly relevant for the identity-building processes connected to private and public place (see 5 below), manifold geographical insights can inform the debate on privacy in public space on several levels. We start with the descriptive level, looking into issues of context and method.

3 DESCRIPTIVE LEVEL: QUESTIONS OF CONTEXT AND METHOD Although the Newtonian ‘neutral container’ understanding of space is contested, relevant insights can still be gained from geographers working within this framework to describe and understand places. Traditional regional studies showed the importance of focusing on local particularities and of studying places in context, as co-productions of natural landscape and culture.30 Besides, the quantitative turn in geography has shown how geography can benefit from quantitative social-science methods and creative ways of mapping. Scholars such as Berry tried to understand the spatial organization of economy and society using socialscience tools in order to inform public policy and help shape urban justice.31 Spatial science, spearheaded by Haggett, shows how human geography can be described on the basis of geometric forms (such as movement, nodes, networks, hierarchies and surfaces) rather than regions or topics.32 Similarly, spatial modelling has been greatly advanced by positivist geographers such as Tobler, who introduced maps scaled in travel time or cost rather than distance and other ways of mapping to

28

Ibid. 14, referring to J.A. Agnew, Place and Politics: The Geographical Mediation of State and Society (Allen & Unwin, 1987). 29 Cresswell (n. 4) 54, referring to M. DeLanda, A New Philosophy of Society: Assemblage Theory and Social Complexity (Continuum, 2006) 12. 30 See Cresswell (n. 4) 31–3. 31 P. Hubbard and R. Kitchin (eds), Key Thinkers on Space and Place (2nd edn, Sage, 2011) 63–7. 32 P. Haggett, Locational Analysis in Human Geography (Arnold, 1965).

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‘represent social or demographic reality rather than just the earth’s surface’,33 and Wilson, who laid the groundwork for mathematical models of trip movements in cities, including microsimulation models focusing not on larger areas but on individuals and households.34 Although quantitative models might suggest mechanistic or deterministic accounts of people’s behaviour in space, Golledge has shown how the methodologically solid approaches of quantitative geography can be combined with a focus on how people perceive and respond to places in different ways, based on the insight ‘that not everyone behave[s] in a spatially rational manner’.35 Golledge’s development of analytical behavioural geography (as opposed to phenomenological streams in behavioural geography) is interesting in demonstrating how people’s understanding of space can be studied within an essentially Newtonian conception of space.36 From the descriptive level of geography, several insights can inform the debate on privacy in public. First, it is important to study places in context, with their own physical, social and cultural particularities and logic; thus, in line with Nissenbaum’s contextual integrity,37 privacy in public should be studied concretely and locally. Second, a descriptive approach of what happens in public spaces does not have to be ‘neutral’ or posit that humans are rational beings—behaviour can be studied in context through the lens of how (different) people perceive public space (differently). Third, urban planning and decision-making about public spaces, which also have to take into account privacy protection (see 5.3 below), can benefit from analytic, social-science-based accounts of how people behave in public spaces and how this varies over time and space, aided by a variety of visualization tools.

4 SOCIAL-CONSTRUCTIVIST LEVEL: QUESTIONS OF POWER Alongside the importance of place as meaningful location and of studying public spaces and places in context, the more abstract concept of space, divided into private and public, holds great value, particularly

33 34 35 36 37

Hubbard and Kitchin (n. 31) 422. Ibid. 477–81. Ibid. 186–7. Ibid. 187. H. Nissenbaum, Privacy in Context (Stanford University Press, 2010).

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for the practice of politics, democracy and power relations. The socialconstructivist perspective, as applied by post-structuralist and radical geographers, sees space as inherently caught up in social relations, where physical spaces and the social life of citizens are shaped together.38 It focuses on the many and variegated ways in which spaces (and social life) are made through emergent patterns of use, their individual and social functions, and power relations.39 It asks questions such as: how are private and public spaces shaped; who has access to them; what sorts of norms govern them; and how are the actions that develop in it spread across geographical networks of communication?40 Such questions tie in with the long-standing interest of social sciences in issues of power. Generally speaking, power comes down to someone being able to get another to do something that the other would not otherwise do; this does not only involve brute force, but also limiting the other’s decision-making space (e.g. through agenda-setting) as well as using cultural, institutional and architectural mechanisms that have a disciplining effect.41 The construction of (public) space and place demonstrates well how such mechanisms are used in power relations. 4.1 Public and Private Spaces Despite our intuitive understandings of what counts as public or private space (both as abstract spheres or realms of life, and as physical spaces), this distinction is not at all clear-cut.42 In fact, the question of precisely where the boundary between public and private should lie is a matter of

38

A. Madanipour, Public and Private Spaces of the City (Routledge, 2003)

2–4. 39

R. Koch and A. Latham, ‘Rethinking Urban Public Space: Accounts from a Junction in West London’ (2011) Transactions of the Institute of British Geographers 515, 517. 40 L.A. Staeheli and D. Mitchell, ‘Spaces of Public and Private: Locating Politics’ in C. Barnett and M. Low (eds), Spaces of Democracy: Geographical Perspectives on Citizenship, Participation and Representation (Sage, 2004) 152. 41 R.A. Dahl, ‘The Concept of Power’ (1957) 2 Behavioral Science 201; P. Bachrach and M.S. Baratz, ‘Two Faces of Power’ (1962) 56 American Political Science Review 947; S. Lukes, Power: a Radical View (2nd edn, Palgrave Macmillan, 2005). 42 ‘There is no such thing as the public/private distinction’: R. Guess, Public Goods, Private Goods (Princeton University Press, 2001) 106, as quoted in J.R. Parkinson, Democracy and Public Space: The Physical Sites of Democratic Performance (Oxford University Press, 2012) 49.

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intense debate.43 Some have even claimed that the distinction is becoming increasingly blurred (see 4.2 and 4.3 below),44 advocating its dismissal.45 Nevertheless, the distinction has proven compelling and enduring. The subdivision of our social world and the spaces we inhabit into public and private spheres—the public/private distinction—is commonly seen as a key feature of how society organizes itself.46 The way space is subdivided and the relationship between the public and private spheres in general can serve as a mirror of social relations and particular socio-cultural contexts, representing a (more or less) desired balance between the individual and society.47 The public/private distinction is usually presented as two ends of a spectrum,48 an approach we will take as well. In modern usage, ‘private sphere’ indicates a part of life that is under the control of the individual in a personal capacity, outside public observation and knowledge and outside official or state control.49 It follows that private space is an individuated portion of social space, a

43

Weintraub identified four general models through which the concepts of public and private (in the abstract) are often defined in political theory. The first is a liberal-economic model in which publicity is associated with the state and privacy with the market; the second is the republican-virtue model that sees the public sphere as community and citizenship as distinct from the state and the market; the third is a model of sociability in which publicity is defined in terms of self-representation, display and performance; and, finally, a feminist model in which the public refers to the state and economy while the private refers to the domestic and familial; J. Weintraub, ‘The Theory and Politics of the Public/ Private Distinction’ in J. Weintraub and K. Kumar (eds), Public and Private in Thought and Practice: Perspectives on a Grand Dichotomy (University of Chicago Press, 1995), as stated in Staeheli and Mitchell (n. 40) 150. 44 J. Bethke Elshtain, ‘The Displacement of Politics’ in Weintraub and Kumar (n. 43) 166; J. Cohen, ‘Rethinking Privacy: The Abortion Controversy’ in Weintraub and Kumar (n. 43) 133; J. Squires, ‘Private Lives, Secluded Places: Privacy as Political Possibility’ (1994) Environment and Planning D: Society and Space 387. 45 G. Rose, Feminist Geographies (University of Minnesota Press, 1993); J.K. Gibson-Graham, The End of Capitalism (As We Know It): A Feminist Critique of Political Economy (1st edn, University of Minnesota Press, 1996). 46 Madanipour (n. 38) 1–2; Staeheli and Mitchell (n. 40) 147; B. Fay, Social Theory and Political Practice (Allen and Unwin, 1975). 47 Madanipour (n. 38) 67–8; S. Watson, City Publics: The (Dis)enchantments of Urban Encounters (Routledge, 2006) 159. 48 See, e.g. B.-J. Koops et al., ‘A Typology of Privacy’ (2017) 38(2) University of Pennsylvania Journal of International Law 483. 49 Parkinson (n. 42) 50; Staeheli and Mitchell (n. 40) 151.

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space that individuals enclose to control for their exclusive use.50 It provides a physical home for the body with its mental or portable personal spaces. Aside the inner private space of the mind (highly dependent on the physical body to grasp the outer world), lies personal space, the invisible, mobile and subjective space around the body, functioning as the extension of the body.51 It includes spaces that are personalized by people who inhabit them (such as apartments, hotel rooms, workplaces, cars, computers and mobile phones) and the processes through which this personalization occurs.52 It is ‘a social institution in the sense that the observation of personal space depends on the perceived sense of the self and of the appropriate behaviour in public places’.53 Thus, personal space can be described as ‘a small protective sphere or bubble that an organism maintains between itself and others’54 and which individuals carry with them wherever they go. It functions as a regulatory process through which access to a person is controlled, helping to achieve a desired level of privacy.55 Such control enables individuals to create a personal environment, a protective layer from social pressures, which enables them to develop a sense of identity, find a location in the social world and develop as an autonomous political subject:56 The control of enclosed, private spaces offers the individual an ability to communicate with others through becoming a means of expression of their will, identity and power. It also offers them the ability to be let alone by being protected from the intrusion of others. The establishment of a private sphere offers the individual the ability to regulate the balance of concealment and exposure, the balance of access to oneself and communication with others.57

Personal space therefore provides individuals with a place in the world and acts as a barrier that protects and distinguishes individuals from the outside world. Parts of this space are legally protected by the right to

50

Madanipour (n. 38) 68. Ibid. 22; E. Hall, The Hidden Dimension: Man’s Use of Space in Public and Private (Bodley Head, 1966). 52 R. Sommer, Personal Space: The Behavioural Basis of Design (PrenticeHall, 1969) viii; Parkinson (n. 42) 54. 53 Madanipour (n. 38) 31. 54 Hall (n. 51) 112. 55 I. Altman, The Environment and Social Behaviour: Privacy, Personal Space, Territory, Crowding (Brooks/Cole, 1975) 3. 56 Elshtain (n. 44) 180. 57 Madanipour (n. 38) 68. 51

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privacy in various forms (such as protection of the home, communication, personality and personal data), as seen in many international human rights instruments, national constitutions and other laws around the world.58 At the other side of the spectrum, we find public space. Public space has traditionally been seen as a shared space that serves as a place to gather and meet both friends and strangers, where the term ‘public’ connotes the idea that such settings (and activities therein) are accessible to everyone.59 They are generally places outside the boundaries of individual or small-group control and are used for a variety of functional and symbolic purposes.60 Accordingly, Altman described public space as a physical space to which almost anyone has free access and occupancy rights on a temporary basis.61 Such space is important because it provides a physical space for interpersonal communication and social encounters, but also because it represents the stage upon which communal life unfolds, where individuals, groups and crowds become political subjects.62 In that sense, public space is closely connected to the concept of the public sphere, which provides individuals an opportunity to engage in political participation through discussion, forming opinions and building consensus, as well as engaging in collective political action to pursue mutual goals.63 Thus, public space plays a powerful role in the social and political activities involved in the ‘making of the public(s)’ that constitutes the public sphere by providing individuals and groups a material

58

Koops et al. (n. 48). Altman and Zube (n. 14) 1; Madanipour (n. 38) 111. 60 Madanipour (n. 38) 112–13. 61 Altman (n. 55) 118; similarly E. Goffman, The Presentation of Self in Everyday life (Allen Lane, 1969). 62 S. Carr, M. Francis, L.G. Rivlin and A.M. Stone, Public Space (2nd edn, Cambridge University Press, 1995). 63 J. Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (MIT Press, 1991); H. Arendt, The Human Condition (University of Chicago Press, 1998); S. Benhabib, Democracy and Difference: Contesting Boundaries of the Political (Princeton University Press, 1996). Madanipour (n. 38) 236 defines the public sphere as ‘a collection of material and institutional common and inclusive spaces, in which the members of society meet, to share experiences, to present and exchange symbols and create meaning, and to deal with collective self-rule through seeking consensus as well as exploring difference’. 59

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space to engage in political participation.64 This involves values of plurality, openness and social learning,65 as well as activities such as making claims; achieving visibility and recognition; influencing public opinion; establishing legitimacy; contesting the conception of the public; renegotiating social and political rights; and (group) identity formation.66 Public space hence features personal rights that are both politically and spatially grounded, including the right to representation, assembly and freedom of action in urban open spaces.67 Fraser has criticized the singular universal public sphere as conceptualized by Habermas, arguing that it needs to be replaced with a theory of multiple contending, often mutually exclusive, public spheres.68 In that sense, public space is a site of contention and instability, the meaning of which always involves a struggle.69 Hence, public spaces are sites of heterogeneity and interaction that educate city-dwellers about the ‘other’70 since they encourage mingling and encounters between people of different classes, races, ages, religions, ideologies and cultures.71 This means that public spaces of democratic societies have a processual and fluidic character: they are constructions to be maintained and repaired as the collective interests are defined and contested.72 64

‘Democracy is “the politics of the street”, which necessitates a material grounding in public space’; S. Springer, ‘Public Space as Emancipation: Meditations on Anarchism, Radical Democracy, Neoliberalism and Violence’ (2011) 43 Antipode 525, 533; D. Mitchell, The Right to the City (Guilford Press, 2003); I.M. Young, Inclusion and Democracy (Oxford University Press, 2000). 65 E.S. Ruppert, ‘Rights to Public Space: Regulatory Reconfigurations of Liberty’ (2006) 27 Urban Geography 271, 277. 66 Ruppert (n. 65) 281–2. 67 H. Lefebvre, The Production of Space (Wiley-Blackwell, 1991); Mitchell (n. 64). 68 N. Fraser, ‘Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy’ (1990) Social Text 56. 69 This connects to the concept of agonism, which refers to the idea that conflict cannot and should not be eradicated in democratic societies; see Springer (n. 64) 525, 530; Mitchell (n. 64) 18. 70 J. Németh and J. Hollander, ‘Security Zones and New York City’s Shrinking Public Space’ (2010) 34 International Journal of Urban and Regional Research 20. 71 Ruppert (n. 65) 273; D. Harvey, ‘The Right to the City’ (2008) 53 New Left Review 23, available at https://newleftreview.org/II/53/david-harvey-theright-to-the-city (accessed 26 September 2016). 72 Springer (n. 64) 542; what Agamben called ‘a means without end’, in G. Agamben, Means Without End: Notes on Politics (University of Minnesota Press, 2000); Watson (n. 47) 7.

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Despite the relatively clear division between private and public space as presented above, the relationship between them is complex, as they are mutually constructed.73 In between the two realms lies a series of gradations—‘liminal’ spaces—where the private and the public collide.74 Rather than being separated, the two are intertwined and interdependent. They have a symbiotic relationship: public and private spaces (along with publicness and privacy) are defined in relation to each other, so that the relationship is ‘multivalent and may shift over time and across different settings for different social groups’.75 While the public sphere has been theorized as the space of politics, it is a space that is also constituted in and through privacy.76 As Elshtein put it: [T]he public world itself must nurture and sustain a set of ethical imperatives that include a commitment to preserve, protect, and defend human beings in their capacities as private persons, as well as to encourage and enable men and women alike to partake in the practical activity of politics. Such an ideal seeks to keep alive rather than to eliminate tensions between diverse spheres and competing values and purposes … Only in the space opened up by the ongoing choreography of [public and private] can politics exist—or at least any politics that deserves to be called democratic.77

Since the public and private are interdependent, shifting the boundaries in the private sphere causes a rearrangement of the spaces of publicness, and vice versa.78 The resulting picture is therefore one of complex and closely connected spheres and spaces that have at times a tense relationship with each other and, in any case, are always changing and evolving.

73

Watson (n. 47); Madanipour (n. 38) 171. Parkinson (n. 42) 53; N. Blomley, ‘Flowers in a Bathtub: Boundary Crossings at the Public-Private Divide’ (2005) 36 Geoforum 281, 294. 75 Benhabib (n. 63); Staeheli and Mitchell (n. 40) 149–50. 76 Staeheli and Mitchell (n. 40) 151. 77 Elshtain (n. 44) 180 (original emphasis). 78 Similarly, Jacobson argues that human beings are not first or most originally ‘public’ beings; rather, we must develop the behaviours and attitudes necessary for citizenship. This is something we can only do by emerging from our familiar, personal territories—our homes; K. Jacobson, ‘The Experience of Home and the Space of Citizenship’ (2010) 48 Southern Journal of Philosophy 219. 74

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4.2 Privatization of Space Particularly since the 1990s, the ongoing transformation of urban public space, including shifts in design, management, financing, and the proliferation of (both physical and digital) surveillance, has emerged as a key focus of geographical—particularly post-structuralist and Marxist— concern. Building on the political notion of public space and its value for the practice of democracy, many geographers have (usually critically) observed two trends: the privatization and securitization of public space. Privatization of public space here refers to the atrophying of the public sphere as a result of the domination of private, neo-liberal interests over the provision, regulation and maintenance of public space.79 Since the end of the 1980s, for a number of socio-political and budgetary reasons, many states (especially in North America and Western Europe) have ceded many of their core functions concerning the regulation of public space to local governments and, increasingly, the private sector.80 This involves private construction, funding, management and security of public spaces, which, so many have argued, transforms these into privately owned public spaces (POPs) or semi- or quasi-public spaces that look public but are not (in the sense that the rights connected to public space are severely curtailed).81 Cities are now rich in new types of public-seeming spaces, such as shopping malls, corporate open spaces (plazas, parks, gardens), business and innovation districts (BIDs), and gated communities.82 In contemporary public and quasi-public spaces, an extending array of activities is being forbidden: taking pictures without a

79 Mitchell (n. 64); E. Soja, ThirdSpace (Blackwell, 1996); M. Sorkin (ed.), Variations on a Theme Park: The New American City and the End of Public Space (Hill and Wang, 1992); M. Kohn, Brave New Neighborhoods: The Privatization of Public Space (Routledge, 2004). 80 R. Van Melik, I. Van Aalst and J. Van Weesep, ‘Fear and Fantasy in the Public Domain: The Development of Secured and Themed Urban Space’ (2007) 12 Journal of Urban Design 25; A. Loukaitou-Sideris, ‘Privatisation of Public Open Space: The Los Angeles Experience’ (1993) 64 Town Planning Review 139. 81 Mitchell (n. 64); Harvey (n. 71). 82 For more on BIDs, see M. Steel and M. Symes, ‘The Privatisation of Public Space? The American Experience of Business Improvement Districts and their Relationship to Local Governance’ (2005) 31 Local Government Studies 321; also see T. Weaver, ‘The Privatization of Public Space: The New Enclosures’ (2014) Annual Meeting of the American Political Science Association, 28–31 August, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 2454138 (accessed 26 September 2016).

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permit; giving speeches; sleeping rough; drinking a beer on the grass; or dissenting in a variety of peaceful ways.83 Kohn argues that due to the growing phenomenon of private government, public space is disappearing and public life (including democratic practices) is undermined.84 The creation of new types of public space seems to be driven by the desire to ensure that spaces are safe, lucrative, predictable and, all in all, tightly defined. Corporate producers of space seem to see the public as a homogeneous mass and a passive market receptive to commercial consumption of the city.85 Consequently, social action in such spaces is tightly scripted and prescribed, and behaviour becomes standardized.86 This results in significant restrictions of behaviour, with rules that secure the boundaries of acceptable behaviour within a space now increasingly governed by private entities controlling POPs.87 This also implies a loss of contextualization and leads to what Sorkin calls ‘a city without a place attached to it’88—a city comprised of ‘themed spaces’. Such spaces are departicularized, no longer acting as sites of community and human connection, and increasingly look alike (shopping malls or city squares in Rotterdam and New York are strikingly similar); they become ‘nonplaces’.89 They practice a form of management and control of flows of populations, making public space (feel) safer in order to maximize the number of visitors, to attract more advertising, to stimulate consumption and to facilitate spending.90 Such a city, with its new types of privatized

83 Weaver (n. 82); G. van Eijk, ‘Exclusionary Policies are Not Just about the “Neoliberal City”: A Critique of Theories of Urban Revanchism and the Case of Rotterdam’ (2010) 34 International Journal of Urban and Regional Research 820; B.L. Garrett, ‘The privatisation of cities’ public spaces is escalating: it is time to take a stand’, Guardian, 4 August 2015, available at www.the guardian.com/cities/2015/aug/04/pops-privately-owned-public-space-cities-directaction (accessed 26 September 2016). 84 Kohn (n. 79) 3. 85 H. Silver, ‘Editorial: The Centrality of Public Space’ (2014) 13 City and Community 1, 3. 86 D.J. Madden, ‘Revisiting the End of Public Space: Assembling the Public in an Urban Park’ (2010) 9 City and Community 187. 87 Weaver (n. 82) 3. 88 Sorkin (n. 79) xi. 89 M. Augé, Non-Places: Introduction to an Anthropology of Supermodernity (J. Howe (trans.), Verso, 1995). 90 B.E. Harcourt, Digital Security in the Expository Society: Spectacle, Surveillance, and Exhibition in the Neoliberal Age of Big Data, Columbia Public Law Research Paper (2014), available at http://papers.ssrn.com/sol3/papers. cfm?abstract_id=2455223 (accessed 26 September 2016).

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public space, is closely connected to the second trend geographers have observed: the securitization of public space. 4.3 Boundary Management, Access Control and Securitization The securitization of public space refers to the decline of openness and accessibility of public space due to the exercise of political power by both state and private actors who are increasing their control and policing of public space.91 A growing range of conduct, activities, political practices and wide-ranging groups of ‘undesirables’ are being excluded not only from privately-owned but also from state-owned public spaces.92 Hence, public space (along with social and political activities that make up public life) is constituted not only through ownership but also through a wide range of regulatory practices, such as laws, regulations, urban design, surveillance and policing. Despite the political discourse on public space that emphasizes its accessibility and openness, public space is neither free and democratic nor repressed and controlled—it is both at the same time: ‘[i]t is simultaneously a space of political struggle and expression and of repression and control’.93 Thus, public space has an essentially two-sided character, which has assumed widely varying historical forms.94 While exclusion and repression are clearly not new phenomena, we are arguably witnessing new forms of exclusion and control in public space. These are based on a changing conception of the public and a reconfiguration of liberty that exclude certain non-criminal conduct, activities, groups and political practices and that are increasingly based on preconceptions, prejudices, and fear of potential harm rather than real danger.95 In the securitized city premised on a need for surveillance and control over 91

Z. Neal, ‘Seeking Common Ground: Three Perspectives on Public Space’ (2010) Proceedings of the Institution of Civil Engineers, Urban Design and Planning 1, 4; Mitchell (n. 64). 92 Ruppert (n. 65) 274. 93 L. Lees, ‘Urban Renaissance and the Street: Spaces of Control and Contestation’ in N.R. Fyfe, Images of the Street: Planning, Identity and Control in Public Space (Routledge, 1998) 238, quoted in Ruppert (n. 65) 189. 94 J. Dixon, M. Levine and R. McAuley, ‘Locating Impropriety: Street Drinking, Moral Order, and the Ideological Dilemma of Public Space’ (2006) Political Psychology 187, 190. 95 A. von Hirsch and C. Shearing, ‘Exclusion from Public Space’ (1999) Workshop on Situational Crime Prevention: Ethics and Social Context, Fitzwilliam College, Cambridge, available at http://papers.ssrn.com/sol3/papers. cfm?abstract_id=2799204 (accessed 26 September 2016).

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behaviour, public space is secured from the public rather than for it.96 This has led some to declare, rather dramatically, the ‘end of public space’,97 and the ‘militarization’98 or ‘disneyfication’99 of public space. However, such claims have also been criticized for having an idealized and nostalgic view of the golden days of public space, and for presenting too bleak a view of public space as a site of contention where people are excluded and dominated and as an institution that is disappearing as quickly as democracy itself. Some geographers, such as Jacobs and Whyte, hold a relatively optimistic approach to public space, which recognizes the evolution of public spaces, where old forms may disappear but new forms are being created, and treats conflict in public space as a challenge to be overcome by improved design.100 Several mechanisms of control have been developed recently.101 The simplest form is found in ‘sadistic street furniture’, such as barrel-shaped benches, sprinklers, spikes and decorative enclosures, designed to keep homeless and youth away from specific areas.102 More recently, with the devolution of power from the state to local governments, attempts to create ‘security zones’103 can be seen, accompanied by (a resurgence of) punitive models of ‘law and order’ governance104 that include zerotolerance policing, widespread surveillance and new public nuisance laws with legal instruments such as anti-social behaviour orders (ASBOs) and public space protection orders (PSPOs). PSPOs, for example, provide local councils with broad powers to criminalize behaviour that is not normally considered criminal. PSPOs are also not directed at individuals; rather, they are geographically defined, making predefined activities within a mapped area prosecutable. Such regulation of public space 96

As Larry Vale put it, referenced in P. Marcuse, ‘Security or Safety in Cities? The Threat of Terrorism after 9/11’ (2006) 30 International Journal of Urban and Regional Research 919. 97 Mitchell (n. 64). 98 M. Davis, City of Quartz: Excavating the Future in Los Angeles (Verso, 2006). 99 Sorkin (n. 79). 100 J. Jacobs, The Death and Life of Great American Cities (Random House, 1961); W.H. Whyte, The Social Life of Small Urban Spaces (Project for Public Spaces, 2001). 101 Neal (n. 91) 4. 102 Davis (n. 98) 226. 103 Also called ‘security bubbles’; see Németh and Hollander (n. 70); Mitchell (n. 64) 43–51. 104 A.P. Brown, ‘Anti-Social Behaviour, Crime Control and Social Control’ (2004) 43 Harvard Journal of Criminal Justice 203, 204.

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discourages a wide range of spirited expression (labelled as ‘anti-social’ or ‘escalating behaviour’) and encourages stereotyped behaviour and ‘social neutrality’ in general. Such practices are a form of security that target what or whom is deemed to cause fear, including panhandlers, squeegee cleaners, prostitutes, addicts, rowdy teenagers, loiterers, the mentally disturbed and strangers, along with boom-box cars, public drunkenness, reckless cycling and graffiti.105 Prohibitions of conduct are often based on the proposition that order is only possible by excluding certain people and conduct.106 Although the basis for this exclusion is presented as natural or obvious, it is founded on interpretations of what constitutes violence or disorder. Today an incredibly wide array of people and activities are seen as not belonging in (certain parts of) public space. The promise of safety, security and order can hence quickly lead to discrimination, exclusion, displacement or domination.107 Security practices in the controlled city do not seek to modify behaviour but, rather, use space in a territorial way to exclude behaviour that is threatening to its imagined values.108 As Foucault has observed, space is fundamental to the use of power.109 The purpose of securing a particular territory is to produce a place that is different from those around it. Consequently, as Zedner remarks, a complex geography of security is emerging from these practices that encompasses different ‘“patchworks”, “quilts”, “bubbles”, “corridors”, “mosaics”, “webs”, “networks”, and “nodes”’110 of secure spaces that extend across different urban spaces in different ways.111 In such a controlled city, space usage (varied activities taking place in public) is by permit and not by right, and rights can best be exercised at home, in private, effectively discouraging political engagement.112 Some have therefore argued that the privatization and securitization of private space have reconfigured the 105

R. Yarwood and T. Paasche, ‘The Relational Geographies of Policing and Security’ (2015) 9 Geography Compass 362. 106 Mitchell (n. 64). 107 Ruppert (n. 65) 191. 108 Yarwood and Paasche (n. 105) 364. 109 S. Elden, ‘Politics, Philosophy, Geography: Henri Lefebvre in Recent Anglo-American Scholarship’ (2001) 33 Antipode 152; as referred to in Hubbard and Kitchin (n. 7) 165. 110 L. Zedner, Security (Taylor & Francis, 2009) 61. 111 For more on US ‘bubble laws’ regulating the actions of protesters within certain distances of (abortion) clinics and homes (also establishing moving bubbles around patrons and employees entering clinics), see Mitchell (n. 64) 42–51. 112 R. Sennett, The Fall of Public Man (1st edn, Knopf, 1977).

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relations between public and private in ways that may not have been intended.113 Elshtain argues that ‘[i]f all conceptual boundaries are blurred and all distinctions between public and private are eliminated, then, by definition, no politics can exist’.114 The main issue here concerns the extent to which the liberties connected to public space, including right to representation, assembly and freedom of action in urban open spaces, can be safeguarded when ownership and management is distanced from democratic forms of control.115 4.4 Implications for Privacy in Public Although it is impossible to define public space on the basis of ownership or even access control, many laws simply consider diverse types of state, collective or private property with regulated access (for instance, demanding payment for access) as public spaces.116 However, as (post-)structuralist geographers have shown, the division of the social world into public and private is not a natural division; rather, it is an expression of power. In view of the privatization and securitization of public space and the implications of this for our public and private lives, regulators should take notice of the fluid and increasingly blurred boundary between public and private space. If cities are becoming riddled with privately owned and managed public spaces, such as corporate parks and squares, where access and activities are tightly regulated in line with private interests, the law should make it clearer that liberties connected to public space, such as the right to representation, assembly and freedom of action in open spaces, are protected in these new types of public space as well. Moreover, since the public and the private spheres are interdependent and establish each other, the implications of privatization and securitization of public space for privacy also require reflection. Public spaces should not be conflated with public actions, nor should private spaces be conflated with private actions. Certain private actions are, and always have been, performed in public, protected by the layer of ‘personal space’ that people carry with them when moving around in public spaces. With the proliferation of security measures, including digital surveillance technologies, in public space, parts of our private lives that take place in public space are becoming endangered. Regulators should take notice of this and provide for 113 114 115 116

Elshtain (n. 44); Cohen (n. 44); Squires (n. 44). Elshtain (n. 44) 170, quoted in Staeheli and Mitchell (n. 40) 149. Koch and Latham (n. 39) 521. Ruppert (n. 65).

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adequate protection of privacy in public, in order to preserve a reasonable balance between private and public space. This argument is strengthened by another insight from geography, namely the role of place in identity building.

5 PHENOMENOLOGICAL LEVEL: QUESTIONS OF IDENTITY 5.1 Place and Identity A major topos in human geography is identity. Rather than the traditional interest in the identity of places—the ‘genius loci’—this refers to how people construct and enact their identities in spatial settings. Places ‘are fundamental in expressing a sense of belonging for those who live in them, and are seen as providing a locus for identity’.117 Given that identity is often formed through narratives,118 making sense of ourselves also involves mapping the world in which we live. Narration is a form of mapping, through which we try to re-establish our sense of place in the world (sometimes the very act of telling a story is also a process of producing a map; this operates in both directions: storytelling involves mapping, but a map also tells a story).119 In privacy theory, Agre conceptualizes privacy as identity construction: ‘the right to privacy is the freedom from unreasonable constraints on the construction of one’s own identity’.120 Geographers, also drawing from other disciplines, have analysed and theorized how the construction of identity is influenced by spatial constraints, but also how it affects the construction of place. This has been explored particularly in relation to issues of culture, race and gender. Cultural identity is socially and spatially constructed, in a process of co-production. Jackson has, for example, analysed how ‘subcultural groups fashion identity through appropriation and transformation’ of artefacts. Through a geography of cultural materialism, cultures can be studied as ‘maps of meaning

117

Hubbard and Kitchin (n. 7) 6. See e.g. M.R. Somers, ‘The Narrative Constitution of Identity: A Relational and Network Approach’ (1994) 23 Theory and Society 605. 119 Tally, Jr (n. 6) 46. 120 P.E. Agre, ‘Introduction’ in P.E. Agre and M. Rotenberg (eds), Technology and Privacy: The New Landscape (MIT Press, 1998) 7. 118

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through which the world is made intelligible’.121 In a similar vein, Butler’s work on gender and identity has influenced geographers’ study of identities and bodies in relation to their spatiality, for example inspiring studies that argue ‘that bodily performances [such as the Rio Carnival] themselves constitute or (re)produce space’.122 Scholars such as Sibley, in psychoanalytically informed studies of self-construction, argue that boundary management of the self may also be connected to a deeply engrained desire for cleanliness and purity, leading to marginalizing minority groups as ‘polluting’ the environment and the ‘purification of social space’.123 This also connects, for instance, to Jackson’s work on patterns of social interaction, segregation and ghettoization.124 In a different line of research, geography has engaged with conceptualizing the home, as the primary place where identity may be formed. ‘Home is where you can be yourself. In this sense home acts as a kind of metaphor for place in general.’125 The home can be connected to Heidegger’s notion of ‘dwelling as the ideal kind of authentic existence’126 and seen as a place of intimate human relationships, family life, and care for the sick and injured.127 Bachelard’s conception of the home as a place of ‘attachment that is native in some way to the primary function of inhabiting’—arguing that this is formed through images and memories—also intrinsically connects the home to identity construction.128 Notably, the (house as) home is a historically contingent form of social organization, having evolved over the past centuries particularly as a construction to house the nuclear family—through social changes in households, its function and shape are now shifting.129 Indeed, the home is not an independent space: it takes meaning only through the spaces it

121 P. Jackson, Maps of Meaning (Unwin Hyman, 1989) 2 (emphasis in original), quoted in Hubbard and Kitchin (n. 31) 259. 122 Hubbard and Kitchin (n. 31) 86. 123 D. Sibley, ‘Survey 13: Purification of Space’ (1988) 6 Environment and Planning D: Society and Space 409. 124 Hubbard and Kitchin (n. 31) 257–8. 125 Cresswell (n. 4) 39. Cf. Jacobson (n. 78) 223; K. Jacobson, ‘A Developed Nature: A Phenomenological Account of the Experience of Home’ (2009) 42 Continental Philosophy Review 355. 126 Cresswell (n. 4) 39. 127 Tuan (n. 13) 137–8. 128 G. Bachelard, The Poetics of Space: The Classic Look at How We Experience Intimate Places (M. Jolas (trans.), first published 1964, Beacon Press, 1994) 4. 129 Madanipour (n. 38) 106.

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is not: the home is ‘co-constituted as home by encountering an alienworld’.130 Moreover, several feminists have contested the ‘rosy view of home’ and argued it to be a central site of oppression of women, although others emphasize the home’s relative freedom from oppression that marginalized groups, such as black people, suffer outside.131 The home is thus ‘a particular kind of safe place where (some) people are relatively free to forge their own identities’.132 However, also public places can have the same function, in light of increasing mobility and what geographers tend to refer to as ‘time-space compression’, that is, the processes by which distances are crossed more rapidly by people, goods or information.133 5.2 Mobility, Time-Space Compression and De/Re-Territorialization The increasing mobility of people, things and capital in the past decades and the associated process of globalization have had an obvious impact on space and place. The blurring and collapsing of spatial barriers through, for instance, air travel, telecommunications, and the Internet, are transforming our experience of space.134 Thus, Castells has argued, in the network society, the traditional ‘space of places’ has given way to a ‘space of flows’,135 and the creation of places becomes more dynamic than envisioned in Tuan’s emphasis on stasis. The implications of this are manifold. Some have highlighted, for example, how globalization involves the creation of ‘non-places’: fleeting sites where history and tradition matter little, such as highways, airports and supermarkets.136 This requires thinking of space and place not in terms of boundaries and roots but from the perspective of movement and routes.137 Thus, for instance, identities can also be construed ‘in cosmopolitan forms of mobility rather than in stable and bounded places’.138 Bauman argues 130 A.J. Steinbock, Home and Beyond: Generative Phenomenology after Husserl (Northwestern University Press, 1995) 182. 131 Cresswell (n. 4) 40–1. 132 Ibid. 41. 133 B. Warf, ‘Teaching Time-Space Compression’ (2011) 35 Journal of Geography in Higher Education 143, 144. 134 Tally, Jr (n. 6) 41; J. May and N. Thrift, ‘Introduction’ in J. May and N. Thrift (eds), TimeSpace: Geographies of Temporality (Routledge, 2001). 135 M. Castells, The Rise of the Network Society (Blackwell, 2000) ch. 6. 136 Augé (n. 89) 78. 137 Cresswell (n. 4) 78. 138 Ibid. 81.

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that globalization and deterritorialization go together with reterritorialization of the nation-state—thus, ‘glocalization’—but that the resulting social change empowers the globals with freedom of movement and disempowers the static locals.139 However, although cosmopolitans are often associated with the travelling rich and contrasted with the local poor, in reality the poor are actually often more mobile and multilingual, working as taxi-drivers or hotel staff in far-away countries; moreover, cosmopolitans depend on locals and locally diverse cultures to enjoy their travels.140 All of this shows the ongoing importance of place in a globalizing world. Others have debated the implications of the time-space compression that results from mobility and globalization. Cresswell contrasts Harvey’s and Massey’s analyses of how people re-invent place in a globalizing world.141 Harvey emphasizes the power-play and conservatism in people’s efforts to re-create a sense of place to resist the forces of global capitalism and migration, showing how dominant groups in gated communities monopolize the meaning attached to a local neighbourhood to the exclusion of ‘others’.142 Massey agrees that the desire for rootedness and creating a sense of place to provide stability in a moving world can be reactionary and ‘a form of romanticized escapism’,143 but argues that this does not have to be the case. Time-space compression does not necessarily lead to feelings of insecurity, but can also lead to a ‘progressive concept of place’. This is characterized by place as process, involving multiple and diverse identities, defined by interactions with the outside rather than by an intrinsic unitary identity associated with the place. Places therefore are not settled, but continuously demand negotiation with the ‘throwntogetherness’ that characterizes today’s places in a progressive reading.144 However, the ‘politics of place in a globalized world’ are even more complex than Harvey’s and Massey’s analyses suggest—people seek and experience rootedness and boundaries in relation to the outside and to diversity in different, complicated ways.145

139 Hubbard and Kitchin (n. 31) 52; see Z. Bauman, ‘On Glocalization: Or Globalization for Some, Localization for Some Others’ (1998) 54 Thesis Eleven 37. 140 Cresswell (n. 4) 82–3. 141 Ibid. 88–114. 142 D. Harvey, Justice, Nature and the Geography of Difference (Blackwell Publishers, 1996). 143 D. Massey, Space, Place, and Gender (Polity Press, 1994) 151. 144 Ibid. 141–56. 145 Cresswell (n. 4) 113.

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What is clear, in any case, is that place is now less associated with a particular location where people feel rooted. Malcolm McCullough captures this eloquently: At least to the more mobile and networked of us, place has become less about our origins on some singular piece of blood soil, and more about forming connections with the many sites in our lives. Place [has] become less an absolute location … and more a relative state of mind that one gets into by playing one’s boundaries and networks.146

McCullough ties in to another strand in the time-space compression debate: the role of the Internet and new media. While in its early days, the Internet was conceptualized as a separate, online space existing in parallel to the offline world, scholars are now emphasizing the enmeshing of the virtual and the physical environment.147 Indeed, ‘the word “cyberspace” now sounds dated’148 as the ‘world of the virtual has become place-oriented’.149 McCullough deconstructs the argument that ‘the word “media” implies … disembodiment … and that implies trouble for space and place as we know them’, by showing how media increasingly have a locative component, so that ‘media become embodied in access, spatial in operations, and place based in content’.150 Locative media, such as GPS-equipped devices and geo-location-based services, form another example of reterritorialization in a globalizing world. The result is that ‘the physical, tangible world combines with virtually accessible information and creates not a fixed setting for interaction, but a lived, fluid, and subjective space, shaped by space, time, and information’.151 However, as our attention in space is focused through digital media-filtered information rather than through physical cues in urban landscapes and architecture, the addition of location-based information alters our experience of place. The filtering, for instance in Google Maps, depends on 146

M. McCullough, ‘On the Urbanism of Locative Media’ (2006) 18 Places

26, 29. 147

See e.g. R. Kitchin and M. Dodge, Code/Space: Software and Everyday Life (MIT Press, 2011). This also has an impact on the public sphere, see M. Castells, ‘The New Public Sphere: Global Civil Society, Communication Networks, and Global Governance’ (2008) 616 Annals of the American Academy of Political and Social Science 78. 148 McCullough (n. 146) 26. 149 Cresswell (n. 4) 144. 150 McCullough (n. 146) 26. 151 M.A. Zook and M. Graham, ‘Mapping DigiPlace: Geocoded Internet Data and the Representation of Place’ (2007) 34 Environment and Planning B: Planning and Design 466, 468.

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economic and political interests, but this is not visible to most (noncritical) users who take location-based information at face value. And this ‘lack of visibility in software can easily translate into a lack of visibility in hard-where (place)’.152 5.3 Implications for Privacy in Public Geographers have shown how place and identity are closely intertwined, in a process of co-production. ‘Place is the raw material for the creative production of identity rather than an a priori label of identity.’153 Although the home may still be seen as a key place where identity can be constructed, with time-space compression and increased mobility, the experience of place may still be rooted and localized, but in much more fluid, diverse and networked ways than being attached to a single place of dwelling. The narratives people use to understand themselves in the world, which are constitutive of their identity, are nowadays associated with multiple places and flows, and thus equally formed through people’s experiences in public places as they are through living at home. Moreover, the home has never been completely private, but is ‘in reality an interdependent, interpersonal sphere in which shades of privacy and publicness existed’; it mediates between the public and the private.154 Yet the law continues to assume a fixed and clear-cut distinction between private space and private property (which carries a strong reasonable expectation of privacy, besides a strong property interest in common-law systems) and public space (carrying far less reasonable expectation of privacy).155 The mobile nature of identity construction in a space of flows suggests that privacy, as freedom to shape one’s identity, also requires protection in public. Moreover, reterritorialization and the enmeshing of virtual and physical space imply a need to reflect on how the embodied experience of place is influenced by digital information flows projected onto and interacting with physical space. This challenge is starting to be taken up,156 but requires considerable further study, not the least in relation to concrete places and practices.

152

Ibid. 479. Cresswell (n. 4) 71. 154 Madanipour (n. 38) 107. 155 Cf. Blomley (n. 74). 156 E.g. J.E. Cohen, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press, 2012). 153

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6 CONCLUSION Following the themes of context, power and identity, we have discussed how insights from human geography can inform the debate on privacy in public. Studying concrete practices of place-making helps to understand the complex nature of ‘public space’: it features multiple places, actors and flows that together shape the uses and experiences of space, in contexts where power relations, privatization and securitization, and time-space compression fundamentally affect people’s sense of place, including but not limited to minorities who are at risk of feeling, or being made to feel, out of place. It is interesting to note that many of these themes are also being analysed within surveillance studies157 (something which invites further study), yet such analyses have yet to penetrate into the mainstream regulatory debate on privacy in public. Public space consists of many places. Places in public space are not given but constructed by people, often on the basis of power relations, and this has significant consequences for individuals’ sense of place. As people build their identities in relation to places, particularly places where they feel at home or ‘in place’, identity and place construction need to be considered jointly as being co-produced. It is here that the law’s application of a clear boundary between public and private space becomes salient and problematic. The public/private space distinction (in law) mirrors the insight of the relational nature of space: a space only gets meaning in context (in relation to the people and things in it) and in relation to its outside; ‘home’ and ‘public space’ are therefore two sides of a coin. However, being-at-home is not only relevant ‘at home’ in the sense of a fenced-off building that is private space; it can take place wherever people may experience being ‘in place’. (Indeed, as the great philosopher Sendak has illustrated, leaving the most traditionally private space, one’s bedroom, to venture into public space can be a remarkably rewarding type of identity-building, and being-at-home can equally well be experienced ‘where the wild things are’ as in the safety of one’s bedroom.158) Moreover, the division of space into public and private parts is a construct, which is continuously changing. Thus, private life cannot be equated with private space: there is private life in public space and public life in private space as well. We should also realize that the

157 M. Galicˇ, T. Timan and B.-J. Koops, ‘Bentham, Deleuze and Beyond: An Overview of Surveillance Theories from the Panopticon to Participation’ (2016) 29 Philosophy and Technology, DOI 10.1007/s13347-016-0219-1. 158 M. Sendak, Where the Wild Things Are (Harper & Row, 1963).

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house-as-home is just as much a historically contingent and constructed place as are mushrooming privately owned public spaces. All of this suggests that privacy as the freedom to develop one’s identity should be analysed in relation to place in all the richness, variation and complexity that place entails, which goes far beyond a simplistic notion of a ‘private place’, epitomized by the home, that, in a legal and regulatory context, is all too often associated with privacy. Identities connected to being-at-home are also constructed in public places, in movement, and in physical-digital networked spaces. Furthermore, due to the proliferation of security measures, including digital surveillance technologies, in public space (physical and digital), parts of our private life that are enacted in public are becoming endangered. Privacy therefore requires protection in public space. What kind and level of protection that should be depends on concrete situations and contexts—one cannot give universal rules for ‘privacy in public’. Besides lessons for the debate on privacy in public, we think that human geography can be more generally relevant to legal and regulatory scholarship. This is acknowledged in the emerging field of legal geography, which tries to integrate insights from law and geography in interdisciplinary analyses. While a considerable part of legal geography is focused on heightening understanding of the law within geographic debates, we think the reverse is equally important, and we hope that this chapter will contribute to heightening awareness of geographic concepts and insights within legal and regulatory debates.

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2. Hidden in plain sight Michael Nagenborg Maybe the target nowadays is not to discover what we are but to refuse what we are. Michel Foucault, ‘The Subject and Power’ (1982)

1 INTRODUCTION In ‘Designing Cities’, Vilém Flusser noted: [Village] and city are factories for the masks with which people identify themselves. In the village, the masks are still material. In the city, they become increasingly immaterial and thus increasingly numerous.1

While Flusser does not make this explicit, we may assume that he was referring to the mask as the origin of the modern concept of the person. After all, the Latin word ‘persona’ means ‘mask’.2 However, what does Flusser mean by the decrease of the masks’ materiality? When explaining the difference between the village and the city, he provides us with the following example: ‘I become “I” in the village thanks to a medicine bag and in the city thanks to an official identity card’.3 The specific artefact of the medicine bag functions as an attribute, which marks its owner as being of a particular type. The identity of the bearer is thus established and confirmed by the material artefact. While one may argue that the identity card still is a material object, it differs from the medical bag in being only material in parts, because the card itself—as a mere material object—offers only a limited functionality unless it is part of a larger system. The card in itself offers at least two interfaces. First, the image of the authorized card holder 1 V. Flusser, ‘Designing Cities’ in V. Flusser, Writings (A. Ströhl (ed.), E. Eisel (trans.), University of Minnesota Press, 2002) 174. 2 G. Agamben, Nudities (D. Kishik and S. Pedatella (trans.), Stanford California Press, 2011). 3 Flusser (n. 1) 174.

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provides a link between the card and its holder. It testifies that it is you who is entitled to use this particular card. The photo, thus, is part of a system that aims to establish a relationship between the material object and a person. Second, the card represents and establishes a link between the person and a database (or multiple databases) by assigning a unique numeric identifier to that person. Identity cards, thus, are to be seen as an interface between the body of a subject and a larger system, which aims to establish a fixed identity of the individual.4 The identity card identifies the bearer as citizen, but the role of the citizen does not determine the profession of its bearer in a similar way as the medicine bag does. Unlike the medicine bag, the identity card allows its bearer to take on numerous identities. It constitutes the subject on a fundamental and, hence, abstract level. The identity card makes a citizen, but that citizen may become a healer, a priest, a bureaucrat, etc. While the decrease of materiality seems to go hand in hand with an increase of flexibility, one still may ask what is lost once the masks have become immaterial. This question has been raised by Giorgio Agamben in his writings on biometrics. In contrast to Flusser, Agamben argues that the (material) mask has not been replaced by the identity card, but by our bodies. Furthermore, he suggests that the loss of the material mask and the idea of identity as ‘a function of biological data’5 has undermined our capability of critical reflection on who we are. However, I will propose a different interpretation of the developments analysed by Flusser and Agamben, by focusing on the mask and the body as interfaces. This particular meaning of the mask and the body will be developed in discussing different practices of resistance to surveillance. In the first part of the chapter, I will contrast the usage of Guy Fawkes masks by members of ‘Anonymous’ with the usage of the pasamontaña in the Zapatista movement. In the second part, I will turn to a different kind of masking: Adam Harvey’s ‘CV dazzle’ project, where he explores ‘how fashion can be used as camouflage from face-detection technology’.6 Here, I am interested in the use of face paint as a kind of masking. The first part builds on my own analysis of Anonymous, which originated in the context of a larger research project on security, including ICT security. While the previous work focused on the online 4

See M. Nagenborg, ‘Security Technologies’ in J.B. Holbrook (ed.), Ethics, Science, Technology, and Engineering (2nd edn, Macmillan Reference, 2015) 119. 5 Agamben (n. 2) 50. 6 A. Harvey, ‘Camouflage from Face Detection’, available at http://cvdazzle. com/ (accessed 11 November 2016).

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activities and the ideological connection to the hacker ethic,7 this chapter will focus on the use of the Guy Fawkes mask by Anons in real-world protest. Adam Harvey’s work became a part of the inquiry to situate the discussion of masks in the general trend towards artistic anti-surveillance camouflage.8 However, in the course of my research, Harvey’s work became more prominent due to the differences between various forms of masking in the context of surveillance. This chapter will offer a philosophical perspective on the usage of masks in the context of resistance to surveillance. Following Agamben, I will explore the changing meaning of masks through Western history and address the potential loss of the (material) mask. The findings will be used to question the meaning of the reappearance of the practices of masking in resistance to surveillance. While drawing from various fields (media, queer and surveillance studies, anthropology and history), the chapter is rooted in the philosophical tradition of material hermeneutics.9 Thus, special attention will be given to the materiality of artefacts and the use of these artefacts. While focusing on two particular examples, the chapter aims to stimulate and contribute to a discussion on claims to anonymity by material means in surveillance societies and the regulatory issues raised by these practices. The final part of this chapter is dedicated to spelling out some of the implications.

2 THE REVOLUTIONARY MASK The mask is an interface in the literal sense of the word: it is an artificial face that is placed between faces. Since it is a two-sided object, we may explore its meaning from the inside and the outside. 7 See M. Nagenborg, ‘Widerstand im Zeichen der Maske: Anonymous, Hackerethik (en) und die Frage nach dem Subjekt im Zeitalter digitaler Identitäten’ in M. Emmer, A. Filipovic, J.-H. Schmidt and I. Stapf (eds), Echtheit, Wahrheit, Ehrlichkeit. Authentizität in der Online-Kommunikation (Juventa, 2013). 8 See T. Monahan, ‘The Right to Hide? Anti-Surveillance Camouflage and the Aestheticization of Resistance’ (2015) Communication and Critical/Cultural Studies 159. 9 See D. Ihde, Expanding Hermeneutics: Visualism in Science (Northwestern University Press, 1998). For an overview on different hermeneutical accounts in Philosophy of Technology see R. Capurro, ‘Digital Hermeneutics: An Outline’ (2010) AI and Society 35.

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Let us turn to the outside perspective first. The mask is a powerful tool in resisting surveillance. It allows us to be present and confront others, but makes it harder to identify its bearer. Thus, it allows its bearer to become public, to articulate her options, to watch, and to return the gaze while shielding the bearer from the forces she confronts. For example, Gabriela Coleman remarks about the use of the Guy Fawkes masks by Anons: Well known, easy to purchase, and imbued with an undeniable symbolic energy—both on account of its history and its more recent iteration—the Guy Fawkes mask became the mask de jour to deter the prying eyes of Scientology.10

The mask is also a tool for communication. After all, it makes little sense to wear a mask in the absence of a (potential) spectator. Again, we can identify at least two aspects. On the one hand, the mask is a claim for another (non-)identity. It signals the desire not to be recognized as a specific individual. This claim is even made when the mask does not function as an effective shield from the gaze. After all, in the current age of advanced biometrics from a distance, traditional masks may no longer effectively offer protection from the electronic eyes.11 A balaclava (or ski mask) will therefore no longer operate as a shield for such a system, since it does not cover the eyes.12

10 G. Coleman, Hacker, Hoaxer, Whistleblower, Spy: The Many Faces of Anonymous (Verso, 2015) 64. The confrontation between Anonymous and the Church of Scientology is an important element in the history of Anonymous. The conflict emerged online over a leaked Scientology video featuring Tom Cruise, in 2008 Anonymous started to protest in front of Scientology centres. For a vivid account on this development see Q. Norton, ‘Anonymous 101: Introduction to the Lulz’, Wired, 11 August 2011, available at www.wired.com/2011/11/anonymous101/ (accessed 6 January 2017), and Coleman, ibid. 53–79. 11 For example, developers of iris recognition systems claim that it is feasible to identify a person from a distance of 12 meters. See G. McDonald, ‘Iris Scanner Identifies a Person 40 Feet Away’, Seeker, 10 April 2015, available at www.seeker.com/iris-scanner-identifies-a-person-40-feet-away-1769714523.html (accessed 11 November 2016). 12 In the music video for Moscow Death Brigade’s song ‘Papers, Please!’ (2015), we find some examples of a combined use of ski masks and video filters to blur the otherwise visible eyes. These scenes remind us of the limitations of traditional mask in the age of biometrics.

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The use of uniform masks, like the Guy Fawkes mask by Anonymous, allows its bearers to claim a ‘collective identity’13 and to act as one—or at least as just another member of one group. At first glance, it is quite ironic that Anonymous and the Occupy movement took up the Guy Fawkes mask, which has become widely available as merchandise for the 2006 movie adaption of Alan Moore’s 1988 graphic novel ‘V for Vendetta’.14 Yet, using a mass-produced and therefore uniform artefact to conceal the identity of individuals is much in line with the desire to minimize the function of the mask to express individuality by choosing a particular mask. A famous example and a likely source of inspiration for Anonymous for the use of uniform masks are the Zapatistas, the members of the Ejército Zapatista de Liberación Nacional (EZLN). Not only did the pasamontaña, a black balaclava covering the face except for the eyes, become the recognizable symbol of the movement; it also allowed the creation of ‘Subcomandante Marcos’. Marcos, who always wore a balaclava, acted as primary spokesperson of the EZLN till 2014. While the uniform mask allowed the individuals who took part in the movement to claim a collective identity, the figure of ‘Subcomandante Marcos’ allowed (in principle) everybody to speak in the name of the movement. Indeed, as Inga Betten has pointed out, it remained unclear for some time whether ‘Subcomandate Marcos’ was one particular person or whether different members of the movement had taken on this particular identity:15 In accordance with the collectivity created by their use of masks, the Zapatistas insist that their most famous public figure, Subcomandante Marcos, was not an individual but a “character”, “a ruse or a hologram”. The name of

13 B. Coleman and M. Ralph, ‘Is it a Crime? The Transgressive Politics of Hacking in Anonymous’, SocialText, 28 September 2011, available at http:// socialtextjournal.org/is_it_a_crime_the_transgressive_politics_of_hacking_in_ anonymous/ (accessed 11 November 2016). 14 According to a media report, some protesters explicitly stated that they have bought non-officially licensed copies of the mask to avoid any form of collaboration with the copyright holders. See T. Lush and V. Dobnik, ‘Occupy Wall Street: Vendetta Masks Become Symbol of the Movement’, The Huffington Post, 11 April 2011, available at www.huffingtonpost.com/2011/11/04/occupywall-street-vendetta-mask_n_1076038.html (accessed 11 November 2016). 15 I. Betten, ‘Only Revolutionaries Wear Masks! Die Maske der Zapatistas als passive Bewaffnung’ in B. Richard and K. Neumann-Braun (eds), IchArmeen. Täuschen – Tarnen – Drill (Fink, 2006).

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“Marcos” was not private but communal. It was shared by many individuals who took on Marcos’ mask.16

The gesture embodied in Marcos is almost paradoxical, as there is this one figure standing out of the ‘thousands of faceless men and women’,17 the only person with a proper name. Yet, that very person remains a role to be taken by any member of the collective. Writing in 2006, Inga Betten claimed that the pasamontaña provided an effective shield against face recognition technologies. And while I am not aware of any use of such technologies to identify single protesters or individuals who made use of the ‘Marcos’ figure, the technological advances in different fields of biometrics challenge the reliability of certain kinds of masks as shields. Thus, the complex and productive use of uniform masks in movements like the Zapatistas may very well become outdated and even dangerous for those who place wrong expectations in the level of protection offered by the mask. Of course, there are many cases in which masks are worn with less noble intentions. One may even argue that many of the acts committed by Anonymous are indeed criminal offenses, which should be brought to trial. Yet, for the time being, we shall first explore the various (moral) practices enabled by masks. This brings us to the inside meaning of the mask. The mask is often considered to be an epistemic tool, which allows us to speak the truth. As the character Gilbert puts it in Oscar Wilde’s ‘The Critic as Artist’ (1891): ‘Man is least himself when he talks in his own person. Give him a mask, and he will tell you the truth’. In this reading, the mask enables the bearer to speak out and reveal the truth. The mask thus can be understood as an epistemic tool facilitating the production of truth, which would not be revealed in the absence of the tool. The Wilde quote is well-known and has been used, for example, by Suelette Dreyfus and Julian Assange in the opening of the book Underground: Tales of Hacking, Madness and Obsession on the Electronic Frontier (1997). We can take the use of the quote in a book on hacking culture as an indicator of the importance placed on anonymous communication by Internet activists. Yet, we need to avoid seeing the mask only as 16 E. Evans, Transfeminist Marcos: The Possibilities of Faceless Resistance, or What Can a Mask Do? (… ment, 2015), available at http://journalment.org/ article/transfeminist-marcos-possibilities-faceless-resistance-or-what-can-mask-do (accessed 11 November 2016). 17 Ibid.

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a tool to avoid accountability and liability for our actions. In his book Nudities, Giorgio Agamben offers us a richer understanding.

3 MASKS AND ETHICAL SPACES Agamben begins his historical overview of the persona/mask by discussing the use of death masks in the ancient Roman Empire: In Rome every individual was identified by a name that expressed his belonging to a gens, to a lineage; but this lineage was defined in turn by the ancestor’s mask of wax that every patrician family kept in the atrium of its home.18

While he downplays one important detail,19 Agamben’s focus on this particular kind of death masks allows him to point out the connection between the right to have a (death) mask and the legal status as a person: ‘[t]he slave, inasmuch as he or she had neither ancestors, nor a mask, nor a name, likewise could not have a “persona”’.20 Thus, owning and using masks needs to be understood as a privilege in this specific historical context. The next ethically relevant understanding of the relationship between the mask and the person who is wearing it comes into play with Stoic philosophers.21 The members of the stoa subscribed to a belief that a famous Anonymous, known today as ‘Shakespeare’, expressed in the well-known words: ‘All the world’s a stage,/And all the men and women merely players’.22 The authors of the stoa, however, made the strong point that the players were not the authors of the play. All that is 18

Agamben (n. 2) 46. The Latin word for death mask is ‘imago’, not ‘persona’. See W. Eisenhut, ‘Imagines maiorum’ in Der Kleine Pauly (Deutscher Taschenbuch Verlag, 1979) vol. 2, cols 1372–3. In addition, death masks in general differ from other types of masks since they are typically objects of representation and remembrance. However, since the imago was worn in burial rituals to represent the ancestors, this particular kind of death mask is sufficiently close to other kinds of mask. 20 Agamben (n. 2) 46. Again, we need to notice that the legal term ius imaginum refers to the death mask (imago), not the stage mask (persona). 21 Stoicism was a philosophical movement of the Hellenistic period. In Roman Imperial times, famous representatives of Stoicism were Seneca (4 BCE–65 CE), Epictetus (c. 55–135 CE), and Marcus Aurelius (121–180 CE). See B. Inwood (ed.), The Cambridge Companion to the Stoics (Cambridge University Press, 2003). 22 William Shakespeare, As You Like It (First Folio, 1623). 19

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left to do for human beings is to play their roles well. Agamben quotes Epictetus: ‘Remember, that you are an actor in a part that the author of the play chose to give you … If he wants you to act the part of a beggar, see that you act the part skilfully’.23 Again following Epictetus, Agamben continues by pointing to the risk of confusing the mask with one’s true self. The mask (persona) asks and allows for distance, an ‘ethical gap’.24 This gap, the small void between the mask and the face, enables us to reflect on our mask, since all reflection requires a distance between the subject and the object of reflection. In the following, I will refer to this gap, the distance between the mask and the mask-bearer, as an ‘ethical space’, as it makes room for ethical reflections.25 By pointing to portraits of actors in the Commedia dell’Arte, Agamben observes that people started to put their masks aside and to reveal their faces at the beginning of modernity.26 Linda Hunt made a similar observation about portraits in her book Inventing Human Rights: ‘[i]n the seventeenth and especially in the eighteenth century, more and more ordinary people began to order paintings of themselves and their family’.27 What is worth noting here is not only an increase in the numbers of ordinary people being portrayed but also the introduction of a new category of artistic depictions of a person: ‘likeness’, which ‘itself encouraged the view that each person was an individual—that is, single, separate, distinctive, and original, and therefore should be depicted as such’.28 To Agamben the idea of identifying a person by looking at his or her bodily features is at the core of the development of biometric technologies, which first emerged in the nineteenth century when fingerprints were taken from prisoners. ‘For the first time in the history of humanity, identity was no longer a function of the social “persona” and its recognition by others but rather a function of biological data’.29 And while Agamben seems to agree that the burden of having to wear and act in accordance with the mask has been lifted from us, the loss of the mask also signals the loss of the ethical space. With the rise of biometrics in 23

Epictetus, quoted by Agamben (n. 2) 47. Agamben (n. 2) 48. 25 The notion of ‘ethical space’ has been inspired by Vilém Flusser’s terminology, who addresses the diminishing of the theoretical space in the city. See Flusser (n. 1). 26 Agamben (n. 2) 48. 27 L. Hunt, Inventing Human Rights: A History (W.W. Norton, 2007) 85. 28 Ibid. 59. 29 Agamben (n. 2) 50. 24

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the nineteenth century, our bodies became our masks; our bodies became an interface. Yet, it is an interface that no longer allows us to distinguish between the mask/persona and the ‘I’. The ethical space has collapsed. The background of these reflections are Agamben’s concerns about the shifting human-technology relations. He ends his chapter in a very dystopian tone: [t]he more [the citizens of the metropolis] have lost all identity and all real belonging, the more gratifying it has become for them to be reorganized by the Great Machine in its infinite and minute variants … I am here if the Machine recognizes me or, at least, sees me; I am alive if the Machine, which knows neither sleep nor wakefulness, but is eternally alert, guarantees that I am alive; I am not forgotten if the Great Memory has recorded my numerical or digital data.30

One does not have to share Agamben’s dystopian perspective to acknowledge the challenge presented by the reduction of identity to biological facts and corporal traits. In her seminal paper, ‘Written on the Body: Biometrics and Identity’, Irma van der Ploeg showed how biometrics aims to establish a link between the real world body and data stored in machines.31 Creating the link between the material body and a machine can be described as making the human body recognizable and readable to the machine.32 The political and ethical challenges of such a technology first became a subject of academic inquiry with the emergence of face recognition systems.33 Yet it needs to be recognized that more and more surveillance technologies are operating on the human body and raise questions about the potential of resistance to these technologies.34 A similar development needs to be recognized in the move towards smart environments of different scale. Smart Cities, for example, can be 30

Ibid. 53. I. van der Ploeg, ‘Written on the Body: Biometrics and Identity’ (1999) 29 Computer and Society 37. 32 I. van der Ploeg, ‘Machine-readable Bodies: Biometrics, Informatization and Surveillance’ in E. Mordini and M. Green (eds), Identity, Security and Democracy (ISO Press, 2009) 85–94. 33 See P. Brey, ‘Ethical Aspects of Face Recognition Systems in Public Places’ (2004) 2 Journal of Information, Communication and Ethics in Society 97. See L.D. Introna and D. Murakami Wood, ‘Picturing Algorithmic Surveillance: The Politics of Facial Recognition Systems’ (2004) 2 Surveillance and Society 177. 34 See K. Ball, ‘Organization, Surveillance and the Body: Towards a Politics of Resistance’ (2005) 12 Organization 89. 31

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understood as ‘surveillance-enabled smart environments’.35 On a different scale, visions of ambient intelligence, pervasive and ubiquitous computing, build on the idea of making the users recognizable and readable to information systems. Since the guiding idea is to render the computer invisible,36 the users must become visible to the system to allow for interaction between the users and the system. Hence, even without sharing Agamben’s dystopian view on technology, we need to recognize the increasing role of the machine-readable body in current and likely future technological developments.

4 PICKING UP THE MASK Agamben’s account of the loss of the material mask and the loss of ethical space allows us to rethink the revolutionary use of the mask: a use that aims not only to hide what already exists, but also to bring something new into existence. This use of the mask is more radical than what Agamben suggests and more in line with Flusser’s writings, who asks us to recognize: that nothing is hidden behind the masks, and that they are really the dancers. That culture and civilization are a masquerade, a danse macabre. That there is no one who lays on a mask to identify himself, but rather, that these masks secrete those wearing them out of themselves.37

The ontological implications of Flusser’s remark might be difficult to spell out, since he begs the question whether the mask is capable of creating the self ex nihilo. In any case, Flusser asks us to move beyond an understanding of the mask as a tool for hiding and to consider the use of masks as something productive, where the mask bearer does more than only try to modulate and break out of power relations38 that have been established between her and other persons. The use and non-use of masks 35 G. Galdon-Clavell, ‘(Not So) Smart Cities? The Drivers, Impact and Risks of Surveillance-Enabled Smart Environments’ (2013) 40 Science and Public Policy 717. 36 See M. Weiser, ‘The Computer for the 21st Century’ (1991) 265 Scientific American 94. 37 Flusser (n. 1) 174. 38 I favour a relational understanding of power: rather than a substance to be distributed, power refers to a specific kind of relation. See M. Foucault, ‘The Subject and Power’ in H. Dreyfus and P. Rabinow (eds), Beyond Structuralism and Hermeneutics (University of Chicago Press, 1982).

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need to be understood as a technology of the self: a way to take care of oneself and one’s self.39 Our masks do not only shape our relations with others, who may or may not identify us in accordance with the mask; they also co-shape who we are by allowing and disallowing different relationships. The idea of the mask as an epistemic tool should therefore not be limited to the protection from suppressing and alienating forces. Rather, the mask allows us to explore different ways of being, ways that were not open to us otherwise. As we have already seen, the Zapatistas made use of the pasamontaña in such a productive way, as it allowed the creation of a collective identity. A similar approach can be found in the Anonymous collective. In her essay ‘Anonymous in Wonderland’, Nozomi Hayase describes anonymity as: a place of transition to a new face that brings power back to individuals … Being Anonymous is like being in transition; the caterpillar before becoming a unique butterfly. The Anonymous phenomenon is a kind of collective rite of passage, where one finds the rabbit hole in cyber-space and then begins to wake up to a larger identity.40

Hence, we may understand the Guy Fawkes mask as an enabler in a process, in which we may overcome the limitations of our previous mask/persona.41 Along similar lines, Evans asks us to take into account the meaning of what is being concealed by the mask: the face. ‘Symbolically loaded, the face is a primary marker of identity often considered to reveal an essential truth or character.’42 In contrast, the masks: 39

M. Foucault, ‘Technologies of the Self’ in L.H. Martin, H. Gutman and P.H. Hutton (eds), Technologies of the Self: A Seminar with Michel Foucault (University of Massachusetts Press, 1988) 18: technologies of the self ‘permit individuals to effect by their own means or with the help of others a certain number of operations on their own bodies and souls, thoughts, conduct, and way of being, so as to transform themselves in order to attain a certain state of happiness, purity, wisdom, perfection, or immortality’. 40 N. Hayase, ‘Anonymous in Wonderland’, A World Without Borders (2011), available at http://aworldbeyondborders.com/2011/05/15/annonymous-in-wonder land-the-identity-of-anonymity/ (accessed 5 July 2012). 41 It remains unclear what the outcome of the transition will be. Becoming anonymous is thus a risky endeavour. But it is worth noting that the mask is not being perceived by Hayase (n. 40) as a permanent feature of the new identity yet to emerge. As well as putting on the mask, we may remove it. The mere possibility to do so allows us to reflect upon whom we might be able to become. 42 E. Evans (n. 16).

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do not promise to express any such essence, neither do they demand the elucidation of identity that the face often can. Rather, the mask can erase the demands of the face that pretends to be an authentic marker of identity.43

Thus, the mask challenges the very idea that identity is ‘a function of biological data’44 and liberates its bearer from the tyranny of the face and the body as primal interfaces in a machine-readable world.

5 CAMOUFLAGE Adam Harvey’s ‘CV dazzle’ design ‘explores how fashion can be used as camouflage from face-detection technology’.45 The project aims for making faces unreadable to machines by exploiting some of the underlying assumptions of face-recognition algorithms. The approach is puzzling, because it employs highly stylized make-up and hair styling to turn the face into an ‘anti-face … by a partial inverse that targets key areas of the face. For example, darkening or obscuring areas that normally appear light, such as the nose bridge area or the upper cheek. Areas that vary widely, such as where facial hair grows, are lower priority.’46 However, the ‘CV Dazzle’ design has an obvious flaw. When I posted an article on Harvey’s work on a social network site, a friend of mine commented: ‘Wow! Finally, I can go out in public without drawing attention’. In more academic terms: given the common understanding of camouflage as a way to blur the borders between an object and its surrounding environment, the ‘CV Dazzle’ designs fails miserably to provide camouflage, as ‘dazzled’ persons are highly conspicuous for human vision. However, this ‘failure’ reminds us of the crucial difference between the human and the electronic eye. Surveillance systems operating on visual data ‘perceive’ the world differently. What is visible to the human eye might not be visible to a technological system and vice versa. Furthermore, the design also stays close to Norman Wilkinson’s original ‘Dazzle’ design, which did not aim for low visibility. It was meant to create uncertainty about the exact location and the direction in which a ship was moving.47 ‘Like the original dazzle war paint, CV Dazzle is an 43

Ibid. Agamben (n. 2) 50. 45 Harvey (n. 6). 46 A. Harvey, ‘How to Hide from Machines’, DIS Magazine (2013), available at http://dismagazine.com/dystopia/evolved-lifestyles/8115/anti-surveillance-howto-hide-from-machines/ (accessed 11 November 2016). 47 See N. Wilkinson, A Brush with Life (Seeley, 1969) 79. 44

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unobvious style of camouflage because its eye-catching patterns and colors draw attention instead of hiding from it.’48 Hence, there are two aspects of the CV Dazzle design to be taken into account: it shields the users from the electronic eye, while drawing the attention of the human eye. The CV Dazzle design, therefore, provides us with a similar function as the mask: it allows its bearer to be present, while protecting her identity. While sharing the double-function of shielding and enabling presence, CV Dazzle lacks the uniformity of the revolutionary mask. Thus, it allows its users to express their personality as long as the design conforms to the general design recommendations. This is also demonstrated by the different variations presented by Harvey, which, in turn, suggests that users seek and might develop a different moral practice in using the fashion design. Unless a larger group of users would opt for a uniform design, the anonymity claimed by the fashion design is less radical, because the face paint still allows us to retain individual traits and leaves room for an individual style within the parameters set by the technology opposed. While the design lacks the uniformity of the revolutionary mask, CV Dazzle shares its communicative function by making a claim to nonidentification. Even if the design might fail in shielding its users from the electronic eyes, it still embodies the claim of its bearer not to be monitored by advanced biometrical systems. In his critical evaluation of anti-surveillance fashion and design, Torin Monahan rightfully points out that this form of resistance might be misdirected, as it targets ‘any operators of automated face-recognition technology, be they state agents, advertisers, or technology companies’.49 Thus, it remains silent about the specific use of surveillance systems in different contexts and demonstrates some ‘serious blind spots, specifically where issues of racial identity, difference, and power are concerned’.50 For example, the CV Dazzle design and similar approaches do not take into account that ‘biometric systems already “fail” at a greater rate for racial minorities, effectively nominating those populations for increased scrutiny’.51 Still, the design does allow people to problematize a specific kind of surveillance technology that operates on the body from a distance. Borrowing the title of an anonymous note in the Harvard Law Review in 1966, I would like to label this kind of surveillance ‘anthropotelemetric’: 48 49 50 51

Harvey (n. 46). Monahan (n. 8) 163. Ibid. 165. Ibid.

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a kind of surveillance that allows taking measurements on the human body from a distance.52 The practice of employing the CV Dazzle design thus can be understood as an articulation of a claim not to be subjected to a certain form of surveillance while simultaneously pointing to this specific kind of surveillance, which operates in the background and otherwise does not draw our attention. By using face paint to render the face invisible to the machine, the users of the CV Dazzle design point to the hidden anthropotelemetric machinery and thereby make the machine visible to the face. On a more theoretical level, the ‘CV Dazzle’ design remains an interesting challenge to Agamben’s overall pessimistic view of the loss of the ethical space that was provided by the material mask. To Agamben, the body-as-interface seems to mark the final stage of a development that started after the implosion of the ethical space. However, once we realize that our bodies have become our masks, our interfaces, they may as well become a new site of resistance. By challenging the body-norms embedded in surveillance technologies, we may engage not so much in camouflage, but in what I would like to call ‘passive sabotage’—not by destroying the technological surveillance systems, but by denying anthropotelemetric surveillance access to the site on which it operates: our bodies. In a similar fashion, the idea of the body-as-interface undermines Flusser’s claim that our masks have become ‘increasingly immaterial and thus increasingly numerous’.53 In the age of advanced biometrics, our material bodies have become our masks, which are not immaterial. Finally, if Agamben is correct about the importance of the ethical space provided by the mask, the potential difference between the body-as-interface and the body-as-non-interface might even provide us with reasons to hope that the ethical space will re-emerge. Agamben’s underlying premise is that we are in need of the material mask in order to become aware of the difference between persona and the self. Since the material mask is lost, he ends up with a rather pessimistic perspective, where the ethical space has been and will remain lost. However, the ethical space can also be thought of as a conceptual space opened up by the distinction between the body-as-an-interface and the body-as-non-interface. 52 ‘Anthropotelemetry: Dr. Schwitzgebel’s Machine’ (1966) Harvard Law Review 403. See M. Nagenborg, ‘Das elektronische Pöttchen und andere Psychotechnologien’ in C. Hoffstadt, F. Peschke, A. Schulz-Buchta and M. Nagenborg (eds), Was bewegt uns? (Projekt Verlag, 2010). 53 Flusser (n. 1) 174.

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6 LAW—RESISTANCE—TECHNOLOGY When Anonymous started to protest against the Church of Scientology, protesters were explicitly advised to cover their faces in a video message: ‘[t]his will prevent your identification from videos taken by hostiles, other protesters, or security’.54 Ironically, the same video message also warned about the use of masks, because ‘donning them in the context of a public demonstration is forbidden in some jurisdictions’.55 Would and should the same regulations be applied to the use of face paint and hair styles, which aim to render human beings invisible to surveillance technologies? Being a philosopher rather than a legal scholar, I do not see myself in a position to come up with a clear answer concerning existing or future regulations. However, let me sketch out what is at stake here. On the one hand, we need to address the legitimacy and legality of anti-surveillance tactics and technologies. On the other hand, we need to take into account the role of the body as a site of surveillance. Ideally, we may assume, there should be no need for anti-surveillance tactics and technologies, if all current forms of surveillance practices could be considered legitimate. After all, if the employment of a specific kind of surveillance technology is considered permissible (or even necessary) in a specific context, it seems reasonable to ensure that the technology can be operated in that specific context. This may include regulations concerning certain clothing styles. For this reason, it seems understandable that we ban the use of masks in a specific context. If the use of CCTV systems would seem to be appropriate to deter bank robberies, it would then seem to follow that we should allow banks to ban the use of masks in their buildings. While such a ban limits the freedom of the individual, the freedom of an individual to wear a mask in a bank does not strike me as a fundamental right. However, the banning of certain clothing styles becomes more problematic when it concerns the use of otherwise acceptable clothes. In the context of a ban on ‘hoodies’ in a shopping mall, one may rightfully ask: ‘[w]hat is the basis for declaring that an item of clothing sold in malls can’t even be worn in the same malls?’56 Such a ban of a certain clothing style may be considered even more problematic if it contributes to the labelling of certain groups 54

Coleman (n. 10) 64. Ibid. 56 K. Tinuoye, ‘Shopping mall bans upturned hoodies for safety and wellbeing of everyone’, The Grio, 5 March 2014, available at http://thegrio.com/ 2014/03/05/shopping-mall-bans-upturned-hoodies-for-safety-and-well-being-ofeveryone/ (accessed 11 November 2016). 55

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as suspicious. Moreover, while the individual use of a mask inside a bank might not be considered to be a relevant freedom, the use of masks in an otherwise peaceful protest in a bank might complicate the evaluation. If the use of masks in movements such as the Zapatistas seems to be legitimate, and the use of the Guy Fawkes mask in particular forms of protests looks reasonable, how should we deal with the usage of masks in a group protest taking place in a bank (or, for that matter, any other institution where we normally accept surveillance technologies)? For addressing these kinds of questions, I suggest that we need to understand the use of masks (as well as certain types of face paint and hairstyle) in relation to surveillance technologies. This might also allow us to discriminate between masks worn in opposition to surveillance and control technologies from other forms of masks, for instance, a Niqāb. Regulating the use of anti-surveillance masks (or any other antisurveillance technology) is not a neutral task. Banning these artefacts will benefit the surveiller and may result in upholding the power difference between the conflicting parties, while not banning the anti-surveillance measures will undermine the legitimate use of surveillance technologies. This question is further complicated by the use of the mask by social movements in other countries, such as the Zapatistas. While we may not be able to directly address the ban on anti-surveillance technologies and tactics in other countries, it might be an appropriate act of solidarity to specific movements to regulate the export (and, potentially, the development) of anthropotelemetric systems. This may appear as a distinct issue from the regulators’ perspective. Yet, if there is agreement about the desirability and the need to use masks and camouflage in some contexts, we also need to address the question whether and how we want to safeguard that masking is still possible in other states and places.57 Finally, we need to recognize the potential for a surveillance/antisurveillance technologies arms race. Let us assume that the CV Dazzle 57

This challenge is not unique to anthropotelemetric systems, but concerns the question of export regulations for surveillance technologies in general. The issue came into the forefront in the aftermath of the so-called ‘Arab Spring’, when the use of European surveillance technology in authoritarian regimes was revealed. In this context, for example, Reporters Without Borders called ‘on the European Commission to make the export and sale of software that is used to monitor and spy on journalists and bloggers subject to export controls’. See Reporters Without Borders, Position Paper of Reporters Without Borders on the Export of European Surveillance Technology (Reporter ohne Grenzen, 6 November 2012), available at www.reporter-ohne-grenzen.de/fileadmin/rte/docs/2012/ Positionspapier_EN_EU.pdf (accessed 19 February 2017).

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design is effective and would become widely adopted. Echoing Monahan, we may ask: ‘[c]ould this lead to anything but intensified observation, search, and intervention?’58 He also reminds us of ‘the increasing popularity of neuromarketing, behavioral monitoring, and lie detection tests, each of which claims to circumvent intentional or unintentional dissimulation’.59 Drawing a line to discriminate between the acceptable and the non-acceptable use of (anti-)surveillance technologies might also be beneficial for mobilizing a broader debate about the claim to privacy in public spaces. After all, what is at stake here is less the right of (likely privileged) individuals to use anti-surveillance technologies, but rather the overall right to not be exposed to anthropotelemetric systems. Therefore, even ineffective anti-surveillance technologies and tactics deserve to be taken seriously, since they should be recognized as claims to anonymity and privacy. As our analysis has shown, the CV Dazzle design is successful in highlighting the role of the body as a site of surveillance and of resistance. This implies that any regulation concerning the use of and resistance to anthropotelemetric and biometric systems will have to frame the body as (non-)interface in the end. Again, this does not only concern the use of particular face paint. It may also concern the burnt and otherwise mutilated fingers of asylum seekers, who may have felt forced to deny machines access to their bodies by acts of self-mutilation. Similarly to anthropotelemetric systems, the law will need to operate on the body to define the acceptable scope of passive sabotage.

58 59

Monahan (n. 8) 165. Ibid. 164.

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3. Privacy in public and the contextual conditions of agency Maria Brincker* 1 INTRODUCTION Current technology and surveillance practices make behaviors traceable to persons in unprecedented ways. This causes a loss of anonymity and of many privacy measures relied on in the past. These de facto privacy losses are by many seen as problematic for individual psychology, intimate relations and democratic practices such as free speech and free assembly.1 I share most of these concerns but propose that an even more fundamental problem might be that our very ability to act as autonomous and purposive agents relies on some degree of privacy, perhaps particularly as we act in public and semi-public spaces. I suggest that basic issues concerning action choices have been left largely unexplored, due to a series of problematic theoretical assumptions at the heart of privacy debates. One such assumption has to do with the influential conceptualization of privacy as pertaining to personal intimate facts belonging to a private sphere as opposed to a public sphere of public facts. As Helen Nissenbaum has pointed out, the notion of privacy in public sounds almost like an oxymoron given this traditional privatepublic dichotomy.2 I discuss her important attempt to defend privacy in public through her concept of ‘contextual integrity’. Context is crucial, but Nissenbaum’s descriptive notion of existing norms seems to fall short * I thank Mickaella Perina and David Flesche for discussions helping me write this chapter. Thanks also to the students in my 2014–16 classes at UMass Boston. 1 See e.g., T. Stahl, ‘Indiscriminate Mass Surveillance and the Public Sphere’ (2016) 18 Ethics and Information Technology 33, and J. Reidenberg, ‘Privacy in Public’ (2014) 69 University of Miami Law Review 141, discussed later. 2 H. Nissenbaum, ‘Toward an Approach to Privacy in Public: Challenges of Information Technology’ (1997) 7 Ethics and Behavior 207. 64

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of a solution. I here agree with Joel Reidenberg’s recent worries regarding any approach that relies on ‘reasonable expectations’.3 The problem is that in many current contexts we have no such expectations. Our contexts have already lost their integrity, so to speak. By way of a functional and more biologically inspired account,4 I analyze the relational and contextual dynamics of both privacy needs and harms. Through an understanding of action choice as situated and options and capabilities as relational, a more consequence-oriented notion of privacy begins to appear. I suggest that privacy needs, harms and protections are relational. Privacy might have less to do with seclusion and absolute transactional control than hitherto thought. It might instead hinge on capacities to limit the social consequences of our actions through knowing and shaping our perceptible agency and social contexts of action. To act with intent we generally need the ability to conceal during exposure. If this analysis is correct then relational privacy is an important condition for autonomic purposive and responsible5 agency— particularly in public space. Overall, this chapter offers a first stab at a reconceptualization of our privacy needs as relational to contexts of action. In terms of ‘rights to privacy’ this means that we should expand our view from the regulation and protection of the information of individuals to questions of the kind of contexts we are creating. I am here particularly interested in what I call ‘unbounded contexts’, i.e. cases of context collapses, hidden audiences and even unknowable future agents.6

2 PRIVACY IN PUBLIC: PRIVATE-PUBLIC DICHOTOMY RECONSIDERED The nature of privacy is notoriously contested, as are the according needs, rights and harms. Many have, from the early work of Warren and 3

Reidenberg (n. 1). P.H. Klopfer and D.I. Rubenstein, ‘The Concept Privacy and its Biological Basis’ (1977) 33 Journal of Social Issues 52. 5 Note that the focus is not legal liability, but rather the conditions of moral responsibility. The goal is to discuss privacy as it relates to our social and embodied agency, and I shall largely leave questions about existing legal frameworks out and rather focus on the normative question of what kind of protections we might want or need. 6 d. boyd, Taken Out of Context: American Teen Sociality in Networked Publics (ProQuest, 2008). 4

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Brandeis7 and onwards, attempted to define privacy as pertaining to something like a ‘private sphere’ as opposed to a ‘public sphere’. Privacy breaches, according to such a dichotomy, have to do with personal facts belonging to a private sphere being inappropriately publicized, i.e. made public. This conceptualization gives rise to questions about the demarcation of such spheres and facts and about proper/improper publications. The latter is often described in terms of consent and contracts, and rights somewhat analogously to ownership and control.8 However, a further question is whether any private-public dichotomy can account for our actual privacy needs, harms and concerns, including how we might conceive of privacy in public. Some theorists, such as Solove, suggest giving up on a unified conceptualization and rather treat privacy as a Wittgensteinian ‘family resemblance’ of loosely related issues.9 Others propose rethinking privacy, such that privacy practices in public can be understood. I follow this latter path and discuss respectively the proposals of Nissenbaum and Reidenberg, as each in my view moves this project forward and yet each retains problematic assumptions. 2.1 Context Integrity, Norms and Expectations Nissenbaum has repeatedly pointed out that, given the classic privatepublic dichotomy, it seems we can expect no privacy having entered ourselves or our data into public space. However, she argues that having our behavior in public be completely ‘up for grabs’ seem inconsistent with our actual actions and expectations in public spaces. She writes that this would go against our intuitive ‘norms of privacy’10 and would leave us incapable of dealing with today’s most urgent privacy concerns, having to do with how our publicly shared information is stored, analyzed and used for secondary purposes: 7 S.D. Warren and L.D. Brandeis, ‘The Right to Privacy’ (1890) Harvard Law Review 193. 8 See e.g., ibid. 9 D.L. Solove, ‘Conceptualizing Privacy’ (2002) California Law Review 1087. 10 ‘In general, even if we agree that a number of familiar places are not part of the “intimate” and private realms, we would not therefore agree that any information harvested from them is completely public. This would mean that facts gleaned from arenas such as public schools, supermarkets, parks, and libraries belong in a category of public information in the strongest sense. By contrast, even quintessential public places—a public square or sidewalk—are governed by some norms of privacy.’ Nissenbaum (n. 2) 214.

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Our revolution will not be in gathering data—don’t look for TV cameras in your bedroom—but in analyzing the information that is already willingly shared.’ Hunter’s comment makes an almost paradoxical point: we are complicit in an invasion of our own privacy that ultimately we find objectionable. The invasion is not from the realm of the intimate but from the realm that is generally not given serious consideration by many noted theorists of privacy.11

Nissenbaum proceeds to reject the traditional ‘private-public dichotomy’ and proposes instead an alternative account of privacy as pertaining to our norms and expectations of privacy in various spatial and functional contexts. In her own words: At root, I believe, is a mismatch between intuitively held privacy norms as applied to information and the much touted private public dichotomy. A promising alternative rejects the relevance of the dichotomy to information about persons in favor of the idea of a multiplicity of contexts. Information learned in one context belongs in that context and is public vis-à-vis that context. We do not have a dichotomy of two realms but a panoply of realms; something considered public in relation to one realm may be private in relation to another, ‘disclosure of information to groups, even potentially large groups, might still be considered private provided still larger groups were excluded’ (Schoeman, 1984 [F. Schoernan (ed.), Privacy and Intimate Information: Philosophical Dimensions of Privacy, An Anthology, Cambridge University Press, 1984]). People count on this contextual integrity as an effective protection of privacy. Nightclub patrons may not mind being seen by other patrons but may reasonably object to having their actions reported outside of that context.12

Thus, privacy according to Nissenbaum has to do with how we are to treat information related to persons given the kind of context this information is produced in and pertains to. I agree with Nissenbaum’s critique of the private-public dichotomy and in terms of her positive alternative I am enthusiastic about her differentiation of multiplicities of social contexts and her introduction of the key concept of ‘contextual integrity’.13 It cannot be stressed enough how most theorists in one way or another end up ignoring the contextual relationality of privacy issues. This failure has to do with the broader tendency particularly pervasive in privacy and copyright law to take 11

Ibid. 210. Ibid. 215. 13 Note also her important work on developing these ideas in regard to current policy issues. See e.g., H. Nissenbaum, ‘Respecting Context to Protect Privacy: Why Meaning Matters’ (2015) Science and Engineering Ethics 1. 12

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subjectivity as a stable given, and thus exclude any analysis of the role of context for our lives, minds and ability to act.14 By contrast, Nissenbaum highlights how we ‘count on this contextual integrity as an effective protection of privacy’.15 However, when looking at the details of what she takes contextual integrity to be, I wonder if her account needs some tweaking. In the quote above, Nissenbaum says that information learned in a given context ‘belongs in that context’. This sounds like a general critique of aggregation, big data analytics and other practices of data harvesting for secondary use. One might take the implication that some current digital contexts, based on such secondary use, do not have appropriate ‘integrity’. However, Nissenbaum actually seems to shy away from this sort of normative critique of particular contexts, and instead defines ‘contextual integrity’ as an adherence to norms regarding that context. Thus, she ends up judging integrity not by the functional value of a given context but rather through a descriptive notion of our existing ‘norms’ and ‘expectations’. The question is whether actual expectations can serve as the foundation for evaluations of privacy breaches. What if what is taken to be normal is not good or functional in important respects? What if it is expected that NSA uses warrantless wiretapping, or that Facebook, Google or E-ZPass will share our information and continuously change their small font policies in ways practically unknowable? What if the current norms of information sharing (as I suggest) undermine our conditions of agency, freedom, morality and democracy? In other words what if our current public contexts and current norms are dysfunctional? It seems that Nissenbaum with the descriptive notion precludes a normative critique of what has become the new normal. 2.2 Beyond ‘Reasonable Expectation’ Reidenberg has recently articulated some concerns about relying on norms and aims his criticism straight at the core legal notion of ‘reasonable expectation of privacy’: In the face of ‘ambient surveillance’, how can any notion of a reasonable expectation of privacy survive? Even the notion that a boundary can be drawn 14 For an interesting feminist critique of the mind-body dualism in copyright law, see e.g., D.L. Burk, ‘Feminism and Dualism in Intellectual Property’ (2007) 15 American University Journal of Gender, Social Policy and the Law 6. 15 Nissenbaum (n. 2) 215.

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around whether technology to assist discovering information is in general use or not in general use becomes irrelevant. Alternate data sources abound.16

In the information society, the question thus becomes if it is reasonable to have an expectation of privacy at all. And hence how we can talk about a privacy problem when no ‘breach’ can be pointed to, because our information is gleaned from ‘plain view’, third parties and from multiple sources? Reidenberg highlights how the sheer abundance of data makes regulation based on tracing sources to contexts of sharing impotent and irrelevant. The issue is that these do not protect us against what he takes to be the harm of ‘non-breach breaches’ of privacy when information is already in some respect public. He talks about the problem of having lost ‘practical’ privacy protections: … before the ubiquitous deployment of information technologies, obscurity of information provided an important degree of privacy protection. As a practical matter, data that was inaccessible was private, and the public could have expectations of actual privacy, even if theoretically the information was available for scrutiny.17

For our purposes of understanding the relation between agency and privacy, Reidenberg’s practical focus is intriguing. He continues: Before digital cameras could capture high-resolution images at great distances and computer algorithms could match photos with identities, individuals walking through public places, like Grand Central Terminal in New York City, at rush hour, would be anonymous in a crowd. This anonymity existed even though the individuals were in plain view. Now, with surveillance cameras on every building and street corner, and with digital facial recognition capabilities in wide use on laptops and on social networks like Facebook, society can no longer claim any expectation of anonymity in crowds.18

He thus recounts how anonymity in public has been replaced with widespread accessibility. The question that needs answering, however, is why we need some level of ‘practical privacy’, what is the functional role of such privacy measures of inaccessibility, etc. that he tacitly relies on? We shall return to the functionality of ‘expectations of anonymity’, i.e. the advantage of being faceless in a crowd, and how this is lost, for instance, when analyzed by facial recognition software. But what, in 16 17 18

Reidenberg (n. 1) 146–7. Ibid. 148. Ibid. 149.

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terms of Reidenberg’s own theory, are the harms of access? Disappointingly, it seems that Reidenberg ends up taking us back to a refurbished version of the dichotomy of the private and public. He writes: The recreation of privacy in public suggests that the ‘reasonable expectation of privacy’ standard needs to give way to a standard that takes into consideration a variant of what Helen Nissenbaum coins as ‘contextual integrity’. The variant is to examine the generation of personal information in order to distinguish between observable acts that are ‘non-public’, or privateregarding, and those that are of public significance, or ‘governance-related’. The distinction means that the nature of the act places information into the true public sphere rather than the observability of the act.19

Reidenberg’s proposal thus is to distinguish a ‘true public sphere’ of ‘governance-related’ from ‘private-regarding’ acts and facts, and seek some kind of protection for the latter. But how does this distinction work? It seems that we need not just Nissenbaum’s descriptive norms but also rules for what counts as private-regarding and public-regarding behaviour and facts—as well as about what we can do with which kinds of information. He thereby avoids having privacy depend on how and where the information is obtained—whether in classically private or public space. However, I do not see how his fact-based distinction is a variant of ‘contextual integrity’ or how it solves our practical or theoretical obstacles. First, there is the question of how the distinction would be applied in concrete cases of surveillance, analytics and accessibility. It seems that part of the problem precisely is that these technologies make the privateand public-regarding, the intimate and the professional/political slippery and contested.20 Reidenberg talks about how contexts without anonymity are practically unmanageable for individuals. I emphatically agree, but where did the actual individuals go in his theory of the truly private and truly public? From what perspective are we to distinguish and judge these realms? It seems that he assumes some sort of consensus, or rules without rule-makers, which given our history I find hard to believe.21 The 19

Ibid. 155. We see this problem of the now massive commodification of the personal already in Warren and Brandeis (n. 7) as they complain that personal data/gossip has become a trade with an eager market. 21 The examples in Thomas Nagel’s ‘Exposure and Concealment’ (1998) 27 Philosophy and Public Affairs 3, illustratively shows how what he takes to be ‘neutral’ norms are maintaining the affordance structure neatly fitting white-cismale conveniences. 20

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question of what we should hide and what we should reveal is both political and personal, and this fact is of course ironically intimately related to our very need for privacy. To formulate my criticism and alternative proposal we need to take a detour around first the nature of situated agency in general and the function of privacy in animals. Through these detours I hope to set aside the private-public dichotomy and allow us to better understand our privacy-seeking behaviors and their embodied and embedded contextual dynamics.

3 DYNAMIC AFFORDANCE SPACES AND SITUATED ACTION Life might be a string of choices—but how do we actually decide what to do at every moment? To choose any concrete action in any particular situation, we need to judge some possibilities of this situation for a person with our specific abilities, needs, values and goals. The term ‘affordance’ was introduced by James J. Gibson to capture the functionality and opportunities of environments in relation to agents of certain needs and capacities. ‘The affordances of the environment are what it offers the animal, what it provides or furnishes, either for good or ill.’22 What we consider to be our situated aspirations, options, needs and fears are crucial to our actions, and we never act from nowhere or towards nowhere. Further, our choices take place in relation not just to individual affordances but to the overall perceived and interrelated possibilities, what I call the affordance space.23 If we think of each context as an affordance space, then it becomes clear how we via active measures (policy-based or not) can change the overall affordance relations and free ourselves from certain needs, fears and conflicts of interest. Yet, when conceptualizing these as affordance changes, we suffer no illusion that we have become disembodied and non-perspectival in our outlook. Thus, if I am relatively financially safe, if I live in a community with social services and infrastructures, with civil rights, with relative equality and peace, then that allows me to disregard a whole host of ‘could-be-dangers’ and engage in a certain set 22 J.J. Gibson, ‘The Theory of Affordances’ in R. Shaw and J. Bransford (eds), Perceiving, Acting, and Knowing: Toward an Ecological Psychology (Erlbaum, 1977) 67. 23 E. Rietveld and J. Kiverstein, ‘A Rich Landscape of Affordances’ (2014) 26 Ecological Psychology 325.

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of domestic, social and political actions that would leave one extremely vulnerable under different conditions. I suggest that our need for privacy is deeply connected to our attempt to control the social consequences of our situated embodied and embedded actions. Rational choice theorists say we ‘optimize’ our choices given ‘utility expectations’.24 Though many assumptions of such ‘homo economicus’ frameworks are questionable, the point is well taken that to make informed decisions we need some habitual expectations about the likely consequences of our actions. This is particularly important for social consequences directly traceable to one’s person. However, our current largely unregulated digitized worlds of surveillance, collapsed contexts, hidden audiences and secondary re-purposing of data,25 in many ways represent what I call ‘unbounded contexts’. Such contexts precisely do not generally allow us to make reasonable judgments about the actual traceable outcomes of our behaviour. These technology-enhanced contexts force us instead to trust unknown agents and algorithms, which are uncertain and often precisely untrustworthy. With the notion of an affordance space we can now think about our privacy needs and the notion of ‘contextual integrity’ in more value-laden and purposive terms. Nissenbaum describes contextual integrity as respect for existing local norms pertaining to specific contexts, and which therefore allows for reasonable expectations that they will be abided by. But what if we instead analyze a context in terms of its affordances and what it makes feasible in terms of actions. I suggest we then open up for different kinds of political and regulatory discussions, that can include a view to broader human conditions and needs issues. It might, for example, be the norm and therefore expected that Facebook experiments with our emotions and actions and allows hidden algorithmic audiences, and so on. But it is crucial that Facebook also has a near practical monopoly on a range of social affordances that many in our contemporary society see as needs. Note that the issue is not just that new needs arise but that our judgments of our needs are malleable and relative to perceived opportunity costs. Some people, for instance, avoid seeking the healthcare they ‘need’ or fear registering to vote, as they (sometimes rightly) perceive their situational vulnerabilities and the dangers of the kinds of accessibilities and repercussions that might ensue from these actions. 24 See e.g., R. Briggs, ‘Normative Theories of Rational Choice: Expected Utility’ in E.N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Stanford University, 2015). 25 boyd (n. 6).

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As we shall see in the following, non-human animals employ various privacy-seeking measures to navigate precarious and deeply contextual and dynamic balances of needs and fears and thus optimize their survival possibilities. The question is to what extent we should think of human privacy needs along similar lines. Given such an analysis, practical measures of privacy can be seen as various ways of limiting the social perceptibility and ‘actionability’ of our behavior, and such measures therefore appear integral to our situated agency.

4 RELATIONAL PRIVACY AND DYNAMIC VULNERABILITIES To avoid pre-defining privacy in opposition to a public sphere, and rather attempt to first approach privacy in functional terms (as something we seek for some purpose) it is helpful to look at the dynamics of privacy seeking in other animals. A distinct advantage of looking to non-human animals is also that we avoid tying the analysis of our privacy needs to existing law and to property rights. In a 1977 article ‘The Concept Privacy and its Biological Basis’, Klopfer and Rubenstein propose as a starting point that the degree and kind of privacy sought is a compromise between many forces both within and outside the organism.26 This is a simple but crucial point: whatever privacy is, it must be understood in the overall economy of needs and threats, vulnerabilities and powers. To some extent this can sound like Altman’s psychological theory of privacy regulation as being an optimizing balance between concealing and disclosing, between social openness and closedness.27 However, the question is not simply about ‘where to put the membrane’, but about much more multidimensional dynamics. Most importantly for my purposes, the functionality of various privacyensuring measures is always intertwined with the existing affordance space, i.e. the possibilities and threats of the physical, social and cultural environment, as well as with the temporally shifting needs and references of the person/animal in question. Note that I am not in the following analysis assuming that life in civil society is like non-human lives even in most respects. In a sense, civil rights and regulatory policies are precisely ensuring that in many respects our worlds are not ‘lawless’ and our choices protected from the harshest 26

Klopfer and Rubenstein (n. 4). I. Altman, The Environment and Social Behavior: Privacy, Personal Space, Territory, Crowding (Brooks/Cole, 1975). 27

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prey-predator conditions. In civil society, many new possibilities open up as most can trust that certain behaviors that ‘in the wild’ would expose vulnerabilities will not actually be exploited as that would be illegal or go against otherwise enforced social norms. However, this way of looking at human social practices precisely grants that the conditions influence needs, abilities and ensuing behavioral choices. I suggest that we need to let go of the notion (propelled theoretically also by Hannah Arendt28) of the ‘civilized’ public sphere as a place without predators, where all our vulnerabilities can be disregarded, where we can be ‘free agents’ without any conflicts of interest, which represents some kind of universal disembodied political point of view. Such theories obscure the situated biological and cultural conditions that precisely protect us against threats. We need privacy in various forms because we are agents among other agents. Because our socially perceived actions have social effects, and part of our action choice always will have to do with our estimation of our own perceptibility to others and the according social consequences. I call this our ‘perceptible agency’29 and argue that this notion is pivotal for understanding both our various needs and tools of privacy. Note that our perceptible agency and its consequences are always relationally dependent on perceivers and contexts—and the proposal is that privacy should be understood relationally as well. 4.1 Biology Insight I: Relational Privacy and Needs Beyond Seclusion Interestingly, Klopfer and Rubenstein focus on the needs and contextual conditions when they describe the ranges of privacy dynamics one could expect in various animals: Withdrawal, as physical privacy, may also represent the only way to achieve concealment; in turn, for many organisms, concealment may be the sole defense against predation. It is possible to develop models that allow prediction of cases in which a solitary, private mode of life would be favored over gregariousness. If a potential prey’s privacy protection comes from hiding and if detection by a predator results in but a single kill, group formation may be the best strategy for the prey. Where the predator makes multiple kills, privacy is favored. Of course prey animals have other needs, too, that may conflict with the need for remaining watchful. Increased 28

H. Arendt, The Human Condition (University of Chicago Press, 1958/

2013). 29 M. Brincker, ‘Dynamics of Perceptible Agency: The Case of Social Robots’ (2016) Minds and Machines 1.

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gregariousness increases the number of watchers, perhaps offsetting a decrease in concealment.30

What is made apparent by this description is, first, that there is a cost to isolation and withdrawal from the broader social and ecological world. Many needs cannot be dealt with in isolation. Secondly and very importantly, ‘concealment’ is not an absolute notion, but assumed to be relational. We are seeking concealment not in the abstract but from particular envisioned threats, in this case known kinds of predators. Thirdly, the functional goal of concealment as protection can sometimes be better obtained through group formation, as this kind of ‘plain view anonymity’ can afford many advantages in terms of both safety from predation, as well as putting the animal in a social and physical affordance space where other needs can be fulfilled. As representatives of a traditional public-private dichotomy, Warren and Brandeis suggested that the ‘intensity and complexity of life’ increased the ‘need to be let alone’ and for seclusion and ‘retreat from the world’.31 We need to do things with limited social consequences beyond in relation to the intimate and trusted others that one seeks seclusion with. As we in ‘civilized society’ are met with increasingly complex demands and responsibilities, seclusion can indeed be needed. But what we are reminded of by Klopfer and Rubenstein is that whereas withdrawal can be useful, it cannot be our only tool particularly if we are social and cultural beings with complex needs and responsibilities. Staying in permanent seclusion is simply not an option for humans in the digital age. We must almost constantly enter our bodies and information into public or semi-public spaces of ‘ambient surveillance’; hence the importance of the question of privacy in public.32 Therefore when we talk about privacy measures in public we need to think not simply about the particular forms of information, kinds of surveillances technologies, or whether there was ‘consent’. Rather we need to think dynamically in terms of the needs, pressures and available affordances from the agent’s point of view.

30

Klopfer and Rubenstein (n. 4) 57. Warren and Brandeis (n. 7). 32 The ultimate seclusion for humans are our private thoughts. However, as embodied beings our mental life depends on the publicly accessible body. Warren and Brandeis and many legal theorists assume a problematic mind-body dualism that also permeates the privacy debate. See also n. 13 above. 31

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4.2 Freedom, Responsibility and the Coercive Power of Surveillance As mentioned, humans have taken many measures to transform the lawless non-human predatorial conditions and create ‘civilized spaces’. This makes many communal, pro-social and future-directed actions viable that would otherwise be reckless. We have done this through among other things the creation of social norms of responsibility and legal liability, making it possible to hold some accountable for certain actions. However, all such conditions are precarious and the predatorial and unsafe conditions have always been part of human cultures. Marginalized people carry the brunt of the risks, but everyone is vulnerable. As a matter of fact, I suggest that if we ignore this aspect of our social world, we shall fail to understand both our current loss and our distinct needs for relational privacy measures. The issue of safety and responsibility is intimately linked to that of privacy in the current public debate, but too often in a problematic way. Often it is stressed, as Plato does in his ‘Myth of Gyges’, that if we at will could be entirely invisible to others, we would all prove selfish and morally corrupt.33 This notion is generally the explicit rationale of current visible surveillance (e.g. CCTV) that these deter people from breaking the law and thus support moral and responsible behavior. I have already praised the rule of law and I shall also not deny the efficiency of some kind of social watchful eye, but suggest (which might sound paradoxical to some) that actually our moral agency cannot survive too much surveillance and too micromanaging accountability measures. In other words, the question is: does a world of ambient surveillance actually undermine rather than ensure civilized and ethically responsible behavior? The tension can already be seen in Bentham’s own description of his notorious Panopticon structure34—his architectural ‘moral’ exoskeleton. The idea was to create a utilitarian structure that would make people ‘better’ and instill the ‘right behavior’ by way of surveillance and discipline. The ingenious aspect of the architecture was in the asymmetry of visibility and power in the structure. Each subject would be in their individual cell (that is personally ID’ed and without anonymity) whereas 33 The myth is attributed to the voice of Plato’s older brother Glaucon in The Republic. See G.R.F. Ferrari and T. Griffith, Plato: ‘The Republic’ (Cambridge University Press, 2000). 34 J. Bentham, Panopticon or the Inspection House (1791) Vol. 2.

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the hierarchical disciplinary powers would be hidden within a nontransparent yet externally visible watchtower. Through this asymmetry of visibility one could instill a sense of being watched without the subjects actually being able to verify who occupied the tower at which times. Adding now the power asymmetry of action and the individually targeted disciplinary consequence, we have—as Foucault has highlighted—the perfect conditions for coercion: those surveyed and disciplined will by themselves ‘choose’ to carry out the will of the watchtower in the most efficient of ways’.35 We know from Milgram’s terrifying experiments,36 that even just introducing a watchful authority serves as a coercing scenario, and makes people carry out acts they consider wrong and feel bad doing. Interestingly, later studies have also shown that people report a lowered sense of agency and responsibility in such types of situations.37 Hence, a paradoxical logic of Bentham’s Panopticon is that the more minutely we are held responsible, the less responsible we feel. The crucial point is that if the structure imposes action decisions on us then they are precisely not ours. We might not choose the ‘wrong’ thing but this is obtained by us carrying out the choice made for us. Pervasive surveillance and disciplinary structures erode individuality, creativity, innovation and dissent and thus overall impede organic and democratic change. They erode the very feeling of responsibility and autonomy— because they erode our actual autonomy, that is our processes of individual and communal self-legislation and self-formation. Thus, it seems that neither Gyges’ ring nor Bentham’s Panopticon are conducive to individual moral agency, as each ensures a corrupting asymmetry of power. In Bentham’s Panopticon there is no privacy of action, no anonymity, and no ability to create privacy by strategically manipulating one’s perceptibility agency, because the perceiver is hidden in the tower. With the ring of Gyges the diametrically opposite situation is created: an agent is made capable of acting in public without any exposure. It is in a sense a metaphoric disembodied agent that can create consequences without ever being perceptible in any aspect of their 35

See M. Foucault, Discipline and Punish: The Birth of the Prison (Vintage, 1977) for a fantastic analysis of the power asymmetries of Bentham’s Panopticon as well as many other social institutions. 36 S. Milgram, ‘Behavioral Study of Obedience’ (1963) 67 Journal of Abnormal and Social Psychology 371. 37 E.A. Caspar, J.F. Christensen, A. Cleeremans and P. Haggard, ‘Coercion Changes the Sense of Agency in the Human Brain’ (2016) 26 Current Biology 585.

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agency. Sadly, it seems that we in our current technologically transformed public spaces are creating a lethal mix of these two asymmetric scenarios—of entirely hidden agents and overexposed agents. The question is whether true ethical agency needs a balance of partial exposure, and thus conditions of responsible yet autonomous and non-coerced action. Are we currently creating public spaces that undermine the independence of agency and reciprocal equality that morality requires? The ethical questions will reemerge. But for now, we must keep in mind that asymmetries of perceptibility and traceable consequences, as we learn from other animals, are asymmetries of power.38 4.3 Biology Insight II: The Relationality of Perceptible Agency This then brings us back to the point that the privacy-seeking behaviors of various animals depend on their knowledge of their predators and so on, and what I have called the relationality of their perceptible agency. How adaptive would camouflage, group formations and action timing be in the face of unknown predators with unexpected ways of sensing and knowing? For behavior to be adaptive it needs to show ‘fitness’, which profoundly depends on what aspects can be perceived and are thus socially efficacious. Of course, most non-human animals do not need to understand their own perceptible agency, as their reliance might simply be on brute evolutionary trial and error feedback. However, to develop more flexible action repertoires and autonomous agency we need capacities to know and flexibly change our behavior according to changing kinds of social interactions. Through the notion of relational perceptible agency, we can see Goffman’s39 lesson about the need to change social masks, also in the lives of many non-human animals. I suggest that it is an inescapable part of any social interaction that we are presented with a choice about how to present ourselves, how to let ourselves be perceived. It is through our perceptible agency that we control and shape social outcomes. Note that my suggestion is not that we could or should have complete control over outcomes. That would be a return to the denial of our embodied, embedded and dependent natures. Compare here to the influence of gravity: it is an undeniable force in our lives, but as it is profoundly reliable and we have adapted to it, it supports our agency rather than prevents it. To perform an intentional throw, for example, we 38 39

Foucault (n. 35). E. Goffman, The Presentation of Self in Everyday Life (Harmondsworth,

1978).

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need to rely on our perception of the current target, and our habitual knowledge of the constrained workings of our body-in-the-world.40 The need to control our perceptible agency is much like limb movements. To perform an intentional social action we need to rely on knowledge of current social situations and the habitual workings of the social fabric. Modulating our perceptual agency—what we say and do, what we do not say or do—simply is our social action. Now just as we do not know all the precise or even possible consequences of throwing a ball (I think here both of motor variability and the notorious butterfly effect) we similarly do not know the exact effects and side-effects of our social actions. Thus, both the knowledge and control that I am talking about are modest. Much like it is hard to throw a ball if the target is jumping around, I suggest that we need a stable and relatively transparent social environment to judge what actions would be good, conducive to our goals, as well as harmless to self and others, and so on. Given that perceptible agency is truly relational, it is clear that even what aspects of our actions will have any social consequences at all is dependent on the kind of perceiver present. We, for instance, do not typically think of our pupil size or heart rate as perceptible, even as they are clearly there to be sensed in a shared space given the right kind of ‘perceiver’. To summarize, in terms of judging our situated options and vulnerabilities, the key parameters are about what kinds of (1) perceivers we are dealing with; (2) powers they have over us; and (3) responsibilities we have towards them. I shall argue that the current threat to privacy primarily consists in the vanishing of social spaces in which we have reliable knowledge and counter moves regarding these parameters. More and more spaces have, as boyd has highlighted, collapsed contexts and hidden audiences.41 Thus they become non-transparent and practically ‘unbounded’ from the perspective of action choice. We are in a sense left largely unable to rationally navigate our own worlds, and therefore in desperate need of re-structuring our relational perceptible agency. This relational and contextual situation, I suggest, is at the core of our ‘practical’ privacy needs.

40 For an interesting take on control and also what it means to be remote controlled and the role of perception and knowledge in it, see D.C. Dennett, Elbowroom: The Varieties of Free Will Worth Wanting (MIT Press, 1984) Ch. 3. 41 boyd (n. 6).

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4.4 Biology Insight III: Anonymity and Partial Information as Relational Tools As mentioned, anonymity and partial information sharing have served as key tools in reassuring practical privacy protections in public. We have already discussed how opportunities for anonymity are rapidly vanishing, due to tools of identification and aggregation across contexts. We are moving freely in a new kind of Panopticon, where actions that before would happen in a sea of anonymity are now traceable to our person. Data-gathering tools along with unhampered algorithmic powers make such information highly categorizable and actionable; predictive and pre-emptive policing, surveillance-based personalized pricing schemes and so on are leaving us relationally incredibly vulnerable. These vulnerabilities often have to do with entirely unanticipated perceptibilities and consequences. As an example, think of youngsters joking online—and entirely within the parameters of the law—realizing years down the line that they have been classified as ‘high risk’ and cannot get an affordable insurance or a mortgage. The Chinese ‘citizen score’ can be seen as merely a more explicit and aggregated version of much more varied global trends in this direction. Had the joking happened in a space allowing for anonymity, no such retroactive social consequences would have been possible. It would for most intents and purposes have been a bounded and knowable social affordance space. Another important tool for relational privacy, which is related to but different from anonymity, is the ability to expose ourselves to a limited view as we act in public. Interestingly, Klopfer and Rubenstein talk about ‘information management’ in various non-human animals:42 Although extensive social bonding limits the amount of privacy that can be achieved by withdrawing from a group, other means of achieving privacy involving management of the flow of information can be used. Thus, while surrounded by neighbors, privacy can be achieved by preventing others from acquiring complete and accurate information about one’s internal state or future intentions.43

Why is it so important to prevent others from complete and accurate information? It is to a large degree again about competitive advantage. They continue to describe how animal displays (perceptible agency) use 42 Compare to Westin’s analysis of human cultural differences and how shared living spaces correlate with expressive and communicative privacy measures. A.F. Westin, Privacy and Freedom (Atheneum, 1967) Ch. 1. 43 Klopfer and Rubenstein (n. 4).

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more narrow and generalized signs to limit perceptibility of precise motivational states: the fact that the form of these signals is not associated with the organism’s motivational state enables the sender to keep some information about itself or its intentions to itself. In essence, the organism has obtained some privacy. Thus although an animal may send an overt message, such as ‘I plan to escalate if you do not retreat’, by means of a signal of typical form, it may also be hiding the fact that its present motivation level is low and that in reality it is on the verge of withdrawing. As a consequence, one of the functions of privacy is the withholding of information that otherwise might provide an opponent with a competitive advantage.44

This notion of privacy through partial communication is crucial and too often ignored in the privacy debate.45 It is a misunderstanding of our agentic dynamics to think of our behavior as simply either truthful or deceptive, as exposing or concealing. Each action as it is contextually chosen and produced is both revealing and concealing. If we lose this ability to conceal during exposure, I suggest we lose a key condition for autonomy. There is a profound existential aspect to this vulnerability as it is about staying in real-time control of our actions. If too much is known, then another cannot just control me but directly act on the information and thus bypass my agency and my upcoming decisions. This is the threat that we are seeing now, as we are increasingly being judged and constrained by predictive algorithms, that is based on past data and according to indicators and categorizations determined by others. Our norms of linguistic conversation and civil interaction are largely based not only on actually limited access but also on social rules of what to

44

Ibid. Mark Zuckerberg, for example, argues—from behind the walls of his private compound—that ‘if people share more, the world will become more open and connected. And a world that’s more open and connected is a better world’. It is informative that the end goal here has to do with a faceless anonymous ‘world’. This idea of ‘open and connected’ as ‘better’ smells like Bentham’s rationale for the Panopticon, and we might ask why he does not choose that openness for himself and his family, or, perhaps more importantly, for the actions and algorithms of his company. See M. Zuckerberg, From Facebook, Answering Privacy Concerns with New Settings (2011), available at www.washingtonpost. com/wp-dyn/content/article/2010/05/23/AR2010052303828.html?tid=a_inl. 45

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leave out of the conversation.46 When we think of privacy needs as relational, we can also see how ‘practical privacy’ can be obtained by the (chosen or coerced) silence of others.47 However, with aggregation and data mining, contexts are collapsed and these sorts of privacy measures, through controlled partial and relational exposure and situated trust and conventions, are largely being undermined.48 The issue is that the moment of perspectival situated action is compromised. If I walk down the street, I might expect that neighbors can see me, but that would be a very limited exposure; only a fraction of the field of near and far affordances that I find myself in is available for my neighbors to perceive, even if I stop to small talk. Further, the implications this exposure would have for my future life, beyond shaping my neighbors’ opinion, are limited. If on the other hand, perhaps via some over-sharing futuristic Google Glass, the neighbor was livestreaming and also had near-instant access to all sorts of information traceable to me, like Web activity, real-time Fitbit data, dating profiles, past-predictive geo-locations, and so on, it would be a very different ‘encounter’. Our judgment of what is relevant, what to do and say in that moment would be overpowered by what we might call the ‘extrasituational’ information and consequences. In other words, the ‘integrity’ of this context, as a local and situated social affordance space, would be severely compromised. I have so far mentioned the issue of someone’s agency being bypassed by too much information, but the same kind of data and algorithms are used to return partial and curated information back to me. Thus, our perceived affordance space online is typically ‘personalized’. Our options are not the same as those of others even as we go to the ‘same’ site. Thus, we can be controlled from the outside not simply by having our choice bypassed but by someone controlling the world we perceive.49 Klopfer and Rubenstein write: 46 Interestingly, digital natives gave us the acronym TMI (‘Too Much Information’), but see also Nagel (n. 21) on how situational codes of conduct can let us retain certain functional privacy protections. 47 For an analysis of the ways domestic privacy has been used to shelter abuse see A.L. Allen, Uneasy Access: Privacy for Women in a Free Society (Rowman & Littlefield, 1988). 48 See boyd (n. 6). 49 Fake news has become a big concern in, for instance, the 2016 Brexit referendum and US elections. It is becoming easier to provoke, seed and control predictable responses by way of controlling what people perceive.

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Acquiring accurate information about the environment is essential for survival, and the elaborate sensory capacities of most social animals attest to this fact. In general, an organism’s relative fitness is related to its ability to correctly perceive and interpret its surroundings.50

We need accurate, or at least broadly reliable, information to actually optimize the choice we make. We should worry about so-called ‘filter bubbles’ and ‘halls of mirrors’ and the extremely coercive power such affordance space control has over our choice.51 To conclude our lessons from the animal world, let me re-iterate that information access and control is power. Privacy can in this context be seen as a tool of relational power and thus naturally be used by both predator and prey, and for good as well as for bad. Anita Allen writes: Privacy aligns not with raw preference, but with prudent self-interest. The good of privacy is contingent. Sometimes we ought to go public when we prefer to hide; sometimes we ought to hide when we might prefer to go public. The important thing is that privacy, like information sharing, has a place in free society. Our moral interests include freedom from judgment, freedom to don masks, freedom to build and maintain reputations, and freedom to and from intimacy.52

We can now turn to our final analysis of autonomous and moral agency and its dependence on the possibility of relational privacy practices.

5 SHARED AFFORDANCE SPACES: POWERS, FRAME SHIFTS, MORALITY AND POLITICS Aristotle famously proclaimed: ‘every art and every inquiry, and similarly every action and pursuit is thought to aim at some good’.53 For our purposes the point is that (1) actions are organized in relation to some anticipated outcome; and (2) from the perspective of the aiming agent 50

Klopfer and Rubenstein (n. 4). See e.g., E. Pariser, The Filter Bubble: What the Internet is Hiding from You (Penguin UK, 2011); J. Angwin, Dragnet Nation: A Quest for Privacy, Security, and Freedom in a World of Relentless Surveillance (Macmillan, 2014); B. Schneier, Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World (W.W. Norton & Co., 2015). 52 A.L. Allen, Unpopular Privacy: What We Must Hide (Oxford University Press, 2011) 195. 53 See Aristotle, The Nicomachean Ethics (David Ross (trans.), Library of Alexandria, 1962) Book I, s. 1. 51

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this outcome is considered of value. We might be mistaken about the value, our powers to obtain it or the situation of choice such that knowing more we would regret the action. Aristotle proposes that an action is only truly voluntary if it is not due to ‘external force’ or ‘owing to ignorance’. The question is if anticipated value, external force and ignorance need to be considered when judging whether surveillance changes and significantly hampers our abilities to act purposively in public. As discussed above, we take into account how our actions will be perceived, what others want and their relative power over us, and choose our actions with such social consequences in mind. Per implication, our action choice also depends on our knowledge, trust and grasp of the motivations of the expected perceivers.54 It seems that surveillance not only makes the social side-effects—and thus overall outcomes of actions—impossible to reliably anticipate, but further that the knowledge of surveillance can act as a severely coercing force in the moment of choice. A further complication is that we often integrate far-reaching values, that are ‘bigger than us’, beyond our current needs and with many stakeholders, into our action calibrations. We might want peace, social justice and a world structured such that we can take actions towards these goals. As perspectivally situated agents, we are able to fluidly shift our framework of action judgment and act with constantly changing outlooks depending on the needs and opportunities we perceive in ourselves and our near surroundings and the broader world. These constant relational calibrations of outlooks (or frame shifts) have often been ignored. Frame shifts have proved puzzling in disciplines like robotics and economics where agents’ ‘subjective preferences’ are modeled without a view to their embodied, embedded and social dynamics and tensions.55 I suggest that most of our deliberative choices pertain to what perspective to take, that is to deciding the context of choice. Should I think longer-term or shorter-term, about what is better for me, family, friends, colleagues and/or everybody? And who is everybody? Does my action have consequences for its own conditions of possibility? This is actually almost always the case to some degree or other: everything is political, as the saying goes. Even in local ‘self-regarding’ or self-maintaining actions 54 For more on the development of the ability to include the perspectives of others see also M. Brincker, ‘Navigating Beyond “Here & Now” Affordances: On Sensorimotor Maturation and “False Belief” Performance’ (2014) 5 Frontiers in Psychology (1433). 55 For more on the classical frame problem in AI, see e.g., D.C. Dennett, ‘Cognitive Wheels: The Frame Problem of AI’ in C. Hookway (ed.), Minds, Machines and Evolution (CUP Archive, 1986).

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about what to eat and whether to exercise, future possibilities are always hovering in the background.56 It is a profound weakness of most theories of decision-making that they typically hold our capabilities to be stable and independent from the choice between preferences.57 Nothing could be further from the truth. Each action we perform transforms not only our world but also our and others’ relation to it. They reshuffle or change the affordances available to us, both immediately and longer term. Through their notion of ‘autopoiesis’, Varela and Maturana have theorized the dynamics of contextual actions and self-maintenance in simple biological organisms58—and profoundly transformed how many think about cognitive systems.59 Similar notions of how we continuously co-construct and shape our environments and ourselves as agents, need to be taken more seriously in the social sciences.60 We are very passionate about changes to capabilities and environments: they can start and end wars. Lasting changes to our situated possibilities constrain our entire future, and the evaluation of such lasting changes is a constant factor in our choices. My proposal is thus that we always have a profound interest and eye to the conditions of our own agency and the shifting power balances that come with shifting conditions for both ourselves and others. One of the shortcomings of the traditional (and also Reidenberg’s remodeled) private-public dichotomy is that the very distinction is pushed outside the realm of action and in some sense made a priori and

56

Compare here to the neat distinctions of Arendt (n. 28) between the self-maintaining actions of ‘labor’, the world building actions of ‘work’ and what she considers truly political ‘actions’. For an attempt to blur these distinctions and bring our embodied natures back into the public space see J. Mensch, ‘Public Space and Embodiment’ (2012) 12 Studia Phaenomenologica 211. 57 See Briggs (n. 24) and also Aristotle (n. 55). 58 F.G. Varela, H.R. Maturana and R. Uribe, ‘Autopoiesis: The Organization of Living Systems, Its Characterization and a Model’ (1991) Facets of Systems Science (Springer US) 559. 59 Embodied and enactive approaches to cognition have many precursors, but Varela and Maturana were critical in this revival of more dynamic and contextual ways of theorizing that is still unfolding. See e.g. M. Brincker, Moving Beyond Mirroring: A Social Affordance Model of Sensorimotor Integration During Action Perception (City University of New York, 2010) Ch. 1.3. 60 The interdisciplinary tradition of Critical Theory has already analyzed many such dynamics.

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non-negotiable. This is too similar to traditional references to privacyensuring rules of ‘decency’61 and ‘civilized conduct’.62 Even Nissenbaum’s contextually bound norms of privacy only descriptively reflect how things are, rather than how we want them to be. If we instead think of norms as serving certain purposes, then they also naturally need to be negotiated between agents with diverging purposes. The negotiation of our public spaces and our shared affordance fields is political par excellence. My suggestion is that we need—to negotiate—ways of regulating such shared spaces such that they become reasonably bounded. The idea is that being able to understand and limit the (personally traceable) consequences of one’s actions is pivotal to safe, responsible, autonomous and moral actions.

6 ACTING IN UNBOUNDED CONTEXTS AND REGULATING CONDITIONS OF AUTONOMY Now the question is how to act given the status quo. In our current world, we are faced with the practical challenge of how we possibly could optimize our actions in surveyed environments, that is, environments that are in a sense per definition unbounded, and the relational consequences of which are unknowable. The key complication is that surveillance implies hidden agents that cannot be understood positively from within the perceptible environment. Thus, in non-surveyed environments we accommodate our actions to our judgment of the nature, ability and motivations of somewhat exposed or known others, i.e. the perceived social affordances. But the question is how to interpret and act on the amorphous affordances of surveillance and data harvesting. The core problem is that most surveyed environments precisely have clashing frames of consideration not allowing for an overall coherent calibration. The action choice cannot get off the ground unless we try to get some kind of coherent interpretation of the space going. I propose that generally we individually cope in one of the following ways: + Denial: we pretend the surveillance is not there, and gamble on the disregard for the potential consequences of surveillance. I have nothing to hide/blind trust. 61 62

Warren and Brandeis (n. 7). Nagel (n. 21).

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+ Submission: we might, typically when disciplinary acts are perceived, focus on the assumed demand of an external authority, thus allowing a coercion of our choice away from its autonomous calibration given the local perceived social environment. + Paranoia and paralysis: we might be overwhelmed by the uncertainty of the unbounded context. Seeing the watchtower but not knowing what counts as good or bad, laudable or punishable. The context is here deemed too dangerous for action, allowing only for retreat or paralysis. In our contemporary world, what many end up doing is the first and second. In many contexts, we ignore the accessibility to unknown others and hope that it will be inconsequential, even when we to some extent know that this is unlikely. Interestingly, in this connection Klopfer and Rubenstein write that ‘behavioral habituation, or the failure to respond overtly to repeated invasions of privacy, is in fact often seen among captive animals’.63 Here, of course, we have cases of both lack of alternatives and lack of consequences of exposed vulnerabilities. In many employment situations, the frantic inferno of ‘indicators’ and ‘assessments’ have imposed Panopticon-like environments of fearful and applause-seeking submissiveness. Overall, I worry that we currently are being habituated, and that the consequences of our exposed vulnerabilities and tame compliance will simultaneously be increasingly obvious and increasingly undermining of our individual and political autonomy— and thus hard to change.

7 SUMMARY: WHY WE NEED CONTEXTS ALLOWING FOR RELATIONAL PRIVACIES Basically, my suggestion is that we need to understand the nature of human agency and our need for relational privacy to better regulate privacy in public spaces. Below is an attempt to summarize some of the key components of action and how it relates to privacy.

63

Klopfer and Rubenstein (n. 4) 62.

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Knowledge of relational affordances Our capabilities to bring certain outcomes about are deeply embodied and contextually dependent. Voluntary action depends on various forms of knowledge. We need reasonably reliable expectations about our capabilities and of what the environment affords. Value and calibrations of affordances Agents act in relation not to singular affordances but to affordance spaces: choices are always situated calibrations of multiple interests and purposes given the perceived opportunities. To assess the values and risks of potential actions we need to have expectations regarding the consequences of these actions. Perceptible agency In social contexts, the consequences of our actions are deeply dependent on which aspects of our behavior are perceived and by whom. This notion stresses the dynamic relationality of social action effects: it is not simply about what you do, but about how it is received. Appearances have real consequences. Non-negotiable elements of contexts Certain aspects of our bodies and environments are for practical purposes non-negotiable (such as gravity). We organize our actions around such expectations. In a sense, our freedom and creativity relies on such constraints. Coercion and power asymmetries When other agents and culturally produced constraints appear as non-negotiable affordances due to power asymmetries, our actions are easily manipulated. Such control is typically the raison d’être of the perceived social constraint, and thus coercively ensures the enactment of the will of the architect. Freedom and autonomy Being a free agent means to be able to negotiate one’s affordance space and choose and weigh the worthiness of actions from within the multiplicity of practical and moral concerns that make up one’s situated perspective. Morality and responsibility The perspectival and situated nature of action does not make it inherently selfish or immoral. We can act according to our moral outlook and against personal gain or survival. But ‘selfless’ acts are still situated and chosen from a point of view, as some adopted moral outlook drives the choice. Relational privacy Intentional actions and choice calibrations rely on an ability to anticipate and create specific consequences. To avoid

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conditions of uncertainty and undue coercion, and to freely weigh and shift between complex needs and outlooks, we rely on relational privacy. Unbounded contexts Unregulated and thus unpredictable surveillance and data mining by unknown present and future perceivers and algorithms make for what I call unbounded contexts of action. Such contexts undermine some of the core conditions of our autonomous, deliberate and socially responsible agency. Flexible privacy measures As the function of privacy is relational, the means are flexible as long as they work to ensure some reliable limitation of actionable consequences beyond the current affordance space.

8 CONCLUSION: RELATIONAL PRIVACY IN PUBLIC SPACE This chapter suggests that to understand our needs and challenges of gaining privacy in public spaces, we must think of the conditions of our situated and embodied agency. However, the private-public dichotomy still profoundly shapes the privacy debate, and is perhaps preventing us from seeing the need for what I call relational privacy. Instead of focusing on access to bits of private information, I analyze how our actions are chosen in regard to a perceived affordance space. To choose appropriately we need to judge our contextual situation and to calibrate between complex needs, demands and outlooks. I argue that there is no such thing as disembodied, non-situated or non-perspectival action, and that this is crucial when we think about privacy. Seclusion affords a situation of very limited social consequence, where we safely and easily can be vulnerable, spontaneous and tend to local intimate needs. However, public spaces traditionally also limit many social consequences as they allow limited perceptible agency. Thus, the point is not just that semi-private places exist within some public spaces, but that all contexts for action are treated as limiting our relational exposure in some form or other.64 We seek—and can handle—relational publicity, we want exposure, perceptibility and recognition and social consequences of our actions, but not unbounded publicity. This is where our privacy needs and concerns come in. 64

Thus, we might even in Bentham’s low-tech Panopticon or with Orwell’s Big Brother in practice take aspects of our agency to be imperceptible, until such assumptions are corrected by disciplinary feedback.

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We need privacy practices to be able to perform actions with limited and thus reasonably expected social consequences. This is particularly crucial when others are able to trace and thus act on these consequences in ways that relate directly to our future social standing. If it is correct that our need for privacy pertains to ways of limiting and controlling the social effects of our actions, then it is also expectable that privacyensuring measures can take many forms. Privacy practices should be versatile and adapt to the cultural, legal and technological context we are in. Note that with a relational approach a firm categorization of the private and public is unnecessary: It can be continuously negotiated by individuals and communities. What to reveal and to whom is precisely integral rather than external to our choices. However, we are currently creating technologically mediated public contexts in which it is very tricky to establish adaptive privacy limitations. Such contexts of surveillance and ‘decision-making algorithms’ are inherently unbounded in time and space, and even in terms of what can be perceived, and thus leave us with few options to keep our exposure limited and targeted. If we do not try to make such public contexts bounded, by for example regulating or taxing data collection, storage and secondary use, then we are likely to create new habits of excessive obfuscation or hiding in public, apathy or fear. Such habits, I suggest, would be mal-adaptive not only for our civic and democratic values but also for our basic autonomy and sense of personal responsibility.

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4. A politico-economic perspective on privacy in public spaces Karsten Mause 1 INTRODUCTION There is an ongoing debate as to what extent economics is an ‘imperial science’.1 While the 1992 Nobel Prize winner Gary S. Becker (1930– 2014) and other economists take it for granted that the economic toolkit can be fruitfully applied to analyze almost everything,2 others are skeptical of economists who are invading into research fields that are usually analyzed by engineers, computer scientists, legal scholars, sociologists, and other non-economists. Based on and complementing the existing literature on the economics of privacy3 and the multidisciplinary privacy literature in general,4 this chapter explores what economics, or

1

U. Mäki, ‘Economics Imperialism: Concept and Constraints’ (2009) 39 Philosophy of the Social Sciences 351. 2 See e.g., G.S. Becker, ‘Nobel Lecture: The Economic Way of Looking at Behavior’ (1993) 101 Journal of Political Economy 385; D.D. Friedman, Hidden Order: The Economics of Everyday Life (HarperBusiness, 1996); S.D. Levitt and S.J. Dubner, Freakonomics: A Rogue Economist Explores the Hidden Side of Everything (HarperCollins, 2005). 3 For a survey, see A. Acquisti, C. Taylor and L. Wagman, ‘The Economics of Privacy’ (2016) 54 Journal of Economic Literature 442. 4 See, for overviews, D.J. Solove, Understanding Privacy (Harvard University Press 2008); J. Lane, V. Stodden, S. Bender and H. Nissenbaum (eds), Privacy, Big Data, and the Public Good: Frameworks for Engagement (Cambridge University Press, 2014); A.D. Moore (ed.), Privacy, Security and Accountability: Ethics, Law and Policy (Rowman & Littlefield, 2015); B. Roessler and D. Mokrosinska (eds), Social Dimensions of Privacy: Interdisciplinary Perspectives (Cambridge University Press, 2015). 91

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more precisely ‘political economy’ as an interdisciplinary research program at the intersection of political science and economics,5 can contribute to the debate on the governance issue of how to protect individuals’ privacy in public spaces. It is argued that taking a politico-economic perspective provides valuable insights for this discussion along at least two fundamental dimensions that structure the chapter. First, political economy helps to conceptualize the object under study in this book as it offers a clear and simple definition of what is a ‘public’ or ‘private’ space. More precisely, using some well-known politicoeconomic concepts, in section 2 of this chapter it is demonstrated that a ‘public space’ is not created by nature, as it seems to be often assumed in the public debate about privacy issues; what makes a space public or private is defined by those actors that have the property rights over the particular space. Focusing on property rights is important as the specification of these rights has implications with respect to the issue of who is responsible for ensuring safety and order in the respective space (including, for instance, policing and surveillance activities). For example, some visitors to shopping malls may not like it that they are monitored by surveillance cameras (‘Be Aware: This Area is under Video Surveillance!’), and may perceive this as a privacy invasion in the ‘public sphere’. However, in many real-world contexts private companies are the owners of these malls. These private companies (i) have made their private property open to the public, and (ii) are legally authorized to monitor visitors. It is, of course, debatable whether shopping mall owners in a society should have the right to do the latter.6 Second, following similar examinations of other phenomena in the existing politico-economic literature on the proper role of government,7 in section 3 tools and insights from the toolkit of political economy are used to examine to what extent it is necessary for the state to secure individuals’ privacy in public spaces. Or, put differently, we will take a market-liberal perspective in order to analyze to what extent individuals 5 For introductions, see D.A. Wittman and B.R. Weingast (eds), The Oxford Handbook of Political Economy (Oxford University Press, 2008); E. Bueno de Mesquita, Political Economy for Public Policy (Princeton University Press, 2016). 6 J. Gilliom and T. Monahan, SuperVision: An Introduction to the Surveillance Society (University of Chicago Press, 2012). 7 For surveys, see M. Reksulak and W.F. Shughart II, ‘What Should Government Do? Problems of Social Cost, Externalities and All That’ (2012) 152 Public Choice 103; P.J. Boettke and P.T. Leeson, The Economic Role of the State (Edward Elgar Publishing, 2015).

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themselves are able to protect their privacy in public spaces. The main argument is that paternalistic, state-centered approaches to privacy protection often neglect (i) that individuals themselves can already do a lot in this respect, and (ii) that government action is no panacea; however, as we will see below, government is indispensable as the market-liberal approach has its limitations. In this analysis, we certainly have to take into account that in many contemporary societies the dangers to individuals’ privacy in public spaces may have changed compared to the ‘good old’ pre-digital age, which had no Internet, global positioning system (GPS), smartphones (i.e. mobile phones with a camera, video recorder, audio recorder, Internet access, GPS, and other stuff on board), social media, car navigation systems, and so on. Finally, section 4 draws some conclusions.

2 PRIVACY IN PUBLIC SPACES: AN ECONOMIC DEFINITION One of the fundamentals of economics is the distinction between private and public goods.8 Goods that exhibit the two criteria of (i) ‘excludability’ and (ii) ‘rivalry in consumption’ are denoted as private goods. For example, a sandwich bought by person X is a private good as (i) X is able to exclude others from consuming this sandwich, and (ii) there is rivalrous consumption in the sense that the (piece of the) sandwich eaten by person X can no longer be consumed by another person. In contrast, goods that exhibit the two criteria of (i) ‘non-excludability’ and (ii) ‘non-rivalry in consumption’ are denoted as public goods. An example of a public good is clean air. If the government, companies and other actors manage to provide clean air everywhere in a society then (i) no one in society can be excluded from consuming clean air; and (ii) there is non-rivalrous consumption in the sense that the consumption of clean air by one citizen does not reduce the availability of this good for other individuals. Using the criterion of (non-)excludability from economists’ private vs. public good distinction, public spaces can be defined as spaces that are open to the public (i.e. to everyone). A park, a forest or a lake may be a public space in the above-defined sense. In contrast, private spaces are 8 See e.g., R. Cornes and T. Sandler, The Theory of Externalities, Public Goods, and Club Goods (2nd edn, Cambridge University Press, 1996); P.A. Samuelson and W.D. Nordhaus, Economics (19th edn, McGraw-Hill Education, 2009) Ch. 2.

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spaces that are not open to everyone—where someone has the right to exclude others from entering them. Such private spaces can be observed in different contexts. For example, the owner or tenant of an apartment, house or piece of land usually has the right to exclude others from entering his private space. From an economic perspective, the owner or tenant has the private property right to use his private space, which includes the right to deny others access to this space. To avoid misunderstandings, it should be noted that under the economic theory of property rights9 the fact that someone (e.g. a person or organization) has a property right over an object, such as a piece of land, does not automatically imply that this ‘someone’ must be the owner of this object. For example, a tenant usually has several property rights over his rented apartment (including the rights of using this apartment and denying access to others) although he is not the owner of this apartment. The owner, who still has the ‘property right’ in the literal and narrowest sense, has simply sold certain parts from the bundle of property rights (e.g. the right of use and the right of controlling access) to the tenant. Such a temporary transfer of property rights is usually based on a contract (e.g. a rental agreement). Complementing the economic definition of public and private spaces developed above, it should be mentioned that private persons or organizations may use their private property rights over a certain space to make it open to the public. For example, a private space such as a pedestrian zone located in a city center and owned by a millionaire may be transformed by the holder of the private property rights into a public space. Conversely, public authorities may use their public property rights over a certain space (i.e. actually, this space is ‘public property’ owned by all citizens of the jurisdiction) to deny certain individuals access to this space for several reasons. For example, a state’s government may deny public access to a military area though this is a state-owned area (i.e. public property rights). Consequently, from the economic perspective taken here, a ‘public space’ is not created by nature once and for all times, but it is a legal construct that is usually based on a contract in which it is specified who has which property rights over the particular space. Such a specification is important as it has implications regarding the question of who is responsible for ensuring safety and order in the considered space, 9

See e.g., Y. Barzel, Economic Analysis of Property Rights (2nd edn, Cambridge University Press, 1997); E. Colombatto, The Elgar Companion to the Economics of Property Rights (Edward Elgar Publishing, 2004).

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including, for instance, policing and surveillance activities and their financing.10 Although individuals’ privacy may be attacked in different ways even if they remain in their private spaces (e.g. a private apartment, house, garden, yacht, etc.),11 in what follows we will focus on the issue of how to protect individuals’ privacy in public spaces. Anyone who often uses public spaces can easily imagine which potential threats to their privacy await them there. An individual’s privacy may be endangered in different ways if this individual moves in public spaces. It could be the case, for instance, that someone follows this person and writes down exactly which places the person has visited, which people this person has met, what this person has done at different places, and so on. While such observations are usually conducted by policemen, private detectives, secret agents or stalkers, in principle each citizen (e.g. helicopter parents, betrayed spouses and husbands) may become an observer of the movement of other citizens in the public space. To document their observations, observers may not only take notes but may also use other measures such as pictures, video or audio recording. Thanks to the technological development in the area of information and communication technology, today each user of a smartphone has the tools to photograph, film or audio-record other persons in the public space.12 Within a short space of time, the pictures, videos or audio recordings that have been made can be published on the Internet via Facebook, Twitter or other social media.13 Another interesting development in the context under investigation is the dissemination of ‘drones’. These unmanned aerial vehicles, which are purchasable by 10

E. Krahmann, ‘Security: Collective Good or Commodity?’ (2008) 14 European Journal of International Relations 379; H. Engerer, ‘Security as a Public, Private or Club Good: Some Fundamental Considerations’ (2011) 22(2) Defence and Peace Economics 135; D. Höfer and K. Mause, ‘Public Events as Public Bads’ (2015) 32 Homo Oeconomicus, Journal of Behavioral and Institutional Economics 401. 11 D.J. Solove, ‘A Taxonomy of Privacy’ (2006) 154 University of Pennsylvania Law Review 477; B.-J. Koops, B. Clayton Newell, T. Timan, I. Škorvánek, T. Chokrevski and M. Galicˇ, ‘A Typology of Privacy’ (2017) 38(2) University of Pennsylvania Journal of International Law 483. 12 N. Bilton, ‘Disruptions: shields for privacy in a smartphone world’, New York Times, 25 June 2012, B5; M. Ho Au and K.-K.R. Choo, Mobile Security and Privacy: Advances, Challenges and Future Research Directions (Elsevier, 2016). 13 D.J. Solove, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press, 2007).

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everybody in the United States, Germany, the Netherlands, and many other countries today, allow their users considerable surveillance activities.14 Compared to the pre-digital age, in today’s world, smartphones, the Internet, and other technologies have made it relatively easy for a ‘spy’ in the sense sketched above to quickly distribute the collected information on individuals’ movements in the public space to a large number of other people. Interestingly, a smartphone may not only be used to spy on other persons—it may also be the target of attacks by other persons. That is, there may be situations in which individuals who are navigating public space are not attacked physically in various ways (pictures, videos, bodily harm, sexual harassment, etc.) but are tackled digitally via an attack on their personal smartphone or another technical device (e.g. a so-called ‘smartwatch’ or a route guidance system within one’s car) that is connected to the Internet.15 In this context, the intrusion into one’s privacy, on the one hand, may mean that someone will try to get hold of another individual’s personal data stored on the device (for example, emails, address book, calendar, notes, pictures, and so on). On the other hand, an invasion of privacy may happen in the form that technical measures, such as GPS-tracking devices, are used to track someone else’s movements within the public space (visited places, phone calls, etc.). Yet, as we will see below, there are different measures to protect individuals’ privacy in public spaces.

3 PROTECTING PRIVACY IN PUBLIC SPACES: IS GOVERNMENT INEVITABLE? There is an ongoing debate among economists, political scientists and other social scientists about the proper scope of government. More specifically, starting at least with Adam Smith (1723–1790),16 there is a long tradition of politico-economic research investigating to what extent 14 R. Calo, ‘The Drone as Privacy Catalyst’ (2011) 64(December) Stanford Law Review Online 29; A Završnik (ed.), Drones and Unmanned Aerial Systems: Legal and Social Implications for Security and Surveillance (Springer, 2016); B. Custers (ed.), The Future of Drone Use: Opportunities and Threats from Ethical and Legal Perspectives (Springer, 2016). 15 Editorial Board, ‘Smartwatches and weak privacy rules’, New York Times, 16 September 2014, A26. 16 A. Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (first published 1776, Liberty Fund, 1981).

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the state should intervene in the economy and other spheres of society.17 Following similar studies on other phenomena in the politico-economic literature on the proper role of government, in what follows we will examine the governance issue of who protects individuals’ privacy in public spaces. Are individuals able to protect themselves? Or, to borrow a phrase used in the politico-economic debate, is ‘government inevitable’18 to protect individuals’ privacy in public spaces? The yardstick to measure whether government action is needed is provided by the concept of ‘market liberalism’ in the tradition of Adam Smith, Friedrich August von Hayek (1899–1992)19 and Milton Friedman (1912–2006).20 Though these thinkers belong to different schools of political economy and ‘market liberalism’, they have three important things in common. First, their view on society is based on principles such as ‘individual liberty’ and ‘individual responsibility’. Second, they acknowledge that society may not be left to markets alone, but that the state has to perform at least some tasks to make markets and society work (see below). Third, they do not start from the assumption that the so-called ‘interventionist’ and ‘paternalistic’ state is automatically responsible for solving any problem in society; government action is only necessary if private market solutions and private governance mechanisms fail. This individualistic, market-liberal view on government intervention is based on the so-called ‘subsidiarity principle’, which originates, among other sources, from Catholic social theory.21 A brief and oft-cited summary of this principle can be found in the book Principles of Economic Policy by the German economist Walter Eucken (1891–1950): The structure of society should follow a bottom-up approach. What the individuals or the groups can autonomously accomplish should be done on

17

For overviews, see Reksulak and Shughart II (n. 7); Boettke and Leeson

(n. 7). 18 See e.g., R.G. Holcombe, ‘Government: Unnecessary but Inevitable’ (2004) 8 Independent Review 325; P.T. Leeson and E.P. Stringham, ‘Is Government Inevitable? Comment on Holcombe’s Analysis’ (2005) 9 Independent Review 543. 19 F.A. Hayek, The Constitution of Liberty (University of Chicago Press, 1960). 20 M. Friedman, Capitalism and Freedom (University of Chicago Press, 1962). 21 See C. Watrin, ‘On the Political Economy of the Subsidiarity Principle’ (2003) 13 Journal des Economistes et des Etudes Humaines 275.

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their own initiative and to the best of their abilities. And the state should only intervene in those cases in which its assistance is indispensable.22

3.1 Self-Protection Measures The simplest way to protect oneself against potential attacks on privacy in public spaces would be to minimize or completely avoid moving in public spaces. Using this simple preventive measure obviously has the drawback that it imposes a major limitation of one’s personal freedom of movement. That we observe crowded public spaces such as streets, market squares and parks suggests that many individuals do not seem to be too worried about potential physical attacks on their privacy. However, there may also be individuals who would think twice before entering a certain public space. Take, for example, celebrities who always run the risk of being photographed by paparazzi, fans or other people if they are somewhere in public space. Or think of individuals who have to carefully consider whether they should participate in a political demonstration organized by a right- or left-wing political party because of the fear of having difficulties (for instance, in their job) if their participation is somehow documented (for example, via pictures or videos). Using economic terminology, we can say that people most likely have different individual preferences for privacy.23 There may be some individuals who carefully weigh the costs and benefits of visiting a certain public space out of fear of potential intrusions into their privacy. To think about the probabilities of different types of privacy intrusions occurring within different types of public spaces may be part of such an individual’s cost-benefit analysis. While some individuals may indeed make ‘rational choices’ in the economic sense (that is, calculating costs, benefits, occurrence probabilities, and so on) and act like the homo oeconomicus of traditional (micro)economics, others may be unconcerned about potential attacks on their privacy when they move in a public space. At the same time, it can be expected that people differ in their individual assessment of what is being perceived as an ‘attack’ on 22

W. Eucken, Grundsätze der Wirtschaftspolitik (Francke, 1952) 348 (author’s translation). 23 A. Acquisti, L.K. John and G. Loewenstein, ‘What is Privacy Worth?’ (2013) 42 Journal of Legal Studies 249. For a detailed treatment of ‘preferences’ as a fundamental concept of economic decision theory, see G. Kirchgässner, Homo Oeconomicus: The Economic Model of Behaviour and its Applications in Economics and other Social Sciences (Springer, 2008) Ch. 2; R.H. Frank, Microeconomics and Behavior (9th edn, McGraw Hill, 2014) Ch. 3.

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their privacy. For example, while some individuals have no problem with being photographed in the public space, others are incensed and define such incidents as an intrusion into their privacy. This brings us to the conclusion that individuals who have a strong preference for privacy have a simple measure of self-protection at their disposal: such individuals should pay close attention to how they move in what kind of public space. But being careful and demonstrating a high degree of individual responsibility does not rule out that some kind of attack on one’s privacy may still happen in the public space. However, following Hayek,24 Friedman,25 and other political economists with a liberal-individualistic perspective on society, one could argue that individuals are, to some extent, personally responsible for protecting their privacy when moving in public spaces. For example, a man who is drunk and staggers half-naked and brawling through the streets should not be too surprised if other persons (such as colleagues at work or his wife’s best friend) accidentally observe his excursion. Although one might object that what has been said above with respect to individuals’ personal responsibility is a matter of course and is common knowledge, marketliberal political economists do not tire of reminding us that the ‘call for the state’, as a response to problems occurring in society, may be understandable and legitimate—however, in the first instance, everybody should reflect on the extent to which they can do something to solve these problems. From this liberal-individualistic perspective, one may further argue that individuals with a strong preference for privacy have the opportunity to take precautions against potential privacy intrusions. For example, it is well known that celebrities often disguise themselves (sunglasses, toupee, mustache, no make-up, etc.) when moving in public spaces. Moreover, one may take safety precautions to protect oneself from violent assaults (for instance, buy pepper spray or participate in a self-defence course). That is, as noted above, one’s privacy in public spaces may not only be endangered and violated by being photographed, videoed and audiorecorded, but also by privacy intrusions in the form of physical assaults on one’s body (e.g. sexual harassment, bodily harm). This is why certain security goods are explicitly considered in this chapter as possible measures that can be used by individuals to self-protect their physical privacy when moving in public spaces. Taking precautionary measures, of course, requires a certain amount of cost in terms of time, energy and 24 25

Hayek (n. 19). Friedman (n. 20).

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money. However, someone who highly values privacy can be expected to be willing to invest some time, energy and money for the purpose of self-protection. Below, we will discuss the issue of how to deal with the possibility that individuals with a strong preference for privacy and a high willingness to pay for privacy-protection measures cannot afford such measures. For example, in many countries there is a market in which private suppliers offer security products (pepper spray, alarm pistols, and the like) and security services (such as self-defense courses or bodyguard services). Individuals who value privacy and its protection can satisfy their demand in this market. What has to be discussed, however, is what to do with individuals that lack the financial resources to buy on this market. Is it a government task to financially support this particular group of people? This question will be taken up in section 3.3. A specific problem that has been under discussion since the transition to the digital age is the question of how to protect individuals’ digital privacy on the technical devices (smartphone, etc.) that people carry around in public space. Following the liberal-individualistic perspective sketched above, in the first instance all users are personally responsible for protecting their digital privacy by taking the security measures recommended by the sellers of the technical devices (password protection, encrypted communication, anti-virus software, software updates, and so on).26 Taking the usual measures does not rule out that some kind of attack on one’s digital privacy will be successful, but it reduces the risk of becoming a victim of a cyber-attack (for instance, malware, identity theft or data theft). Put differently, if someone does not take any precautions, then they should not be too surprised when they fall victim to a cyber-attack. By the way, what could also happen is that someone might simply lose his unprotected smartphone somewhere in the public space, or may become the victim of a theft. Like in the case of physical-privacy protection mentioned above, what is debatable (see section 3.3) is whether this liberal-individualistic perspective on privacy protection neglects that there may be individuals who lack the financial or cognitive resources to use the self-protection measures offered on the market for cyber-security products and services. In any case, a simple self-protection measure for people who prefer not to be tracked via the technical devices they are carrying is to turn these devices off when moving in public spaces, or to leave these devices at 26

For an overview of privacy protecting techniques, see F. Brunton and H. Nissenbaum, Obfuscation: A User’s Guide for Privacy and Protest (MIT Press, 2015).

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home (that is, within a private space). That this simple solution may not be feasible for individuals who (think they) have to be permanently available via mobile communication devices (e.g. postmen, construction workers, nannies or other people working in public spaces) is, of course, another issue. However, it should by now be clear that individuals have various measures at their disposal to protect themselves and to reduce the risk of being attacked in their (digital) privacy when they are moving in public space. 3.2 Legal Protection: Non-Governmental Enforcement of Privacy Laws Up to this point, we have implicitly assumed that individuals move around in public space in a stateless society without formal rights and laws, and without a state that provides a legal system for individuals to enforce their rights. However, in many real-world societies there exist laws that define certain rights that protect individuals’ privacy, not only in private spaces.27 Such laws existed even in the pre-digital age. For example, Germany since 1907 has known the right to one’s own image, enacted as a response to the invention and dissemination of portable cameras.28 According to this law (and similar laws in many other countries), other people are not allowed to take a picture of someone (and print it in a newspaper, for example) without the consent of the individual being photographed. The critical point is whether an individual is able to enforce this law and the other existing laws designed to protect individuals’ privacy in private and public spaces. It may be the case, for instance, that a person is not aware that someone has (i) taken a picture of her; (ii) shot a video of her; or (iii) made an audio recording of some of her conversations. While in many cases such unnoticed documentation may remain without consequences for the observed person, there may be situations in which the documented observations may have severe consequences for this person. Suppose, for example, someone applies for a job and the recruiter finds, via a Google 27

See e.g., D.J. Solove and P.M. Schwartz, Privacy Law Fundamentals (3rd edn, IAPP, 2015); D.J. Solove and P.M. Schwartz, Information Privacy Law (5th edn, Wolters Kluwer, 2015). 28 See Law Regulating Copyright to Works of Portraiture and Photography [Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie (Kunsturheberrechtsgesetz, KunstUrhG)], enacted 9 January 1907. For more details: M. Klang, ‘Privacy, Surveillance and Identity’ in M. Klang and A. Murray (eds), Human Rights in the Digital Age (Routledge, 2005).

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search, a number of pictures showing the applicant during a certain kind of political demonstration, a binge-drinking session in a public park or some other situation, leading to the rejection of the applicant. In the first instance, a person who feels that her privacy rights have been violated by someone else may try to request that the intruder refrains from encroaching upon her privacy. In economic terminology, an intrusion into one’s privacy can be interpreted as a so-called ‘negative externality’: someone’s action (here, an attack on another person’s privacy) does have a negative effect on someone else’s utility. And from an economic perspective, negotiations between both parties involved—the attacker and the attacked—may be an internalization strategy that solves the conflict at hand.29 One may object that one does not have to be a trained economist (externalities, market failure, efficiency, and so on) to come to the obvious common-sense conclusion that in many situations negotiations are a simple way to solve everyday disputes. However, market-liberal political economists simply remind us that in many cases the mechanism of ‘private enforcement’ in the form of negotiations (possibly including a private mediator) might be less time-consuming and costly than going to court in order to enforce our rights.30 However, if, for whatever reason, the enforcement of privacy rights via negotiations does not work to settle the dispute at hand, the person who considers her privacy rights to have been violated may go to court in order to legally enforce these rights. In the politico-economic literature, this way of settling a dispute via courts is often denoted as ‘third-party enforcement’31 as both parties involved in this dispute (here, the privacy intruder and the attacked individual) could not reach an agreement via negotiations (that is, extra-judicial settlement of disputes). The legal settlement of the dispute via a lawsuit may lead to the judgment that the privacy intruder has to cease and desist from intruding into the plaintiff’s privacy. For example, someone may be sentenced to cease and desist from publishing videos and photographs of the plaintiff, including the 29 The seminal contribution discussing under which conditions a bargaining solution may work to internalize externalities is R.H. Coase, ‘The Problem of Social Cost’ (1960) 3 Journal of Law and Economics 1. 30 See e.g., P.T. Leeson, Anarchy Unbound: Why Self-Governance Works Better Than You Think (Cambridge University Press, 2014); E.P. Stringham, Private Governance: Creating Order in Economic and Social Life (Oxford University Press, 2015). 31 See e.g., D.C. North, Institutions, Institutional Change and Economic Performance (Cambridge University Press, 1990); Barzel (n. 9).

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obligation to delete already published videos and photographs. Depending on the particular case at hand, a privacy intruder may also be convicted to pay damages or be punished with a fine or even imprisonment. The punishment of privacy intruders by tangible penalties under certain conditions may have a deterrent effect on potential future privacy intruders,32 especially if the media report particular cases, leading to a public debate on the specific type of privacy intrusion addressed in the respective court’s judgment. Depending on the legal rules existing in the jurisdiction in which the court is located, it may be possible that (putative) victims themselves plead their personal case in court. In many cases, however, a victim has to go to the ‘market for legal services’33 and hire a lawyer who will try to enforce the client’s privacy rights via a lawsuit. Such a lawsuit may be time-consuming and expensive for the client. To be prepared for the possible case of getting involved in a costly lawsuit some day, as some kind of self-protection measure, individuals may go to the insurance market and buy legal expenses insurance. However, there may be citizens who have a willingness to pay for a lawyer and/or legal expenses insurance but do not have the money to buy these goods on the market. This may or may not justify some kind of government action to help individuals who cannot afford these goods—and this brings us back to the question of whether, in addition to measures of self-protection and legal protection, government action is necessary to protect individuals’ privacy in public spaces. 3.3 Is Government Action Necessary? As we have seen, to protect their privacy in public spaces individuals may use the self-protection measures presented in section 3.1. Moreover, as discussed in the previous section, in jurisdictions where privacy laws exist, individuals have the opportunity to go to court in cases where they think that someone has violated their privacy rights in some way. To avoid a costly lawsuit, a (putative) victim (in the first instance) can try to solve the dispute about the privacy intrusion via negotiations; for example, by requesting that the intruder refrains from invading his privacy in the future. As there are measures of self-protection and legal 32 G.S. Becker, ‘Crime and Punishment: An Economic Approach’ (1968) 76 Journal of Political Economy 169; B.L. Benson and P.R. Zimmerman, Handbook on the Economics of Crime (Edward Elgar Publishing, 2010). 33 S. Rosen, ‘The Market for Lawyers’ (1992) 35 Journal of Law and Economics 215.

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protection, from a politico-economic perspective there remains the question of whether there is actually a need for some government action to protect individuals’ privacy in public spaces. The preceding discussion of the mechanisms of self-protection and legal protection suggests that these mechanisms have at least two weak points that even market-liberal political economists pleading for ‘market solutions’, ‘individual liberty’ and ‘personal responsibility’ may accept as politico-economic arguments that justify government action in the context under investigation. 3.3.1 Rule of law One may argue that social norms or other informal rules create some kind of implicit consensus among society members as to which behavior constitutes an intrusion into one’s privacy—and perceived violations of these informal rules may somehow be sanctioned by the attacked persons or by their friends or relatives. Such a self-enforcement of informal ‘privacy laws’ without the state may have worked well in the Wild West and a number of other specific contexts in the past,34 and it may work today in other communities of people under certain conditions. In contrast to libertarian political economists’ thinking about the possibility of a stateless society governed by private governance mechanisms and private market transactions, however, even political economists in the tradition of Smith, Hayek or Friedman, who hold a market-liberal view on society, argue that government is indispensable for making markets and other mechanisms in society work. These authors35 and their followers, for instance, take it for granted that (a) providing a functioning legal system (rule of law, laws, courts, judges, and so on) and (b) ensuring safety and order in the public space via a police force, is a public task (that is, the government’s responsibility). Today, this implies that government is confronted with the task of permanently rethinking whether the existing set of privacy laws, data privacy laws, and the design of other elements mentioned under (a) and (b) are still up-to-date in light of the new challenges a society is confronted with (e.g. digitalization, smartphones, drones, and so on).

34 R.C. Ellickson, Order Without Law: How Neighbors Settle Disputes (Harvard University Press, 1991); D. Gambetta, The Sicilian Mafia: The Business of Private Protection (Harvard University Press, 1993); Leeson (n. 30); Stringham (n. 30). 35 Smith (n. 16); Hayek (n. 19); Friedman (n. 20).

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The usual politico-economic argument to justify the just-mentioned role of the state as a so-called ‘protective state’,36 brought forward by James M. Buchanan (1919–2013) and other constitutional economists, is that self-interested utility-maximizing individuals have understood that agreeing on a set of formal rights such as privacy rights (laid down, for instance, in their state’s constitution) that can be enforced via the judicial system, on the whole seems to be more cost-effective than living in a stateless situation resembling a ‘bellum omnium contra omnes’ (a ‘war of every man against every man’) as depicted by Thomas Hobbes (1588– 1679) in his famous book Leviathan.37 Relying solely on the selfprotection measures depicted in section 3.1 may work to protect my privacy in public spaces. However, knowing that there is a clearly defined set of privacy rights that can be legally enforced, if necessary, is expected to have (i) a calming effect on individuals with a preference for privacy; and (ii) a deterrent effect on individuals who are planning to invade another person’s privacy.38 In a democratic society where it is possible to vote a government out of office, it can be expected that, in its own best interest, a re-electionoriented government has an incentive to protect its citizen-voters’ privacy in public spaces to the greatest possible extent by caring about the infrastructure of the ‘protective state’ mentioned above (legal system, law and order, and so on). It should be clear, however, that this infrastructure most likely cannot prevent all privacy intrusions from happening in a society. But this infrastructure (including well-defined privacy rights and privacy laws) is a prerequisite that individuals are able to legally enforce their privacy rights (see section 3.2). Moreover, it should also be clear that governmental efforts to protect individuals’ privacy via the infrastructure of the ‘protective state’ do not relieve individuals from thinking about what they can do to protect their privacy in public spaces (see the self-protection measures discussed in section 3.1). 36 J.M. Buchanan, The Limits of Liberty: Between Anarchy and Leviathan (University of Chicago Press, 1975). 37 T. Hobbes, Leviathan or the Matter, Form, and Power of a Commonwealth Ecclesiastical and Civil (first published 1651, Basil Blackwell, 1960). 38 Note that it is beyond the scope of this chapter to discuss the possibility that formal privacy rights/laws may not only be enforceable via the state’s judicial system but also by private courts. For a law and economics perspective on the mechanism of ‘private enforcement of law’, see W.M. Landes and R.A. Posner, ‘The Private Enforcement of Law’ (1975) 4 Journal of Legal Studies 1; P.T. Leeson, ‘Pirates, Prisoners, and Preliterates: Anarchic Context and the Private Enforcement of Law’ (2014) 37 European Journal of Law and Economics 365.

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3.3.2 Legal aid It may be the case that there are individuals who are interested in a legal enforcement of their privacy rights via a lawsuit but cannot afford to hire a lawyer for legal services, and did not have enough money in the past to enter into a legal protection insurance contract offered on the insurance market. One may argue that this possible problem does not require government action but is a private problem that poor individuals have to cope with. The latter may, for example, ask relatives, friends, rich philanthropists, charitable organizations, creditors and other actors for money; or they may ask a lawyer to plead a case free of charge. In contrast to such a radical liberal-individualistic position, even many market-liberal political economists such as Hayek39 or Friedman40 take it for granted that those citizens who, for whatever reason (for instance, disease or disability), are not able to earn money in the labour market should get publicly-financed welfare benefit payments ensuring a minimum income needed to exist. Moreover, in the United States, Germany, the Netherlands and other countries, individuals have the opportunity to apply for so-called ‘legal aid’ (bearing (parts of) the court and lawyer fees) that is granted to needy persons if certain conditions are fulfilled.41 In other words, the principle of subsidiarity (that is, the government should help individuals who cannot help themselves) introduced at the beginning of section 3 provides a politico-economic argument to justify government action to safeguard that all society members have the opportunity to legally enforce their privacy rights if necessary. Moreover, in line with Smith, Hayek, Friedman, Buchanan and other political economists who take it for granted that there is a ‘protective state’ which, among other things, provides a functioning legal system (see section 3.3.1 above), one may argue that the government must ensure that this legal system exhibits the characteristics of a ‘public good’ in the economic sense: that is, no member of society should be excluded from using the legal system; and it has to be assured that the legal system has the capacity to serve all society members (that is, ‘non-rivalry in consumption’). In this context, we must briefly come back to another open issue identified in section 3.1 as a potential problem of the mechanism of self-protection. Is it a government task to financially support those 39

Hayek (n. 19). Friedman (n. 20). 41 For more details on the possibilities and limitations of the instrument of legal aid, see A. Flynn and J. Hodgson (eds), Access to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need (Hart Publishing, 2016). 40

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individuals who lack the financial resources to buy goods on markets for security products (such as pepper spray or alarm pistols) and security services (self-defense courses, bodyguard services, and so on)? One may argue that poor individuals who are interested in buying such goods to improve their ability to self-protect their privacy in public spaces have to find private solutions to satisfy their demand (for instance, ask other people for money or for a donation of security goods). As noted above, political economists holding a less radical liberal-individualistic position, such as Friedman or Hayek, argue that the government provides needy persons with welfare benefit payments that ensure a minimum income needed to exist. Poor individuals may use a part of these benefit payments in order to buy private security goods if deemed necessary. Today, pepper spray, alarm pistols, self-defense courses, books on the art of self-defense and other self-security products are available at reasonable prices. Poor individuals who somehow manage to get Internet access have the opportunity to gratuitously watch myriad videos containing self-defense courses. That watching online videos may result in a digital privacy intrusion is certainly another issue that will not be discussed here. Moreover, poor people possessing a smartphone or other technical devices that could be attacked in private and public spaces, today have no problem obtaining one of the myriad cyber-security products and services (such as anti-virus software) that are offered gratuitously or at low cost. In short, the aforementioned examples illustrate that even individuals who have to live on social welfare benefits in many contemporary societies should be able to satisfy their potential individual demand for private security goods. Additional government action is not needed in this regard, at least from the market-liberal perspective on society taken here.

4 CONCLUSION What lessons can be drawn from the above analysis? What can political economists contribute to the ongoing discourse on protecting privacy in public spaces? Being aware that there are schools of political economy that are more state-centered, the motivation for deliberately taking a market-liberal perspective has been that this analytical perspective pushes us to think about the problem under investigation from a different conceptual starting point than the one often used in the political and public discourse. Instead of starting to think about the problem from the

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top-down perspective of a paternalistic ‘nanny state’,42 market-liberal political economists take into account the normative principles of ‘individual liberty’, ‘personal responsibility’ and ‘subsidiarity’ (that is, government should help individuals who cannot help themselves) to examine to what extent individuals themselves are able to protect their physical and digital privacy in public spaces. As we have seen in section 3.1, individuals themselves can already do a lot in this respect. However, if someone does not invest any time, effort or money in self-protection, then they should not be too surprised if they become the victim of some kind of invasion of privacy. If the latter happens, this could (somewhat paradoxically) even have a positive side-effect: because, as in many other contexts of life, many individuals will learn from bad experiences and careless behavior. As argued above, in this context a lack of money to buy security goods on the market is not a convincing excuse, if, in line with market liberals in the tradition of Hayek and Friedman, we assume that it is a government task to provide the minimum income needed to exist for everyone who, for whatever reason, is not able to earn an income in the labor market. Moreover, it should be taken into account that nowadays (digital) security goods are readily available at reasonable prices, or even gratuitously. Attentive readers might object that such a liberal-individualistic argumentation does neglect the case that even extremely cautious individuals who have invested in the self-protection measures depicted in section 3.1 may become a victim of privacy attacks. This is true; but it is highly questionable whether government is able to secure that all society members are always and everywhere 100 percent protected from privacy intrusions in whatever form. The history of espionage and surveillance tells us that someone who wants to surveil someone else’s moves in the public space (as well as in the digital world) most likely will find a way to do so. Even people who are protected by private or governmental bodyguards 24 hours a day are not immune against privacy attacks.43 In other words, more or less painful privacy attacks resemble accidents: the probability of occurrence of such events may be reduced by various safety precautions (and government may also play a role in this context; see below). But we have to live with the risk that such events might happen. 42 For a survey of the politico-economic literature on paternalistic government, see J. Le Grand and B. New, Government Paternalism: Nanny State or Helpful Friend? (Princeton University Press, 2015). 43 See e.g., B. Torgler and B.S. Frey, ‘Politicians: Be Killed or Survive’ (2013) 156 Public Choice 357.

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If someone really becomes the victim of an invasion of privacy, so the liberal-individualistic argument continues, then this victim still has the possibility to legally enforce their privacy rights (see section 3.2). Again, even market-liberals in the tradition of Hayek or Friedman take it for granted that there is a ‘protective state’ (including rule of law, privacy rights, privacy laws, courts, legal aid, and so on). And it is also a government task to keep this ‘protective state’ working and adapt it to new societal challenges, such as cyber-attacks on smartphones or surveillance via drones.44 At this point, one may object that children and mentally ill persons may have a limited capacity to protect themselves and to use the available measures of legal protection. This is true. However, in the United States, Germany, the Netherlands, and other countries that exhibit a ‘protective state’ in the sense defined above, these and other specific subgroups of society are protected by a legal guardian (for instance, parents in charge of children). Whether these legal guardians in practice hold a protecting hand over the individuals they are in charge of is certainly an empirical question. From the market-liberal perspective taken, there is no call for more government action to enable individuals to make use of the mechanisms of ‘self-protection’ and ‘legal protection’ in order to protect their privacy in public spaces. The analytical framework developed above may be used to analyze whether real-world jurisdictions already exhibit the necessary institutions to allow individuals to protect themselves. Of course, realworld governments have the power to do more in order to try to protect their citizens than what market-liberal political economists recommend. For example, governments may mount information campaigns to make citizens aware of the threats to their privacy that loom through their mobile smartphone. However, it should be taken into account that there is already a lot of publicly available information in this regard provided by non-governmental organizations and companies that are doing business in the mobile communication industry. Many of these companies make money from users’ personal data; but profit-maximizing firms also have a strong monetary incentive not to damage their reputation through privacy breaches.45 And like in other industries, consumers may discover which companies are ‘honest traders’. 44

W. Kerber, ‘Digital Markets, Data and Privacy: Competition Law, Consumer Law and Data Protection’ (2016) 65 GRUR International 639. 45 B. Klein and K.B. Leffler, ‘The Role of Market Forces in Assuring Contractual Performance’ (1981) 89 Journal of Political Economy 615; C. Shapiro, ‘Premiums for High Quality Products as Returns to Reputations’ (1983) 98 Quarterly Journal of Economics 659.

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Furthermore, the ‘protective state’ in many countries already regulates the sellers of smartphones and apps by means of data privacy protection laws that can be legally enforced in the case of violations.46 Whether the users of the gadgets read the privacy policies they agree to (‘with your permission we get access to your location, contacts, …’) is, of course, another issue.47 And it should be clear that the ‘protective state’ most likely will not be able to protect any individual always and everywhere in public space from privacy intrusions in whatever form.48 This brings us to a final question that should not be neglected in the context under investigation: namely, the issue of whether ‘the state’ (government, police, the intelligence apparatus, and so on) intrudes ‘too much’ into individuals’ privacy in its effort to ensure safety and order in the public space. This has long been a topic of public concern in the pre-digital age,49 and this is still a hotly debated issue.50 Do citizens want to live in a society in which (for the purpose of safety and order) there is no public space left that is not controlled by the ‘protective state’ via surveillance cameras? To what extent are individuals willing to sacrifice their privacy in public spaces by allowing the state to use surveillance cameras and other security measures? Who controls that the data obtained through these measures is not abused by government (or other public and private bodies) in some way? Who guards the guardians? How can individuals who do not want to move in the public space without

46 D. Wright and P. De Hert (eds), Enforcing Privacy: Regulatory, Legal and Technological Approaches (Springer, 2016); Kerber (n. 44). 47 The potential and limits of regulation via privacy notice are discussed, e.g. in R. Calo, ‘Against Notice Skepticism in Privacy (and Elsewhere)’ (2012) 87 Notre Dame Law Review 1027; R. Balebako, C. Bravo-Lillo and L. Faith Cranor, ‘Is Notice Enough: Mitigating the Risks of Smartphone Data Sharing’ (2015) 11 I/S, A Journal of Law and Policy for the Information Society 279; D.J. Solove, ‘Privacy Self-Management and the Consent Dilemma’ (2013) 126 Harvard Law Review 1880. 48 This even applies to the state’s employees. See Torgler and Frey (n. 43). 49 D.H. Flaherty, Protecting Privacy in Surveillance Societies: The Federal Republic of Germany, Sweden, France, Canada, and the United States (University of North Carolina Press, 1992); J. Gieseke, The History of the Stasi: East Germany’s Secret Police, 1945–1990 (Berghahn Books, 2014). 50 D.J. Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale University Press, 2011); R.H. Sloan and R. Warner, ‘The Self, the Stasi, the NSA: Privacy, Knowledge, and Complicity in the Surveillance State’ (2016) 17 Minnesota Journal of Law, Science and Technology 347.

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their smartphone and other technical devices be sure that the police, the secret service or other state actors have not hacked their devices to spy on them? While this chapter focused on the issue of to what extent the state is necessary to protect citizens’ privacy in public spaces, future research should offer a deeper exploration into the no less important issue of whether there are governance mechanisms to tame the ‘protective state’ in the digital age. This leaves us with the uneasy feeling that the state, which shows much activity in the area of privacy protection (meetings of experts, policy papers, information campaigns, laws, regulations, and so on), at the same time poses a serious danger to our privacy in private and public spaces.

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5. Visually distant and virtually close: public and private spaces in the Archives de la Planète (1909–1931) and Life in a Day (2011) Julia M. Hildebrand 1 INTRODUCTION ‘Be part of history’, the promotional clip for a crowd-sourced film called out on the online video platform YouTube in 2010.1 The project, led by British director Kevin Macdonald and produced by Scott Free Productions in cooperation with YouTube and LG Electronics, wanted to motivate Internet-users around the world to record their life on July 24 in 2010 and upload the material onto the World Wide Web. The submissions were then selected and edited to become a feature-length film about life on Earth in a day. Several clips of the 4,500 hours by amateur and professional film-makers made it into the final 95-minute long version of Life in a Day, which hit the big screen at the Sundance Film Festival in 2011 and was made available on YouTube. Roughly a century before Kevin Macdonald considered creating a film about life on Earth with the help of a media-savvy international community, the French-Jewish banker and philanthropist Albert Kahn decided to ‘fix once and for all, the look, practices and modes of human activity whose fatal disappearance is just a question of time’.2 In 1909, the Archives de la Planète arose from the intention to photographically and cinematographically build a visual inventory of the Earth’s inhabited

1 ‘Life in a Day’, YouTube, 2 July 2010, http://youtu.be/XMxuocCN1O0 (accessed 1 August 2017). 2 P. Amad, Counter-Archive: Film, The Everyday, and Albert Kahn’s Archives de la Planète (Columbia University Press, 2010) 49.

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surface at the beginning of the twentieth century.3 Kahn equipped 11 camera operators with the latest technologies at the time, the true-color autochrome and the cinematograph, and sent them to various places around the globe to record everyday scenes. In his home on the outskirts of Paris, the images were gathered, creating a first-of-its-kind multimedia archive of early photography and film.4 This chapter aims to show how the films and clips within the two works stylistically, visually and metaphorically encompass constitutive spatial aspects of the respective everyday life.5 The medium expresses and defines the different culturally informed gazes that were finally collected in an analogue or digital archive.6 Like time capsules ‘where time is stored for future reference’,7 the archival artifacts will be explored regarding discernable spatial conceptions of public and private. The critical analysis of their contents and contexts reveals that Kahn’s films are mostly concerned with anonymous public life filmed from a distance, visually demarcating ‘privacy bubbles’ in predominantly outdoor public spaces. This principle is strongly contrasted in its crowd-sourced successor Life in a Day by its emphasis on individual private spheres recorded from utmost physical and psychological proximities in video-aesthetics. The clips in the latter project, thus, often place the spectator within ‘privacy bubbles’. The value of this exploration lies in its illumination of not only the culturally framed approaches to certain ‘surface phenomena’ in their respective times but also the medium’s effect on and role in the capture and formation of those visual spaces. The respective technologies—the cinematograph and the digital camera—left their footprints on the spatial perceptions the works illuminate. Through the comparison of the two cultural and historical artifacts, such differences are detected and concretized. The direct contrast of the works as methodological approach is to sharpen the analytical perspective to a potential shift in the perception, conception and production of private and 3

Cf. M.J.-B. Delamarre and J. Beausoleil, ‘Deux témoins de leur temps: Albert Kahn et Jean Brunhes’ in J. Brunhes (ed.), Autour du Monde: Regards d’un Géographe/regards de la Géographie (Musée Albert-Kahn, 1993) 91. 4 Cf. Amad (n. 2) 5. 5 The 35 mm films in the Kahn Archives are predominantly unedited nonfiction footage and mostly portray scenes from daily life. 6 The majority of the autochromes and films in the Archives has already been digitized and can be accessed in FAKIR (Fonds Albert-Kahn Informatisé pour la Recherche) at the Musée Albert-Kahn. It thus exists in analogue and digital form. 7 Amad (n. 2) 135, 154.

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public spaces. More precisely, the chapter intends to conceptualize the notion of ‘privacy bubbles’ in the context of the two projects and how they are visually maintained, created or dissolved with the diverging means of image production. Each section begins with a brief contextual analysis addressing the respective organizational framework and production of the Archives and Life in a Day. It is followed by the qualitative textual analysis of the images’ audio-visual characteristics, including their composition, e.g. camera angle, choice of frame, position towards the filmed subjects and objects, and so forth. The findings from this comparative media study will then be discussed through the theoretical lenses of particularly Marshall McLuhan and Paul Virilio. Their approaches to private and public spaces along with the ties to communication technologies are reread in how they find themselves supported in the two projects’ mediation of private and public spheres. As aforementioned, the results may give insights into contemporary cultural approaches to public and private spaces and how means of visual production may reflect and transform them. Ultimately, the chapter seeks to contextualize visual trends in the contemporary media environment and to conceptualize the presence of ‘privacy bubbles’ in public spaces from a media-historical lens.

2 MEDIATING PUBLIC AND PRIVATE SPACES Both the Archives de la Planète and Life in a Day explicitly claim to capture everyday life, i.e. the mundane acts of living. Thus, it seems fruitful to explore in which spheres the cinematographers and videographers film the respective everyday. Private and public are two major life-space categories and while it may be increasingly difficult to clearly subsume contemporary everyday spheres into either one,8 this analysis will use the dualism to describe similarities and contrasts in the selected depictions of life on Earth. Here, the term ‘private space’ refers to places that are traditionally free from public observation, intrusion and presence, and designed and intended for one’s exclusive use, such as the home. Furthermore, ‘private sphere’ encompasses personal feelings and thoughts, as in belonging to or concerning an individual person, company 8 Cf. V. Flusser, ‘Räume’ in J. Dünne and S. Günzel (eds), Raumtheorie: Grundlagentexte aus Philosophie und Kulturwissenschaft (Suhrkamp, 2006) 179; V. Flusser and R. Maltez Novaes, ‘Our Dwelling’ in S. Zielinski (ed.), PostHistory (University of Minnesota Press, 2013).

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or interest.9 As the everyday is typically defined by the repetitive, unglamorous and the ordinary,10 a visual representation of it would generally include the various social as well as personal areas in which these routines occur. The concept of ‘privacy bubbles’ then addresses how private spaces can be created and maintained in public. Christin et al. present the ‘privacy bubble’ as a space in which sharing content with strangers can occur in a controlled manner with respect to radius and duration. ‘The created privacy bubble is centered around the user and metaphorically represents his/her private sphere. The bubble sets spatio-temporal boundaries within which other users are granted access to the content created in the bubble.’11 Beer similarly utilizes the metaphor of the bubble to address the territories that mobile media and ‘cultural layers of production’ invoke.12 More specifically, ‘privacy bubbles’ can be constructed through sonic, social and physical barriers to the surrounding potentially public environment. Senses of potential discomforts, insecurities, risks and threats can be shunned out by retreating into a more familiar and homogeneous space according to Beer. This approach differs slightly from how Stalder evokes the ‘privacy bubble’. He draws on the metaphor as a problematic conception of privacy as bubble that surrounds each person, comparing the image to the notion of ‘my home is my castle’.13 The vagueness and subjectivity to the boundaries of the individual’s controlled space challenge a collective agreement on where privacy

9

‘Private’ (Merriam-Webster), available at www.merriam-webster.com/ dictionary/private (accessed 10 December 2016); ‘private’ (Random House Learner’s Dictionary of American English), available at www.wordreference. com/definition/private (accessed 17 November 2016). 10 Cf. M. Bakardjieva, ‘The Internet in Everyday Life: Exploring the Tenets and Contributions of Diverse Approaches’ in M. Consalvo and C. Ess (eds), The Handbook of Internet Studies (Blackwell Publishing, 2011) 60; E. Relph, Place and Placelessness (Pion Ltd, 1976) 131. 11 D. Christin, P. Sanchez Lopez, A. Reinhardt, A. Hollick and M. Kauer, ‘Share with Strangers: Privacy Bubbles as User-Centered Privacy Control for Mobile Content Sharing Applications’ (2013) 17 Information Security Technical Report 105, 106. 12 D. Beer, Popular Culture and New Media: The Politics of Circulation (Palgrave MacMillan, 2013) 144. 13 F. Stalder, ‘Opinion: Privacy is Not the Antidote to Surveillance’ (2002) 1(1) Surveillance and Society 120, 121.

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begins and ends, prompting Stalder to speak of a ‘bubble theory’dilemma.14 In the context of a media-saturated environment, his criticism is comprehensible when the concept of privacy is understood as a bubble. However, Christin et al.’s and Beer’s approach of the bubble as mediated private space opens up avenues for considering technologies’ role in the formation and mediation of private spaces beyond the limited conceptual framework of privacy as a bubble. ‘Shifts in film content reflect changes in audience taste preferences which are, in turn, linked to major shifts in the structure of society’, according to Kapsis.15 In this spirit, the qualitative comparison of the two film projects should give insights into how comprehensions of private and public may have changed, potentially aiding in a conceptualization of ‘privacy bubbles’. Concerning the filmic content, both the Archives and Life in a Day illustrate public and private aspects, yet with different emphasis. In Kahn’s years, the attempt to film indoor already faced several problems: First, to produce decent images, the cinematograph and the autochrome depended on sufficient lighting, which was often not given inside a building.16 Daylight outside provided the best technical conditions for photographing and filming. Secondly, even if there had been enough lighting, the camera operators may not have stepped inside a private home to film it. In contrast to narrative fiction, recording scenes of intimate home life was considered taboo in nonfiction film.17 Nevertheless, the Archives does put forth a few extraordinary examples of private scenes (particularly in non-Western contexts hinting at a specifically colonial gaze). Such technological and social restrictions seem to no longer exist when looking at the large amount of video material recorded

14 Stalder (n. 13) 122; see also A. Gorra, An Analysis of the Relationship Between Individuals’ Perceptions of Privacy and Mobile Phone Location Data: A Grounded Theory Study (DPhil thesis, Leeds Beckett University, 2007) 215. 15 R.E. Kapsis, Hitchcock: The Making of a Reputation (University of Chicago Press, 1992) 3. 16 Cf. I. Schröder, ‘Die Erde im Archiv: Das Projekt einer Humangeographie in Bildern, 1911–1931’ in I. Schröder and S. Höhler (eds), Welt-räume: Geschichte, Geographie und Globalisierung seit 1900 (Campus Verlag, 2005) 111. 17 Cf. H. Schlüpmann, ‘The Documentary Interest in Fiction’ in D. Hertogs and N. de Klerk (eds), Uncharted Territory: Essays on Early Nonfiction Film (Stichting Nederlands Filmmuseum, 1997) 35.

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in domestic and private settings, even intimate spheres, publicly displayed in Life in a Day and furthermore online.18

3 OUTSIDE ‘PRIVACY BUBBLES’ IN THE CINEMATOGRAPHIC ARCHIVES DE LA PLANÈTE Due to technical limitations and social norms, the world depicted in the Archives is predominantly in the public sphere in which ‘privacy bubbles’ are visually maintained and even constructed, as will be shown. In the context of the work, this visualized public life is then ‘privatized’ by Albert Kahn. Despite the images’ universal educational purpose, access to them was highly restricted during their collection. Some visitors like Henri Bergson were able to view the pictures, and Jean Brunhes, director of the Archives de la Planète, used some of the images for his lectures at the Collège de France.19 However, the films and autochromes were not publicly released for other reasons. Kahn and Brunhes formed a central authority over the material and prevented outsiders from viewing any visuals the director and investor did not want to be seen.20 Kahn’s home in Boulogne-Billancourt is the archive’s starting and end point and remains its resting place today. There, the majority of the collection still hasn’t completely escaped the private space, as full access to the archive is only granted to individuals for specified research- or work-related reasons. Despite the exclusiveness of the images, Kahn, possibly minding his ‘privacy bubble’ in Stalder’s sense, was particularly careful not to be captured in them.21 He is seen hiding behind his guests while an operator records a meeting in the Boulogne gardens, or pointing a disciplinary finger at one of them and then stepping out of the frame, after realizing

18

Cf. J. Broeren, ‘Digital Attractions: Reloading Early Cinema in Online Video Collections’ in P. Snickars and P. Vonderau (eds), The YouTube Reader (National Library of Sweden, 2009) 161. 19 Cf. Schröder (n. 16) 116; cf. D. Mendibil, ‘De l’influence des Archives de la Planète sur La Géographie humaine de Jean Brunhes’ in J. Brunhes (ed.), Autour du Monde: Regards d’un Géographe/regards de la Géographie (Musée Albert-Kahn, 1993) 158–9. 20 Cf. Schröder (n. 16) 116. 21 Cf. P. Amad, ‘Cinema’s “Sanctuary”: From Pre-Documentary to Documentary Film in Albert Kahn’s Archives de la Planète, 1908–1931’ (2001) 13(2) Film History 138.

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that he was filmed. These are just a few examples showing Kahn’s disapproval of being subjected to the cinematographic gaze:22 Thus, while Kahn spent his fortune developing an exhaustive photocinematographic surveillance of the daily lives of others, he spent a good part of his own daily life evading (sometimes unsuccessfully) those very same cameras. Behind the scenes of ‘Mr. K’s’ grandiose and public contribution to modernity’s exhibitionist complex there existed a deeply personal, albeit socially determined, need for invisibility apparent in the disappearing act Kahn performed before his cameras day after day.23

The only black and white picture for which he deliberately posed had to be taken for his passport.24 His rank and status as one of the richest men in Europe at the height of his success would suggest a wider public profile. Nevertheless, even within the Archives, Kahn’s appearances are brief and fleeting. They correspond with the operators’ depiction of the majority of subjects presented anonymously within groups of people and from a distance, thus seemingly respecting if not visually establishing private bodily territories. Regarding the overall content of the rushes and montages within the Archives, the ‘photo-cinematographic surveillance’ within the films that Amad addresses in the aforementioned quote was foremost directed towards public locales. It is predominantly sceneries on the streets but occasionally also at institutions like schools or at festivities that are manifested in Kahn’s oeuvre.25 Human beings are geographical surface phenomena, and in ‘a general glance over the earth’ they appear in ‘masses or groups, of varying density’, according to Brunhes.26 In crowds or groups, to see the overall ‘types’ is also how the operators portray people at the various national and international sites,27 unless they have 22

Cf. rushes: Albert Kahn reçoit le général Gouraud. Amad (n. 2) 26; cf. The Wonderful World of Albert Kahn (UK 2009, Episode 1, 00:05:00). 24 Cf. Amad (n. 2) 26. 25 Films that present schools are Paris vu 01:22:00 and the rushes: L‘école des sœurs. Clips that feature festivities are in the montages: Le couronnement, Les mariages collectifs à Plougastel, and the rushes: Défilé du 14 juillet, Fête des Aoi Matsuri, Fête du génie céleste, Fêtes de la Victoire, Fête sportive, La cérémonie d’anniversaire de l’Armistice, Le jubilé du Maharajah, and Memorial Day. 26 J. Brunhes, Human Geography (abridged edition 1910, E.F. Row (trans.), M.J.-B. Delamarre and P. Defontaines (eds), G.G. Harrap, 1952) 19. 27 Selected footage featuring crowds or groups of people besides the ones capturing festivities are the montages Paris vu 00:33:00, Le Dahomey: 00:09:56, 23

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political, military, social or religious rank.28 ‘[T]he focus upon an anonymous collective in the form of a crowd portrait reappears regularly in their [Kahn’s camera operators’] urban-oriented work’, Amad confirms.29 As previously hinted at, the cinematographic gaze rarely follows or focuses on individuals. To film human beings as ‘they live on Earth’, the camera takes a distant position as a bystander and observer. This is particularly obvious in the collection of clips in the montage Paris vu, which was produced over a span of 15 years.30 The preponderance of full shots stresses the visual focus on the architectural and geographical surrounding. The aim was to capture as much of a certain place as possible to provide orientation and an overview in the collection of world images. With this, they also suggest a respect towards the individual’s private sphere by not filming the subjects too closely. The camera rarely comes closer than with a medium shot of the person. The majority of the analyzed images are full body shots if the subjects were meant to be in the center and not only recorded as surface phenomena towards the lower half of the frame. In several scenes, the filmed crowds are too big or the space too restrictive, like on a sidewalk, to always keep a certain distance to individuals, and thus some pedestrians get closer to the camera when passing it.31 This seems to be an unintended side-effect rather than an intended close-up shot. Towards the end of Paris vu, the demonstration of several individuals in the filmic chapter ‘Enfants à Paris’ may look like an exception.32 An operator films the infant son of Kahn’s chauffeur Albert Dutertre for three consecutive years from 1919 to 1921 by placing the child on a round table in front of the camera. However, the little boy Albert Londres à Beyrouth, Indes Divines, Le célèbre pont, Limoges, rushes: Assaut des tramways, Bureau de placement, Dancing de Magic City, Journée de Pasteur, La foule au salon de l’automobile, Les Grands Magasins pendant les bombardements, Marché aux Puces, Prière à la mosquée du Vendredi, Saucisses, trophées et carte du front, Scènes dans le parc d’Hibiya, and so forth. Here, the films stand in contrast to the photographic images. As Schröder points out, Brunhes and Kahn were interested in depicting individuals or small groups of people for the autochromes. Cf. Schröder (n. 16) 112; Amad (n. 2) 46. 28 For filmic examples see the montages Regards sur l’Algérie 00:04:10, Albert Londres à Beyrouth, and rushes Arrivée et départ des aviateurs américains Smith, Wade et Nelson. 29 Amad (n. 2) 81. 30 Paris vu 00:23:00, 00:25:00, 00:31:42, 00:34:29, 00:42:44, 00:48:00, 00:51:30, 01:01:20, 01:14:50. 31 Cf. Paris vu 00:23:01, 00:30:00, 00:33:00; Regards sur l’Algérie 00:07:55, 00:10:21. 32 Paris vu 01:14:18.

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is not named, and it seems that the main purpose of the short scenes is to show the growth of the infant rather than to depict it as an individual. Again, one may argue for the visual mediation of a boundary between the cinematograph and the filmed subjects. In a montage about daily life in Dahomey, Africa, two workers also seem to be given more visual attention than others: They are introduced by their names and occupations (‘Jean Zado, pyrograveur’) in titles before the respective sequences.33 Camera operator Frédéric Gadmer, however, does not necessarily continue the suggested individuated approach of the montage and title when filming them performing their work. The focus in both scenes is clearly on the task and performance. One of the workers is filmed from behind his left shoulder while he is colouring an object. His face can hardly be discerned. Similarly, the second person is recorded with his head partly in the shadow while the rest of his body is in light. In the subsequent shot, Gadmer records only that worker’s hands modeling a sculpture, further stressing the motive for the recording to be the professional act rather than the individual agent. A respectful distance was also kept when the camera operators documented aspects of daily life apart from traffic or work. ‘Food, a dwelling, and clothing’,34 for instance, were to be likewise portrayed by the photo- and cinematographers. For a general overview of these aspects, the operators could remain outdoor and shoot the passers-by conducting their everyday activities. Even in the examples of clothing being shown in more detail, the maintenance and/or creation of subjectoriented boundaries is visible.35 In the rushes Fillettes et jeunes femmes mina, for example, African girls are standing outside in front of a building, slowly turning for the camera to give a full view of their dresses. A more ambivalent example in terms of potentially depicting if not intruding into someone’s ‘privacy bubble’ can be found in the rushes Jeune fille montrant l’ajustement des différentes pièces du costume 33 Cf. Le Dahomey 00:11:40 and 00:12:04 (‘Yessoufou Asogba, modeleur’). Generally, the Kahn operators promoted a dignified perspective on foreign workers, never showing them abject or abased, according to Schröder’s investigation. Cf. Schröder (n. 16) 114. Further examples of the depiction of work scenes recorded from a distance are Le Dahomey 00:05:49 and rushes: Culture de la canne à sucre, Culture du riz, Femmes nettoyant, La vieille ville, Pêche dans la lagune de Aguégué, Pêcheur, and Scène de crémation. 34 Brunhes (n. 26) 32. 35 For a depiction of Japanese clothing in 1909, for instance, see the rushes: Sortie d’école; for Parisian winter clothing in 1927 see Vague de froid. For traditional Japanese dance dresses see Danses à Kagonei; for Cambodian costumes see Danses au Palais royal.

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tonkinois by Léon Busy from assumedly 1921. Recorded outside probably due to the improved lighting conditions, a seemingly Asian woman displays the different pieces of her traditional costume by completely undressing and dressing herself again. As a ‘striking anomaly in the Kahn Archive’,36 Busy briefly films nudity. However, he adjusts the lens, so that the scene is blurred and details about the woman and her body cannot be made out: Even though the film is formally dominated by the out-of-focus surface, what it clearly brings into focus is a self-consciousness regarding the pornographic potentialities of the scientific ethnographic gaze … The film blatantly combines intention for respect and distance (hallmarks of the policy of association) with an unavoidable voyeuristic aspect that is in fact heightened rather than negated by the bashful curtaining effect.37

The problematic voyeuristic and underlying Orientalism aside,38 the sequence shows the different layers of this local dress and how they are taken off and put on. As Amad points out, the out-of-focus shot establishes a distance and, thus, suggests an attempt to visually protect the subject’s sanctity towards future viewers of the film. Assumedly, Busy did not ask the woman to undress in public despite the images being taken outdoor. The woman stands in a corner, a white wall behind and beside her. No other people can be seen in the clip. With their particular polyvalent character, the rushes need to be regarded as the aforementioned exception in the Archives. Nevertheless, they still promote the approach of physical distance towards anonymous subjects. Moreover, the blurring of the images implies the cinematographic formation of a ‘privacy bubble’ for the female subject. In contrast to work, traffic and clothing, details of how people perform daily rituals are not necessarily part of public life, particularly in Western contexts. The representation of more private scenarios such as bathing or washing in the films foremost from Africa and Asia rather than Europe indicates that the operators portrayed them when they could remain in the public sphere.39 Children are bathing in a river in Cochinchina and in the Grand Lake at Hanoi, young women are showering beside a fountain in Phnom Penh, and several men are washing themselves in the Ganges in 36

Amad (n. 2) 284. Ibid. 38 E. Said, Orientalism (Pantheon Books, 1978). 39 Cf. montages: Le Dahomey, Regards sur l’Algérie 00:02:17, and rushes: La vieille ville, Le quai et la lagune, Scènes de rue Saigon, and Sfax. 37

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India.40 In the majority of these clips filmed from a distance, the subjects are partially or fully dressed. Although the personal cleaning may belong to the private sphere elsewhere, the procedure seems to be openly visible here. The presence of the operator or cinematographic gaze (if recognized as such by the portrayed subjects) does not appear to disturb a private ritual or territory. By keeping a certain space between themselves and the seemingly daily routines, the operators mediate an intention not to be intrusive but respect the personal environment of the recorded children, women and men. An interesting example of a private within a public space in one of the Kahn films is concerned with a public toilet, a vespasienne, next to a street in Paris.41 Men are entering and leaving the cylinder-shaped partially open complex while the operator records this ‘traffic’ from the opposite side of the road. According to Amad, this sequence: might be read as a cinematic version of the classificatory obsession intent on filing away every corner and human type of the capital’s architectural and social body since the mid-nineteenth century; or a social reform document intended to praise these relatively new monuments to modern public hygiene; or a particularly striking example of the mode of disclosed witnessing pervasive in early cinema.42

Regardless of the specific intention behind the recording, the cinematographer does not get any closer than necessary to give an impression of this sanitary installation and takes into account that the full shot of this private yet public place is repeatedly blocked by passing pedestrians and vehicles. An even less concealed private act is witnessed by camera operator Stéphane Passet in Mongolia: a few monks carry out their bodily functions on the open street, covering their doing only with their long coats.43 Several other locals pass by seemingly inattentive to or unimpressed by these activities. In this example of Mongolian life, the scenario does not appear out-of-the-ordinary for the depicted subjects. In this context, the intimate task, therefore, may be categorized as part of public life. Passet maintains the visual style of the Archives by unobtrusively recording the activities from a distance. Some of the camera operators, such as Lucien Le Saint, also directed the cinematographic gaze to originally intimate situations, which are 40 Rushes: Le Grand Lac, Culture du riz, Vie quotidienne, and Ablutions dans le Gange. 41 Cf. Paris vu 00:08:45. 42 Amad (n. 2) 113. 43 Cf. The Wonderful World of Albert Kahn (UK 2009, Episode 2, 00:39:42).

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brought into the light assumedly just to be filmed. In Beirut in 1919, Le Saint records several French and Lebanese soldiers and local prostitutes in front of what seems to be a brothel.44 This footage, representative of other clips about maisons closes, is a delicate and peculiar example of potentially private scenarios in public life. Several men, some in uniform, and several women appear in a sequence of obviously staged shots taken in front of a small building and alley. As the women playfully pose for the camera some of the soldiers occasionally hold their hands, kiss their cheeks and lips, and touch or grab their breasts and thighs. Still smiling and looking directly at the camera, the respective women seemingly try to avoid their gestures while several bystanders, among them children, passively observe the scenes. The women and men in the visual center of attention seem to be fully aware of the filming process. To be recorded, the men and women are stepping or are being asked to step outside the private sphere of the brothel. Yet, the intimate and sexual gestures which belong inside that private setting continue outside. It is questionable whether such gestures would also occur without the presence of the camera for which they partially seem to be performed. In this respect, the Archives may provide a view onto a ‘private space’. Nevertheless, the brothel and prostitutes fall under a special category, as a certain intimacy with the soldiers is inherent to their profession. Furthermore, the operator did not enter the intimate sphere of the brothel to capture such events but records them in the open—likely because of the lighting conditions. The events take place outside, and, more importantly, in public, as can be inferred from the presence of the seemingly random bystanders. It remains unclear whether the soldiers and women performed some of the gestures because they were asked to do so by the operator or, in the soldiers’ case, because they wanted to show their liberty and confidence to act them out. The prostitutes give the impression of somewhat enjoying the cinematographic attention, judging from their poses, gestures and smiles.45 Although they may not be comfortable with the soldiers’ approaches, they appear to partially endure them for the camera. In a film by Camille Sauvageot from 1920 of the Casablanca prostitution quarter, young women even ‘cheekily flash their breasts’ at the camera.46 The prostitutes’ and soldiers’ intimate performances belong to an extraordinary category in the Kahn Archives. While the visual style of 44

Rushes: Maisons closes. For Amad’s analysis of the footage see (n. 2) 279,

285. 45

Cf. also The Wonderful World of Albert Kahn (UK 2009, Episode 7, 00:09:00). 46 Amad (n. 2) 285.

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recording from a certain distance is maintained, it is difficult to speak of visual maintenance or construction of the subjects’ ‘privacy bubbles’ in these rare examples. Apart from actions staged outside seemingly in public, the Archives also contains a few examples of films which are recorded inside a building.47 The majority of these clips are in the context of public political, social or religious events like the ‘Congrès de la chirurgie’ held in the amphitheater of the School of Medicine in Paris in 1923; the ‘Ouverture du congrès de l’American Legion’ at the Trocadéro in Paris; or the dancing in Magic City, a popular Parisian dance hall.48 Similarly special circumstances are true for rare images taken inside of Albert Kahn’s home in Boulogne and Cap Martin. Parts of the building in Cap Martin are recorded, for example, during a visit of the Japanese Prince and Princess Kitashirakawa.49 In the images, Kahn—filmed only from behind and then purposefully left out of the frame—entertains the guests in a room adjourning the terrace. A few details about the room can be detected in the background, yet the focus is clearly on the table and the Japanese visitors. Presumably with Kahn’s permission, the operator is mainly capturing an extraordinary social gathering at the property and less providing information about Kahn’s private domestic space or himself. Despite revealing more than usual in the Archives, the choice of frame still visually mediates a ‘privacy bubble’ bringing together both notions of privacy as bubble and the mediated bubble as private space.

4 INSIDE ‘PRIVACY BUBBLES’ IN THE VIDEOGRAPHIC LIFE IN A DAY In contrast to the privatization of public spaces by an individual, Macdonald induced a collective publication of private spaces. Anyone could participate and, with a minimum of equipment and knowledge, 47 15 clips are tagged with ‘Vue intérieure’ in the FAKIR system. Some examples of the results are the montages: Signature du rapport du comité des Experts, rushes: 1er convoi and Ouverture de la conférence Franco-Soviétique. Untagged files with scenes from inside include: Funérailles du prince Kitashirakawa. They, too, fall under the category of official or ceremonial indoor views. 48 Rushes: Congrès de la chirurgie, Cérémonie en l‘honneur de Foch, Cérémonie à la mémoire des officiers généraux morts, Cérémonie à la mémoire des morts, Ouverture du congrès de l‘American Legion, and montages: Dancing de Magic City. 49 Cf. rushes: Le prince et la princesse Kitashirakawa.

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produce moving images for Life in a Day, which were then made freely accessible on YouTube. While Kahn established the Archives particularly for future generations and restricted the release of the pieces during his time, the team behind Life in a Day stressed the quick production of the film for it to premiere only half a year later and be publicly available after. The director having been interested in personal even private perspectives and content for the film becomes clear in a promotional video, in which Macdonald suggests several clip topics: It could be something that to you seems really banal, maybe your journey to work, washing your baby at bath time, going to the hospital to visit a friend, your birthday, going for a walk in the countryside. Or it could be something much more meaningful to you, much more emotional. They are knocking down the building next to where you live that you’ve always loved, the death of a friend. It’s a little snapshot of your life.50

Thus, the principal director highlights the subjective view and depiction of individual stories. He went further and asked participants to reveal their feelings on topics such as love and fear and to display what personal items they carry with them. Intended as a common frame in which the clips could be organized in the final film, Macdonald’s suggestions of what to cover clearly promoted a personalized approach to the public project. Producer Ridley Scott sums it up: ‘It should be personal, and it must be personal. That is what we are looking for’.51 The subjectivity and self-representation, which Kahn and Brunhes intended to forego in their work, was highly emphasized in its conceptual successor. Indeed, many participants do address deeply personal things, audiovisually inviting a potentially worldwide audience into their respective ‘privacy bubbles’. Life in a Day provides numerous insights into private spaces of the filming or filmed subjects: myriad videos are taken from the inside of homes revealing in what conditions the participants may live. The family house of an Afghan reporter and the crammed apartment of a Japanese father are two examples. Scenes in the living room, bedroom and even bathroom are frequent and entail the private, sometimes intimate narratives connected to them.52 The video of the Japanese father, for instance, discloses him to be a widower: He and his son light 50

‘Kevin Macdonald on Life in a Day’, YouTube, 1 July 2010, www.youtube.com/watch?v=C_4uii96xqM (accessed 1 August 2017). 51 ‘Ridley Scott on Life in a Day’, YouTube, 6 July 2010, http://www.you tube.com/watch?v=kGYACultjCY (accessed 1 August 2017). 52 Cf. Life in a Day (USA/UK 2011, 00:01:59, 00:04:34, 00:08:42, 00:10:41, 00:12:21, 00:21:13, etc.).

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a joss stick in front of a picture of the wife. ‘Say good morning to Mum’, the man tells the young boy.53 Thus, the clips not only reflect the living situation of the two but also signal the loss of a family member. A montage concerned with morning procedures shows people brushing their teeth, shaving and using the toilet. The latter shots are mostly close-ups of the feet in front of the toilet bowl or a first-person perspective towards it. The individuals cannot be recognized during the intimate acts. However, one scene presents a woman sitting on the toilet and brushing her teeth in a full body shot. Such a close depiction of a clearly recognizable individual in a private scenario may have likely broken a taboo in Kahn’s context where visual distance is the guiding principle. In Life in a Day, contributors were able to transgress these boundaries and actively draw in viewers into their own and others’ ‘privacy bubbles’. The selected videos of a family called Liginski not only provide insights into their domestic life but also to the mother’s health condition and the family’s emotions after her double mastectomy. Apart from the stitches and scars on the mother’s bare back, the young son’s distress and husband’s fear of losing his wife are shown or expressed.54 The images open up the physical and emotional ‘privacy bubble’ of the family members. The boy starts to cry when his mom wants to discuss his anxiety, and shouts ‘stop videotaping’ at his dad. He obviously feels disturbed by the camera. The father, nevertheless, keeps recording and points out that this family project is supposed to be a ‘happy film’. In an interview, Macdonald reveals that the Liginskis were the only contributors whom he contacted during post-production. He felt the footage ‘was a little invasive’ and he wanted ‘to check that they felt good about it’ being in the final cut.55 This statement underlines their videos touching a number of highly sensitive points, including the son’s clear objection to the filming process. While empowering a selected number of contributors with visibility on a world-wide stage, Life in a Day also enables an anonymous mass of viewers to enter personal territories. Other visual examples of the audience entering the home and to some extent the private life are a young woman preparing for her Skype date with her 53

Life in a Day (USA/UK 2011, 00:11:09). Cf. Life in a Day (USA/UK 2011, 01:16:94). 55 Macdonald, quoted in N. Metz, ‘The new doc “Life in a Day,” starring Chicago’, Chicago Tribune, 29 July 2011, available at http://articles. chicagotribune.com/2011-07-29/entertainment/ct-mov-0729-chicago-closeup-201 10729_1_user-generated-documentary-kevin-macdonald-kevin-macdonald/2 (accessed 16 November 2016). 54

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soldier husband, and a young man named David coming out to his grandmother (and all prospective viewers of the film unaware of his homosexual orientation) over the phone while lying on his couch.56 In these transgressive performances, the audience becomes part of sensitive events and situations in these people’s lives. After the Skype conversation with her husband, the young woman starts to cry, presenting her emotional state, which without the recording would have remained hidden to the public and maybe to her husband. Additionally, the questions posed by the director prompt personal video responses by the contributors. Particularly some of the answers to what people fear reveal emotional insights into many participants’ private life.57 Apart from ‘monster, ghosts, witches’ or ‘zombies’ that filmed children list, violence, death and loneliness belong to the general worries that are repeatedly mentioned. Others are more specific like a woman indicating her discomfort with her body: she is recorded in her underwear in front of a bedroom closet stating, ‘This is me. This is what I am afraid of’.58 Her clip is another example of the public being allowed access to a formerly private bodily territory or bubble in contrast to the Archives. It is not only the domestic setting but physical and emotional details that are openly displayed. A Spanish-speaking woman explains that she does not have children and is anxious about never being called ‘Mama’. Another fears her husband leaving her. In tears, a person confesses that she is so afraid of loss that she finds it hard to ‘really connect with someone’.59 By filming her face in a close-up, she seems to try to visually ‘connect’ with the spectator. While the Kahn operators keep and produce distances to their subjects, such additional audio-visual space is frequently neglected in Life in a Day. Almost all the aforementioned speakers and numerous other participants present themselves with a frontal close-up.60 Thus, they can be clearly identified in their videos. This kind of self-display rules out anonymity and exposes their vulnerability. Physical closeness and psychological intimacy with the audience are intensified with the images’ shot style and content, which Messaris

56

Cf. Life in a Day (USA/UK 2011, 00:58:14). Cf. Life in a Day (USA/UK 2011, 01:16:49–01:19:48). 58 Life in a Day (USA/UK 2011, 01:18:45). 59 Life in a Day (USA/UK 2011, 01:19:14). 60 Cf. Life in a Day (USA/UK 2011, 00:07:01, 00:38:00, 01:07:10, 01:18:33, 01:19:14, 01:30:22, etc.). 57

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terms the ‘paraproxemic principle’.61 The videos thus audio-visually mediate the inclusion of the camera and spectator within potential ‘privacy bubbles’. Similarly, one may argue that the concept of privacy as bubble has become redundant and audio-visually dissolved. Some participants also willingly share personal feelings outside the context of the sensitive questions. When doing so, many again audiovisually invite the prospective viewers into their lives and insinuate a virtual contact. Commentary and a direct addressing of the audience, for instance, are the stylistic methods for this impression besides the close-up images. In one of the earliest clips, while a baby is wailing in the background, a man tells the camera: So this is a night in the life of S. Gray, man. You know what I’m saying? Sleeping on the couch, with nobody. Grinding my ass off every day. Shorties not enjoying their mother. Man not enjoying his wife, his woman—his lady. Just bullshit, man.62

In three close-up shots of his face, he deplores issues in his immediate familial environment. Similarly, in some footage about a man called Kenneth Fletcher, his housemate Randy explains by directly speaking to the recording device that he was ‘a terrible drug addict’ and that thankfully Kenneth took care of him. However, Kenneth has ‘lost everything’, which causes him to move away. When filmed by Randy, Kenneth introduces himself as ‘loser’ and ‘destitutional being’, seemingly confirming his financial difficulties.63 All of these examples refer to personal and sensitive matters in the individual, identifiable lives. The speakers are unafraid of disclosing, even describing psychological, physical or, as in the last case, financial problems. By looking and speaking directly to the camera the participants appear to address the viewer and thus establish a unidirectional virtual contact to an audience within what may be understood as their privacy bubble. Christopher from Chicago goes further in terms of involving potential spectators, when he has them follow his attempt to win the heart of a young woman named Emily. Before, during and after a date with her, he informs the prospective audience about his approach and, lastly, its failure: So here’s the deal. I asked her if she wanted to go on a romantic date with me sometime, and she says, ‘No’. Just … just ‘no’. That’s really all she said. Just 61 P. Messaris, Visual Literacy: Image, Mind, and Reality (Westview Press, 1994) 33. 62 Life in a Day (USA/UK 2011, 00:06:54). 63 Life in a Day (USA/UK 2011, 00:32:24).

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‘no’. She didn’t want any of that. Ever, possibly never ever. And so uh … actually I said, ‘What about the possibility of a possibility?’ And she said … she said, ‘No’ to that. No possibility. None.64

With this description of her reaction and a brief visual introduction of her, the young man not only willingly reveals his personal feelings for Emily to the audience but also discloses information about her. Moreover, since he asks his mother for advice before going out and records their telephone conversation on speakerphone, his mother and her ideas are also ultimately placed on this potentially worldwide stage. In line with Christopher’s approach, a woman asks, ‘Everyone can you hear me loud and clear?’ while waking up her adolescent son in his messy bedroom.65 When the teenager drags himself out of bed to the hallway, she follows him with the camera in her hand and ironically adds, speaking of him in the third-person: ‘He is always a bundle of joy when he wakes up’. The initial question and commentary simulate a one-sided virtual dialogue with the viewer. Again, the above-mentioned speakers audio-visually invite the spectators into their personal worlds. This reaching out is accentuated by Christopher when he salutes the prospective audience (‘Hello Life in a Day’66). Okhwan, a Korean cyclist, furthermore, greets viewers in five languages (‘Good morning everyone. Bonjour. Buenos dias. Namaste. Salam Alaikum’67), which suggests him to be aware of the experiment’s scope and underlines his intention to reach out internationally. Overall, the representation and self-representation of individuals, their personal stories and subjective perspectives, are clearly the focus of Life in a Day. The reappearances of certain characters, like Okhwan and the Liginskis, as well as the increased screen time for the Japanese family and other individuals, underscore the director’s intention of giving the film several recognizable faces. Thus, by the choice of clips, Macdonald confirms the project’s interest in the private subject as opposed to mere types of people and foremost geographical objects in the Archives. This strategy is also evident in the visual style of other sequences. In contrast to the stationary panoramic shots and overview-layout in the Kahn films, a number of clips in Life in a Day are recorded from a limited, active, first-person perspective: two hands holding each other, feet walking on the street, a hand catching a fly and carrying it to the door, for instance, 64

Life Life Life Life

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are all filmed from the agents’ optical angles.68 This style stresses the depiction of the world from a subjective point of view. Moreover, this visual choice suggests the camera and audience to be within mediated ‘privacy bubbles’ of the depicted subjects. The approach promotes the viewer’s involvement not only with the characters that are presented in more detail but also with the visually traceable actions of the predominantly anonymous film-makers. The final video close-up of a girl named Betsy and the metaphorical epilogue of the film accentuate the importance of the individual’s perspective and involvement in the global context of the 2010 project even more. Betsy hopes to not ‘cease to exist’ and wants to be ‘interesting enough to know anything about’. Finally, she does become ‘part of history’ within this time capsule as the protagonist in one of the final clips. Although, according to her, nothing special happened to her personally, she ‘feels’ as if ‘something great happened’ that day. While wishing to play a role in the world, she understands herself as part of something larger. Okhwan, too, says: ‘When I close my eyes, I can see all different people in the world. From town to town, from country to country. I can feel it, I can touch it, I can see it’.69 Both contributors highlight the virtual sensation of connectedness they experience. Okhwan even expresses his closeness to ‘all different people in the world’ by being able to visualize, even sense them. Okhwan’s verbal statement corresponds with the overall affordance of Life in a Day, namely to virtually see and feel (with) different people in the world by getting insights into their personal, even intimate stories on this day. The epilogue, in which a snail eats a piece of paper stating ‘mind your own business’, punctuates what many videos in Life in a Day insinuate. The viewer was invited to numerous private spaces of the selected international participants. Finally, the epilogue seems to indicate that the audience should generally not only mind its own but the world’s business. Film editor Joe Walker summarizes this notion of Life in a Day thus: There’s something very intimate about glimpsing all of those personal things, even if it’s just a girl’s back, sitting in a field, there’s something wonderfully

68

Cf. Life in a Day (USA/UK 2011, 00:53:33, 01:04:29–01:05:05, 00:30:28). 69 Life in a Day (USA/UK 2011, 01:25:20).

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intense and human about seeing all these people, almost as if there’s one soul in many, many different bodies.70

5 DISCUSSION The exploration of the two works regarding the respective mediation of public and private spaces discloses a privatization of mostly public content in Kahn’s, and the publication of traditionally private content in Macdonald’s project. Generally speaking, Kahn’s films are driven by a deep interest in the unknown geographical object, while Life in a Day focuses on a familiar physical and psychological subject. To capture everyday life on Earth for the Archives de la Planète, the operators remained distant observers, especially when filming private activities and rituals. The vast majority of children, women and men depicted in the films remain anonymous or are only mentioned in connection with a certain status or occupation. It is the geographical human being in ‘masses or groups’ or ‘faceless collectives’71 in the public sphere of the early twentieth century that the Archives predominantly demonstrates. ‘The era of the crowds’, which Le Bon announces in his classic The Crowd from 1897, finds its visual expression in the Kahn Archives.72 These visual strategies mediate respect towards ‘privacy bubbles’ around the depicted individual subjects. Regardless of the subject’s perception of such personal boundaries, the operators visually establish such a territory from the outside as a common frame with which to ethnographically approach the familiar and foreign everyday scenes. Thus, Christin et al.’s and Beer’s notion of ‘privacy bubbles’ as personal space afforded by communication technologies is applicable in the sense that such boundaries are established from the external gaze in respect of privacy as something akin to a spatial bubble. In contrast, such boundaries appear to be dissolved in Life in a Day with the cameras seemingly recording from within the former ‘privacy bubbles’. Identifiable individuals and their personal stories presented and narrated from up-close are the signature of Life in a Day’s moving 70 Walker quoted in K. Fong, ‘Military Couple’s Virtual Date Highlighted in Feature Film, Life in a Day’, On Patrol Magazine, 16 August 2011, available at http://usoonpatrol.org/archives/2011/08/16/military-couples-virtual-date (accessed 10 December 2016). 71 Amad (n. 2) 188. 72 G. Le Bon, The Crowd: A Study of the Popular Mind (T.F. Unwin, 1897) 8.

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images. Insights into the subjects’ physical and emotional state are openly encouraged by the producers and willingly given to the prospective audience. Diverging dramatically from the depiction of anonymous masses of people and public places in the Archives, the production and publication of the intimate glimpses of life demand and promote greater involvement in the individual’s and the world’s everyday business. Many contributors of Life in a Day clearly invite potential spectators into their personal territories with the help of the simplified production affordances of contemporary video cameras. These findings are exemplary for how the boundaries between interior and exterior as well as private and public have shifted. In 1964, McLuhan already points out, ‘everybody in the world has to live in the utmost proximity created by our electric involvement in one another’s lives’.73 Life in a Day is visualizing this ‘utmost proximity’ in videographic style and content. In addition, the scholar’s metaphor of the twentieth century being the age ‘of the psychiatrist’s couch’74 in contrast to the editorial chair of the nineteenth century finds visual appropriations in the many personal revelations, some literally on the couch. McLuhan’s argument aligns with the rise of a confessional mode which Furedi terms ‘therapy culture’.75 ‘Emotionality, vulnerability, corporeality, and personal flaws’ become central in the display and surveillance of what Ball terms ‘interiority’.76 ‘We are suddenly eager to have things and people declare their beings totally’, states McLuhan.77 Macdonald’s and Scott’s call for subjective submissions correspond with these observations. Many contributors followed the call in YouTube’s tradition to ‘broadcast yourself’. The elitist surveillance, which Kahn directed towards many French colonies to get more familiar with ‘the other’,78 shifted towards a common self-surveillance in the context of Life in a Day’s simplified digital video production. In this sense, the Archives presents certain principles of Bentham’s Panopticon: It affords (a) total transparency of peripheral cells as exemplified in rushes from French colonies; (b) fundamental inequality with Kahn, Brunhes, and their operators being 73 M. McLuhan, Understanding Media: The Extensions of Man (Routledge, 1964) 39. 74 Ibid. 5. 75 F. Furedi, Therapy Culture: Creating Vulnerability in an Uncertain Age (Routledge, 2004) 17; cf. also K. Ball, ‘Exposure’ (2009) 12(5) Information, Communication and Society 639, 650. 76 Ibid. 643, 646. 77 McLuhan (n. 73) 6. 78 Cf. Amad (n. 2) 26, 151–2.

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the only ones with access to images; and (c) isolation of the filmed subjects as most of them could not communicate with each other.79 The element of discipline, in its original sense, is missing in the Archives but surfaces partially in the aforementioned performances staged and repeated for the camera. In contrast, Life in a Day’s strategy appears to lie closer to a later evolution of the Panopticon: the Synopticon. This diagram enables the many to watch the few as seen in mass media.80 It is this pattern, differing from a ‘sousveillance society’ in Ganascia’s terms, that promotes visibility as desirable.81 Although Life in a Day was still orchestrated by a central authority, which selected the clips to appear in the final feature film, the filmmakers behind the camera and the self-presented contributors alike chose to be part of the international project, freely showing their vistas and views. In the ‘best moments of the film’, Sternbergh recognizes ‘not a global craving for exposure but a surprising universal willingness to allow ourselves to be exposed’.82 In 1998 already, and with regard to the Internet in general, Virilio recognizes that some ‘Internet enthusiasts are even happy to live their lives on screen’.83 In the digital age, informational data has turned into an accepted currency of social status: More than anything, they [contemporaries] fear anonymity and want to be distinguished from others. Attracting attention is in itself considered important and is worth sacrificing privacy for. More and more we agree to provide access to our intimacy.84

Koskela describes these acts of counter-surveillance as ‘empowering exhibitionism’ liberating from shame and the need to hide.85 In many instances, the crowd-sourced montage of personal images and narratives

79 J.-G. Ganascia, ‘The Generalized Sousveillance Society’ (2010) 49(3) Social Science Information 489. 80 Cf. T. Mathiesen, ‘The Viewer Society: Michel Foucault’s “Panopticon” Revisited’ (1997) 1(2) Theoretical Criminology 215. 81 Cf. D. Lyon, Surveillance Studies: An Overview (Polity Press, 2007). 82 A. Sternbergh, ‘Around the world in one day’, New York Times, 22 July 2011, available at www.nytimes.com/2011/07/24/magazine/around-the-world-inone-day-on-youtube.html (accessed 1 August 2013). 83 P. Virilio, The Information Bomb (first published 1998, C. Turner (trans.), Verso, 2005) 16. 84 Ganascia (n. 79) 492. 85 H. Koskela, ‘Webcams, TV Shows and Mobile Phones: Empowering Exhibitionism’ (2004) 2(2/3) Surveillance and Society 199.

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present such active subject positions. The overall surveillance dispositif 86 of the crowdsourced project, however, remains problematic as the producers explicitly solicited intimate content (‘it must be personal’), possibly making it a criterion for being in the film. Ultimately, this project does not only raise questions with regard to empowerment and exposure which seems to go hand and hand in Life in a Day, but also exploitation in light of the free, aspirational labour that the contributors provided. Taking these observations into account, it becomes questionable whether a traditional differentiation between public and private is still useful in the context of contemporary spaces.87 While relevant and applicable in the exploration of less technology-saturated times and spaces, the notion of ‘privacy bubbles’ today may mask the porousness, elasticity and fluidity of what is private and public. Spatial boundaries of interpersonal relationships seem to have shifted, as Life in a Day’s metaphorical epilogue implies. Whether the end of the film is really asking us to mind the personal lives of others is open to discussion. In any case, Macdonald’s film does present a ‘community of emotion’, if not an audio-visual ‘synchronization of emotions’.88 The relevance of affectivity increases next to the ‘seamless connectivity, ubiquity, and mobility’ in the wireless social networking era.89 The more you reveal yourself, the stronger is your connection to others, Münker points out.90 Eventually, the community of emotion replaces the social classes of shared interests from the industrial age, claims Virilio.91 This transition is expressed in the content and context of the two visual works: in the depiction of crowds or groups of people that pursue similar activities, like 86 With no single equivalent in English, the term ‘dispositif’ can denote ‘socio-technical system’, ‘device’, ‘network’, ‘mechanism’ or ‘social apparatus’. M. Foucault, ‘The Confession of the Flesh’ in C. Gordon (ed.), Power/ Knowledge: Selected Interviews and Other Writings (Pantheon, 1980). 87 Cf. Flusser (n. 8) 280, 283; J. van den Hoven, ‘Information Technology, Privacy, and the Protection of Personal Data’ in J. van den Hoven and J. Weckert (eds), Information Technology and Moral Philosophy (Cambridge University Press, 2008) 302 ff. 88 P. Virilio, The Futurism of the Instant: Stop-Eject (J. Rose (trans.), Polity, 2010) 62. 89 R. Grusin, ‘YouTube at the End of New Media’ in P. Snickars and P. Vonderau (eds), The YouTube Reader (National Library of Sweden, 2009) 65. 90 Cf. S. Münker, Emergenz der Digitalen Öffentlichkeiten: Die Sozialen Medien im Web 2.0 (Suhrkamp, 2009) 76–7. 91 Cf. Virilio (n. 88) 62.

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walking on the street, in the Kahn Archives and the individuals that share comparable personal worries in Life in a Day. The 2010 time capsule also exhibits the contributors’ awareness of being part of an international project and some of the subjects’ sensation of presenting before and belonging to a greater community. It is the Internet, as vital platform for the production of the project, that promotes this feeling of involvement in particular.92 In 1995, Virilio already acknowledges that: Cyberspace is a new form of perspective. It does not coincide with the audio-visual perspective which we already know. It is a fully new perspective, free of any previous reference: it is a tactile perspective. To see at a distance, to hear at a distance: that was the essence of the audio-visual perspective of old. But to reach at a distance, to feel at a distance, that amounts to shifting the perspective towards a domain it did not yet encompass: that of contact, of contact-at-a-distance: tele-contact.93

It may be this ‘tele-contact’ that Betsy and Okhwan, ‘feeling’ connected to an international community, and the many other contributors getting close to the camera and emotionally opening up former ‘privacy bubbles’ verbally and visually underscore. The contrast between the Archives and Life in a Day suggests a change from visually distant and detached to virtually close possibly tactile views of life on Earth.

6 CONCLUSION All boundaries are now shifting. This shifting becomes manifest everywhere: in the city, of course, but also in all the technologies that define the space of the city: the railroad, newspapers, photography, electricity, advertisements, reinforced concrete, glass and steel architecture, the telephone, film, radio, … war. Each can be understood as a mechanism that disrupts the older boundaries between inside and outside, public and private, night and day, depth and surface, here and there, street and interior, and so on. Today, the boundaries that define space are first and foremost an effect of the media.94 92 Cf. S. Turkle, Alone Together: Why We Expect More from Technology and Less from Each Other (Basic Books, 2011) 290. 93 P. Virilio, ‘Speed and Information: Cyberspace Alarm’ (P. Riemens (trans.), A. Kroker and M. Kroker (eds), CTheory, 27 August 1995), available at www.ctheory.net/articles.aspx?id=72 (accessed 10 December 2016). 94 B. Colomina, Privacy and Publicity: Modern Architecture as Mass Media (MIT Press, 2000) 12.

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This boundary shift surfaces in the comparative media study of the Archives de la Planète and Life in a Day regarding the respective mediation of public and private spaces. In the diagonal reading of the cinematographic and videographic images of the two time capsules, technological and socio-cultural transformations at the beginning of the twentieth and twenty-first century become perceivable. The French operators’ distant depictions of human beings predominantly in groups stand opposite the personal and frequently close-up (self-) representations of individuals for the YouTube production. Macdonald and Walker, by their choice of clips in conjunction with the contributors’ choice of filmic space and subject, present the world from the spatial, physical and psychological inside. While the bubble as metaphorical device is useful to conceptualize mediated private spaces in public, particularly regarding social, cultural, emotional and physical boundaries, it is the concept of privacy as a pre-existing and universal bubble that asks to be rethought in the contemporary media environment. As the proliferation of virtual communication through smart technologies continues to bring us within each other’s territories, boundaries between private and public as well as interior and exterior become permeable, fluid and contextual. While communication technologies mediate private spaces perceivably as ‘bubbles’, they also challenge this notion as devices for surveillance mechanisms. Within the boundaries of the mediated ‘privacy bubble’ as personal territory in public places, visibility through data and meta-data of everyday practices increases in the inherently public space that is the Internet. Electronic media have shrunken the distances between places and people, but also extended traditional sights and insights, eventually causing a reconsideration of what it means to ‘mind your own business’.

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PART II

Law and regulation

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6. Exposure and concealment in digitalized public spaces Stephen B. Zhao The public-private boundary faces in two directions: keeping disruptive materials out of the public arena1 and protecting private life from the crippling effects of the external gaze.2

1 INTRODUCTION In a recent case, the Dutch Data Protection Authority (DPA) decided that monitoring people in and around shops by tracking mobile WiFi signals without consent for commercial purposes is against Dutch data protection law.3 In this case, a Dutch company (Bluetrace BV) had provided clients with WiFi-sensor technology to collect data from shop visitors and passers-by for commercial analysis. By collecting unique WiFi MAC

1 This chapter focuses only on physical public space although this may overlap with virtual public space. Following Brennen and Kreiss, digitalization in this chapter refers to ‘the way in which many domains of social life are restructured around digital communication and media infrastructures’, although digitalization and digitization are used interchangeably by some scholars. See D. Kreiss and S. Brennen, ‘Digitalization and Digitization’, Culture Digitally, 8 September 2014, available at http://culturedigitally.org/2014/09/digitalizationand-digitization/ (accessed 30 July 2016). 2 T. Nagel, Concealment and Exposure: And Other Essays (Oxford University Press, 2002) 15. 3 See CBP, Wifi-Tracking Rond Winkels in Strijd Met de Wet (1 December 2015), available at https://autoriteitpersoonsgegevens.nl/nl/nieuws/cbp-wifitracking-rond-winkels-strijd-met-de-wet (accessed 29 June 2016). See also ‘Tracking shop customers using Wifi signals breaks privacy rules: Watchdog’, DutchNews.nl, 1 December 2015, available at www.dutchnews.nl/news/archives/ 2015/12/tracking-shop-customers-using-wifi-signals-breaks-privacy-rules-watchdog/ (accessed 29 June 2016).

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addresses automatically from mobile phones,4 the technology registered mobile devices and mapped out their movements. Because sensed geo-location data can match the real location of mobile phone users, WiFi-tracking sensors can register and follow them even if they only pass by on the street. The Dutch DPA found that a large number of Dutch citizens had been affected when Bluetrace’s sensors were installed in many Dutch cities and that citizens were not aware that they were monitored. It found that under Dutch data protection law, such WiFi tracking involved the processing of personal data of a sensitive nature, such as location data. It defined Bluetrace as a data controller because of the essential role the company played in data collection and processing. The Dutch DPA decided that processing of personal data collected inside shops did not meet the requirements of proportionality and subsidiarity. Further, it held that processing of personal data collected outside shops was illegal because of the lack of transparency and consent, as well as the indefinite retention of the data.5 Similar complaints about processing mobile phone signals at shopping malls (to understand shoppers’ behavior) have also been documented in the United States, Australia and the United Kingdom.6 The increasing use of digital devices by public space owners and regulators and public space users has been gradually shaping the environment of public spaces in unprecedented ways. The substantial impact on individual privacy of this tendency has not gone unnoticed by the judiciary. The European Court of Justice (ECJ) ruled in František Ryneš that monitoring the footpath on a public road with a surveillance camera, even for private security purposes, was a violation of EU data protection law.7 Both the Dutch DPA and the ECJ rejected the collection and processing of personal data in public spaces without data subjects’ acknowledgment and consent. Both of these decisions respond to the escalating privacy threat from the

4 MAC (Media Access Control) address is a globally unique identifier assigned to network devices, and is often referred to as a hardware or physical address. ‘What is a MAC Address?’, IP Location, www.iplocation.net/macaddress (accessed 15 July 2016). 5 CBP (n. 3). 6 R.A. Ford, Unilateral Invasions of Privacy, SSRN Scholarly Paper ID 2768531 (Social Science Research Network, 2016) 1076–7, available at http:// papers.ssrn.com/abstract=2768531 (accessed 27 June 2016). 7 František Ryneš v. Úřad pro Ochranu Osobních Údajů (C-212/13), Judgment of 11 December 2014, available at http://curia.europa.eu/juris/document/ document.jsf?text=&docid=160561&pageIndex=0&doclang=EN&mode=req&dir= &occ=first&part=1&cid=440706 (accessed 8 May 2015).

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digitalization of public space that marks a new stage of public space development. These cases highlight a prominent aspect of escalating privacy threats from the digitalization of public space that is now a global phenomenon brought on by rapid advancement of information and communication technology (ICT). In this chapter, digitalization of public space refers to, in short, the reconstruction of public spaces by means of a large deployment of various digital devices, whether connected or not, for multiple purposes.8 The related impacts on privacy have only been touched on from a few separated angles, such as mass surveillance, mediated public spaces and public space design. There is, however, a further need for a systematic treatment of the phenomenon from both theoretical and legal perspectives to better understand these new circumstances, the changed dynamics between different actors in public spaces, and changing privacy expectations. This chapter tries to provide a detailed and systematic explanation of how digitalization has changed public spaces and what privacy expectations we should consider reasonable in these changing circumstances. Section 2 first briefly reviews definitions of public spaces, their different categories and related characteristics. Section 3 discusses the phenomenon of digitalization of public spaces and the multiple consequences of such digitalization. In an effort to determine reasonable privacy expectations, section 4 explores the multiple functions that concealment and exposure perform in public spaces, when the growing digitalization has created and enabled more information flow, and collapsed the traditional public-private divide. Based on the preceding discussion, section 5 proposes three parameters to assess what our reasonable privacy expectations should be in digitalized public spaces. These parameters can help find a new balance between the conflicting values and interests that are vital for public space use and governance, including safety, privacy, freedom of expression, efficiency, and so forth. Finally, section 6 concludes with some forward-looking remarks.

2 DEFINING PUBLIC SPACE Though public space plays an important, indispensable role in human communal life, it is difficult to define the phrase because of its rich

8

This concept will be further discussed in section 3.

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meanings and uses.9 For instance, Moeckli proposed that the term refers to space, which is accessible to, and can be used by everyone without conditions (e.g. free of charge) at any time, and that whether a given place is part of public space or not depends on accessibility rather than ownership.10 Based on a definition by Carr and others, this chapter defines public space as an open, publicly accessible place, in which ‘people go for group or individual activities’ based on certain open standards.11 Public space may take multiple forms with different names including plazas, malls, playgrounds and parks.12 Public space plays essential social roles, for instance, in providing ‘the channels for movement, the nodes of communication, and the common grounds for play and relaxation’.13 Public space can help people satisfy pressing needs, convey special cultural meanings and be shaped to define and protect human rights.14 Contrary to what many may think, public space is not always open to all members of community, but only accessible to some of them. For instance, the premises of a golf club are open and public to all members, while non-members are denied access. Some scholars define such places as semi-public; although ‘publicly’ accessible, they are owned by private parties and are legally subject to a private-law regime of use.15 They include privately owned sections of train or underground transit stations, airport terminals, entertainment parks, sports complexes and plazas, and shopping centers.16 A college lecture room can be exclusive to nonregistered students during lecturing hours, but remains a public space for those registered. Open access is a relevant concept, under the control of owners or regulators who make rules.17 Public spaces can be owned by public entities such as governmental organizations that allow a wide scope of visitors. It is understandable that 9

V. Mehta, ‘Evaluating Public Space’ (2014) 19 Journal of Urban Design 53, 54. 10 D. Moeckli, Exclusion from Public Space: A Comparative Constitutional Analysis (Cambridge University Press, 2016) 30, 34. 11 Author’s emphasis. See S. Carr et al., Public Space (2nd edn, Cambridge University Press, 1995) 50. 12 Ibid. 13 See Moeckli, (n. 10) 3. 14 Ibid. 15 Ibid. 54. 16 Ibid. 17 Most definitions of public space ignore the relativeness of open access and this leads to the overlooking of the quick shift and relativeness of the traditional public–private divide. See the discussion in sections 4 and 5 below.

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some publicly owned places cannot be accessed by the public and thus are not public spaces. Others are owned by private agents that usually grant access on certain conditions, even if they are presumably ‘open to the public’. The Dutch shops with WiFi tracking devices installed are semi-public spaces although they are privately owned. Another example is Donald Trump’s presidential campaign rallies that provided public spaces/spheres for his supporters at different venues. Under US law, such campaign rallies are regarded as political theater and candidates renting event spaces have the right to dis-invite anyone they choose and those resisting would be charged with trespassing.18 Thus, Trump had the legal authority to remove any troublesome protester from the site, and these semi-public places or spheres were not meant for protesters’ access. Such controversies at public spaces lead to a growing concern over various rules and norms at public spaces that are of different origins, for different purposes and of different ownership. This, then, draws our attention to the formulation of rules and norms governing public spaces, be it legal, moral, commercial, religious or institutional,19 as well as related rights and obligations of regulators and users. Semi-public spaces especially give rise to complex challenges, when fulfilment of the functions of public spaces is intertwined with private law regulations.20 The primary function of public spaces is to meet various common needs of the public. In general, such needs in urban public spaces include basic survival, communication, entertainment, and other political, religious, commercial, civic and social needs.21 Nowadays, in many centercity and mixed-use neighborhoods, public spaces are still used for functional, social and leisure activities including travel, shopping, play, social interaction and relaxation,22 as well as even for social and psychological health. With the evolution of human society and increased privatization of space in terms of property and ownership, social needs

18

A. Rappeport and M. Haberman, ‘“Get ‘em out” is the new “you’re fired”, New York Times, 13 March 2016 (online), www.nytimes.com/2016/03/14/us/ politics/donald-trump-security.html (accessed 11 May 2016). 19 This also means much diversified models of governance, regulation, legal dominion and investment. See M. Carmona, ‘Contemporary Public Space, Part Two: Classification’ (2010) 15 Journal of Urban Design 165. 20 For a brief discussion of the legal regulation of semi-public spaces under US, UK and EU law, in particular the ECJ rule to uphold the exclusive right of ownership of semi-public spaces, see Moeckli, (n. 10) 56–8. 21 Mehta (n. 9) 55. 22 Ibid.

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for public spaces are generally on the rise, despite the fact that some scholars claimed the end of public space a short time ago.23 Mehta proposed five standards to evaluate public spaces. They are inclusiveness in the sense of public participation; meaningfulness in the sense of the ability to support activity and sociability; safety; comfort; and pleasurability based on imageability.24 Other scholars have explained that the right to use public spaces and to have a sense of control includes five elements: access; freedom of action, the claim of an individual or a group to appropriate spaces for personal use; freedom to change; ownership; and disposition.25 Previous public space studies did not regard privacy as a value equally significant as others, either because privacy might not be a significant concern for many in the pre-digital age, or because it might be just regarded as an element of safety. In the evolution of public spaces, the nature of contemporary public spaces has been directly affected by complex social-economic developments. Apart from well-known commercialization and privatization, a most recent, profound trend in public space development is the burgeoning digitalization of these spaces. Digitalization has been taking place in multiple forms because of the increasing deployment of various digital technologies for many purposes. Digitalization marks a new stage in the development of public spaces by bringing about many fundamental changes, many impacts of which are worth our full attention and will be explored below.

3 ESCALATING DIGITALIZATION OF PUBLIC SPACE Digitalization of public space can be defined as a large-scale deployment of digital devices in public spaces by multiple users and for multiple purposes, whether these devices are connected or not. Not only do public space owners and regulators try to install various digital devices for better control, but also public space users bring in their own digital devices to make best use of public spaces. This results in mass surveillance in public space, meaning that each one of us is monitoring others and is

23 The claim has been challenged by recent empirical studies, see e.g., F. Langstraat and R. Van Melik, ‘Challenging the “End of Public Space”: A Comparative Analysis of Publicness in British and Dutch Urban Spaces’ (2013) 18 Journal of Urban Design 429. 24 See Mehta’s discussion of the five qualifications in detail. See Mehta (n. 9) 57–65. 25 Carr et al. (n. 11) 185–6.

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being monitored once we enter a public space,26 although this happens to different extents. Digitalization of public spaces first began with the popular use of CCTV systems, including CCTV cameras and loudspeakers, as one element of a mass surveillance grid/infrastructure. Then, digitalization was largely facilitated by the use of new devices including Unicomp (pervasive computing) and RFID (Radio Frequency Identifying Devices),27 especially AmI (Ambient Intelligence).28 Digitalization in the form of the installation of CCTVs is apparently seen in public spaces such as public parks, squares, roads, highways, public schools, airport, etc., while it is less obvious when such digital devices are small or hidden, like tiny cameras on ATMs and in hotel elevators. Private portable devices or handheld devices used in public spaces no doubt facilitate this digitalization process. Digitalization of public spaces has been achieved not only by privacyinvading devices that collect personal data, but also by those that are neutral in nature. At urban public squares, for instance, a large number of

26

The scholarship on mass surveillance is rich. For more detailed discussion, see L. Edwards and L. Urquhart, Privacy in Public Spaces: What Expectations of Privacy Do We Have in Social Media Intelligence?, SSRN Scholarly Paper ID 2702426 (Social Science Research Network, 2015), available at http:// papers.ssrn.com/abstract=2702426 (accessed 29 June 2016); M. Andrejevic, ‘The Work of Watching One Another: Lateral Surveillance, Risk, and Governance’ (2002) 2 Surveillance and Society 479, available at http://ojs.library.queensu.ca/ index.php/surveillance-and-society/article/view/3359 (accessed 20 November 2016); D. Lyon (ed.), Surveillance as Social Sorting: Privacy, Risk, and Digital Discrimination (Routledge, 2003); especially B.-J. Koops, ‘On Legal Boundaries, Technologies, and Collapsing Dimensions of Privacy’ (2014) Politica and Società 2. 27 Ubicomp is the widespread embedding of small networked processing devices or microchips into the very fabric of urban infrastructure and everyday objects. See D. Klitou, Privacy-Invading Technologies and Privacy by Design (TMC Asser Press, 2014) vol. 25, 55–6. 28 AmI refers to the systems that are sensitive and responsive to the presence of people and are ubiquitous and always on. R. Ellis and M. Potter, Ubiquity and Other Elements: User Challenges, the Value Chain and Business Opportunities in the Future Ambient Intelligence World (Project POROFIT, 2005), available at www.researchgate.net/publication/254003338_Ubiquity_and_Other_Elements_ User_Challenges_the_Value_Chain_and_Business_Opportunities_in_the_Future_ Ambient_Intelligence_World (accessed 30 July 2016); M. Schneider, Ubiquitous Services and Applications: Exploiting the Potential, Conference Proceedings, EURESCOM Summit 2005, 27–29 April 2005, Heidelberg, 259, available at http://citeseerx.ist.psu.edu/viewdoc/summary?doi=10.1.1.94.587 (accessed 30 July 2016).

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digital screens, among other digital interactive media facades and interactive public displays,29 have been installed for commercial advertisement or public interests. They provide digital experiences to public space users with different expectations of physical spaces, especially when they interact with public space users through connected networks.30 At last year’s Republican Convention in the United States, four immense screens displayed live Twitter and Facebook posts while Republican delegates were using Facebook Live to ‘give their friends and followers a front row seat to the action’.31 Another category of deployed digital devices that contribute to digitalization includes scanning machines, printers and self-vending machines at cafeterias in governmental buildings and university campuses. They are connected to various information networks and can be operated by the same chip cards that may be also used on other digital devices. This means potential data profiling that is capable of identifying any user. In addition, digital devices installed at private places can also endanger the privacy of a public space user. The recent ECJ case František Ryneš shows how a monitoring camera pointing at steps connecting a public pedestrian walkway to private property can invade the privacy of individuals.32 In addition to hardware, digitalization has been much enhanced by networking services that are provided by public authorities or private entities, free or paid. This includes telecommunications services, WiFi services and Bluetooth networks. In the Netherlands, especially in Groningen and many other Dutch cities, free WiFi service has been provided at most public spaces near city centers (by local governments) even for visitors (for a limited time),33 on public transportation, and in most restaurants and bars (sometimes registration is necessary, but free of charge). Network connectivity can contribute to a broader use of public

29 For a brief explanation, see A.A. Abdel-Aziz, H. Abdel-Salam and Z. El-Sayad, ‘The Role of ICTs in Creating the New Social Public Place of the Digital Era’ (2016) 55 Alexandria Engineering Journal 487, 490, available at www.sciencedirect.com/science/article/pii/S1110016815002124 (accessed 20 July 2016). 30 See ‘Digitization and Public Space’, http://onewaystreet.typepad.com/one_ way_street/2009/09/digitization-and-public-space.html (accessed 31 July 2016). 31 I. Lapowsky, ‘At the Republican Convention, Millennials Search for Signs of the Future’, WIRED, 20 July 2016, available at www.wired.com/2016/07/ republican-convention-millennials-search-signs-future/ (accessed 20 July 2016). 32 František Ryneš v. Úřad pro Ochranu Osobních Údajů (n. 7). 33 See ‘Draadloos Groningen BV’ (2016), http://draadloosgroningen.nl/ wordpress/ (accessed 31 July 2016) (in Dutch).

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spaces and a higher level of social interaction,34 which is contrary to what many would have expected. The availability of a power station and WiFi connectivity now becomes an important consideration for customers booking restaurants, camping sites and hotels. Access to the Internet has become a basic service or, for many, it is qualified as a new type of human right.35 Besides existing, pre-installed, devices (or networks), the fact that individuals are increasingly carrying a large number of portable devices, such as smartphones, tablets, smartwatches and Google Glass, has been a decisive factor in the digitalization of public spaces. While owners can use them to collect data from others and surroundings, their own privacy is compromised, resulting in what is called ‘lateral surveillance’ that people are watching each other.36 This is, in particular, the case when users upload information instantly to the Internet, so that the exposed information becomes irreversible and pervasive. Data collected by smartphones nowadays have contributed considerably to crime investigation, not to mention the increasingly popular use of crime-fighting apps.37 The use of handheld devices has largely changed the power balance in public spaces, since information flow is now in ‘more equal’ hands, but not dominated by a few regulators. This change of balance can be clearly perceived in the mandated use of portable recorders by law enforcement officers in order to counter-balance digitally empowered citizens in some communities.38

34 K.N. Hampton, O. Livio and L. Sessions Goulet, ‘The Social Life of Wireless Urban Spaces: Internet Use, Social Networks, and the Public Realm’ (2010) 60 Journal of Communication 701, available at http://onlinelibrary. wiley.com/doi/10.1111/j.1460-2466.2010.01510.x/abstract (accessed 31 July 2016). 35 For instance, by the UN Special Rapporteur in his report on the promotion and protection of the right to freedom of opinion and expression. D. Kravets, U.N. Report Declares Internet Access a Human Right (2011), available at www.wired.com/2011/06/internet-a-human-right (accessed 28 May 2016). 36 Andrejevic (n. 26). 37 C. Sterbenz, ‘Your Smartphone Can Make You a Crime-Fighting Hero’, Yahoo Finance, 2 July 2013, available at http://finance.yahoo.com/news/ smartphone-crime-fighting-hero-175920307.html (accessed 31 July 2016). 38 In China, smartphone users recording law enforcement have encountered widespread violence so that the Ministry of Public Security issued a new policy to regulate police reaction to citizen filming. See J. Cui, ‘Officers told that public can film police’, China Daily, 28 July 2016, available at www.chinadaily.com.cn/ china//2016-07/28/content_26248984.htm (accessed 31 July 2016).

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Furthermore, mobile vehicles equipped with digital devices are part of the digitalization process. Google Street View cars are mobile data collectors recording street views and collecting geolocation data, and they also scoop other data such as people’s facial images, passwords, medical and financial records, emails, usernames, videos, and other personal information from unsuspecting computers. Google even collected MAC addresses, network SSIDs (user assigned network ID names), and WiFi transmission data by interception.39 As a consequence, Google was accused of serious privacy invasions in both public and private spaces.40 Ordinary people may not care much about this—a reason why the law enforcement agents in Philadelphia tried to disguise their surveillance truck as a Google Street View car.41 Last, the digitalization process is enhanced by the forthcoming realities of smart cities that operate on ubicomp/pervasive computing, AmI, extensively deployed wireless sensors, and the next generation wireless networks such as Broadband Convergence Network (BcN) or Wireless Broadband (WiBro). The so-called ubiquitous cities (U-cities) will connect our physical world with the virtual world and integrate ‘commercial, public, financial and medical data systems into a single information space’.42 ‘Physical space is supplemented by virtual space and augmented with location specific information’ and ‘[p]ublic space is now in the net’.43 The digitalization process has been more facilitated by the Internet of Things (IoT), or the Internet of Everything (IoE) that connect all smart or non-smart devices by all sorts of connected networks whether in public or private spaces. It is foreseeable that public spaces will be occupied by more advanced devices, including a variety of drones and sensors, bringing mass surveillance to a new level.44

39

EPIC, ‘Investigations of Google Street View’, https://epic.org/privacy/ streetview/ (accessed 31 July 2016). 40 Joffe v. Google, Inc. 729 F.3d 1262 (9th Cir. 2013), available at http:// harvardlawreview.org/2014/04/joffe-v-google-inc/ (accessed 31 July 2016). 41 M. Molloy, ‘Police get busted “disguising spy truck as Google Maps car”’, Telegraph, 15 May 2016 (online), www.telegraph.co.uk/news/2016/05/15/policeget-busted-disguising-spy-truck-as-google-maps-car/ (accessed 22 May 2016). 42 Klitou (n. 27) 56. 43 E. Kim, ‘Modeling and Digitization of Public Space: Digital Fabrication’, http://dfabclass.com/s16r/modeling-and-digitization-of-3d-space/ (accessed 30 July 2016). 44 See e.g. China’s recently invented ultra-light hover camera that can be controlled by a smartphone and follow a user, which may be a potential threat to other’s privacy. ‘“Hover Camera” floats in mid-air to track your face and even

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The aggregation of large amounts of personal data makes data profiling possible far beyond public spaces. Data profiling is based on the processing of scattered personal information/data against data subjects who frequently visit public spaces. Data profiling is especially a major threat to citizens when data input is a precondition to access public spaces consequent to the ubiquitous deployment of digital devices by both the public and the private sector. For instance, personal data collected by automatic license plate recognition devices on Dutch highways were used to monitor the movement of tax evaders.45 There has led to a rising public concern in the Dutch community over the transfer of collected personal data to the Dutch tax office. The popular use of chip cards by Dutch university students and employees across multiple connected devices could be a prominent privacy threat, given that the collected data are not properly protected and are used for other purposes without data subjects’ acknowledgment and consent. A huge amount of personal data can be collected from both connected service devices, such as printers, cameras and coffee machines, and multiple portable devices, including smartphones, tablets or laptops, carried by data subjects registered under the same user names to access WiFi services. This makes it very possible to monitor a data subject’s daily activity in much detail on a university campus, even outside the campus by processing the data generated by the use of public cloud services. Digitalization of public spaces is meant to achieve many purposes. It can help improve business security, income and management at privately owned public spaces. At government-owned public spaces, CCTVs (now smart CCTVs) have been long installed for the purposes of public security, crime investigation and anti-social behavior prevention, although they lead to a growing concern over free speech, privacy, transparency,46 discrimination47 and social exclusion.48 In recent years, researchers used follows you’, Daily Mail Online, www.dailymail.co.uk/sciencetech/article3561699/Forget-selfie-sticks-Hover-Camera-floats-mid-air-track-face-followsmake-sure-gets-perfect-picture.html (accessed 18 May 2016). 45 ‘Dutch police took three billion photos of car license plates last year’, DutchNews, www.dutchnews.nl/news/archives/2015/10/dutch-police-took-threebillion-photos-of-car-licence-plates-last-year/ (accessed 15 May 2016). 46 H. Koch, T. Matzner and J. Krumm, ‘Privacy Enhancing of Smart CCTV and Its Ethical and Legal Problems’ (2013) 4 European Journal of Law and Technology, http://ejlt.org/article/view/185/386 (accessed 18 July 2017). 47 Ibid. 48 Field research in Norway and Denmark has showed the negative effect of the deployment of CCTVs in multiple public spaces, including social exclusion and extension of the use of CCTVs for purposes other than those legally allowed

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mobile apps to monitor public space use in order to improve efficiency and design based on data provided by volunteers. Digitization can be quickly realized in case of an urgent communication need. During Hong Kong’s 2015 pro-democracy campaign, for instance, protesters created communication mesh-networks by establishing Bluetooth and WiFi connections shortly after local cell networks were disrupted on site.49 Digitalization of public spaces has in-depth impacts on public spaces, users and regulators (owners). The nature of public spaces has gradually changed as (still growing) categories of digital devices have been deployed. First, digitalization has created and accelerated more information flow in public space via the deployment of digital devices than what occurred in the pre-Digital Age. Second, public spaces have become more transparent beyond traditional physical boundaries for regulators (or controllers) and users, because both can acquire extra information, either remotely or instantly on site. Third, the use of ICTs can facilitate social experiences in physical spaces.50 With geolocation modeling, a public space can be better approached and used in both digital and graphic forms; for instance, using augmented reality devices (e.g. Google Glass and related devices) will add extra meanings to a physical sphere when accessing extra information. ‘This adds a new dimension of knowing to place in the hybrid physical and digital environment.’51 Fourth, digitalization has created a new, hybrid sphere that enables users, service providers and regulators to better co-exist, cooperate and benefit from each other. Further, since public spaces with free WiFi and convenient power outlets can attract more users,52 digitalization becomes

in such places. See A. Rudinow Saetnan, H. Mork Lomell and C. Wiecek, ‘Controlling CCTV in Public Spaces: Is Privacy the (Only) Issue? Reflections on Norwegian and Danish Observations’ (2002) 2 Surveillance and Society 396. 49 C. Daileda, ‘How People in Hong Kong Can Chat if Cell Networks Go Down’, Mashable, http://mashable.com/2014/09/29/hong-kong-cell-networkchat/ (accessed 23 May 2016). 50 K. Rochelle Houghton, Understanding the Implications of Digital Interactions on the Design of Public Urban Spaces (Thesis, Queensland University of Technology, 2014) 50, available at http://eprints.qut.edu.au/67929/ (accessed 31 July 2016). 51 Ibid. 196. 52 See Hampton, Livio and Sessions Goulet (n. 34) 13.

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an important aspect of public space design. The German local government in Munich installed ground signals to prevent accidents involving pedestrians who look at their smartphone screens when they cross tram tracks.53 Regulators and owners of public space take advantage of digitalization to improve management, reduce regulatory cost and increase economic benefit by monitoring and processing data. Such measures can improve safety, security and accountability. While CCTV installation is effective at commercial centers to reduce shoplifting and other anti-social behavior, the accountability of regulators and owners is increased, since the collected data can be used as digital evidence against themselves. Where pre-installed devices are not available, regulators will equip themselves with handheld devices, which in turn motivates the call for empowering citizens even further.54 The increasing use of portable devices has substantially changed the behavior of public space users. Though many observed reduced human interaction due to users’ growing focus on screens, two categories of users appear, namely, true mobiles and public markers.55 Public markers are those users who are utilizing publicly accessible WiFi to embrace a place and connect with others. Public mobiles are those who move to public spaces to work under anonymity, creating a public privatism. Many users choose connected public spaces to work as an escape from distraction at home or workplace.56 For them, mobile phones, tablets, e-readers and smartwatches are the tools to gain solitude in public, by focusing on their devices and avoiding personal contact, be it eye contact or conversation. Research shows that smartphone users are much more commonly under the illusion that they have privacy even when walking down a public sidewalk, and that they move through communal spaces as 53

J. Schmidt, ‘Always practise safe text: the German traffic light for smartphone zombies’, Guardian, 29 April 2016 (online), www.theguardian.com/ cities/2016/apr/29/always-practise-safe-text-the-german-traffic-light-for-smartphonezombies (accessed 31 July 2016). 54 See the analysis by Sellars of the role of police body cameras in the United States. A. Sellars, ‘Empower civilians to record the police’, New York Times, 22 October 2013, available at http://cncc.bingj.com/cache.aspx?q=china+ law+enforcement++citizen+digital+camera&d=4635864754688988&mkt=en-US &setlang=en-US&w=3v5wyPnCmXI8JfPrnFI8UaomtDkCd7Pg (accessed 30 July 2016). 55 K. Hampton and M. Gupta, ‘Community and Social Interaction in the Wireless City: Wi-Fi Use in Pubic and Semi-Public Spaces’ (2008) 10 New Media and Society 831, 838–43. 56 Ibid. 839.

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if in private bubbles, creating portable private personal territories.57 They are called the true mobiles and this leads to the unavoidable dominance of the private sphere in public for smartphone users, deteriorating basic roles of public space.58 Furthermore, social rules and protocols of public behavior have been in flux along with the popularity of portable devices. One of the most challenged legal/social norms in public spaces is, for instance, the traditional public-private divide doctrine that assumes no privacy in public space.59 The public-private divide has been under development and has been shaped by physical, social, political, cultural, economic and technological factors.60 The divide is not really a binary one but more of a continuum, on which semi-public spaces, including private clubs and workspace, may fit somewhere in the middle.61 Although the divide has been long in doubt since the appearance of cameras at public spaces, the Digital Age allows for a rethinking due to escalating privacy threats. Apparently, public space users confront unprecedented privacy threats from digitalization of public space. A rapid decline of privacy expectation in public, in particular in major urban areas, has been observed in the United States and the United Kingdom.62 At public spaces, personal data can be collected without data subjects’ consent; previously presumed anonymity has largely been diminished as a result of data profiling; subjects can be deprived of information autonomy due to unawareness and weak protection; and physical solitude has also been compromised, for instance, in view of the increasing unmanned aerial vehicles (UAVs) used for domestic purposes. Digitalization of public spaces enables what Allan Ford called ‘unilateral invasions of privacy’, which refers to the

57 E. Badger, ‘How Smart Phones are Turning Our Public Places into Private Ones’, CityLab, 16 May 2012, available at www.citylab.com/tech/2012/05/howsmart-phones-are-turning-our-public-places-private-ones/2017/ (accessed 31 July 2016). 58 Hampton and Gupta (n. 55). 59 The literature on the separation of public and private sphere is rich from political, sociological and legal aspects, for instance, the well-known discussions of the public sphere by Arendt and Habermas. Though the divide is important in public space development, this chapter will only address below these aspects closely related to privacy protection in public space. For a full discussion, please refer, e.g., to D. Slater, ‘Public/Private’ in C. Jenks (ed.), Core Sociological Dichotomies (Sage Publications, 1998) 149. 60 Carr et al. (n. 11) 26–43. 61 Borrowed from my anonymous reviewer. 62 Ford (n. 6) 1076.

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fact that information subjects are not the ones who decide how information is collected, stored and disseminated, but instead outsiders make such decisions based on their judgment of potential benefits and costs.63 This explains partially the collapsed traditional balance and boundaries between concealment and exposure in public spaces.

4 DISCLOSURE AND CONCEALMENT IN PUBLIC SPACES Privacy invasion in public space became a major concern a long time ago among scholars consequent to popular video voyeurs. While discussing video voyeurs in the United States 15 years ago, Rothenberg argued that American criminal law must break away the private-public divide and recognize an individual’s legitimate privacy expectation in public space.64 One legal solution in the United States is to overlook the private-public divide and give a blind protection in case of voyeurs.65 The abolition of the public-private divide is an important step to tackle some seriously harmful privacy invading activities, such as video voyeurism. However, other activities that are less aggressive and of a civil nature may not bear the same gravity for a total ban. First, relativeness casts a shadow on the public-private divide operating in a clear-cut manner as a useful analytical tool because of increasingly diversified social life and technical advances nowadays. For instance, at a private residence a public place can be created among invited participants, although it is closed to outsiders. When entrance is exclusive and dependent on certain selective qualifications, a place is not public in the traditional sense of being open to anyone, but is semi-public in nature. Also, at traditional public spaces there is a strong need for privacy protection rules when new technologies enable privacy threatening activities that did not exist in the pre-Digital Age. The complex circumstances of public spaces (especially semi-public spaces) accordingly require new behavioral norms for regulation. For instance, forbidding taking photographs is a common practice in most Dutch childcare centers. Furthermore, privacy perception is relative and circumstancedependent. A person may not feel that his privacy is threatened if another 63

Ibid. See L. Rothenberg, ‘Re-Thinking Privacy: Peeping Toms, Video Voyeurs, and Failure of the Criminal Law to Recognize a Reasonable Expectation of Privacy in the Public Space’ (2011) 49 American University Law Review 1127. 65 See Rothenberg’s discussion of the US situation. Ibid. 1158–165. 64

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person stands pretty close in a narrow elevator or a crowded bus, but he will certainly find this intrusive in an open public square. Nowadays, it is much more difficult for most people to tell clearly if they are at a public place or a private place. With the gradual shift or blurring of publicprivate boundaries comes also a transposition of regulatory mechanisms, including behavioral standards that regulate privately owned spaces and regulatory manners in public spaces.66 To understand the changed privacy concern and privacy expectation at public spaces, it is best to look at the nature of a particular public space and the impacts of digitalization on privacy on a case-by-case basis. Though it is impossible to analyze all privacy expectations in various types of public space in this short chapter, it is still possible to find some general insights. The crux of digitalization of public spaces is, as Allan Ford noted, the creation and acceleration of more information flow,67 including information collection, processing and dissemination. The growing information flow is the key point for discussion, because this has changed public spaces. Prior to digitalization, personal information could not be easily collected, as easily stored for long periods, transferred and disseminated instantly, or processed on a large scale like nowadays. Data collection, data connectivity, data dissemination, data analysis and data retention have been upgraded to a level so high that their combination has fundamentally changed public spaces and human interaction. Thus, a good starting point to understand the impact of digitalization on privacy expectation would be to analyze the significance of exposure and concealment in public space. To enter public space simply means one’s voluntary exposure of certain aspects of individual life. A person’s physical presence displays clothing style, facial image, verbal communication, personal belongings (such as cars and cell phones), and other personal information;68 to some extent, such information denotes one’s values, tastes and financial situation. The choice of exposure is a free choice to perform at a chosen stage to achieve various personal aims. Reasonable public space users can expect that they will expose themselves to others to a variable extent and will accept the related consequences. Thus, exposure is the cost to achieve desired ends in public spaces, including seeking life necessities (foods, clothes, etc.), social interaction (meeting and making friends), 66

Moeckli (n. 10) 59–61. Ford (n. 6). 68 This is what Hoffman called participation in the unfocused interaction. E. Goffman, Behavior in Public Places: Notes on the Social Organization of Gatherings (Reissue edn, Free Press, 1966) 154. 67

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and even solitude. When exposure is unavoidable, a person may choose what (not) to disclose. However, a total exposure of oneself without any control is certainly not preferred by everyone. What to disclose and what not, is a matter of information autonomy.69 Proper exposure and disclosure at public spaces can help with developing identity, mutual trust, public interaction and socialization, governance, safety and cooperation in general. First, a minimum degree of exposure could be a precondition for public space use. For instance, drivers must expose their number plates to establish identity in order to use public roads for regulation and accountability purposes. This is especially true with regard to sports clubs, religious communities and political associations that mandate registration or identification mechanisms. Second, recognition of familiar faces and even fake names will make public space users feel familiar and safer, if compared with entering into an unfamiliar space. Third, personal information disclosure is also an important step for self-identity establishment, or what Goffman called ‘the external self’ or ‘the front of self’.70 At large size private parties, self-introduction and disclosure of some personal information contribute to a formal process of identity establishment, as well as a general gesture of goodwill for deeper involvement.71 In many communities, identity disclosure in public spaces is as significant as a legal duty for social integration and public safety. In September 2010, the French government banned face covering in public, including headgear and the Burqa—the full body covering attire of Muslim women. The European Court of Human Rights (ECtHR) upheld respectively the French ban on the Burqa in public in 2014, on headscarves in educational establishments, and the regulation requiring the removal of scarves, veils and turbans for security checks.72 Among others, the Court endorsed the French government’s rationale that ‘face played a significant role in social interaction’, and the central idea of ‘living together’ as a legitimate aim.73 Further, it ruled:

69 For more explanation, see L. Henkin, ‘Privacy and Autonomy’ (1974) 74 Columbia Law Review 1410. 70 See in general E. Goffman, The Presentation of Self in Everyday Life (Anchor Books, 1959). 71 See Goffman (n. 68) 135–6. 72 K. Willsher, ‘France’s burqa ban upheld by Human Rights Court’, Guardian, 1 July 2014 (online), www.theguardian.com/world/2014/jul/01/france-burqaban-upheld-human-rights-court (accessed 27 June 2016). 73 SAS v. France (App. No. 43835/11) ECtHR, Judgment of 1 July 2014, para. 82.

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It can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question.74

The Court agreed that identification of individuals is important for safety and property and for the purposes of combating identity fraud, although it regarded a blanket ban as not proportional.75 Even at semi-public spaces like the Spanish Zara in Paris, baseball caps, hats, beanies, ski masks and scarves were banned for security reasons as a corporate rule, which gave rise to controversy.76 Identity disclosure can be regarded as an intrinsic part of social interaction and engagement. One of the civility rules for parent gatherings at Dutch primary schools is for parents to identify themselves with their children. In addition, the disclosure of personal information can establish a reputation that is necessary for and beneficial to improving economic efficiency by reducing secrecy and misleading information in the public domain.77 Whether exposure and disclosure are mandatory, and to which extent, depends on the requirement(s) of prevailing ends of a public space. However, on some occasions exposure and disclosure can be much restricted if they may obstruct the realization of the dominating purposes of a public space. Concealment of identity and personal information can be compulsory, given that their disclosure is provoking, undesired, troublesome or unpleasant. The practice of disclosure depends on the dominating purpose(s) and the related main involvement at a particular public space.78 Recently, Advocate General Kokott to the ECJ issued an 74

Ibid. para. 122 (emphasis added). Ibid. para. 139. One may compare this case to other ECtHR cases on face covering, e.g. the Belgian cases Belkacemi and Oussar v. Belgium (App. No. 37798/13) and Dakir v. Belgium (App. No. 4619/12) in some different Belgian context. For a discussion, see E. Brems, ‘Face Veils in Strasbourg (Bis): The Belgian Cases’, Strasbourg Observers, 28 December 2015, available at https:// strasbourgobservers.com/2015/12/28/face-veils-in-strasbourg-bis-the-belgian-cases/ (accessed 30 July 2016). 76 S. Sinha, ‘Muslim woman wearing hijab denied entry at Zara Store in Paris’, International Business Times UK, 20 November 2015 (online), www.ibtimes.co.uk/muslim-woman-wearing-hijab-denied-entry-zara-store-paris1529617 (accessed 27 June 2016). 77 See in general R.A. Posner, ‘Privacy, Secrecy, and Reputation’ (1978) 28 Buffalo Law Review 31. 78 For a discussion of the concept of the main involvement (of social occasions) by Goffman, see section 4 below. 75

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opinion with respect to Achbita and anor v. G4S Secure Solutions that had allowed EU employers to ban Muslim staff from wearing headscarves in workplaces—as semi-public spaces in nature—as long as this ban is part of a general prohibition on all religious symbols: A ban on wearing headscarves in companies may be admissible if the ban is based on a general company rule which prohibits political, philosophical and religious symbols from being worn visibly in the workplace … While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace.79

Kokott took the view that the ban could be justified to retain religious neutrality at workplaces. One of the underlying rationales of religious neutrality is to allow employees to ‘work flexibly for all those customers’ and to control ‘a defining impact not only on the image’ of the employer, but also ‘primarily on the public image of its customers’.80 Another unfolded rationale is to avoid unnecessary personal confrontation at workspace among employees who may hold conflicting religious and ideological ideas. In reality, overexposure of personal identity, of which religion is an important element, will incur controversy. This is why political and religious neutrality is preferred and protected by law in the workplace.81 Similarly, other forms of undesired overexposure must be suppressed by rules of civility to avoid potential collisions and hostile interactions.82 Exposure of naked bodies, for instance, is only allowed in, for example, 79 See the press release of the ECJ case, available at http://curia.europa.eu/ jcms/upload/docs/application/pdf/2016-05/cp160054en.pdf (accessed 24 June 2016). 80 Samira Achbita and Centrum Voor Gelijkheid van Kansen En Voor Racismebestrijding v. G4S Secure Solutions NV, Opinion of AG Kokott, paras 93, 94, available at http://curia.europa.eu/juris/document/document.jsf;jsessionid= 9ea7d2dc30dd751b2b4fa8dc4469aaeafa7990b8567d.e34KaxiLc3qMb40Rch0Sax uTbNz0?text=&docid=179082&pageIndex=0&doclang=EN&mode=req&dir=& occ=first&part=1&cid=56932 (accessed 31 July 2016). 81 The other case that came before the ECJ for a preliminary ruling at the same time was the Belgian case of Bougnaoui (C-188/15) regarding wearing the Islamic headscarf in the workspace. 82 I use the term ‘rules of civility’ following Robert Post’s definition regarding privacy and defamation torts under which ‘Rules of civility are the means by which society defines and maintains this dignity. Conversely, rules of civility are also the means by which society distinguishes members from nonmembers’. See R.C. Post, ‘The Social Foundations of Defamation Law: Reputation and the Constitution’ (1986) 74 California Law Review 691, 711.

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special zones at public beaches to avoid chaos and disorder in social interaction. Such overexposure will produce, in Nagel’s words, ‘potentially significant material into the category of what must be taken into consideration and responded to collectively by all parties’ and ‘[w]ithout such traffic control, any encounter might turn into a collision’.83 Concealment can avoid unnecessary social confrontation and collective response that will hinder public space use. A telling example is the dressing codes at many schools and business firms that are meant to suppress difference and competition in self-advertising, as well as to establish collective identity.84 Concealment or reticence (for privacy purposes) thus keep public spaces orderly and free from possible conflicts that may cause dysfunction. The front side of a public space thus can be kept harmonious by reticence and non-acknowledgment. As Nagel suggested, we should try to avoid fights over the public space that force into it more than it can contain without the destruction of civility.85 Concealment in public spaces, in this sense, guarantees that ‘no more should be subjected to the demands of public response than is necessary for the requirements of collective life’.86 One form of concealment also protects ‘the inner life from a public exposure that may cause it to wither, or would require too much distortion’.87 For the above reasons, concealment is important not only for public space order and governance, but also for individual users who do not like to be monitored and checked out by others. In this sense, concealment of personal information (as a dimension of the privacy concept) allows and supports plurality in community by eliminating the need for collective choice or an official public stance.88 Above is a general illustration of the social significance and functionalities of concealment and exposure in public spaces, which can generally be applicable to most human communities. However, notably societal standards of exposure and concealment may differ even in similar Western communities. In Europe, privacy is more understood from the perspective of dignity, personality and personal honor, while in the United States it is perceived from the perspective of personal liberty Also R.C. Post, ‘The Social Foundations of Privacy: Community and Self in the Common Law Tort’ (1989) 77 California Law Review 957. 83 Nagel (n. 2) 11 (emphasis added). 84 An example drawn from Posner. See Posner (n. 77) 16. 85 Nagel (n. 2) 20. 86 Ibid. 13. 87 In the form of reticence according to Nagel. Ibid. 6. 88 Ibid. 24.

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against state interference.89 Privacy has been more protected in public spaces against freedom of expression by the ECtHR even when public figures are involved.90 In contrast, US law protects privacy in public spaces less while favoring the protection of freedom of expression under the First Amendment.91 The difference between the United States and EU countries is best demonstrated in those examples that involve exposure of nudity (in particular on the Internet), although no less diversified attitudes could be found among EU countries themselves, like Germany and France.92 The different societal norms of exposure and concealment need further elaboration, of course, although this chapter needs to go on to explore some general guidelines on what the justified privacy expectation is in today’s digitalized public space.

5 ASSESSING PRIVACY EXPECTATIONS IN PUBLIC SPACES Concealment and exposure play a significant role in public space governance and utilization. To which extent one should disclose or conceal personal information needs a delicate deliberation in a newly digitalized environment. As analyzed previously, on the one hand, the need for exposure or disclosure comes from multiple requirements for individuals to use public space, and the needs of public space governance to achieve a variety of goals. On the other hand, proper concealment is justified by the need to protect individual privacy, to retain public order and to achieve the desired ends of a particular public space. The growing use of digital devices has further complicated the dynamics between exposure and concealment, and a new balance must be re-found. As

89 See in general J.Q. Whitman, ‘Two Western Cultures of Privacy: Dignity Versus Liberty’ (2003) 113 Yale Law Journal 1151, available at www. yalelawjournal.org/pdf/113-6/WhitmanFINAL.pdf (accessed 5 September 2012). 90 Seen in the landmark case of Hannover v. Germany in which the privacy of Princess Von Hannover was protected under Article 8 of the European Convention on Human Rights (ECHR) in places ‘that could not always be described as secluded’, referring to a place ‘at the far end of a restaurant courtyard’ where published photos were taken. Von Hannover v. Germany (App. No. 59320/00) ECtHR, Judgment of 24 June 2004, paras 10 and 76. 91 See Whitman’s discussion of the contrast between the treatment of the Sipple case and the treatment of a French victim of publicity. Whitman (n. 89) 1196–8. 92 Ibid. 1198–202.

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implied in section IV, three major parameters or considerations are crucial to seek a new balance. The first is the consideration of the dominating purpose(s) or ends for which a public space is formed and developed. The second is the relationship of a public space user to that particular public space and the related rights and duties thus associated. The third is the proportionality of measures taken to reach the desired ends while considering individual privacy. On many occasions, the dominating purposes (or ends) of a public space determine to which extent disclosure of personal information is needed and compulsory. In addition to safety and security, the dominating purpose for a retail shop or a restaurant is to meet consumers’ needs in terms of foods or other life necessities. Thus, information collection and processing should serve these purposes and be transparent. For instance, restaurant customers do not expect to be asked about their private life by owners, since it is irrelevant; any demand for extra personal information beyond meeting customer needs is privacyintrusive. A restaurant owner may write down an old customer’s consumption habits by observation in order to provide better service. The customer can reasonably predict that such information can be acquired, but only as a consequence of his or her presence and patronage. The principal purposes of a public space determine the main involvement that is an intrinsic part of social occasion or the meaning of what is going on in that public space; such a main involvement is taken as preferential and prescribes an associated obligation for public space users.93 The second parameter is public space users’ relationship to a particular public space that is embedded in public space use. Being aware of the dominating purpose(s) and main involvement (or engagement), a public space user has the obligation to fit into the whole circumstance or the main involvement (engagement), in order to achieve the prevailing ends with voluntary presence. In the first instance, the use of a public space must, at least apparently, fit the dominating purposes and the related main involvement. A shopkeeper may choose to check up on a customer who is lingering too long and shows no obvious intention in any purchase, by asking if he or she may need help in a polite way. A client in a restaurant has to answer the question which food(s) he or she will order upon request, because one’s presence per se indicates the real intention to

93 See Goffman’s analysis of the main involvement of a social event that prescribes duties on public space users. Goffman (n. 68) 50–52.

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consume. There seems to be little or no space for lolling or loitering; for wandering around without a clear purpose in public places.94 In the second instance, the user-public space relationship also implies specific relationships among users themselves. Any user should not take action to create obstacles for others to use public space according to the main involvement. If the main purpose of a public space such as an urban park is for recreational purposes, a user has no right to force others to engage with him in a conversation, but bears a duty not to interrupt others’ use and solitude if the latter refuses to do so. The extent of mandatory exposure and concealment depends on the relationship of a public space user to that particular place in the context of voluntary presence, which indicates the acceptance and acknowledgement of the dominant purposes and main involvement, and therefore the affiliated societal rights and duties. The relationship between shop owners—as service providers and regulators—and customers is more demanding than the one between strangers on public streets. Thus, the right to demand information and the obligation to disclose must be defined according to the dominating purposes of a public space and the related main involvement (engagement) to achieve them. The third parameter is the proportionality of concealment and exposure in fulfilling dominating purposes and carrying out related main involvement at a particular public space. Any collection and processing of personal data by either public space regulators or users should be proportionate, not exceeding necessity, unless with consent. Open public spaces such as public streets, public squares and public parks can only mandate minimum exposure requirements, given that passage, pleasure and non-compulsory social interaction are the prevailing main involvement, so that users’ informational privacy is best protected. In semipublic spaces, such as retail shops and restaurants, collecting and processing customer’s personal information via digital means such as WiFi tracking devices should not exceed necessity, even for improving services and business efficiency, unless with explicit consent, and unless no other less privacy-invading measures are available. In short, a public space user should have an expectation (and thus a protection) of privacy to the extent that personal information or data will not be used in ways that exceed necessity for public space use, either by regulators or by other individual users. If such use is necessary, the use should be

94

Being present at a public place without an orientation to apparent goals outside the situation is sometimes called lolling or loitering, or having no purpose, or being disengaged. Ibid. 56–7.

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proportional to the desired ends and that means the choice of activities of the least harmful nature.

6 CONCLUSION Digitalization is a revolutionary stage in public space development because of the fundamental changes that the still growing deployment of digital technologies has brought forth. It leads to challenges and affects our social life to a greater extent than at the time when car traffic gained the upper hand decades ago, gradually usurping pedestrian space in streets and squares.95 The crux of the fundamental changes lies in the created and increased information flow through (connected) various networks, which not only combines the physical space and the virtual one, but also adds new meanings to a hybrid of the two. Escalating data collection, data processing, data storage, data dissemination and data retention have made the biggest threat to expose public space users to others, even to the rest of the whole world, in an unprecedented manner; and thus they have generated numerous privacy challenges, including, for instance, data misuse and abuse, function creep, stigmatization and discrimination in individual life, etc. Another byproduct of the digitalization process is the collapse of the traditional public-private divide that may have previously defined fine lines between what is private and what is public. There is a growing demand for re-assuring the right privacy expectation and privacy protection in public spaces, which could be fundamental and preconditional to the appropriate functioning of public spaces. In view of these changes, and even more changes that will be coming due to many new powerful digital technologies, the exploration of new boundaries and new balance between privacy protection and other desired values (or interests) at public spaces will continue even in the distant future. Yet, there is no short answer ready to the question of to what extent exposure and concealment of personal information may be desired in the ongoing digitalization process. Nevertheless, one thing is quite certain: a stronger privacy protection is needed in view of its growing significance in public space use and personal development in the Digital Age. However, there is the need to consider very carefully how much protection is proper in the following manner. First, it must be kept in mind what the dominating purposes or ends and the related main 95 M. Carmona, ‘Contemporary Public Space: Critique and Classification, Part One: Critique’ (2010) 15 Journal of Urban Design 126.

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involvement of a particular public space are, because that is what a public space is meant for. Second, it is necessary to consider: to achieve these ends, what an individual’s relationship to that public space (including other public space users) is, and what the related duties and rights of that person are in terms of concealment and exposure. Third, when disclosure of personal information is needed in a public space, it should not exceed what is really necessary and proportional to realize the justified public space use. It is a matter of fact that not only can too much exposure compromise privacy and thus hinder public space use, but also unnecessary over-concealment can also put public space in jeopardy.

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7. Covering up: American and European legal approaches to public facial anonymity after SAS v. France Angela Daly* 1 INTRODUCTION This chapter critically analyses the 2014 decision of the European Court of Human Rights (ECtHR) in SAS v. France focusing on its implications for the right to privacy.1 The case concerned the compatibility of the French ban on facial coverings (including but not limited to those worn by some Muslim women) in public with fundamental rights established under the European Convention on Human Rights (ECHR). The case has raised issues of religious freedom and minority rights, but it also has an impact on personal privacy more generally, and also conceptions of privacy in public places, even if this impact may not have been envisaged by the Court. The discussion is structured as follows. First, the circumstances surrounding the SAS v. France case and the decision itself are detailed. Then, the ECtHR’s jurisprudence on privacy in a public place is elaborated with consideration of how the SAS decision fits within this precedent. This is then compared with US anti-mask case law, given the similar subject matter of facial coverings in public, but also because these cases have involved more nuanced and developed reasoning in the absence of an authoritative US Supreme Court ruling on the matter. However, this American jurisprudence has proceeded on the basis of the

* The author would like to acknowledge Monique Mann, Monika Zalnieriute and an anonymous referee for their helpful and insightful comments on this chapter. 1 SAS v. France (App. No. 43835/11) ECtHR, Judgment on Merits and Just Satisfaction, 1 July 2014. 164

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First Amendment (comprising the rights to freedom of speech, expression and religion) rather than privacy rights, as has been the case in Europe. This is significant because the ECtHR in SAS v. France did not consider in any detail free expression issues, pointing to a sharp divergence between how this issue is viewed by courts and conceptualized in law on each side of the Atlantic. Finally, some thoughts on the implications of this jurisprudence for current and future technological developments are offered, given the continual technologically-mediated blurring of the public/private divide (and increasingly also the online/ offline divide) which has traditionally characterized notions of privacy, and the possible increase in individuals wanting to obscure their facial features given the development of real-time facial recognition technology under mass-deployment. As will be seen below, the SAS decision is compatible with preexisting ECtHR jurisprudence on privacy in public spaces. Yet the decision does highlight a point of divergence with the US jurisprudence on anti-mask laws, which would seem to prohibit facial coverings in more restricted circumstances than SAS. Another point of divergence, as mentioned above, is the legal basis for challenging such laws: in the United States, cases have proceeded on the basis of the First Amendment, rather than privacy. The US jurisprudence also evidences the comparative underdevelopment in European case law of notions of anonymity. This is problematic given the increasingly pervasive/mass surveillance occurring in public spaces through technologies such as CCTV, facial recognition and IMSI-catchers, with this surveillance increasingly encroaching into private spaces, as well as through developments such as smart homes and the Internet of Things.2 The lack of recognition, either implicit or explicit, of a right to anonymity in SAS presents conceptual challenges to European citizens asserting such an interest in future legal proceedings, as can be contrasted with the US situation.

2

M. Heumann, L. Cassak, E. Kang and T. Twitchell, ‘Privacy and Surveillance: Public Attitudes on Cameras on the Street, in the Home and in the Workplace’ (2016) 14(1) Rutgers Journal of Law and Public Policy 37; L. Edwards, ‘Privacy, Security and Data Protection in Smart Cities: A Critical EU Law Perspective’ (2016) European Data Protection Law Review (forthcoming).

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2 ECTHR’S DECISION IN SAS V. FRANCE The ECtHR’s judgment in SAS v. France was handed down in July 2014. The case originated in an application brought against France by a French national concerning the French law (Law no. 2010-1192 of 11 October 2010) prohibiting the wearing of clothing designed to conceal one’s face in public places. This was followed by similar legislation in Belgium in 2011, and there are local bans on face veils in some Italian, Spanish and Swiss municipalities.3 At the time of writing, Bulgaria had recently banned facial coverings in public;4 the lower House of Parliament in the Netherlands has approved a ban on facial coverings in certain public spaces (including schools, hospitals and on public transport) which will go before the Dutch Senate;5 and Germany and Norway are discussing their own (partial) bans.6 During the summer of 2016, various local authorities in France’s coastal areas also prohibited beach-goers from wearing full-body swimsuits (known as ‘burkinis’ even though the wearer’s face is usually visible) on the basis of the French Constitutional principle of laïcité (or ‘secularism’), public order (particularly in wake of recent Islamist terrorist attacks in France) and public health—although the Conseil d’Etat did rule that such prohibitions were illegal.7 In the SAS case, the applicant, described as a ‘devout Muslim … [who] wears the burqa and niqab in accordance with her religious faith, culture

3

See S. Pastorelli and A. Ferrari (eds), The Burqa Affair Across Europe (Routledge, 2013). 4 S. Fenton, ‘Bulgaria imposes burqa ban—and will cut benefits of women who defy it’, Independent, 1 October 2016 (online), www.independent.co.uk/ news/world/europe/bulgaria-burka-ban-benefits-cut-burkini-niqab-a7340601.html. 5 H. Agerholm, ‘Dutch Parliament approves partial burqa ban in public places’, Independent, 29 November 2016 (online), www.independent.co.uk/ news/world/europe/dutch-burqa-veil-ban-holland-votes-for-partial-restrictionssome-public-places-a7445656.html. 6 G. Samuels, ‘Norway sets out plans for banning burqa in schools and universities’, Independent, 6 October 2016 (online), www.independent.co.uk/ news/world/europe/norway-banning-burqa-in-schools-and-universities-a7347521. html. 7 See S. Berry, ‘The “Burkini Ban”: A Red Line even for the European Court of Human Rights’, Oxford Human Rights Hub, 7 September 2016, available at http://ohrh.law.ox.ac.uk/the-burkini-ban-a-red-line-even-for-theeuropean-court-of-human-rights/. See also E. Tarlo, ‘Jewish Wigs and Islamic Sportswear: Negotiating Regulations of Religion and Fashion’ (2016) 7(1) Critical Studies in Fashion and Beauty 69.

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and personal convictions’,8 argued that the French law prevented her from wearing the full-face veil (niqab) in public, alleging a violation of her rights under Articles 3, 8, 9, 10, 11 and 14 of the European Convention on Human Rights. The applicant did admit that she did not wear the niqab in public at all times, but wanted the right to be able to wear it when she chose to do so. It was also noted that: [t]he applicant did not claim that she should be able to keep the niqab on when undergoing a security check, at the bank or in airports, and she agreed to show her face when requested to do so for necessary identity checks.9

It is important to note that while the ban on facial coverings appeared in practice to be targeted at Muslim women wearing face veils, the legislation’s broad wording was such that any facial covering worn for any motivation was covered by the prohibition, thus the intent of the wearer was irrelevant. The law would appear to have been designed in this way in order to avoid claims of overt discrimination on the basis of religion. After establishing the applicant’s standing the Court found that the French law did not constitute a violation of Article 3 (freedom from torture or degrading treatment or punishment) for being insufficiently severe; and also did not constitute a violation of Article 11 (freedom of peaceful assembly and freedom of association) as being unsubstantiated by the applicant’s arguments. However, the Court considered at some length the arguments based on the French law being a violation of Articles 8 (right to respect for private and family life, home and correspondence), 9 (right to freedom of thought, conscience and religion) and 10 (right to freedom of expression). The French government argued the law pursued legitimate aims: to ensure ‘public safety’ including upholding the French principle of ‘living together’ (le vivre ensemble).10 Furthermore, the French government considered that Article 8 did not apply, as the prohibition on facial coverings only applied to public places, and so individual privacy was not at stake. In its detailed consideration of whether the French law violated Articles 8 and 9 of the Convention, the Court did find that the scenario fell within the notion of ‘private life’ since ‘personal choices as to an individual’s desired appearance whether in public or in private places, relate to the expression of his or her personality’, and this includes an 8 9 10

SAS v. France (n. 1) para. 11. Ibid. para. 13. Ibid. para. 82.

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individual’s choice of clothing.11 Thus a measure that would restrict an individual’s choice of clothing can constitute an interference with the right to respect for an individual’s private life within Article 8. The fact that the measure can restrict what an individual may wear for religious reasons also triggered Article 9’s application. The rights contained in Articles 8 and 9 can be restricted by a ‘legitimate aim’. The Court accepted the French government’s argument that it was pursuing the legitimate aim of ensuring ‘public safety’ in enacting the law in question, and also accepted that the French government’s argument that the law was aimed at ensuring the ‘respect for the minimum requirements of life in society’ or ‘living together’ may fall within the legitimate aim of the ‘protection of the rights and freedoms of others’ since ‘the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier’.12 On finding that the French law did pursue legitimate aims, the Court then considered whether it was ‘necessary in a democratic society’. Regarding the legitimate aim of public safety, the Court found that a blanket ban on facial coverings was not necessary, except in circumstances where there was a ‘general threat to public safety’, which the French government had not shown.13 The Court considered that requirements to remove facial coverings in the context of security checks and identity photos for use in official documents would not be violations of Article 9, and that the French government’s objective regarding public safety could have been met through an obligation to show one’s face and identify oneself where a risk to safety has been shown or where the circumstances give rise to a suspicion of identity fraud. Accordingly, the Court found that a blanket ban on facial coverings was not necessary in a democratic society for the purposes of public safety within the meanings of Articles 8 and 9. However, a majority of the Court did find that the prohibition on facial coverings was justified insofar as it sought to achieve the aim of ‘living together’ (of which showing one’s face in public appears to be a constituent part in France at least) as part of protecting the rights and freedoms of others, and found France had a wide margin of appreciation in this case, especially given what the majority saw as a lack of consensus among Council of Europe members on the issue of the face 11 12 13

Ibid. para. 107. Ibid. para. 122. Ibid. para. 139.

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veil.14 A dissenting minority disagreed, considering that the prohibition on wearing facial coverings was a disproportionate measure to the aim of protecting the principle of ‘living together’, an aim which the dissenting judges did not consider was one which could ‘readily be reconciled with the Convention’s restrictive catalogue of grounds for interference with basic human rights’.15 Finally, the Court did not find a violation of Article 14 due to the law’s ‘objective and reasonable justification’ as indicated above, and also did not find that any separate issues arose under Article 10 that had not already been taken into consideration in the Court’s examination of Articles 8 and 9. Accordingly, a majority of the Court did not find that there had been any violation of Convention rights in this case.

3 SAS AND ECTHR JURISPRUDENCE ON PRIVACY IN PUBLIC PLACES The majority judgment in SAS v. France has proven controversial from freedom of religion, feminist, individual liberties and minority rights perspectives, and much of the commentary has advanced arguments on these points.16 In addition, the ‘living together’ concept has been criticized as giving the judgment a ‘flawed legal basis’.17 The topic of prohibiting veils more generally (whether obscuring the face or not) has also been at issue in other recent European legal proceedings. The Advocate Generals’ opinions in two recent EU law 14

Ibid. paras 156–7. Ibid. Joint Partly Dissenting Opinion of Judges Nussberger and Jäderblom, para. 25. 16 See E. Brems, ‘SAS v France: A Reality Check’ (2016) 25 Nottingham Law Journal 58; J. Marshall, ‘S.A.S. v France: Burqa Bans and the Control or Empowerment of Identities’ (2015) 15(2) Human Rights Law Review 377; F.-X. Millet, ‘When the European Court of Human Rights Encounters the Face: A Case-Note on the Burqa Ban in France, European Court of Human Rights, Judgment of 1 July 2014, Case No. 43835/11, S.A.S v France’ (2015) 11(2) European Constitutional Law Review 408; H Yusuf, ‘S.A.S. v France: Supporting “Living Together” or Forced Assimilation?’ (2014) 3(2) International Human Rights Law Review 277. 17 M. Hunter-Henin, ‘Living Together in an Age of Religious Diversity: Lessons from Baby Loup and SAS’ (2015) Oxford Journal of Law and Religion 1. See also E. Erlings, ‘“The Government Did Not Refer to It”: SAS v France and Ordre Public at the European Court of Human Rights’ (2015) 16 Melbourne Journal of International Law 1. 15

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cases come to opposing conclusions on the legality of the prohibition of veil-wearing in workplaces. Advocate General Kokott’s Preliminary Opinion in Achbita and anor v. G4S Secure Solutions considered that a private sector employer could prohibit the wearing of veils in the workplace if the ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols and may be justified to enforce a policy of religious and ideological neutrality.18 However, Advocate General Sharpston in her Preliminary Opinion in Bougnaoui and ADDH considered that in the circumstances of that case, the employer’s prohibition on wearing religious signs or clothing when in contact with customers involved direct discrimination on the grounds of religion or belief—but that a prohibition on employees covering their entire face when performing a job involving contact with customers would be proportionate.19 Which, if either, of these positions the Court of Justice of the European Union (CJEU) will eventually adopt remains an open question at the time of writing. In any event, it is acknowledged that the Islamic veil remains an object of much controversy in Europe, with arguments made that it is divisive, patriarchal and oppresses women. However, there are also counterarguments, including from Muslim women themselves, that they exercise their own agency to wear veils and do so for various reasons including to adhere to religious requirements for modesty and as a sign of their identity and expression.20 Questions can also be raised about why, if these measures are to protect women from gender oppression, then various other forms of arguably more widespread patriarchal gender oppression in Western societies largely escape social, legal and political

18

Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV (C-157/15), Opinion of Advocate General Kokott delivered on 31 May 2016. At the time of writing, the CJEU decision in this case has not yet been handed down. See also S. Ouald Chaib, ‘ECJ headscarf series (6): The vicious circle of prejudices against Muslim women’, Strasbourg Observers, 20 September 2016, available at https:// strasbourgobservers.com/2016/09/20/ecj-headscarf-series-6-the-vicious-circle-ofprejudices-against-muslim-women/. 19 Asma Bougnaoui and ADDH v. Micropole SA (C-188/15), Opinion of Advocate General Sharpston delivered on 13 July 2016. At the time of writing, the CJEU decision has not yet been handed down. 20 See e.g., A. Moors, ‘Face Veiling in the Netherlands: Public Debates and Women’s Narratives’ in E. Brems (ed.), The Experiences of Face Veil Wearers in Europe and the Law (Cambridge University Press, 2014).

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scrutiny and enforcement, such as the gender pay gap, sexual harassment and domestic violence against women.21 While the CJEU cases above provide useful context, they differ from the SAS v. France decision inasmuch as they concerned the activities of private sector employers in workplaces (which can be conceptualized as a ‘semi-public’ space) rather than the actions of the nation-state in all public places (which would seem to be all spaces outside of residential dwellings, places of worship and possibly also private clubs). The arguments concerning the right to privacy would also be weaker vis-à-vis the veil prohibitions in these instances (which ‘only’ concerned headcoverings as opposed to face-coverings) than in the factual circumstances of SAS and the general French ban on face-veils in public places. The rights to privacy and free expression were also not invoked in these employment cases. It is not the intention of this chapter to engage further (beyond this acknowledgment of the context) with these debates around the contested object of the Islamic veil, religious freedom and women’s rights specifically. Since the prohibition on facial coverings in SAS v. France was worded in a way which applied to all facial coverings worn for any purpose, and thus (beyond a few limited exceptions) prohibited anyone from covering their face in public places, the more general implications for the population at large, including but not limited to Muslim women, are examined here. The contested political and religious context of the Islamic face veil in Europe should not blind us to SAS’s broader implications for individual anonymity in public places. Indeed, as already mentioned, the discussion about SAS v. France so far has mostly overlooked the case’s implications for the right to privacy, especially in public places. Interestingly, and perhaps also worryingly, from a privacy perspective, the judgment in SAS appears to entail that there cannot be a prima facie blanket ban on facial coverings for reasons of public safety, unless there was a ‘general threat to public safety’ (which had to be evidenced) but covering one’s face could be banned for what would seem to be the much more abstract or even trivial reason of ‘living together’, or in other words, according to the preferences of one’s fellow citizens, which the state can take coercive measures to enforce. According to the French government in SAS, the face veil violated the principle of ‘living together’ because ‘the effect of concealing one’s face 21 See J. Wallach Scott, ‘The Veil and the Political Unconscious of French Republicanism’, Orient XXI, 27 April 2016, available at http://orientxxi.info/ magazine/ the-veil-and-the-political-unconscious-of-french-republicanism,1310, 1310.

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in public places is to break social ties’,22 and the ECtHR did accept that ‘the face plays an important role in social interaction’ and: underst[ood] the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships.23

The Court ultimately found that the domestic policy-maker had a wide margin of appreciation in the circumstances at hand, and ultimately found the prohibition ‘necessary in a democratic society’.24 This was in spite of no concrete evidence being adduced to demonstrate that in fact facial coverings ‘broke social ties’, prevented ‘open interpersonal relationships’ or somehow made those wearing such coverings less ‘accountable’ or ‘trustworthy’ in practice. The result of this is a position in which the ECtHR required the French government to provide evidence of public safety issues in order to restrict personal privacy, but did not require evidence of the threat to ‘living together’ that facial coverings posed. The ECtHR’s requirements for evidence regarding public safety claims are to be welcomed in the context of the War on Terror, pervasive surveillance via digital technologies and increasing government encroachment into citizens’ lives.25 Yet the seemingly lower bar of ‘living together’ as a justification for blanket facial covering bans in public places is highly problematic— whether the Court intended it or not—for privacy rights. The facial covering prohibition in SAS v. France could be conceived of as upholding a certain level of ‘civility’ in French society, and this ‘civility’ is something that Post has argued underpins privacy; or at least the US tort of invasion of privacy, a jurisdiction which notably lacks an 22

SAS v. France (n. 1), para. 82. Ibid. para. 122. The ECtHR’s comments here have been followed in a subsequent Austrian Supreme Court decision, which found that an employer could prohibit an employee from wearing a face veil because it is one of the basic rules of interpersonal communication that facial expressions be visible. See J. Widner, ‘Supreme Court bans niqab’, International Law Office, 28 September 2016, available at www.internationallawoffice.com/newsletters/employmentbenefits/austria/graf-pitkowitz/supreme-court-bans-niqab#1. 24 Ibid. paras 155–7. 25 See R. Ashby Wilson (ed.), Human Rights in the ‘War on Terror’ (Cambridge University Press, 2005); A. de Souza e Silva and J. Frith, Mobile Interfaces in Public Spaces: Locational Privacy, Control and Urban Sociability (Routledge, 2012); H. Nissenbaum, ‘Protecting Privacy in an Information Age: The Problem of Privacy in Public’ (1998) 17 Law and Philosophy 559. 23

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enforceable human right to privacy.26 Yet all rules of civility are not enforced in laws backed by the coercive power of the nation-state, and human rights are often conceived of as a bulwark against that coercive power, including when it manifests majoritarian preferences. Furthermore, others such as Bernal have argued more recently, especially in the digital age, that privacy should primarily be conceptualized as a means of upholding individual autonomy.27 Of course, in situations such as the SAS circumstances, the Court conceived of the situation as some kind of clash of individual autonomy or rights, and the end result in that case seems to be that the (perceived) offended feelings of the majority when faced with facial coverings has prevailed in restricting the freedom of others who wish to cover their faces. As regards the ECtHR’s previous jurisprudence on privacy, the ECtHR’s refusal of the French government’s argument that Article 8 was not implicated (because the measure related to individuals’ conduct in public) is consistent with a body of previous case law around privacy in public places. In PG and JH v. United Kingdom, the ECtHR acknowledged that ‘[t]here is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”’.28 This language was echoed in the subsequent Peck v. United Kingdom case.29 In von Hannover v. Germany, the ECtHR recognized that individuals, even celebrities, could enjoy privacy rights when circulating in public in certain circumstances.30 The Court in that case also recognized that ‘increased vigilance in protecting private life is necessary to contend with new communication technologies which make it possible to store and reproduce personal data’.31 However, when surveillance of an individual in a public place is occurring, it is only actionable if the applicant’s movements are being recorded.32 In addition, not all instances of surveillance recordings will be actionable, and factors to be considered are: 26 R. Post, ‘The Social Foundations of Privacy: Community and Self in the Common Law Tort’ (1989) 77 California Law Review 957. Note that Post also considers the rules of civility as safeguarding the interests of individuals. 27 P. Bernal, Internet Privacy Rights: Rights to Protect Autonomy (Cambridge University Press, 2014) 9–15. 28 App. No. 44787/98, ECtHR, Judgment of 25 September 2001, para. 56. 29 (2003) 36 EHRR 41, para. 57. 30 App. No. 59320/00, ECtHR, Judgment of 24 June 2004, para. 50. 31 Ibid. para. 70. 32 PG and JH v. United Kingdom, para. 57.

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+ whether the recording amounted to an intrusion into the individual’s privacy; + whether it related to private matters or public incidents; + whether the recording was envisaged for a limited use or was likely to be made publicly available; and to what extent the applicant could have foreseen the use to which the recording was put.33 This protection of privacy in a public place, in certain circumstances, has spread to the domestic law of ECHR member states, such as the United Kingdom, where English common law did not traditionally recognize such a concept.34 Although surveillance was not raised as an issue in SAS v. France, if an individual wanted to preserve her privacy in public places from surveillance in the form of CCTV camera (possibly including a real-time facial recognition feature) by covering her face, and was in a country in which there were laws prohibiting such covering, it is unclear how this would be governed by the ECHR. If some interest in ‘living together’ requiring the uncovering of one’s face for the benefit of fellow citizens can be identified as an important societal value in that particular country, then the ECtHR may not find a violation of the Convention, even when reasons of public safety would be insufficient absent a specific threat. In the wake of SAS v. France, the preferences of the majority of fellow citizens seem to lead to the possibility of those wanting to obscure their faces as a way of avoiding or circumventing pervasive surveillance in public places being frustrated by the abstract preferences of a majority of their fellow citizens. The finding of such preferences, whether imagined or otherwise, opens the door to one’s face being visible to the state (via surveillance devices such as CCTV) as well as one’s fellow citizens, even where the state could not prohibit covering one’s face on the basis of public safety without evidence of a general threat.

33

Friedl v. Austria (1995) 21 EHRR 83, paras 48–9; Perry (2004) 39 EHRR 3, paras 37–41. See N.A. Moreham, ‘The Right to Respect for Private Life in the European Convention on Human Rights: A Re-examination’ (2008) 1 Human Rights Law Review 44, 54–5. 34 N.A. Moreham, ‘Privacy in Public Places’ (2006) 65 Cambridge Law Journal 606.

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4 US EXPERIENCE: ANTI-MASK LAWS AND ANONYMOUS SPEECH As mentioned above, while the ban on facial coverings at issue in SAS v. France appeared to be directed at Muslim women who wore the niqab or burqa, in practice the language of the legislation did not formally limit its application to that group and particular style of dress, and indeed applied generally to the entire population. Thus, individuals who wished to cover their faces for motives other than religious were also prohibited from doing so, a position upheld by the ECtHR. This provokes the question: what other kinds of individuals may (legitimately) wish to cover their faces in public places? Political protests, including in liberal democracies with human rights regimes, have often involved individuals obscuring their faces with masks and other coverings. Even in the pre-ubiquitous surveillance era, individuals attending such events may have wished to cover their faces in order, inter alia, to obscure their identity and retain their anonymity, both vis-à-vis the state organs wishing to conduct surveillance,35 and vis-à-vis other people wishing to exert forms of social control over their non-conforming fellow citizens.36 In the current era of ubiquitous surveillance,37 the desire to wear a mask to protect one’s identity from the intrusive practices of the state may be greater than ever.38 It is acknowledged,

35

UK police forces have taken and retained photographs of people attending protests who have not been convicted of any criminal offences; this practice has been challenged and found to be incompatible with Article 8 of the ECHR. See R (on the application of Wood) v. Metropolitan Police Commissioner [2009] 4 All ER 951; and R (on the Application of RMC and FJ) v. Commissioner of Police of the Metropolis [2012] EWHC 1681. 36 See e.g. P. Ruiz, ‘Revealing Power: Masked Protest and the Blank Figure’ (2013) 9(3) Cultural Politics 263; L. Riisgaard and B. Thomassen, ‘Powers of the Mask: Political Subjectivation and Rites of Participation in Local-Global Protest’ (2016) Theory, Culture and Society 1; P. Routledge, ‘Sensuous Solidarities: Emotion, Politics and Performance in the Clandestine Insurgent Rebel Clown Army’ (2012) 44(2) Antipode: A Radical Journal of Geography 428. 37 M. Andrejevic, ‘Ubiquitous Surveillance’ in K. Ball, K. Haggerty and D. Lyon (eds), Routledge Handbook of Surveillance (Routledge, 2012). 38 Z. Blas, ‘Escaping the Face: Biometric Facial Recognition and the Facial Weaponization Suite’ (2012) Journal of the New Media Caucus, http://median. newmediacaucus.org/caa-conference-edition-2013/escaping-the-face-biometricfacial-recognition-and-the-facial-weaponization-suite/ (accessed 18 July 2017); M. Kaminski, ‘Real Masks and Real Name Policies: Applying Anti-Mask Case

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however, that merely covering one’s face to obscure one’s facial biometrics will not defeat all attempts to surveil individuals in public places, given personal data can be collected from other aspects of one’s bodily movements, not least from wearable devices individuals choose to wear themselves.39 However, it is one method of doing so, and also has the effect of resisting ‘offline’ social control by peers. In the United States, attempts to prevent the Ku Klux Klan from masking themselves in public parades have resulted in a series of ‘anti-mask’ laws in various States.40 While enacted for different reasons and in a different context, these laws involve similar subject matter to the French law, namely garments or objects that obscure an individual’s face in a public place. It is important to note that various European countries (including Austria, Denmark, Germany, Norway, Spain and Sweden) have similar anti-mask laws that seem to be directed at individuals participating in public events that are or have the potential to become violent or riotous. However, there are no cases at the European level regarding the compatibility of these laws with fundamental rights,41 and their existence was not referred to in the SAS v. France judgment. The US anti-mask laws are not homogenous and vary in the kind of conduct prohibited. Kaminski has identified six categories: (1)

(2)

some (such as in Minnesota) criminalize all mask-wearing in public, with typical exceptions being mask-wearing on Halloween, for instance; others (such as in California) prohibit wearing masks when the wearer’s intention is to conceal their identity;

Law to Anonymous Online Speech’ (2013) 23 Fordham Intellectual Property, Media and Entertainment Law Journal 815. 39 A. Daly, ‘The Law and Ethics of “Self-Quantified” Health Information: An Australian Perspective’ (2015) 5(2) International Data Privacy Law 144. 40 E. Darwin Winet, ‘Face Veil Bans and Anti-Mask Laws: State Interests and the Right to Cover the Face’ (2012) 35 Hastings International and Comparative Law Review 217. 41 The author could only find evidence of the Spanish law being challenged on a constitutional/human rights basis in the Spanish courts; the decision in this case appears to be pending at the time of writing. See K. Nyman Metcalf, ‘Spain’s Public Security Law: Overview of Challenges’, International Press Institute, 20 July 2015, available at www.freemedia.at/spains-public-securitylaw-overview-of-challenges/. There do not appear to be any constitutional/human rights challenges at the domestic level in the other European countries which have these laws, or at least the author could find no information about any such challenges.

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a further category prohibits wearing a mask for the purposes of depriving another person of civil rights; a fourth category (such as in Connecticut) prohibits wearing a mask and actually depriving another person of their civil rights; a fifth category (such as in Illinois) criminalizes the wearing of masks for the purpose of committing a crime (i.e. intent to commit a crime); a sixth category (also in Illinois) criminalizes the wearing of a mask during the actual commission of a crime.42

While the anti-mask laws have not been targeted specifically at Muslim women wearing niqabs, it would seem this conduct would fall within the scope of their prohibitions and rarely under exceptions that some laws have, e.g. for wearing masks at Halloween or to masquerade balls.43 The US Supreme Court has not heard a challenge to anti-mask laws but there have been various decisions at the level of lower courts, particularly regarding the compatibility of these measures with the First Amendment to the Constitution protecting, inter alia, free speech, expression and religion. There are cases where these measures have been found to be unconstitutional, but also cases where the measures were constitutional. These are examined in turn below. First, the cases where anti-mask laws were found to be unconstitutional. Two cases from 1978 concerned masked protests against the Shah of Iran. In Aryan v. Mackey, a university regulation prohibiting masked protest was found to be unconstitutional because the mask-wearing was protected by the First Amendment, and the State failed to show evidence that the mask-wearing was linked to violence.44 In Ghafari v. Municipal Court for San Francisco Judicial District of San Francisco, the California Court of Appeal considered the Californian anti-mask law (category 2 above), stating that ‘anonymity is essential to the exercise of constitutional rights’. Therefore, the Court of Appeal concluded the anti-mask law was unconstitutional because it was overly broad as it inhibited the exercise of free speech.45 A later 1990 case found a Tennessee city ordinance prohibiting masks in parades to be unconstitutional under the

42

Kaminski (n. 38) 848–9. Winet (n. 40) 236. 44 Aryan v. Mackey 462 F. Supp. 90, 94 (N.D. Tex. 1978). 45 Ghafari v. Mun. Ct for S.F. Jud. Dist. of S.F., 87 Cal. App. 3d 255, 259–62, 265 (Cal. Ct. App. 1978). 43

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First Amendment because it could stifle symbolic expression.46 A 1997 Ohio case came to a similar conclusion.47 In what Kaminski describes as the case providing the strongest First Amendment protection for masks, the court in American Knights of the Ku Klux Klan v. City of Goshen found that there was a free-standing right to anonymity which was violated by a city’s anti-mask ordinance.48 However, other US cases have also found anti-mask laws to be constitutionally valid. A prominent 2001 case was heard in the Second Circuit Court of Appeals, Ku Klux Klan v. Kerick, in which the court found that the Ku Klux Klan’s proposed mask-wearing at a parade was not symbolic speech because it had no independent expressive value from the rest of the KKK costume.49 The Second Circuit Court also narrowly interpreted the First Amendment right to anonymous speech as a right only against the compelled disclosure of one’s name.50 The Supreme Court of Georgia has also upheld that State’s anti-mask law in State v. Miller (enacted to address Ku Klux Klan threats), though narrowed its scope to situations where there was intent to conceal one’s identity and its application to scenarios where wearing the mask provoked fear in others.51 The Court here considered that in certain circumstances anonymity could be necessary for the exercise of constitutional rights but it can also be used for nefarious purposes, and so it is ‘neither an absolute social good, nor an absolute constitutional right’.52 However, the 2003 Supreme Court judgment in Virginia v. Black must be considered: according to this case, when it comes to regulating threats in a constitutional manner, the threat must be a ‘true threat’, i.e. one with the intent of making the victim fear bodily harm or death.53 It seems as a result of this case that ‘a state cannot regulate mask-wearing solely because it is frightening to other people’.54 Thus, this strain of US jurisprudence is inconclusive as to the constitutionality of anti-mask laws, absent a Supreme Court decision on 46

Ku Klux Klan v. MLK Worshippers, 735 F. Supp. 745, 751 (D.C. Tenn.

1990). 47

Dayton v. Esrati, 707 N.E.2d 1140, 1144–47 (Ohio Ct. App. 1997). Am. Knights of the Ku Klux Klan v. City of Goshen, 50 F. Supp. 2d 835 (N.D. Ind. 1999). Kaminski (n. 38) 859. 49 Church of the Am. Knights of the Ku Klux Klan v. Kerik 356 F.3d 197, 211 (2d Cir. 2004). 50 Ibid. 208. 51 State v. Miller, 398 S.E. 2d 547 (Ga. 1990). 52 Ibid. 552. 53 Virginia v. Black, 538 U.S. 343, 344 (2003). 54 Kaminski (n. 38) 875. 48

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the matter. Also, in contrast to the European scenario, it is not privacy rights providing the basis for legal challenge to these anti-mask laws, but instead the First Amendment to the Constitution. There are a number of possible reasons for this divergence. The fact that privacy has not been invoked in American proceedings is likely due to the US Constitution’s lack of explicit protection of the right to privacy (and the factual circumstances’ lack of ‘fit’ with Fourth Amendment protections), unlike in Europe where privacy is protected by Article 8 of the ECHR (and also by the EU’s Charter of Fundamental Rights).55 The appeal to the First Amendment in these American cases may be attributed to the strong and broad protection of speech and conduct that American courts have interpreted this provision to give individuals, to the point that Kendrick has termed this a type of ‘expansionism’ given the extent to which other legal claims have been ‘repackaged’ as claims under the First Amendment.56 Cultural differences between the United States and Europe may also be at play, particularly as regards the conception of privacy, with Whitman arguing that Europe conceives of privacy more as an aspect of dignity, and the United States conceives of privacy as an aspect of liberty (against the state, in the privacy of one’s own home), underpinned by contrasting social and political ideals, especially as regards the role of the state in citizens’ lives.57 A legal realist position could also be taken, noting that applicants have succeeded in circumstances in which they were Iranian students but often not when the applicants were Ku Klux Klansmen58—or in the SAS case, highly veiled Muslim women. In any event, the difference in legal framing in the American cases places them formally outside of considerations of privacy in a public place, even when they are dealing with matters of similar substance. Another area of US jurisprudence which is relevant to the discussion here is around anonymous speech, since covering one’s face enables a certain kind of spatial anonymity in one’s actions. The Supreme Court has recognized a right to anonymity in political59 and religious 55 D. Solove, Understanding Privacy (Harvard University Press, 2008), Ch. 1 ‘Privacy: A Concept in Disarray’. 56 L. Kendrick, ‘First Amendment Expansionism’ (2014–2015) 56 William and Mary Law Review 1199. 57 J.Q. Whitman, ‘The Two Western Cultures of Privacy: Dignity Versus Liberty’ (2004) 113 Yale Law Journal 1151. 58 A.M. Froomkin, ‘The Metaphor is the Key: Cryptography, the Clipperchip, and the Constitution’ (1995) 143 University of Pennsylvania Law Review 709, 822–3. 59 McIntyre v. Ohio Elections Commission 514 U.S. 334 (1995).

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speech60 as forming part of the First Amendment. More recently, a Federal District Court struck down a Georgian law which attempted to prohibit pseudonymous communication over the Internet.61 It would seem that anonymous speech would not be protected in certain circumstances, such as when it is used to defame someone, is ‘integral to criminal conduct’ or used to propagate obscenity, although the precise contours of how anonymity is protected by the First Amendment remains unclear.62 In light of the First Amendment jurisprudence, Kaminski has suggested that US courts have often recognized a (qualified) right to anonymity as subsisting in the First Amendment, and that restrictions on this right and/or First Amendment rights more generally must be evidenced by a ‘concrete, compelling interest … rather than a blanket prohibition on anonymity generally’.63 Despite the anti-mask laws in existence in various US States, the First Amendment jurisprudence suggests that a similar factual scenario to SAS v. France occurring in the United States would result in a different outcome. Although there has not been an authoritative Supreme Court ruling on the issue, the existing jurisprudence would seem to entail that a blanket ban on covering one’s face would be unconstitutional, and even a narrow prohibition would have to be justified by a state interest, where actual evidence would have to be adduced of, for instance, a threat to individuals’ physical bodily integrity. This is similar to the language in SAS v. France regarding ‘public safety’ threats (and also to the dissenting judgment), but where the two jurisdictions differ (aside from the fact the challenges have been framed under free expression and privacy protections, respectively) is the much laxer ‘living together’ standards that have justified the French facial covering prohibition, whereas it is highly unlikely a weak and amorphous state interest would justify a restriction on First Amendment rights. Another important difference is Europe’s lack of recognition of anonymity as forming part of either the right to free expression or the right to privacy, as contrasted with the fact that anonymity has been acknowledged to some extent in the First Amendment by US courts.

60 61 62 63

Watchtower Bible v. Village of Stratton 536 U.S. 150 (2002). ACLU v. Miller 77 F. Supp 1228 (N.D.G.A. 1997). Kaminski (n. 38) 842–3. Ibid. 888.

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5 BROADER THAN A BURQA BAN: SAS AND SURVEILLANCE EVASION Aside from the highly problematic, and already acknowledged, implications of SAS v. France for religious freedom and minority rights, the case is highly problematic from a privacy perspective, given current trajectories of surveillance and surveillance technologies. As mentioned briefly above, various technological developments are contributing to a pervasive ‘surveillance society’64 where vast amounts of information is generated by and about individuals in both their ‘online’ and ‘offline’ lives. Furthermore, the public/private and online/offline boundaries continue to blur, with the development of ambient intelligent environments utilizing the Internet of Things.65 Specific recent developments include real-time facial recognition technology being integrated with CCTV and deployed in public places and in ‘pre-crime’ scenarios,66 and the use of sensor-embedded unmanned aerial vehicles (UAVs, better known as ‘drones’) for military, policing and other activities in both domestic Global North settings and in theatres of war in the Global South.67 This is occurring in conjunction with large-scale and opaque data gathering and surveillance by governments and corporations, with a notable example being the shadowy Five Eyes partnership between five Anglosphere countries unmasked by Edward Snowden in 2013.68 As already noted, the jurisprudence on a right to anonymity forming part of a right to privacy or a right to free expression in Europe is underdeveloped compared to the United States, and the decision in SAS v. France demonstrates that any implicit right to anonymity in public places can be restricted for fairly spurious reasons. This is concerning given the 64 G.T. Marx, ‘The Surveillance Society’ (1985) 19(3) The Futurist 21; D.H. Flaherty, ‘The Emergence of Surveillance Societies in the Western World: Toward the Year 2000’ (1988) 5(4) Government Information Quarterly 377. 65 See S. Monteleone, Ambient Intelligence and the Right to Privacy: The Challenge of Detection Technologies EUI Law Working Papers 2011/13 (2011). 66 See J. Byrne and G. Marx, ‘Technological Innovations in Crime Prevention and Policing: A Review of the Research on Implementation and Impact’ (2011) 3 Journal of Police Studies 17; M. Mann and M. Smith, ‘Automated Facial Recognition Technology: Recent Developments and Approaches to Oversight’ (2017) University of New South Wales Law Review (forthcoming). 67 See T. Wall and T. Monahan, ‘Surveillance and Violence from Afar: The Politics of Drones and Liminal Security-Scapes’ (2011) 15(3) Theoretical Criminology 239. 68 D. Lyon, ‘Surveillance, Snowden and Big Data: Capacities, Consequences, Critique’ (2014) Big Data and Society 1.

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technological developments that enable the real-time monitoring, tracking and identification of individuals in public places using the biometric information from their faces. Real-life examples of this include the FaceWatch system used by some UK businesses to share CCTV images with each other and police, and use facial recognition technology to identify and alert businesses to ‘dubious customers’ entering their premises.69 The London Metropolitan Police also trialled a live facial recognition system during the 2016 Notting Hill Carnival, following another British police force trialling similar technology at a music festival the previous year.70 Individuals not involved in ‘traditional’ political protests, nor Muslim women who have been the subjects of previous case law, have started to conceal or obscure their faces, engaging in ‘anti-surveillance camouflage’ to protect themselves from ambient surveillance in public places, including: tribal or fractal face paint and hairstyles to confound face-recognition software, hoodies and scarves made with materials to block thermal emissions and evade tracking by drones, and hats that emit infrared light to blind camera lenses and prevent photographs or video tracking.71

Despite these tactics of resistance against pervasive/mass surveillance in public places, the SAS v. France decision does not seem to give a solid fundamental rights basis to using identity-obscuring techniques in Europe. The situation in the United States may differ. However, in addition to the First Amendment jurisprudence, Joh has argued that Fourth Amendment law does not distinguish between attempts to avoid surveillance by non-criminals who instead are citizens concerned about government surveillance overreach—what she terms ‘privacy protests’— and behaviour which legitimately invites police suspicion.72 Thus it is 69 BBC News, ‘Facewatch “thief recognition” CCTV on trial in UK stores’, 16 December 2015, available at www.bbc.com/news/technology-35111363. 70 A. Martin, ‘Notting Hill Carnival spycams: Met Police rolls our real-time live face-spotting tech’, The Register, 26 August 2016, available at www.the register.co.uk/2016/08/26/notting_hill_carnival_police_surveillance_cameras_ automated_face_recognition/. 71 T. Monahan, ‘The Right to Hide? Anti-Surveillance Camouflage and the Aestheticization of Resistance’ (2015) 12 Communication and Critical/Cultural Studies 159. 72 E. Joh, ‘Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion’ (2013) 55 Arizona Law Review 997. See also A. Guthrie Ferguson, ‘The “Smart” Fourth Amendment’ (2016) 102 Cornell Law Review 547.

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unclear whether a future Supreme Court would find a right to anonymity vis-à-vis such ‘privacy protests’ under either or both of the First and Fourth Amendments.

6 CONCLUSION As surveillance in public places becomes ever more prevalent through technological developments such as ‘smart’ CCTV and drones, the ECtHR’s SAS v. France decision seems, effectively, to permit countries to ban a certain kind of ‘privacy protest’, namely, covering one’s face in public places. Although the intention of the Court may not have been to arrive at such a result, this adds another highly problematic dimension to the case. However, Europe is not the only jurisdiction where such ‘privacy protests’ face difficulty in finding a firm constitutional or fundamental rights basis. In the United States, the issue of the constitutionality of anti-mask laws has not been ruled upon definitively, although current jurisprudence seems more encouraging than in Europe in finding a right to anonymity in public places. From the perspective of individuals experiencing increasing encroachment by both government and corporate surveillance, the lack of legal clarity regarding their ability to take ‘self-help’ measures (or ‘surveillance self-defense’)73 in public, or even in the eroding privacy of their own homes, is unfortunate. Unless and until intrusive monitoring is rolled back—and even irrespective of this—individuals should benefit from legal rights to evade pervasive mass surveillance if they choose, at least while they are not engaged in any recognizably criminal behaviour. Yet, leading jurisdictions are not providing certainty on this point, a deficiency that should be remedied.

73 Electronic Frontier Foundation, ‘Surveillance Self-Defense’, https://ssd.eff. org/en.

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8. Privacy Impact Notices to address the privacy pollution of mass surveillance A. Michael Froomkin* 1 INTRODUCTION Encroachments on privacy through mass surveillance greatly resemble the pollution crisis in that they can be understood as imposing an externality on the surveilled. This resemblance also suggests a solution: requiring those conducting mass surveillance in and through public spaces to disclose their plans publicly via an updated form of environmental impact statement. Requiring a Privacy Impact Notice (PIN) would trigger a more informed public conversation about the relationship between the proposed activity’s goals and its privacy costs. By recasting privacy harms as a form of pollution and invoking a familiar US domestic regulatory solution either directly or by analogy, the PINs proposal seeks to achieve several goals at once. First, it offers US legislators suspicious of EU-style rules a domesticated option. Second, just as environmental regulation addressed knowledge gaps about the environmental costs of pollution by mandating studies, so too can privacy law benefit from a mandated body of research defining the privacy costs of previously unregulated activities. In the long run, this body of information should identify which technologies pose the greatest privacy harms. To the extent that actors then choose to avoid those policies, either to avoid bad publicity or because of a future round of information-based

* This is an abridged and updated version of an earlier published paper, A. Michael Froomkin, ‘Regulating Mass Surveillance as Privacy Pollution: Learning from Environmental Impact Statements’ (2015) University of Illinois Law Review 1713. 184

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regulation, deployment of some of the worst privacy-harming technologies may be limited without running into substantial US constitutional limits that otherwise might constrain data retention and use policies. This first section of this chapter explains how individuals’ choice or inability to respond to surveillance can be seen as a form of market failure. It then explains how current US law is inadequate to deal with this challenge. It argues that mass surveillance closely resembles classic air pollution and is thus analogous to pollution of the public sphere.1 Section 2 concludes by arguing that surveillance is nothing less than a form of pollution of the public sphere. Section 3 suggests that since EU-style regulation does not appear to be in the offing, one might instead use US environmental law as a regulatory model. This section outlines how such a model would translate into a system of Privacy Impact Notices. Section 4 concludes by indicating some pros and cons of the suggested model.

2 HOW SURVEILLANCE IS POLLUTING OUR PRIVACY Privacy is an essential political, social, economic and psychological shield. Just as information is power, so too is privacy. The power to control the dissemination of information about oneself enhances freedom from others who would exercise that power against the subject of the data. The same rule applies to politics and public administration, as governments can use information to hand out benefits and to select people for punishments. The rule applies in the private sector, where information determines everything from employment and credit to targeting for advertising and discounts. It applies in the personal sphere, where information determines reputations and informs social relations; here, privacy provides room for personal experimentation and provides the space to change. Not least, privacy serves as a critical psychological shield, creating a space for freedom to read, talk, think, act or experiment. Like most good things, too much privacy can be abused, as when 1

For an early recognition of the parallels between privacy and environmental law, see D.D. Hirsch, ‘Protecting the Inner Environment: What Privacy Regulation Can Learn from Environmental Law’ (2006) 41 Georgia Law Review 1. The characterization of the relationship offered here differs from Hirsch’s in several respects, leading to different suggestions. See Froomkin (n. *) for more details.

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secrecy becomes conspiracy or when the hiding of key information becomes a crime or fraud. But a world without privacy, a world of ubiquitous monitoring and a permanent, indelible, accessible record, would be one of highly chilled speech and very limited freedom. Potentially privacy-harming technologies are growing by leaps and bounds. Fifteen years ago, the catalog of the worst looming threats to privacy ranged from license plate monitoring to ‘smart dust’.2 Today, however, new and different potentially privacy-harming projects— operating at a scale undreamed of at the turn of the century—are in deployment, or in advanced stages of preparation. 2.1 Privacy-Destruction as Market Failure Markets for privacy fail for several synergistic reasons, among them lack of transparency as to who is collecting data; consumer myopia as to the value of personal data; prohibitive transaction costs blocking market solutions to many information-acquisition and information-processing problems; and the outright absence of markets for others. Familiar models, drawn from property law, from environmental law, and from the economics and psychology of information, illustrate these and other problems. 2.1.1 Sensing as externalities Technologies that record information about persons in public and that track online behavior across multiple websites or across multiple social media outlets are in effect externalities imposed by the collectors of the data onto the subjects of the data. Most data captured in (or through) public places are not based on any contractual relations. In contrast, online surveillance may sometimes have been mentioned somewhere in a contract between the data subject and someone, but that contract likely never had meaningful assent from that person, especially if it was a ‘clickwrap’ contract in which no money changed hands. In fact, the contract likely never got read at all. As technologies for collecting, storing and collating information about what others do improve and proliferate, the cost of amassing and analyzing personal data has fallen dramatically. Previously, much of this information may have been formally accessible to a few individuals, but most of them did not care and almost none of them would store, share or 2 See A.M. Froomkin, ‘The Death of Privacy?’ (2000) 52 Stanford Law Review 1461.

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analyze the data. Today, the acts of collecting, collation and analysis all reduce the privacy of the subjects of the monitoring. This loss of privacy is, in effect, an external cost—or, in rarer cases, an external benefit—to those persons subjected to the monitoring. The classic economic answers to an externality are either to attempt to internalize it or to attempt to invoke the Coase Theorem. Both approaches flounder here due to the size of the transaction costs involved in making agreements with potentially millions of surveilled subjects and/or the difficulties of valuation and the cost and effort the data subjects would need to spend to acquire enough information in order to make a good decision about the long-term consequences of sharing data. In general, US private law does not offer remedies to those who suffer negative externalities from having their personal information collected and used. Even if it did, however, collective action problems and the relatively high litigation costs compared to the value of any one person’s data make the transactions costs so great that the Coase Theorem would be inapplicable. 2.1.2 Tragedy of the information commons? It could be argued that our property rights regime assigns the right to gather information in a privacy ‘commons’ akin to Garret Hardin’s famous grassy space overgrazed by sheep. It makes for a powerful metaphor, but is not quite as technically accurate as the straightforward externality account. A true commons is held jointly by a community; in contrast, no one formally ‘owns’ the rights to the privacy-value of personal information observable in or through public spaces. That information is, as a practical matter, initially controlled by the data subject, but once it is visible to others it is owned in a non-rivalrous way and is capable of being copied and used at any time by any observer. To the extent that the diminishment of privacy in public spaces or online is caused by users taking pictures of each other and then posting them online, we do have a closer analogy to the classic tragedy of the commons: everyone is drawing from a common stock of privacy. On the other hand, to the extent that the privacy diminishment is imposed by a third-party data-gatherer, one perhaps unknown to the data subjects, I think the language of externalities best captures the relationship. There is no bargained-for exchange; indeed, there may be no relationship other than that the person being photographed and analyzed happens to pass by a camera or in the line of sight of a sensitive detector placed on the roof of a far-away skyscraper. The absence of any relationship distinguishes these situations from related, but distinct,

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scenarios such as a cell-phone contract in which the surveillance is incident to an actual legal contract (even if one governed by boilerplate and thus not classically bargained-for) in which the subject gets clear notice of, say, the cell-phone company’s intention to collect location data. That too is a serious privacy issue, and may be problematic on several levels, but it is not formally the imposition of an externality. Similarly, the status of personal data in public places in the wild, as it were, may differ from its status upon its subsequent descent into capture and commodification. After capture, or when born in captivity in proprietary social media platforms, data may become more normal property and indeed may even become rivalrous. Ultimately, as Nadya Purtova has argued, it could be that considering this increasingly inevitable capture, we should view personal data as ‘a system resource comprising not merely individual pieces of information pertaining to identifiable individuals, but an entire “ecosystem”’.3 One need not go that far, however, to see that the act of initial capture of the ‘wild’ data generated by a person in public creates the possibility of imposing an unbargained-for cost, effectively an externality, on the person surveilled. It may seem odd to some to talk of externalities without first defining a property right, but in fact this is not at all odd in the environmental realm. We use the concept to analyze air pollution in public places without necessarily specifying who owns a right to breathe what air. Similarly, we talk of greenhouse gas emission as an externality without specifying who exactly owns the legal claim to avoid global warming. Alternately, if it is essential to specify property rights, we could just say that data concerning acts in public are not owned at all. Or, they could be said to belong jointly and severally to everyone capable of observing them. Similarly, one might question whether it is right to talk of an ‘externality’ when speaking of a dyadic relationship. In the classic externality case, the first party does something (e.g. plant flowers, emit pollution) without regard to the consequences for others who then enjoy (more honey) or suffer (more cancer) the consequences. With surveillance, the first party does something (e.g. set up a data collection device) precisely in order to do something to someone else (capture their data). The privacy harm, as well as any resulting public benefit, is not, it could be argued, an ‘externality’ but rather the essence of the ‘transaction’. (In a pollution case, we do not see the polluter collecting the effluent for profit.) I think this characterization, which flows from the non-rivalrous 3 N. Purtova, ‘Illusion of Personal Data as No One’s Property’ (2015) 7 Law, Innovation, and Technology 83, 109.

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nature of data, misses the point. If the parties being surveilled care about their privacy, then the surveilling party is imposing an un-bargained for cost on his target in order to achieve an end of his own. Whether or not that perfectly fits the classic model of an externality, it can certainly be modeled as one.4 2.1.3 Information asymmetries Not only are consumers in a poor legal position to complain about the third-party sale of data concerning themselves, but often they are not in any position to even understand the likely consequences of sharing data about themselves. Part of the problem is that the long-term consequences are in many cases not knowable. Even when the long-term consequences are knowable, it may be unreasonably expensive to game out all the possible scenarios. Indeed, it is difficult if not impossible for ordinary persons to stay informed as to the contemporary uses of even innocuousseeming personal data. This ‘myopia’ about the long-term consequences—a systematic inability to correctly value personal data—explains much of why people tend to say they care about their privacy but nonetheless often act as if they do not. The valuation problem is vastly worse when there is nothing to signal that surveillance is occurring: if consumers are not able to correctly value their privacy when, say, signing standard form contracts, how can we expect them to make reasonable, much less optimal, privacy choices when it is next to impossible to even know a camera is watching them from that tall building far away? In ordinary transactions, be it sales or social encounters, the fact of the transaction ordinarily belongs equally to each participant, and both parties ordinarily are free to sell details about the transaction to any interested third party. Parties could in theory contract for confidentiality. Consumers do not do this because the cost of negotiating in a world of standard forms is very high. Worse, even if the transactions costs were low or non-existent, consumers would tend to sell their data too often and too cheaply. A simple model explains why Americans really will sell their privacy for a frequent flyer mile, at least for ordinary consumer transactions as 4

What is more, the costs imposed can be beyond the value of the datum because if one does not know the nature, number and location of the sensors, the cost of counter-measures for the very privacy-conscious could be very high. Thus, the cost is not simply extractive; in the face of an unknown, perhaps immeasurable, threat, it might include the expenditures for considerable self-help protection.

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opposed to extraordinarily private ones such as sensitive health-related matters. Assume that a representative consumer engages in many transactions. Assume further that the basic consumer-related details of these transactions (consumer identity, item purchased, cost of item, place and time of sale) are of roughly equivalent value across transactions for any consumer and between consumers, and that the marginal value of the data produced by each transaction is low on its own. Assume also that the merchant’s marginal cost of collecting consumer data in a form suitable for sale is effectively zero since they are routinely collected for other internal purposes. None of these standard assumptions should be controversial. Now add the key assumption: aggregation adds value. In other words, once a consumer profile reaches a given size, the aggregate value of that consumer profile is greater than the sum of the value of the individual data. Most heroically, assume that once some threshold has been reached, the value of additional data to a potential profiler remains at least linear; it does not decline. In a world where information exchange about consumers has these properties, it follows that data brokers or profile compilers will be able to buy consumer data from merchants at low transactions costs, because the parties are repeat players engaging in numerous transactions involving substantial amounts of data. Given the limits on the consumer’s knowledge, a personal datum will seem to be worth only its lower, un-aggregated, value rather than its true marginal value. But the merchant—who foresees selling that datum to a profiler—will value the datum at its higher, aggregated value as part of a profile, because in an efficient market that is what the profiler will be willing to pay. It follows that a rational consumer, faced with what appears to be an attractive offer, will always be willing to sell data at (and sometimes below) a price that a merchant is willing to pay. Alternatively, one could posit that the market for information brokerage services likely has oligopolistic tendencies that would tend to push the price of a datum below the aggregated value, although perhaps not as low as the un-aggregated value. The increased value caused by aggregation is an economy of scale that benefits data brokers. If the economies of scale are substantial, in the long run we can expect an oligopolistic market structure in which a few large data aggregators collect and resell information, and the need to aggregate would create an entry barrier to new competitors. Even if this consumer myopia is real, or if the market structure for information brokerage is as oligopolistic as suggested, how much we care depends primarily on the profile’s intrusiveness. If privacy myopia is widespread, more aggregation will create increasing aggravation. On the

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other hand, if people who object to being profiled are unusual, the main consequence of privacy myopia is likely distributional. Consumers who place a low value on their information privacy would have agreed to sell their privacy even if they were aware of the long-run consequences. The only harm they suffer is that they got a lower price than they would have demanded had they understood the value of what they were giving up. Meanwhile, however, consumers who value information privacy most highly will be most seriously harmed by their privacy myopia. Had they but known the aggregated value of each datum, they would not have sold at all. Transaction costs only make this worse. When the consumer’s marginal value of a given datum is small, the value of not disclosing that datum will in most cases be overshadowed by the cost of negotiating a confidentiality clause (if that option even exists) or the likely higher cost of forgoing the entire transaction. Thus, in ordinary cases where the datum does not seem extraordinarily revealing on its own, privacy clauses are unlikely to appear in standard form contracts, and consumers will accept this. Nor would changing the law to make consumers the default owners of information about their economic activity tend to produce confidentiality clauses. In most cases, all it will do is move some of the consumer surplus from information buyers to information producers or sellers, as the standard contract forms add a term in which the consumer conveys rights to the information in exchange for a frequent flyer mile or two. Thus, if (1) consumers are plausibly myopic about the value of a datum because they are focusing on the datum’s marginal value rather than its difficult-to-measure average value, and (2) profilers are not myopic in this way because they can estimate the average value of the datum as part of their aggregate data and the data are more valuable in the aggregate, then there will be substantial over-disclosure of personal data even when consumers care about their informational privacy. If this depiction of privacy myopia is even somewhat accurate, it suggests that proposals to change the default property rule regarding ownership of personal data in ordinary transactions will not achieve much. The data sale will tend to happen even if the consumer has a sole entitlement to it. It also suggests that European-style data protection rules would possibly be effective for highly sensitive personal data, but not for less sensitive data. The European Union’s General Data Protection Regulation (2016/679) allows personal data to be collected for reuse and resale if the data subject gives ‘informed consent’; the privacy myopia story suggests that customers will ordinarily agree to the sale except

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when disclosing particularly sensitive personal facts with a visibly higher marginal value. An equally significant problem arises when the subject is aware of the surveillance but either powerless to prevent it, or only able to do so at exorbitant cost. For example, consumers could be notified that their energy usage is being monitored, and that the monitoring is so sensitive that it can identify the model of their appliances and even the TV show they are watching. There is not that much, however, the average consumer could do with this information. The privacy myopia problem is even more obvious when the subject of data collection is not aware that she is being surveilled. Indeed at that point, the term ‘myopia’ seems inappropriate, as the problem is no longer impaired vision, but either blindness or ignorance. For example, the defendant in the seminal data-collection case of Kyllo v. United States had no idea he was being surveilled. In that case the US Supreme Court held that the measurement of the heat emanations from his home was a search that required a warrant.5 But when the measurement is by a private party, at a distance, and at a mass scale, there is no warrant requirement. Nor is such data collection likely to be considered a criminal trespass or a privacy tort, and in any event few, if any, of the people being surveilled will be aware of it when it happens. And once the data are in private hands, the police can simply buy a copy of the data. Like with privacy myopia, much of the privacy blindness problem is informational: lack of knowledge about the fact of the information collection or lack of knowledge about its consequences. And both of these informational gaps are problems that a notice regime seems well-calculated to ameliorate and perhaps even cure. 2.2 Privacy Doctrine Offers Too Few Tools to Combat Mass Surveillance Existing US regulatory structures are totally unprepared for the data collection deluge. US law currently has relatively few privacy-protecting rules, and what exists tends to focus on regulating data sharing rather than data collection. Although courts have found a limited right to privacy in the US Constitution, that right finds most of its expression in the context of bodily integrity, or in protection against targeted governmental searches in the criminal context; the traction in the information privacy arena is speculative and limited at best. Tort law has little to 5

533 U.S. 27 (2001).

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offer, because the classic privacy torts are somewhat limited and generally do not apply to the major data collection efforts occurring in public spaces. Nor do privacy torts have much traction against the often-unseen consequences of contractual agreements, most notably those relating to cell-phones and Internet-based technologies. Neither contract nor property-rights-based approaches have to date yielded much, due to a combination of factors ranging from transaction costs to the bounded rationality of consumers, to problems inherent in domains where whoowns-what is at best contested. Market failure, bounded rationality, collective action problems, and serious social consequences are the ingredients of a scenario that should invoke regulation, or at the very least a careful conversation as to whether the public interest would be served by government reform and intervention. Indeed, in many other areas of life, notably environmental regulation, the US government does intervene to at least partly correct market failures that otherwise make it too cheap and too easy to pollute. Public law remedies are appropriate because private law remedies are impractical. Class action lawsuits are, in theory, available to redress some environmental harms, and they might seem interesting to address unwanted surveillance. The reality, however, is otherwise. Even if one were to change the law to make surveillance in public tortious, other obstacles to legal action would remain. To begin with, any attempted class action lawsuit about privacy harms would face the same practical and procedural barriers that prevent them for physical damage from toxins, including the very real problem that the plaintiffs likely experienced different exposures and suffered different harms, making class status problematic. Furthermore, privacy harms are in most cases far more difficult to monetize than the lost health and life from exposure to toxins, further reducing the availability of class remedies. If private law is not the answer, that suggests a need for regulation. As an interim measure, the ideal regulatory scheme would provide more data on the relevant costs or benefits while heading off the greatest dangers. The major regulatory response to potentially privacy-harming technologies’ developments to date is the European Union’s data protection rules. But neither the existing version of the Data Protection Directive (95/46), nor the upcoming Regulation, nor even the regulatory structures that it anchors, has achieved significant traction in the United States. EU-style regulation imposes limits on data collection and also on data re-use and data sharing. One of the many obstacles to adopting a similar regime in the United States is that regulation is difficult once information has been collected: the First Amendment makes it difficult to stop people from saying true things that they know unless there is a special

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relationship, a contract, or a small number of other special cases. For these and many other more political and parochial reasons, the adoption of EU-like rules in the United States appears unlikely in the near future. 2.3 Understanding Surveillance as Pollution of the Private Sphere Many mass data-collection activities, particularly those that take place in or through spaces ordinarily open to the public can usefully be analogized to pollution of the private sphere. ‘In or through spaces ordinarily open to the public’ includes these scenarios: (1)

(2) (3)

encroachments on ‘privacy in public’. This category includes most technologies whether or not controlled by a participant that watch other people in public and record their actions. It includes the monitoring of personal actions while walking or driving any place outside a home, such as monitoring cell-phone locations, mass facial recognition technology, and license plate recorders. ‘Spaces open to the public’ includes not only legally public spaces such as roads and sidewalks, but also spaces open to all, such as retail stores and many government offices; sensors aimed at private property from public locations; and the closely related case of sensors located on private property that traverse a public space in order to collect information from other private property.

As with physical pollution, in each of these three cases of privacy pollution the data collector imposes an externality on the data subject. As with physical pollution, constitutional and common law remedies rarely have meaningful traction, whether due to legal or economic constraints. It can be hard to find the sources of most physical pollution unless it is very close or very vivid; similarly, we often do not know the sources of privacy pollution because we do not know who is collecting information about us. There are no relevant ownership rights to the information about what one does in public. A personal datum has value to the subject, who might wish to control it by keeping it private or controlling its release. That datum also has value to a whole host of public and private actors who would like access to it for objectives ranging from public safety to modeling group behavior to targeted marketing. The systematic collection of personal data is a big and urgent problem, and the pace of that collection is accelerating as the cost of collection plummets. Worse, the continued development of data processing technology means that these data can be used and cross-indexed increasingly

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effectively and cheaply. Add in the fact that there is more and more historical data, as well as self-reported data, to which the sensor data can be linked, and we will soon find ourselves in the digital equivalent of a goldfish bowl.

3 LEARNING FROM THE ENVIRONMENTAL PROTECTION ACT If EU-style data privacy law is not on the menu, perhaps the United States might turn to a home-grown solution based on environmental law. By combining the best features of a number of existing environmental laws and regulations, and by learning from their mistakes, we can craft rules mandating notices and disclosures about data collection practices that would go some significant distance towards stemming the tide of potentially privacy-harming technologies. One significant step towards a solution would be to require Privacy Impact Notices (PINs)6 before allowing the construction or deployment of large projects (public or private) that risk having a significant impact on personal information privacy or on privacy in public. The PIN requirement would be modeled on existing environmental laws, most notably the National Environmental Policy Act of 1969 (NEPA),7 the law that called into being the Environmental Impact Statement (EIS). The overarching goals of this regulatory scheme are familiar from environmental law and policy-making: to inform the public of decisions being considered (or made) that affect it, to solicit public feedback as plans are designed, and to encourage decision-makers to consider privacy and public opinion from an early stage in their design and approval processes. That was NEPA’s goal, however imperfectly achieved. In addition, we now know from the environmental law and policy experience that it is also important to invest effort in ongoing, or at least annual, reporting requirements in order to allow the periodic re-appraisal of the legitimacy and net social utility of the regulated activity. This is especially true for data collection programs because surveillance technologies change quickly, and because the accumulation of personal 6

PINs could also stand for ‘Privacy Invasion Notices’ in order to make them more attention-getting. ‘Privacy Impact Statements’ would make for better parallelism with Environmental Impact Statements, but the plural form of the resulting acronym would be unfortunate. 7 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4335 (2012).

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information by those gathering data can have unexpected synergistic effects as we learn new ways of linking previously disparate data sets. PINs differ from existing US rules requiring Privacy Impact Assessments (PIAs). At present the E-Government Act requires that federal agencies conduct internal PIAs only for certain projects undertaken by federal agencies. PINs would reach much further, ideally including state or local projects, and—most significantly—private projects. Second, as further discussed below, neither voluntary private PIAs nor mandatory public PIAs create a right to demand correction, no matter how inept or inaccurate the PIA may be—much less create a right to change or delay the course of the project at issue on the grounds that the disclosures are inadequate. Like Environmental Impact Statements, PINs would do both in cases of incomplete disclosure. While the underlying analysis contained in a PIN is basically a careful PIA, the legal environment should be differently constructed. The PINs proposal also intersects with active and ongoing debates over the value of notice policies. Currently, the major existing notice-based rules designed to protect privacy are after-the-fact state and federal data breach notification requirements. Although they would have a few teeth, as a regime of notice rather than prohibition, PINs would provide less privacy protection than is found in European-style data protection rules. PINs are also more limited than European proposals to adopt an assessment process that would consider practices and technologies in the context of the broader societal impacts of surveillance on society.8 Thus, proponents of European-style privacy regulation will see the PINs proposal as weak tea. Given current US political and regulatory realities, this is a virtue as much as a vice. The PINs proposal is self-consciously tailored to US political and regulatory realities in three significant ways. First, it recognizes that US regulation has consistently rejected European approaches to data protection. Second, by recasting privacy harms as a form of pollution and invoking a familiar domestic regulatory solution either directly or by analogy, the PINs proposal seeks to ignite a regulatory dynamic by fostering the collecting of information about the privacy costs of previously unregulated activities; this should, in the end, lead to significant results without running afoul of potential US constitutional limits on data retention and use policies. Third, for 8 Cf. D. Wright and C.D. Raab, ‘Constructing a Surveillance Impact Assessment’ (2012) 28 Competition Law and Security Review 613, 614; see also Final Report: Findings and Recommendations (SAPIENT, 2004), available at www.sapientproject.eu/D5.3%20-%20Final%20report%20(submitted%2004%20 September%202014).pdf.

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better or worse it follows the US frame that, politically, it is not enough to assert that privacy as a fundamental right deserves protection. Rather, potentially costly new privacy-protecting rules need to be in most cases tightly coupled with analyses demonstrating that the rules will create benefits (often monetizable) that justify the costs. We do not at present have those data; a PINs regime presents one means of stimulating the private and public sectors to create mechanisms by which we can get them. 3.1 Privacy Impact Notices (PINs) as a Practical Solution If we do not trust institutions to monitor themselves, then that monitoring needs to come from somewhere else. The government can do the monitoring directly, or attempt to repair some of the deficits that make private action unlikely or impossible. To the extent that the privacy problems are the result of market failure, I am not optimistic about the ability of market-based regulation to cause parties to internalize the externalities, nor to overcome the transactions-costs-based problems that make markets unlikely to be effective. Thus, some old-style regulation may be needed. Well-crafted regulation will provide the public, or at least its organized privacy-protective agents in civil society, with access to the information necessary to inform themselves as to how much personal privacy is being reduced. Making that information available before major projects with significant privacy consequences go forward can inject an element of public deliberation—and perhaps a little caution or search for mitigation—into the decisions to deploy sensors on a large scale. A requirement that some projects produce PINs before being allowed to deploy mass-scale sensors is one possible model. 3.2 How Environmental Impact Statements Work NEPA requires EISs only as the culmination of a series of decisions. As such, NEPA is the classic piece of ‘action-forcing legislation’. NEPA requires that an EIS be ‘included in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment’. This duty falls on the federal agency controlling the project. In theory, NEPA applies to any environmentally significant project that requires a federal permit, has federal government funding, or takes place on or affects federal land, excluding projects directly legislated by Congress. In practice, however, there are many ways that projects subject

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to NEPA escape the EIS requirement, due to the fact that the route to an EIS has four distinct stages. (1) Determine coverage. Determine whether the project even needs to be analyzed at all. Projects subject to ‘functional equivalent’ regulations that require a comparable environmental analysis are excluded from NEPA. (2) Categorical Exclusions. Determine whether any blanket waivers, called ‘Categorical Exclusions’ (CEs), apply. CEs are regulatory decisions by an agency with appropriate jurisdiction that a class of activities does not individually or cumulatively have a significant effect on the quality of the human environment. Agencies issue CEs through the standard informal rule-making process. Once the CE is final, the class of covered activities will only trigger an EIS if the agency finds extraordinary circumstances—for example, the extinction of a species. If extraordinary circumstances apply, or the activity is not covered by a CE, then the agency must go to the next step. (3) Environmental Assessment (EA). If no CEs apply, ordinarily the next step is to decide whether the environmental impact of the proposed activity is ‘significant’. The federal agency controlling the project produces an Environmental Assessment, which determines the proposal’s environmental effects and surveys possible alternative means. Armed with this preliminary analysis, the agency either requires a full-dress EIS or issues a Finding of No Significant Impact (FONSI) on the environment. A FONSI is the end of the road under NEPA, unless someone challenges the FONSI as wrongly granted; indeed, a very large number of proposals result in a FONSI. (4) Environmental Impact Statement. In the absence of a CE or FONSI, any project within NEPA’s scope must proceed to prepare a full EIS. This is a much more involved procedure than an EA; the public, interested parties and other agencies are all able to comment on the draft EIS. NEPA requires that an EIS include ‘a detailed statement by the responsible official on’: (1) (2) (3) (4)

(5)

the environmental impact of the proposed action; any adverse environmental effects that cannot be avoided should the proposal be implemented; alternatives to the proposed action; the relationship between local short-term uses of man’s [sic] environment and the maintenance and enhancement of long-term productivity; and any irreversible and irretrievable commitments of resources involved in the proposed action.

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NEPA does not establish criminal or civil sanctions. Instead, plaintiffs have the right to complain in federal court that an EIS is incomplete or inadequate. The possible remedy is an order to rethink the project or the permit approval, which involves redoing the EIS. Given the great number of projects that make it to the EA stage, the federal government requires remarkably few EISs every year, perhaps one in 100. The vast majority get FONSIs, either because their environmental impact is genuinely low, or because the project’s proponents promise sufficient mitigation efforts to allow the agency to find that the net environmental impact will not be ‘significant’. These so-called ‘mitigated FONSIs’ have been criticized as an institutionalized end-run around the EIS requirements, but they have also been praised as a sign that the EIS regime is actually working remarkably well; fearing the costs and delays that a full EIS can cause, project proponents have often chosen to include measures to reduce the environmental costs of their proposals right from the design stage. If this is actually what is happening—if the mitigation is more than a paper tiger—then NEPA’s ‘action forcing’ mechanism is a real success. Unfortunately, there is not enough systematic follow-up of the environmental effects of projects approved with mitigated FONSIs, much less an organized assessment of whether the mitigation was effective; in many cases, we do not even know if the mitigation turned out to be anything more than a promise.Any adoption of the EIS regime to the privacy context thus must include follow-up reporting requirements in order for the administering agency to be able to determine how the privacy consequences of the project compared to those predicted, and also to allow it to evaluate the effectiveness of any mitigation strategies that the agency relied on in issuing a privacy FONSI. This follow-up proposal is likely to be among the most controversial as it is a departure from existing EIS practice, and turns a one-time expense into a recurring burden. Yet this innovation is even more important in the privacy/surveillance context than in the environmental one. We know too little about how to measure privacy harms, but one thing we know is that technological synergies can be impossible to predict. Thus, data collections that seem innocuous now may turn out to have vast and unexpected privacy consequences when mated with a new technology or other data streams; this last, after all, is the organizing premise and promise of so-called Big Data. Our current limited ability to measure and predict privacy harm increases the importance of building in reviews in the future so as to prevent an outdated privacy analysis from being used as a justification for previously unimagined privacy harms.

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3.3 Finding the Authority for Privacy Impact Notices (PINs) Crafting a PIN regime raises two related issues of scope and authority. The most important policy issue is which projects should be covered at all. As described above, NEPA requires EISs for any major federal projects or federally permitted projects ‘significantly affecting the quality of the human environment’. The most important practical issue is the legal means by which a PIN requirement could be enacted. 3.3.1 Build on existing legal authority The simplest but narrowest way to enact a limited NEPA-like PIN regime would be to build on existing rules that require federal agencies to consider the privacy consequences of their IT projects.9 Current rules, however, do not allow the public to participate in the creation of a Privacy Impact Assessment. That right is the defining part of NEPA’s EIS system, and practice shows the threat of litigation is essential. Existing legislation, such as the E-Government Act of 2002,10 seems unlikely to provide the authority for PINs, and, in any case, certainly does not require that agencies adopt them. There is little chance that the Office of Management and Budget (OMB) would voluntarily create a new private right of action against agencies, and its legal authority to do so could certainly be questioned. A more direct, but also more controversial, approach would be to add privacy-related factors to the list of things that parties potentially required to complete an EIS have to consider. In other words, we could formally list privacy destruction as a type of pollution. This addition to the existing NEPA regime could perhaps be achieved without legislation, as the President’s Council on Environmental Quality (CEQ) could amend its regulations. Even if either of these suggestions were adopted, many private potentially privacy-harming projects still would not be covered, as they do not currently require any sort of permit. Zoning would be one way to reach outdoor sensors; some, mostly state and local, construction permit requirements would be another. Thus, for any PIN requirement to reach 9

Office of Management and Budget, OMB Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002, M-03-22 (26 September 2003). See generally, K.A. Bamberger and D.K. Mulligan, ‘Privacy Decisionmaking in Administrative Agencies’ (2008) 75 University of Chicago Law Review 75. 10 Codified at 44 U.S.C. § 3501 (2012).

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many of the greatest threats to privacy, it should not depend on existing permit requirements. NEPA reaches conduct ranging from the construction of nuclear power plants to the disposal of toxic waste to construction projects that threaten wetlands. NEPA owes its relatively broad reach to the large number of statutes that create permit requirements, whether directly for environmental reasons or to serve other public safety goals. Privacy regulation today differs from twenty-first century environmental regulation in one particularly important way: the United States has relatively few data privacy-protective laws and rules. As described above, NEPA’s rules requiring an Environmental Impact Statement are triggered by state action, such as a government project, or a request to issue a permit for private development. No comparable permit requirements exist for mass private data collection. At present, the United States does not have a national privacy office. The OMB manages compliance with the Privacy Act, a statute requiring federal agencies to publish a Federal Register notice describing the creation of a system of records containing personally identifiable information. President Clinton appointed the first ‘Privacy Czar’, Peter Swire, and President Obama continued the practice of appointing a Chief Privacy Officer (CPO). Notably, both the OMB and the CPO are in the Executive Office of the President. In addition, many agencies have their own CPOs, some of whom are required by statute. 3.3.2 New legislation The environmental law example teaches us that, valuable as these departments and privacy officials may be, they would not be enough. Not only does their authority extend only to the conduct of federal officials and in some cases federal contractors, but that authority is somewhat circumscribed. It is unlikely, for example, that either office could transform existing PIAs into full-bore PINs as they lack the authority to create and administer a private notice requirement. Even if NEPA itself opens the door to classifying privacy as pollution, nothing in the Privacy Act or in the CPO’s remit extends to imposing PINs on private actors. To fully realize the benefits of PINs will require legislation, and will also require at least one, perhaps two, new administrative bodies. Just as NEPA created the President’s Council on Environmental Quality, the PINs regime would be best achieved by creating a new President’s Privacy Council (PPC) with similar powers. If the PINs requirement applied only to federal action, the PPC would have little or no direct responsibility for managing PINs, because that would be the responsibility of the lead agency conducting or permitting the project. Thus, for

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example, a federal agency deploying new systems of sensors or surveillance would take the lead in preparing the PIN, but would be subject to the framework elaborated by the PPC. The agency would also work in the shadow of the threat of a private lawsuit if the PIN was incomplete. At the very least, the PPC would write regulations defining privacy CEs—further defining the activities for which no PINs would be required. Conversely, it might set criteria for mandatory PINs—defining classes of activities that were sufficiently great to automatically trigger a notice requirement. The zone between the CEs and the mandatory PINs would be a greyer area more open to agency discretion, and in particular there could be areas in which the PPC could encourage agencies to experiment with mitigation strategies when issuing mitigation-based FONSIs. The PPC would also serve as a clearinghouse for best practices regarding mitigation strategies that could be incorporated into mitigationbased FONSIs. Furthermore, the PPC would be charged with setting reporting standards, particularly for follow-ups designed to measure the extent of privacy harms and the effectiveness of mitigation strategies. Like the CEQ, the PPC could be part of the Executive Office of the President so long as the PINs reach was limited to potentially privacyharming projects proposed by the government itself. But if the PINs rule is to extend to private parties, institutional considerations counsel for a normal, free-standing agency on the model of the EPA (call it the Privacy Protection Administration) to oversee those filings rather than one located in the White House. While domestic regulations intended to reach outside the federal government are normally formulated in a standard agency such as a cabinet department or the EPA, these agencies’ regulations will still be subject to OMB review before issuance. Significantly, the EPA benefitted from being a free-standing entity with its own administrator, rather than being part of the Department of the Interior or the Department of Commerce, where its budget, personnel and legislative priority decisions would have been subject to inevitable trade-offs, and where the agency head would have had one or more layers between her and the President. 3.4 What Privacy Impact Notices Should Cover—and Exclude This section considers the necessary limits on a PINs rule, as well as the areas where any disclosure rule ought necessarily to apply. A NEPA-style regulatory strategy aimed at surveillance technology should divide privacy-harming technologies and practices into three broad categories: (1) technologies and practices that are outside the scope of regulation (falling into one of the Categorical Exclusions) and that do not need to

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file a PIN; (2) technologies and practices not covered by any CE, which, while capable of causing substantial harm to privacy, can be mitigated sufficiently to escape further regulations, thus qualifying for a mitigated FONSI; and (3) technologies and practices so detrimental to privacy that they require a full PIN, what I call ‘red flags’ below. Congress, in enacting a PINs rule, could define certain activities as falling in each category, but inevitably the nuts and bolts task of deciding on particular applications would have to fall on the agency charged with making those adjudicative decisions. 3.4.1 Categorical Exclusions If an activity falls within a Categorical Exclusion, the activity can proceed unimpeded. What falls within CEs is critical because the people undertaking those activities will not need to take the time to apply for a FONSI, much less a full PIN, and will also know that they face no risk of litigation so long as they legitimately qualify for the CE. Categorical Exclusions should cover the following activities. Small-scale activities Any common, visible data collection activity that affected only a relatively small number of people annually would automatically qualify for a CE. Thus, for example, small-scale personal films or recordings for personal use, such as a tourist’s filming of a vacation, would automatically fall under a CE. Just as we do not require EISs every time someone proposes to smoke a cigarette, so too we should exempt small-scale personal data collection such as every time a person posts a picture on Instagram. This CE would, however, be broader than the EU’s exception for ‘personal and domestic’ data collection and processing. The Court of Justice of the European Union (CJEU) held in the Ryneš case that a homeowner’s operation of a digital camera and storage of the images took him outside that exception;11 conversely, in order to ensure that the PINs rule focused on truly large-scale collection only, the CE for small-scale uses ought to cover anything short of putting a camera with facial recognition on a very busy street in a large city. At that point the operator might, for example, need to promise not to sell or reuse the data in order to qualify for a mitigated FONSI. Informed consent Any data collection resulting from truly informed consent, e.g. data collected pursuant to a medical study in which the subjects agreed to participate after having the data collection and use 11

Ryneš v. Úrad pro ochranu osobních údaju (C-212/13) (2014).

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explained to them, should be entitled to a CE. Even if this were to exclude a great deal of medical data, the disclosure of that data is currently regulated through other channels, including HIPAA12 and the HITECH Act.13 First Amendment activities It is essential that CEs extend to all activities incident to ordinary reporting. Thus, filming or recording spot news, even mass demonstrations, for the purposes of newsgathering or reporting, would not trigger any reporting requirement even if the number of people affected by a single activity was large. Similarly, a demonstrator’s recording of fellow demonstrators would clearly be outside of any PINs requirement. Without such a limit, the courts would very likely strike the entire regime as an unconstitutional burden on free speech; more fundamentally, the cost to political liberty would be too high to justify whatever increase in privacy the program achieved. Surveillance of persistent protests Persistent protests such as Occupy Wall Street attract attention from law enforcement and the media. In the course of these activities, large numbers of persons may be recorded, and identified by observation or by the use of mechanized facial recognition. Should news organizations covering these ongoing events benefit from the First Amendment exception? And what about law enforcement investigative actions undertaken in advance of any reported crime? These are conversations worth having, and would be better informed by a statement delineating what sorts of surveillance law enforcement agencies are deploying. Drafting a CE, even if necessarily a somewhat arbitrary one, would put all parties on notice as to what the government considered itself entitled to do with their images. As a CE is an informal rule, it would also create an occasion for judicial review of the appropriateness of widespread warrantless surveillance. Public officials Similarly, any data collection relating to a public official’s or employee’s performance of his or her duties in a public place would be automatically covered by a CE in order to eliminate any risk of intrusion on the core First Amendment role of the press in monitoring and checking the government. The CE would include recording the 12 Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 18 U.S.C.; 26 U.S.C.; 29 U.S.C.; 42 U.S.C.). 13 Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009, Pub. L. No. 111-5, 123 Stat. 226 (2009).

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actions of police and other government employees in public places, while not covering the routine placing of recording devices in offices or other places where workers are entitled to expect some privacy. Contractual activities A more difficult question is whether other datagathering contracted for with adequate individual notice and formality should be covered by a CE even in the absence of informed consent. The problem here begins with the reality that most standard-form consumer contracts simply are not read or understood by most consumers. On the other hand, US courts (perhaps mistakenly) enforce them. Denying a CE to collection pursuant to these agreements would have the advantage of reflecting an important reality that much unseen information collection about consumers happens pursuant to legally valid contracts. Conversely, giving a CE to all consumer data collection pursuant to a written agreement would create a very broad exception and would likely extend to many consumer contractual relationships in which money changed hands, including cell-phone tracking by cell-phone providers. Perhaps the best compromise between covering big instances of data collection and not overwhelming the PINs system, at least initially, would be to allow CEs for contractually defined data collection so long as the disclosures in the contracts meet some threshold of completeness, accuracy and consumer comprehensibility, and so long as the amount of data being collected involved falls beneath some, necessarily somewhat arbitrary, threshold. That threshold might be adjusted in time as we gain experience with the PINs process. Data collection limited to the collector’s private property The PINs proposal concerns public and virtual public spaces. It is not intended to reach private activity purely, or even primarily, in private spaces. Thus, any data collection that only covered property owned by the party doing the collection would not be covered so long as the public was not ordinarily invited onto the property and the collector provided adequate notice of the collection to other people affected. CEs would thus apply to almost any data collection in the home so long as the collection was by the homeowner. Consistent with current US (non)regulation of the privacy interests in offices and factories, CEs would also apply to data collection in the workplace so long as workers were on reasonable notice of the collection. However, CEs would not apply to non-employees in places such as retail establishments where the public was ordinarily invited, regardless of the nature of the notice. In addition, this CE would not apply to third-party data collection in, or aimed at, primarily private spaces.

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Sporting events The idea that mass sporting events are targets for terrorism and other crimes long predates the 2013 attack on the Boston Marathon, prompting suggestions that all attendees at events such as the Super Bowl should be scanned for automated facial recognition in the name of security. This may, or may not, be popular with sport fans. Whether a CE should apply categorically to sporting events is certainly debatable. I would argue that no CE should apply because until attendees are told precisely what will be done with information collected about them, there is no way fans could be expected to make a meaningful judgment as to whether to attend. The process of drafting a mitigated FONSI or even a full PIN would provide much more transparency as to both collection and use. Conspicuous off switch Anything with a conspicuous and reasonably understandable off switch entirely controlled by the subject of the surveillance ought to enjoy a CE. Thus, for example, in order to benefit from a CE, smart electric meters for the home would have to have a conspicuous mechanism allowing consumers to turn off fine-grained monitoring of their usage patterns. The logic here is similar to that of the meaningful consent prong; if the off switch is conspicuous and really in the control of the data subject then the choice not to use it is a form of meaningful consent. 3.4.2 Red flags The need for PINs is perhaps most evident in large, centralized collection schemes invisible to the subject, such as a plan to put sensors on skyscrapers. But a city-wide plan to deploy smaller, more focused cameras tied together in a network, or other applications in the context of ‘smart cities’, could have a similar reach even if no individual sensor covered much ground or would affect an appreciable percentage of the city’s inhabitants. Thus, any technology potentially capable of persistently capturing personally identifiable information of a substantial number of persons in public should be cause for investigation as to whether it poses the gravest risks, or if the designers have built in mitigation strategies sufficient to qualify for a FONSI, or if in fact a full-dress PINs analysis is required. Projects that do not fall into one of the broad categories defined by the CEs would not usually be required to produce a full report on their privacy impacts. The agency responsible would then do a preliminary study (like an Environmental Assessment) to determine whether the privacy impacts are small (a FONSI) or whether, in light of mitigation

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strategies proposed by the party planning the monitoring, a mitigated FONSI is appropriate. Carefully calibrating the availability of FONSIs is critical to a successful PIN regime. If FONSIs have clear mitigation requirements (such as a prohibition on promiscuous information re-use) that function as effective safe harbors, then PINs will be effective without unduly harming the core interests of data collectors and also will not in the main cost large sums to acquire. If, however, the FONSIs require too little mitigation, the entire regulatory scheme becomes almost meaningless. On the other hand, if clearly specified and meaningful FONSIs are not ever available, there is a danger that too many projects will be forced to produce a full-blown PIN. Too many PINs will not only be expensive for the regulated, but would tax the resources of the regulators and of the intermediating organizations that read the reports. In addition, each PIN creates an opportunity for litigation alleging that the project has not fully disclosed its privacy consequences. 3.4.3 PINs should sunset One lesson well worth learning from experience with Environmental Impact Statements is that things change. The EIS regime is seriously deficient in that once an EIS is approved, it is basically good forever. Over time, however, our understanding of the consequences of an environmentally sensitive activity may change as measuring technology improves or as our understanding of ecosystems improves. Equally importantly, ecosystems are dynamic, and are also subject to synergistic threats. An activity that may not have been environmentally significant when commenced may become important due to climate change or interactions with other pollutants. The same is true of privacy-harming technology; cameras become a bigger threat to privacy when storage becomes cheap and when facial recognition software improves. Records available online have an entirely different impact from records available by appointment in a dusty basement somewhere. Rapid changes in sensor and information processing technology ensure that the relevance and accuracy of many PINs will have a limited shelf-life. PINs, therefore, should at minimum either be subject to regular update requirements or they should simply sunset, or perhaps even both, in order to ensure thorough consideration of changed circumstances. In either case, the entity doing the data collection should be required to revisit its assessment of the privacy consequences in light of possible new synergies with other technologies and data streams. The pace of change in technology and human inventiveness in using data streams suggests that

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at some point in the future the entire basis for the original permission may need to be rethought from the start. 3.5 PINs as Improved EISs Suitably modified and updated, EISs could be a good model for PINs. By requiring public notice of large efforts to collect personally identifiable information in public or online, and by creating a right of action in cases where those disclosures are inadequate, a PIN requirement would ensure that public and private bodies thinking of deploying covered potentially privacy-harming technologies have greater incentives to build in privacy protections or look for alternate means to achieve their goals. Creating a private right of action in federal court to challenge the adequacy or necessity of the PIN would ensure that anyone planning to deploy mass privacy-harming technology fully disclosed the consequences of their actions. NEPA’s requirement of EISs was a key ‘first wave’ piece of environmental legislation that, with some updating, could play a transformative role in the regulation of privacy-reducing technologies in public places. NEPA is a good model for a first step towards more comprehensive privacy regulation in the United States for two reasons. First, the very thing that sometimes brings EISs criticism in the environmental context—that NEPA is about forcing the provision of information rather than about direct regulation—could be a strength in the privacy context. Second, the politics of privacy today resembles the politics of environmental law in the late 1960s. Just as public concern about pollution grew following the publication of Silent Spring, so now the Snowden revelations about the NSA are causing a national reaction to the surveillance of our movements and communications. Just as NEPA was part of the first-stage response to environmental concerns, a national Privacy Protection Act modeled on it ought to be a politically attractive response to privacy concerns. NEPA would, however, need to be modernized and adapted to its new context, in particular to reflect the unforeseeable and sometimes rapidly changing effects of data collection. A requirement to conduct even just a preliminary privacy assessment (the equivalent of an EA) would serve two critical functions. First, it would incentivize organizations to consider privacy issues in the early design phase of their projects. Secondly, in the case of projects with potentially significant impacts on privacy, it would form the basis for a conversation with an outside body—the regulator—about which mitigation measures would be appropriate, and what it would take to secure a mitigated FONSI. And for those, relatively few, projects that proceeded

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to full public notice, the public, or at least its civil society proxies, would have a chance to weigh in on the risks, and if necessary attempt to rally public opposition to the project. A disclosure/notice regime does not, of course, guarantee any outcome. Instead, it helps create the conditions for a more informed debate by creating more informed citizens and consumers. That may not sound much, but it would represent a sea-change from current US practices.

4 CONCLUSION The commonalities between privacy-harming technologies and pollution suggest that we can find the first step towards our solution to the mass surveillance problem in the first step that was taken in the United States towards solving the environmental problem. An ‘action-forcing’ and disclosure-based regime modeled on NEPA is justified, constitutional, and would be an improvement over the status quo. Mandated Privacy Impact Notices (Privacy Impact Assessments with teeth) as a prerequisite to the deployment of large-scale surveillance efforts is a reasonable and measured response to an important and growing threat to personal information privacy. Requiring the proponents of many data collection projects to consider the privacy consequences of their plans will improve privacy practices generally. Requiring a much smaller group of particularly large-scale potentially privacy-harming data collection projects to document and justify those activities more thoroughly via PINs based on modernized Environmental Impact Statements will not only tend to improve in-house privacy practices, but it will also inform public debate about the trade-offs between privacy and other values. Recent experience suggests that the fear of adverse publicity can cause public bodies and corporations to reduce or eliminate the amount of personally identifiable information they choose to collect. The challenge is to learn about surveillance when so much of it is invisible. Equally important, the practice of preparing and debating public notices and mitigation strategies will educate experts and the public about potential harms from surveillance and about ways in which data collection can be ameliorated or limited. A disclosure/notice regime should also have economic and competitive effects. If, as argued above, consumers suffer from systemic myopia causing them to undervalue data they are asked to disclose because they do not understand how the data are aggregated, the injection of additional information at a low cost to the individual about how much data is being collected and how data is being held and used, will at least partially

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correct consumers’ current privacy myopia. Consumers should then become more sensitive to the actual cost of losing privacy; this in turn should make firms more willing to compete on privacy. PINs will not preclude the benefits of data collection. The notices will, however, describe the costs and benefits of proposed surveillance. This will not only enrich public debate but will also help identify the aspects of data collection that may need regulation. Periodically revisiting the consequences of existing data-collection activities will further allow data collectors and the public to see if mitigation efforts are working or if unexpected uses of the data have made the collection more significant, and thus more detrimental to privacy than originally expected. The expense of preparing PINs is even justifiable as a rough-and-ready means of internalizing the externality costs that surveillance in and through public places imposes on the privacy that the public formerly enjoyed, although it is at best a crude approximation of a Pigouvian tax. Like with the ice caps, the alternative to attempting to measure how much privacy we are destroying before it is all gone is not valuing privacy until it is too late to do anything other than regret its loss. A better-informed public could choose to vote with its dollars, feet or votes—or choose to do none of these. Whatever the outcome, people in the United States will at least be a few steps closer to making informed and sensible choices.

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9. Privacy in public spaces: the problem of out-of-body DNA Albert E. Scherr* 1 INTRODUCTION The funny thing about DNA and privacy in public is that the DNA is, most often, in public without its person. It is out-of-body. We scatter our DNA about indiscriminately as we travel through our public and private spaces on a daily basis. We scatter it via dead skin cells; via fingerprints; via dried saliva; and via blood, sweat and tears. We scatter it involuntarily with little ability to stop the scattering without extraordinary and odd measures. And, most often, we scatter it unknowingly. Out-of-body DNA rests in the public space in the protective shell of its carrying cells until degraded, discarded or detected. Nobody can see it and it is easy to pick up—just take the item upon which it was left. It is technically hard to access because one has to get to the carrying cell, break it open and isolate the DNA. Yet, most anyone can send enough high-quality cells to a commercial entity for unlocking. Once unlocked, the out-of-body DNA produces voluminous data about physical traits, behavior, mental and physical health, current and impending, certain and pre-dispositional. It is data from a single, publicly available source that dwarfs in scope and in quality the data available about an individual from any other single, publicly available source. And the Fourth Amendment gives out-of-body DNA no respect. It is treated as if it were abandoned; in most instances it can be used for any purpose; and it is seldom, if ever, viewed as anything more than a trace of an absent person. Therein lies the problem of out-of-body DNA. Out-of-body DNA has been drawing increasing attention. Police have been surreptitiously harvesting out-of-body DNA from putative suspects * Portions of this chapter come from A. Scherr, ‘Genetic Privacy and the Fourth Amendment: Unregulated Surreptitious DNA Harvesting’ (2013) 47 Georgia Law Review 445. Copyright permission granted. 211

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for whom they do not have sufficient evidence to rise to the level of probable cause, enough to get a search warrant under Fourth Amendment jurisprudence.1 Some departments have been retaining out-of-body DNA samples in what are called rogue databases,2 for example, databases unregulated by statutes or other rules, for any potential future use, most commonly for identification purposes.3 Collection of public out-of-body DNA has not been limited to criminal investigation. Amateur genealogists have made surreptitious efforts to get DNA from a putative relative for ancestry or kinship testing of sorts.4 A private investigator in a high-profile celebrity divorce obtained dental floss for DNA paternity analysis from the garbage of the putative father of his ex-wife’s child.5 Even more interestingly, a New York artist creates masks representing the genetically approximated faces of those whose DNA she had collected from public, out-of-body DNA found on the streets of New York.6 Yet, a discontinuity exists between what we know about DNA; what we sense and think about DNA; and how its out-of-body version is treated for Fourth Amendment purposes. This chapter explores that discontinuity in the context of out-of-body DNA found in a public place and the Fourth Amendment. The chapter proposes that Fourth Amendment jurisprudence fails to reflect the lessons of the science of DNA and societal attitudes towards DNA. Specifically, Fourth Amendment jurisprudence fails to reflect that it is more ‘of the body’ than ‘out of the body’. DNA is different than other detached body parts. Like those body parts, out-of-body DNA loses its ability to function as a body part when removed from the body. Unlike other biological material separated from the body, out-of-body DNA retains a richness of information and identity 1

See e.g., Commonwealth v. Bly, 862 N.E.2d 341 (MA 2007); State v. Athan, 158 P.3d 27 (WA 2007); State v. Christian, 723 N.W.2d. 453 (IA 2006); and Raynor v. Maryland, 99 A.3d 753 (Md. 2014). 2 See e.g., www.innocenceproject.org/rogue-dna-databases-operate-outsideof-the-law. 3 J. Goldstein, ‘Police agencies are assembling records of DNA’, New York Times, 12 June 2013, available at www.nytimes.com/2013/06/13/us/policeagencies-are-assembling-records-of-dna.html (accessed 27 July 2016). 4 A. Harmon, ‘The DNA Age: stalking strangers’ DNA to fill in the family tree’, New York Times, 2 April 2007. 5 D.M. Halbfinger and A. Hope Weiner, ‘Celebrity lawyer in talks about wiretapping evidence’, New York Times, 26 February 2006. 6 See http://deweyhagborg.com/projects/stranger-visions (accessed 15 July 2016).

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that is personal, powerful, intimate, shared and timeless. It is also information that is useful to others for various identification, research and commercial purposes. The discontinuity of privacy protection for out-of-body DNA and privacy requires a resolution for the law to retain its integrity as a reflection of societal norms. The chapter first surveys that which we currently know scientifically about DNA. Then, using linguistic theory, it measures what we sense and think about DNA based on how we use it as a metaphor. It concludes that societal attitudes about DNA include privacy features of intimacy, immutability and permanence—features common to that which gets to wear the cloak of privacy protection. The chapter then evaluates how Fourth Amendment jurisprudence treats public, out-of-body DNA, in other words, that it lends it no privacy protection. It briefly looks to other disciplines for examples of conceptions of body. It then concludes by proposing an alternative for Fourth Amendment treatment of public, out-of-body DNA.

2 WHAT SCIENCE TELLS SOCIETY ABOUT DNA Science has revealed the unusual physical and informational nature of out-of-body DNA. Its physical status—inaccessible, ubiquitous and at the biological core of one’s being—distinguishes it from that of other body parts and from the status of other publicly available material. Its encyclopedic informational status renders out-of-body DNA a treasure trove of the predictive, shared, personal, intimate and powerful. 2.1 The Physical Physically, out-of-body DNA is an oddly inaccessible item in contrast to the cell or body fluid or part within which it exists. Though its container, be it saliva or the cells in saliva, is readily accessible when in public, the DNA itself is one of nature’s most protected items in that it exists in a location effectively designed to protect it. To fully access the DNA, a forensic scientist must isolate the DNA molecules,7 remove any possible inhibitors,8 and quantitate the DNA.9 The analyst then amplifies the 7 J.M. Butler, Forensic DNA Typing: Biology, Technology, and Genetics of STR Markers (2nd edn, Academic Press, 2005) 16. 8 Ibid. 49. 9 Ibid. 50.

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DNA10 and transforms the fluorescently labeled DNA into an analyzable image.11 Only then can the analyst analyze the DNA in the original sample. Overall, it is a sophisticated molecular biological process using, among other things, chemicals, enzymes, thermal cyclers, and DNA templates, etc.12 As biologically inaccessible as DNA is, it is also ubiquitous. It is in every cell in the human body, whether that cell is a part of skin, bodily fluids, hair root, living bone, etc.13 A forensic analyst with only a few cells will be able to mine them for DNA, regardless of from which part of the body the cells came. And every cell has all the DNA, not just the DNA relating to the part of the body from which the DNA came. Oddly, even out-of-body DNA exists at the biological and chemical core of every human being. It is in the nucleus of the cell and is a physical starting point for life itself, yet obtaining it through surreptitious harvesting causes no pain. The irony is that it exists at the biological and chemical core of the body even when it is outside the body, as it is essentially identical to in-body DNA. Inaccessibility, ubiquity, and existence as a core part of the body are the essential physical features of DNA. The inaccessibility is passive. Unlike a locked trunk, a closed purse, or a cell-phone, the hyperinaccessibility of DNA is not an active step taken by an individual. It is a creation of evolution and nature. Fingerprints are another publicly available body remnant. Though permanent like DNA, they are neither inaccessible nor at the body’s core. They exist only on the outside of the body and are literally superficial—on one’s fingertips. A forensic scientist must use a measure of discipline and attention to detail to develop a fingerprint from an individual’s fingers, let alone from a crime scene.14 But the technological or biological sophistication necessary to unlock the meaning of a fingerprint is much less than that required for DNA. Though ubiquitous in that virtually everyone has them and they are found on all ten fingers, fingerprints possess none of the biological ubiquity of DNA. In terms of their physical status, then, fingerprints are 10

Ibid. 63. Ibid. 330. 12 See generally, ibid. (explaining the process of forensic DNA typing as applied to criminal forensics). 13 Ibid. 17, 34. 14 See generally, S.A. Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification (Harvard University Press, 2001) (explaining the complexity of the fingerprint identification process). 11

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not comparable to DNA given DNA’s inaccessibility, ubiquity, and existence at the biological and chemical core of a human. When found off the surface of the body on an item, fingerprints are truly trace evidence of the person who actively placed them there by choosing to touch the item. 2.2 The Informational As to out-of-body DNA’s informational nature, science and its interpreters tell us that DNA is a ‘code’,15 a ‘map’,16 a ‘language’17 and a ‘library’,18 to mention a few. These metaphors capture the predictive, information-laden sense of identity contained within DNA. We know DNA contains (1) information about genetic defects, predispositions to diseases, perhaps sexual orientation, the presence of traits for thousands of known diseases and countless numbers of diseases which are currently unknown; (2) possible predictive information about certain types of criminal, or non-criminal but perhaps socially disfavored, behavior; (3) information of the most sensitive and personal nature and a catalog of uniquely private genetic facts more than akin to those facts contained in medical records. The most salient features of that information are that it is predictive, shared, personal, intimate and powerful. 2.2.1 Predictive Genetic information is most often probabilistic in nature. Genetic disorders are rarely controlled by a single gene that necessarily causes the disorder.19 Most of the information flowing from a genetic analysis, particularly as to medical conditions, is in a probabilistic form rather than a certain one. For example, the variants of the ‘breast cancer gene’ that 15

See D.J. Kevles and L. Hood (eds), The Code of Codes: Scientific and Social Issues in the Human Genome Project (Harvard University Press, 1992) 60. 16 See B. Katz Rothman, Genetic Maps and Human Imaginations: The Limits of Science in Understanding Who We Are (W.W. Norton & Co., 1998) 189. 17 See F.S. Collins, The Language of Life: DNA and the Revolution in Personalized Medicine (Harper Perennial, 2010) 6. 18 See K. Davies, Cracking the Genome: Inside the Race to Unlock Human DNA (Johns Hopkins University Press, 2001) 33. 19 NHS National Genetics Education and Development Centre, Single Gene Disorder, available at www.geneticseducation.nhs.uk/teaching-genetics/glossary/ single-gene-disorder.aspx. A notable exception is Huntington’s Disease: National Centre for Biotechnology Information, Huntington’s Disease, available at www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001775/ (accessed 4 April 2012).

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have been identified as causing cancer inform its carriers only that they have an increased likelihood (five-fold) over the course of their lifetime of developing breast cancer as compared to the general population.20 Predictive genetic information comes in many degrees of certainty. Newspaper headlines frequently trumpet the discovery of the ‘gene for …’. More often what has been located in that circumstance is a gene that correlates with the presence of a medical disorder, a trait, or a behavior.21 For example, scientists have developed correlations between genes and obesity,22 risk-taking,23 smoking,24 creative dance,25 schizophrenia,26 and impulsivity and violence.27 To be sure some genetic information about physical traits or conditions is certain. But even much certain genetic information is predictive in that it predicts that which will occur with certainty in the future. George Annas has eloquently labeled predictive genetic information a ‘future diary’ that ‘informs our younger selves about our aging selves’.28 2.2.2 Shared Genetic information is also shared information. Because it is hereditary, the DNA of blood relatives is much more similar than that of the 20

National Cancer Institute, BRCA1 and BRCA2: Cancer Risk and Genetic Testing, available at www.cancer.gov/cancertopics/factsheet/Risk/BRCA (accessed 27 July 2016). 21 See generally, G. Kaplan and L.J. Rogers, Gene Worship: Moving Beyond the Nature/Nuture Debate Over Genes, Brain, and Gender (Other Press, 2003) (critiquing the frequent genetic explanations for human behavior). 22 A. Herbert et al., ‘A Common Genetic Variant is Associated with Adult and Childhood Obesity’ (2006) 312 Science 279. 23 C.-H. Lin et al., ‘The Dosage of the NeuroD2 Transcription Factor Regulates Amygdala Development and Emotional Learning’ (2005) 102 Proceedings of the National Academy of Science 14877, 14879. 24 V. Malaiyandi et al., ‘Impact of CYP2A6 Genotype on Pretreatment Smoking Behaviour and Nicotine Levels from and Usage of Nicotine Replacement Therapy’ (2006) 11 Molecular Psychiatry 400. 25 R. Bachner-Melman et al., ‘AVPR1a and SLC6A4 Gene Polymorphisms are Associated with Creative Dance Performance’ (2005) 1 PLoS Genetics 394. 26 V. Vacic et al., ‘Duplications of the Neuropeptide Receptor Gene VIPR2 Confer Significant Risk for Schizphrenia’ (2011) 471 Nature 499. 27 A. Meyer-Lindenberg et al., ‘Neural Mechanisms of Genetic Risk for Impulsivity and Violence in Humans’ (2006) Proceedings of the National Academy of Science, available at www.pnas.org/cgi/doi/10.1073/pnas. 0511311103 (accessed 26 February 2012). 28 G.J. Annas, ‘Genetic Privacy: There Ought to be a Law’ (1999) 4 Texas Review of Law and Policy 9, 11.

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unrelated population. For example, with paternity testing, laboratories compare a very small portion of the DNA of a putative parent and child to determine possible parentage.29 A scientist begins to know to whom one is related when the scientist is in possession of an individual’s DNA. Police have begun using the shared nature of genetic information taken from DNA more creatively. Tests now exist to discern bio-geographical information from DNA-testing that purports to identify, at least, the continent of origin of the human source of the sample.30 Even more recently, the police have used a technique known as familial searching. They search a genetic database with a genetic profile of a crime scene sample of unknown origin.31 If a partial match results, it suggests that the individual who contributed the crime-scene sample is closely related to the individual in the database.32 These examples confirm that genetic information is shared information that is identifying both at an individuating level—to whom you ‘belong’, and at a group-membership level— with whom you belong. 2.2.3 Personal and intimate Because it contains both predictive and shared information DNA information is also personal and intimate. As a present and future diary, it catalogs knowledge about current and possible future medical conditions that an individual could otherwise choose to disclose. Therein lies much of the basis for the genetic-privacy laws that so many states have passed. Strikingly someone in possession of others’ DNA would be able to learn information about them that they do not know about themselves. The personal and intimate nature of such information in the hands of someone else is apparent. In the context of Fourth Amendment genetic privacy, the other with that knowledge is the government. 2.2.4 Powerful The predictive, shared, personal and intimate nature of genetic information means it is quite powerful. The variety of laws passed to rein in its abuse reflects the extent of that power. Most states now have genetic 29

National Research Council, The Evaluation of Forensic DNA Evidence (National Academy Press, 1996) 53–4. 30 T.N. Frudakis, Molecular Photofitting: Predicting Ancestry and Phenotype Using DNA (Academic Press, 2007) 35–145. 31 J. Epstein, ‘“Genetic Surveillance”: The Bogeyman Response to Familial DNA Investigations’ (2009) University of Illinois Journal of Law, Technology and Policy 141, 145. 32 Ibid.

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anti-discrimination laws in the provision of health insurance.33 A number of states also have laws addressing the employment context34 and state genetic-privacy laws are quite common.35 Science tells us that DNA is about encyclopedic information, about identity as formed by chemistry, medical conditions, behavior, contribution to children, contribution from parents, shared-ness with siblings and others. The diary, code, menu and even the encyclopedia metaphors are all apt. And, science tells us these metaphors change little if it is out-of-body DNA rather than in-body DNA to which they refer. The powerful, intimate, personal, predictive and shared nature of information from DNA, its multi-dimensional informational quality and its inaccessible, unique existence at the biological core of the body contrasts sharply with the limits of the information one can get from other publicly available information. Found cell-phones provide a host of somewhat protected data yet that data is located within or via the phone by an active choice. Geo-locational data via either technological or human tracking provides relatively accessible one-dimensional information that can be valuable in drawing indirect inferences about an individual’s behavior.36 Public video cameras do the same and enrich the information about with whom one spends time. Yet, geo-locational data are essentially real-time trace evidence, richer in its way than fingerprint data but still trace evidence of where one is or was. They do not provide the same kind of rich data found in out-of-body DNA. Unlike any other publicly available data, DNA’s multi-dimensional cascade is more comprehensively identifying. To the extent that one’s identity can be captured by a matrix of data, DNA data does that. The cascade of data (physical features, medical and behavioral conditions and predispositions, ancestry, relatedness and group membership, etc.) substantially enriches the image from one of simply information to one of identity. 33 N.E. Kass, ‘The Implications of Genetic Testing for Health and Life Insurance’ in M. Rothstein (ed.), Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era (Yale University Press, 1999) 281, 312–13. 34 M.A. Rothstein, ‘The Law of Medical and Genetic Privacy in the Workplace’ in M. Rothstein (ed.), Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era (Yale University Press, 1999) 281, 291–3. 35 See e.g., N.H. Rev. Stat. Ann. § 141-H (‘[N]o individual … shall be required to undergo genetic testing as a condition of doing business with another person.’). 36 See e.g., United States v. Jones, 132 S. Ct. 945, 951 (2012).

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Much is made positively and negatively of genetic determinism (at the extreme: DNA is your fate) and of genetic exceptionalism (DNA is different and more important than anything else).37 Better described DNA is a foundational color in the picture of who we become—our identity. But, it can change color. For example, some genes, once believed to be ‘junk’ DNA, have important regulatory roles.38 Genes often interact with the environment, being turned on or off by external stimuli. For example, a person with the BRCA 1 or BRCA 2 gene has a notably increased risk of getting breast cancer during their lifetime. Whether that happens can depend on a variety of other influences in their life. Thus, DNA, as a byte of information, does not exist in static isolation. It interacts dynamically with other DNA bytes and can literally alter one’s physical make-up. To say the least, we are still early in understanding how profoundly DNA is intertwined in a layered, dynamic process refracting through time and space to create much of who we are, physically and informationwise. It is a complex multi-faceted, multi-generational rich body of identity.

37

See J. Fitzgerald, ‘Genetizing Disability: The Human Genome Project and the Commodification of Self’ (1998) 14 Issues in Law and Medicine 147, 153–4 (associating genetic essentialism and biological determinism with the problem of geneticization of identity); H. Miller, III, ‘DNA Blueprints, Personhood, and Genetic and Genetic Privacy’ (1998) 8 Health Matrix 179, 219 (‘DNA structure should not be conflated with the “essential encoder” of an immutable personal identity or character’); P. Brodwin, ‘Genetics, Identity, and the Anthropology of Essentialism’ (2002) 75 Anthropological Quarterly 323, passim (discussing some of the issues that arise when genetic information is used to help determine cultural identity); R.C. Lewontin et al., Not in Our Genes: Biology, Ideology, and Human Nature (Pantheon Books, 1984) (discussing the political and social ideologies that underlie biological determinism and arguing that determinists miss a number of important factors in human behavior beyond simple genetics, such as environment); R. Lewontin, The Triple Helix: Gene, Organism and Environment (Harvard University Press, 2000) (discussing the danger of viewing an organism as merely ‘computed’ from its DNA rather than taking into account environment and other factors). 38 J.M. Greally, ‘Encyclopedia of Humble DNA’ (2007) 447 Nature 782 (discussing The Encode Project Consortium, ‘Identification and Analysis of Functional Elements in 1% of the Human Genome by the ENCODE Pilot Project’ (2007) 447 Nature 799).

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3 WHAT SOCIETY TELLS US ABOUT DNA The essence of the problem of out-of-body DNA is the disconnection between how society thinks of DNA, what science tells us about DNA, and how courts treat invasions of out-of-body DNA. Science and its interpreters tell society much about what DNA is and what that means, scientifically. The challenge lies in measuring what society thinks about DNA and how those thoughts reflect on the particular circumstance of out-of-body DNA. More succinctly, how does the image of DNA in our public culture reflect society’s attitudes towards DNA?39 Genetics and DNA have long been a focus of public culture. For example, some have written about the eugenics era.40 In film, the 1997 science-fiction film, Gattaca, portrays an acutely dystopic vision of a future society in which the predictive value of genetic information organizes society into the gene elite and the ‘de-gene-erates’.41 Privacy is non-existent in a society in which one’s DNA determined all.42 Beyond film and literature, a look at public discourse through the prism of language theory suggests that public attitudes towards DNA and its relationship with core identity is deeply embedded in our culture. Language theorists tell us that, in using a metaphor to describe something, we are trying to bring a better understanding of that ‘something’ to the audience by referencing a reference point that we already know and understand.43 By doing so we lend the conception of the reference point to our conception of the less known thing, thereby bringing more definition.44 39 Note that ‘society’s attitudes towards DNA’ is more than an intellectually engaging topic. As I will discuss below, a court that is deciding whether to afford an ‘item’ Fourth Amendment protection decides whether a person has a reasonable expectation of privacy in that ‘item’. 40 See generally, K.H. Rothenberg, ‘From Eugenics to the “New” Genetics: “The Play’s the Thing”’ (2010) 79 Fordham Law Review 407. 41 Gattaca (Columbia Pictures, 1997); see also D.A. Kirby, ‘The Devil in Our DNA: A Brief History of Eugenics in Science Fiction Films’ (2007) 26 Literature and Medicine Journal 83, 103–106. 42 Cf. ibid. 104 (explaining the film’s depiction of human beings’ value relative to the value of their cast-off DNA). 43 What follows is based on the important work of language theorists like George Lakoff and Mark Johnson and captured in their classic book, G. Lakoff and M. Johnson, Metaphors We Live By (2nd edn, University of Chicago Press, 2003). 44 Hellsten has described the process as follows: ‘The purpose of metaphorical mapping, at a general level, is to approach new issues in terms of something

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Notice, for example, my and others’ reliance on metaphors to assist in explaining what DNA was in previous sections. Reference points like ‘code’, ‘map’, ‘language’ and ‘library’ were used in an effort to bring more familiar context to an understanding of DNA, the less known thing. The accuracy of the metaphor is not the issue. The question is not whether DNA is actually a code or a language. Rather, the metaphors we choose to explain DNA tell us about how we order our world—the metaphors we live by, as Lakoff and Johnson put it. Several scholars have examined the metaphors and imagery used to describe genetics and DNA. Condit and Van Dijck focused on what images or metaphors people used to explain the gene. They found that society thought about the unfamiliar (genetics) by virtue of the familiar images they used to explain it (breeding, stock, code, blueprint, etc.).45 In the language of Hellsten, the blueprint (the source domain) helps explain DNA (the target domain) by bringing the elements of a blueprint to efforts to understand DNA. Nelkin and Lindee began to flip this dynamic around. They explored how popular culture used images of the gene and DNA to see what those images told us about societal attitudes towards the gene.46 They found that the gene was treated as ‘a cultural icon, a symbol, almost a magical force’ in popular culture.47 That message reduces humans with all their ‘social, historical, and moral complexity’ to a molecular entity, the gene.48 To flip the dynamic even more completely one would use DNA as the source domain or reference point and any variety of less familiar or less grounded things as target domains. The use of DNA as a referential metaphor to explain the unknown would reflect how society thought of DNA itself given that which it was used to explain.

that is already familiar to the user(s) of that metaphor’. L. Hellsten, ‘Popular Metaphors of Biosciences: Bridges over Time?’ (2009) 16 Configurations 11, 14 (footnote omitted). 45 C.M. Condit, The Meanings of the Gene: Public Debates About Human Heredity (University of Wisconsin Press, 1999); J. Van Dijck, ImagEnation: Popular Images of Genetics (New York University Press, 1998). 46 D. Nelkin and M.S. Lindee, The DNA Mystique: The Gene as a Cultural Icon (University of Michigan Press, 2004). 47 Ibid. 2. 48 Ibid.

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In that vein I examined how the term DNA was used over a one-year period49 in the New York Times and USA Today.50 In both newspapers the significant majority of its uses were as a scientific term referencing genetic research or forensics rather than as a metaphor. Nonetheless, just about one-quarter of the Times references and over one-third of the USA Today references were metaphorical.51 Whatever the subject of the articles, the thing sought to be better understood or grounded (the target domain) was almost always behavior of some kind.52 More specifically, the use of a DNA metaphor virtually always sought to explain an aspect of identity. Sometimes, the reference was direct—she acted this way because it is who she is: Pie-making is in the DNA of Melissa … and Emily Elsen. Their grandmother baked pies for their mother’s restaurant in Hecla, S.D., and it was from her that they learned their craft.53

Sometimes the DNA metaphor explains why a particular group acted the way it did: Because the festival, which runs through May 2, was born in the ashes of the World Trade Center as a community development project to revive the devastated economy of Lower Manhattan, you might say ‘My Trip to Al-Qaeda’ is woven into [the Tribeca Film Festival’s] DNA.54

Occasionally the DNA metaphor was a broad-stroke statement of identity: That might have been the end of the story, except that this is South Africa, the country that ended a vicious system of racial segregation 16 years ago to

49

1 January 2010–31 December 2010. I recorded every mention of DNA over a one-year period in both newspapers. 51 New York Times: 197 were scientific and 70 were metaphorical. USA Today: 115 references were scientific and 65 were metaphorical. 52 Over 90 percent of the metaphorical uses of DNA in USA Today and the New York Times involved behavior of some sort as the target domain. 53 F. Fabricant, ‘Sisters open a pie shop in Brooklyn’, New York Times, 20 April 2010, available at www.nytimes.com/2010/04/21/dining/21pies.html? emc= tnt&tntemail0=y (accessed 27 July 2016). 54 S. Holden, ‘12 days, 132 films, 38 countries’, New York Times, 15 April 2010, available at www.nytimes.com/2010/04/16/movies/16tribeca.html?emc=tnt &tntemail0=y (accessed 27 July 2016). 50

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create a noisy, fractious, vibrant democracy. Poking a finger in the eye of authority is part of the national DNA.55

Most often DNA is being used metaphorically to capture a core aspect of identity, not simply a transitory or passing feature. Lakoff and Johnson call such aspects of metaphorical use ‘entailments’ which bring even more depth to the metaphorical reference by adding more detailed features.56 The entailments that came with the use of the DNA metaphor to capture aspects of identity involve: + Permanence ‘That’s who I am’, he said. ‘I can’t be afraid to express myself. I have to be me.’ Manuel almost seems to draw a spiritual lift from his deep, staccato laugh, which usually follows one of his humorous remarks. The jokes, witticisms and wry comments are part of his DNA, and they are not going away because of games that are lost.57

+ Immutability The years clicked by. Boys became men. All but one went off to fight World War II. One didn’t come back. Careers replaced carousing. Still, they remained friends, a lifelong affection for one another somehow inscribed in their DNA.58

+ Inevitability or fatalism Morris agrees. ‘[a] huge problem is that the irresponsibility of those large company CEOs has painted a negative portrayal of ALL business … [W]e WILL end up paying for the free lunch we’ve been enjoying. Capitalism/ entrepreneurship is in the human DNA. Drift is temporary’, tweeted Larry Strassner, CEO of Russell & Mackenna.59 55

C.W. Dugger, ‘South Africa pushes to make the cup its own’, New York Times, 23 May 2010, available at www.nytimes.com/2010/05/24/sports/soccer/ 24safrica.html?emc=tnt&tntemail0=y (accessed 27 July 2016). 56 Lakoff and Johnson (n. 43) 139. 57 D. Waldstein, ‘Manuel under pressure, but hardly showing it’, New York Times, 23 May 2010, available at www.nytimes.com/2010/05/24/sports/baseball/ 24mets.html?emc=tnt&tntemail0=y (accessed 27 July 2016). 58 N.R. Kleinfeld, ‘Together more than 70 years, friends reunite’, New York Times, 8 June 2010, available at www.nytimes.com/2010/06/09/nyregion/ 09friends.html? emc=tnt&tntemail0=y (accessed 27 July 2016). 59 D. Jones, ‘CEOs tweet in news story reported completely on Twitter’, USA Today, 28 May 2009, available at www.usatoday.com/money/companies/ management/2009-05-27-ceos-twitter-reporting-capitalism_N.htm (accessed 27 July 2016).

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+ Intimacy or at one’s core Q: How much of my privacy am I giving up? A: You’re giving up none of your privacy. Our business is about consumer first, advertiser second, and AdKeeper third. Services like Facebook and Google have done a disservice to the industry because they don’t think that privacy is in their DNA. At Facebook their DNA is to share.60

The depth and breadth of the core-identity imagery associated with the DNA metaphor in these examples is unmistakable. In the language of Lakoff and Johnson, permanence, immutability, inevitability, intimacy (the entailments) reverberates within the core-identity DNA metaphor.61 They bring deeper meaning to society’s understanding of behavior and identity. More to the point here, the richness of the features captured by the DNA metaphor also tells us more about what society thinks about DNA. That DNA is about core identity for those who use DNA metaphors to explain behavior and identity reinforces the sense that society views DNA as involving core identity. The use of DNA metaphors by writers, reviewers and journalists to help their audiences understand behavior and identity presumes that the core-identity DNA metaphor is a familiar one shared by their audiences. It also suggests that society’s sense of the role of DNA in defining part of one’s identity is much more profound than its sense of the role of fingerprints. An identical newspaper-metaphor analysis found that the aspect of identity captured by the fingerprint metaphors differed from that captured by the DNA metaphor. While the DNA metaphor captured core-identity aspects, the fingerprint metaphor captured only more superficial aspects of identity-trace, brand, identification tag and signature. The contrast between the metaphorical uses of DNA and of fingerprints in the public discourse mirrors the distinctions drawn between the two in the discussion above as to what science tells us about DNA and about fingerprints. DNA contains a multi-dimensional kaleidoscope of identity and a fingerprint operates as a one-dimensional trace of physical presence. The manifestations of societal attitudes revealed in the uses of

60 D. Lieberman, ‘Advertisers betting that AdKeeper’s a Web business keeper’, USA Today, 3 November 2010, available at http://content.usatoday.com/ communities/technologylive/post/2010/11/advertisers-betting-that-adkeepers-a-webbusiness-keeper/1 (accessed 27 July 2016). 61 Lakoff and Johnson (n. 43) 140.

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such metaphors confirm the relative weightiness and richness of attitudes towards DNA. DNA as a metaphor conveys the idea, ‘this is who I am’—a sense of core identity. By contrast, the fingerprint metaphor conveys the idea of ‘a trace of who was there’.

4 OUT-OF-BODY DNA: THE DISCIPLINES OF LAW AND BIOETHICS Valuable and different perspectives on the status of out-of-body DNA come from an examination of how the law and the field of bioethics treats external body parts. One can look in at least two places to see how the law treats out-of-body DNA: Fourth Amendment jurisprudence relating to surreptitious harvesting of out-of-body DNA and that body of law that regulates the use of body parts extracted from the body. That second area also overlaps with the field of bioethics. Loosely, it matters a great deal whether the law thinks of out-of-body DNA as ‘of the body’ or not. Fourth Amendment jurisprudence provides no privacy protection and out-of-body law and bioethics provides some such protection. 4.1 Of-the-Body Law and Bioethics Of-the-body law and bioethics provides a measure of protection to body parts no longer ‘attached’ to the body. Scientifically, DNA is a body part, at least within the body. But, colloquially, we do not think of it as such. If one acknowledges that indeed it is of the body and extends that acknowledgement to out-of-body DNA just as we do to spleens, amputated limbs, other organs, etc., two conclusions become apparent: (1) the nature and use of the body part determine its legal status; and (2) in every instance, some form of privacy protection exists.62 The legal status of external parts in non-criminal contexts for purposes of medical treatment, research or other uses depends on that which is being removed. Blood, somewhat uniquely, is treated as a commodity that can be bought and sold once removed from the body. Put differently, once in-body blood is out-of-body blood, the person of the body from which it came has a full property interest in the blood.63 Of course, 62 As will become clear below, genetic research ethics effectively acknowledges this proposition when it creates privacy protection for out-of-body DNA and the information it holds through informed consent and other protocols. 63 See e.g., Green v. Commissioner, 74 T.C. 1229, 1234 (1980); Carter v. Inter-Faith Hospital, 60 Misc. 2d 733, 736 (N.Y. Sup. Ct. 1969).

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out-of-body blood by its nature contains out-of-body DNA though, in this circumstance, the out-of-body blood and DNA is given knowingly and voluntarily. Organs donated for use in medical treatment have a different legal status. Federal and state law prohibit the reception or transfer of any human organ for transplantation for a ‘valuable consideration’.64 But, by its silence, it suggests that donation is permissible. And, state laws explicitly provide for organ donations.65 These laws and regulations effectively give the donor some limited control over where the organ goes but do not allow the donor to profit. Here, once an in-body organ is an out-of-body organ, the person of the body from which it came has only very limited property interest in the organ. And, of course, the Thirteenth Amendment prohibits the full ownership of another’s body. By contrast, a person has no property interest in the medical waste that originates in the body. Medical waste is effectively, discarded body parts, tissues and organs. Such waste, often called pathological waste, is destroyed in a regulated fashion as a matter of public health.66 Medical waste almost always contains out-of-body DNA and, by definition, it is not being used. Here then, an in-body part becomes an unused, destroyed out-of-body part.67 And, the heirs of one who has died do not have a property interest, per se, in the cadaver of the deceased though they do have cremation or burial rights and donation rights, effectively a limited quasi-property interest.68 Here, the living ‘in-body’ as a whole becomes an out-of-body part for legal purposes by virtue of the departure of life. One common feature of all these examples is that the person from whom the part was taken (or that person’s heirs) is aware that it is no longer part of the body. That awareness includes, most often, an awareness of its future use. Whether one is selling blood, donating an organ or having one’s medical waste disposed of, one has at least some awareness of that which will be done with it.

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42 U.S.C. § 274e(a) (2013). Cal. Health & Safety Code, § 7150.20 (Deering 2013). 66 EPA, ‘Where You Live: State Medical Waste Programs and Regulations’, www.epa.gov/osw/nonhaz/industrial/medical/programs.htm (accessed 27 July 2016). 67 Note that Hawaii makes a quasi-religious exception for placenta which some believe needs to be buried. Haw. Rev. Stat. § 321–30 (2013). 68 Snyder v. Holy Cross Hospital, 352 A.2d 334, 341 (Md. Ct. Spec. App. 1976); Pierce v. Swan Point Cemetery, 10 R.I. 227 (1872). 65

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With only odd exceptions,69 the other out-of-body parts are not publicly available, unlike the out-of-body DNA upon which we are focused. In one way or another, statutes and regulations provide an individual with a measure of a limited property interest in that which they know is no longer part of the body. Yet, nothing in the available law suggests the outcomes for various organs or other body parts described above would be any different if those parts were publicly available. Nothing about the limited interests that people retain in non-DNA out-of-body parts suggests that that interest would fall away if the part were publicly available, even assuming the individual were unaware of its availability. If the individual had knowingly and voluntarily abandoned the non-DNA body part in a public space, then the law of abandonment would control.70 All this analysis focuses exclusively on a very physical, property-like perspective to privacy concerns. A number of cases choose to recognize essentially no property interest. Instead, they focus on what might be called a version of a privacy interest. They provide for no ownership right for the owner of the body part but do require informed consent for collection of the body part. In Moore v. Regents of California,71 Moore’s doctor conducted a splenectomy of Moore knowing that he would use cells from the spleen to create a cell line. He did so and obtained a financially remunerative patent. Upon discovering this, Moore sued his doctor claiming that he was entitled to at least some of the profits. The California Supreme Court reject his assertion of a property right but found that his doctor had owed him a fiduciary duty and violated that duty by failing to obtain Moore’s informed consent. Put differently, the out-of-body cells were free for the taking in property terms but their taking still carried a substantial consent provision to protect the autonomy of the ‘donating’ individual. In Greenberg v. Miami Children’s Hospital Research Institute, Inc., the federal court found that families who had worked with researchers on research regarding Canavan disease by providing blood, urine and tissue samples had no claim to the tissues once donated regardless of the fact

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WTC Families for a Proper Burial, Inc. v. City of New York, 567 F. Supp. 2d 529 (S.D.N.Y. 2008). WTC Families involved litigation about pieces of bodies amidst the rubble of the 9/11 World Trade Center attack. 70 A. Scherr, ‘Genetic Privacy and the Fourth Amendment: Unregulated Surreptitious DNA Harvesting’ (2013) 47 Georgia Law Review 445, 475–8. 71 Moore v. Regents of University of California, 51 Cal. 3d 120 (1990).

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that the researchers had obtained a patent.72 In Washington University v. Catalona, the federal court declined to recognize tissue donors’ property rights to determine where tissue samples went once donated. As long as the researcher had obtained informed consent, he could continue to use the tissue.73 All three cases rejected the concept of a property interest but required informed consent as protection for the donating individual. In the medical treatment and research context then, one cannot collect body parts and do with them what one will even though the ‘contributor’ no longer has a property interest. This approach rejects the you-gave-it-up-and-now-it’sours-to-do-with-what-we-wish approach. As we will see below, the all-or-nothing approach pervades courts’ treatment of publicly available out-of-body DNA. That all-or-nothing approach is also inconsistent with the informedconsent system in federally-sponsored medical research. Federal regulations require informed consent from every research subject: Except as provided elsewhere in this policy, no investigator may involve a human being as a subject of research covered by this policy unless the investigator has obtained the legally effective informed consent of the subject or the subject’s legally authorized representative.74

The robust body of bioethics literature surrounding the idea of informed consent reflects a core proposition: out of respect for the autonomy of the individual, one does not abandon completely one’s interests in a part of one’s body once that part leaves the body. The principal federal regulation about informed consent evinces the care with which researchers and bioethicists have developed the principle since the end of the Nazi abuses before and during World War II and subsequent controversies involving subject abuse, including, in the United States, the Tuskegee Syphilis Study and the Willowbrook State School controversy.75 It is inconceivable that the practice of surreptitiously harvesting either a body part or out-of-body DNA would survive either a Moore-like analysis or an informed consent analysis under federal regulations. 72 Greenberg v. Miami Children’s Hospital Research Institute, Inc., 264 F. Supp. 2d 1064 (S.D. Fla. 2003). 73 Washington University v. Catalona, 437 F. Supp. 2d 985 (E.D. Mo. 2006). 74 CFR, s. 46-116 (there is a robust body of literature in the bioethics and other communities about informed consent). 75 See generally, R.R. Faden and T.L. Beauchamp, A History and Theory of Informed Consent (Oxford University Press, 1986).

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4.2 How Courts View Publicly Available, Out-of-Body DNA Within Fourth Amendment Jurisprudence The nature and scope of the Fourth Amendment’s protection against an intrusion on genetic privacy is not readily apparent from the text. It guarantees that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated’.76 The prohibition reads like one against intrusions on an individual’s physical space by the government, be it real property, bodily integrity, other physical items. It makes no explicit mention of more intangible conceptions of privacy. For example, it says nothing about security from intrusions into out-of-body DNA left in a public place; it says nothing about intrusions involving a host of other modern technologies like GPS, public surveillance cameras, or various kinds of technological eavesdropping. Each involves a type of technology that the Framers had not contemplated. Each intrudes on more than purely property- or place-based privacy. Historically, the US Supreme Court’s Fourth Amendment jurisprudence reflected a relatively narrow and somewhat rigid, legalistic focus on property and place in defining the extent of Fourth Amendment privacy.77 Without a physical invasion, or a search of a person, papers, or tangible material effects, no Fourth Amendment violation occurs.78 In this conception, privacy ‘was tied very closely to notions of property rights’.79 In 1967, the Supreme Court, in Katz v. United States,80 abandoned the property and place paradigms as the exclusive analytical models for determining when an intrusion on Fourth Amendment privacy has occurred. Katz had made several telephone calls from inside a public telephone booth. Because the government suspected Katz of engaging in illegal gambling activities, it affixed a listening and recording device to the outside of the booth to record Katz’s end of the conversations.81 As a result of the evidence gathered from eavesdropping on his conversations, 76

US Constitution, Amendment IV. See e.g., Olmstead v. United States, 277 U.S. 438, 464 (1928) (‘The Amendment itself shows that the search is to be of material things—the person, the house, his papers or his effects’). 78 Ibid. 466. 79 R. Simmons, ‘From Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment to Twenty-First Century Technologies’ (2002) 53 Hastings Law Journal 1303, 1308–309. 80 389 U.S. 347 (1967). 81 Ibid. 348, 354. 77

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Katz was convicted of illegal gambling activities.82 The police had not intruded on Katz’s sense of privacy in his property or in a place that was his, as they never entered the booth. In its decision, the Court redefined its approach to Fourth Amendment privacy in two ways. It shifted the inquiry to a direct focus on the privacy of the person and away from the narrow, technical legal status of the property or place searched. It also expansively defined how to measure the privacy at stake: For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.83

Thus, Katz could have a Fourth Amendment privacy interest into which the government may not intrude, even if that interest exists in a public place in which, prior to Katz, a court would have found no privacy interest. The shift in focus to a more intangible, personal privacy conception left open the difficult question of how to measure the nature and scope of person-based privacy. Katz provided an answer, though not a wellbounded one. Justice Harlan’s concurrence described how to assess the nature and scope of any possible Fourth Amendment privacy interest a person might hold: there is a twofold requirement, first that a person [has] exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable’.84

The Court offered little guidance about how to go about this process other than solving the case in front of it. A single ungrounded, generalized statement about ‘the vital role that the public telephone has come to play in private communication’ captures the Court’s methodology for assessing society’s attitude towards Katz’s expectation.85 Thus, post-Katz, the two-pronged reasonable-expectation-of-privacy test seems to exist as an unbounded, ad hoc assessment by a court of society’s attitude toward the privacy interest at issue. 82 83 84 85

Ibid. Ibid. Ibid. Ibid.

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When applying the Katz test to surreptitiously harvested out-of-body DNA, courts have almost uniformly found that such harvesting did not count as a search, i.e. that out-of-body DNA did not merit Fourth Amendment protection. By and large, they have found (1) that the putative suspect abandoned the item upon or in which the DNA-laden cells were found; and (2) as a result, there was no expectation of privacy in the item or that which it was in or on. Because they focused only on the putative suspect’s privacy in the discarded item rather than the DNA within it, virtually no court has explicitly considered either the person’s privacy rights in the DNA itself or the nature and extent of those genetic-privacy rights. One of the earliest cases is People v. Sigsbee.86 In 1975, the police had some evidence, shy of probable cause, to suspect that Donald Sigsbee had murdered a woman. However, forensic DNA testing did not exist at the time. Twenty-eight years later, the police began a loose surveillance of Sigsbee.87 One investigator followed Sigsbee to a restaurant, watched him eat his meal and drink through a straw.88 When Sigsbee left, the investigator retrieved the cup and straw, and submitted it for forensic DNA testing.89 The trial court held that Sigsbee had abandoned any Fourth Amendment privacy interest in his DNA on the straw when he abandoned the straw. Other courts have taken a similar approach. In Commonwealth v. Cabral, the court found that the defendant had voluntarily abandoned the reasonable expectation of privacy he had in his saliva when he ‘expectorated’ on a public street.90 In Commonwealth v. Bly, the defendant left the police station after an interview, leaving a water bottle and cigarette butts.91 The court never even reached the abandonment issue identified by the Sigsbee trial court. Instead, it grounded its decision on the defendant’s ‘wholesale failure to manifest any expectation of privacy in the items whatsoever’.92 Overall, those early courts used a very narrow focus for their analysis.93 The courts used an abandonment analysis that had an exclusively 86

No. 03-0342, slip op. (Onondaga, N.Y. Cnty. Ct. Oct. 30, 2003). Ibid. 8. 88 Ibid. 9. 89 Ibid. 9–10. 90 Commonwealth v. Cabral, 866 N.E.2d 429, 433 (Mass. App. Ct. 2007). 91 Commonwealth v. Bly, 862 N.E.2d 341, 349 n. 3 (Mass. 2007). 92 Ibid. 357. 93 See also, State v. Reed, 641 S.E.2d 320, 321–3 (N.C. Ct. App. 2007); State v. Athan, 158 P.3d 27, 32 (Wash. 2007). 87

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intrusion-on-property/place focus. The narrowness of the courts’ analyses in these cases reflects a misguided focus borne of a misapplication of the Katz test. Almost without exception,94 courts did not ask whether the defendant had a reasonable expectation of privacy in his out-of-body DNA or in the DNA-laden cells. In Katz, the police listened in on Katz’s end of a phone conversation through a listening device on the outside of a phone booth. Just as the appropriate question in Katz was whether Katz had a reasonable expectation of privacy in certain private communications by phone (rather than an expectation of privacy in the phone booth itself), so too in the surreptitious harvesting cases the appropriate question in these cases should have been whether the defendants had a reasonable expectation of privacy in their out-of-body DNA. More recently, the Fourth Circuit Court of Appeals took a different approach to the issue of out-of-body DNA from an individual’s clothing in United States v. Davis.95 The police had Davis’s clothing in its possession legally. Without a warrant, it extracted Davis’s DNA from blood on the clothing. The Fourth Circuit held that an extraction of DNA from clothing in legal possession of the police counted as a search contrary to prior cases around the country. It said that the police do not have: carte blanche to perform DNA extraction and analysis derived from clothing lawfully obtained from the victim of a crime in relation to the investigation of other crimes. Instead, a victim retains a privacy interest in his or her DNA material, even if it is lawfully in police custody.96

If the Davis opinion suggested a possible trend towards a re-evaluation of the early public, out-of-body DNA cases, however, it is one that is mild, at best.97 Courts continue not to recognize a privacy interest in publicly available out-of-body DNA.

94 Athan (n. 93) 158 P.3d at 33; People v. Sigsbee, No. 03-0342, slip op. at 31–3 (Onondaga, N.Y. Cnty. Ct. Oct. 30, 2003). 95 United States v. Davis, 690 F.3d 226 (4th Cir. 2012). 96 Ibid. 690 F.3d at 246. 97 In a lengthy dissent, the minority contested the out-of-body distinction in finding a Fourth Amendment search had occurred. Raynor v. Maryland, 99 A3d. 753 (Md. 2014); cert. denied 135 S.Ct. 1509 (2015).

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5 PROBLEMS WITH FOURTH AMENDMENT JURISPRUDENCE AS TO OUT-OF-BODY DNA The surreptitious DNA harvesting courts are wrong in failing to recognize a Fourth Amendment privacy protection for out-of-body DNA. Their use of the abandonment approach is mistaken. The more recent courts also fail to appreciate the message of the Kyllo/Jones/Riley trilogy cases that even public display of ‘data’ does not erase all privacy protection. Those courts also ignore the messages from science, society and of-thebody law and ethics described above. 5.1 Kyllo/Jones/Riley Trilogy Independently of the surreptitious harvesting cases, the US Supreme Court has developed a line of cases about publicly available personal ‘data’ in public spaces in other contexts. Though not explicitly treated as such, the Kyllo/Jones/Riley trilogy serves as a useful comparison for the treatment of other personal data in public spaces. In Kyllo, the publicly available, personal data was a greater-thannormal level of heat emanating from Kyllo’s house into a publicly accessible space, which the police suspected was evidence of highintensity grow lamps within the house. The police used a thermal imaging device to measure the amount of heat emanating from the house.98 They did not ‘enter’ Kyllo’s house to measure the amount of heat, only measuring it from a public space after it left the house.99 The Court found that the use of the thermal imaging device was the kind of intrusion prohibited by the Fourth Amendment, even though neither the police nor its equipment ever entered Kyllo’s home.100 For the Kyllo majority, home-based intimacy deserves Fourth Amendment protection, even if only inferred from heat outside the home.101 Using that approach, body-based intimate information merits privacy protection even if obtained from out-of-body DNA.102 98

533 U.S. 27, 29, 34 (2001). Ibid. 30. 100 Ibid. 40. 101 Ibid. 38. 102 Note that the Kyllo majority also emphasized that the police were not using technology readily available to the public. Though some are beginning to make the argument that DNA technology is becoming readily available to the public, it is only very small, select parts of DNA (paternity information or 13-loci identity information) that are even close to being readily available to the 99

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In Jones, the publicly available, personal data was Jones’s whereabouts as revealed by a GPS attached to his car. The Court decided that the attachment of a GPS tracking device to a vehicle, and its use to infer Jones’s whereabouts over ten days, was a search within the meaning of the Fourth Amendment. Though the Court split on the justification for this conclusion, the result for the entire Court was premised on the principle that obtaining a particular quality of publicly available information (the suspect’s whereabouts while in public) may constitute a Fourth Amendment search in spite of its public nature. The analogy to out-of-body DNA is readily apparent. Even more, much, if not all, of the Jones information was readily available even without technology simply by following Jones. In Riley, the publicly available, personal data was the data available within a cell-phone. The Court found that, though the police had possession of an individual’s cell-phone legally, a search of the contents of that cell-phone constituted an additional search requiring either a warrant supported by probable cause or a warrant exception to justify it constitutionally. In Riley then, the data was publicly available in that it was on a cell-phone legally in possession of police, protected only by a password and/or keystrokes. The Court identified (1) the cell-phone’s ‘immense storage capacity’;103 (2) the collection in one place of ‘many distinct types of information … that reveal much more in combination than any isolated record’;104 (3) the revealing nature of the data looking backward even before the phone’s purchase;105 (4) the ‘element of pervasiveness that characterizes cell-phones’;106 and (5) the ‘qualitatively different’ nature of cell-phone data,107 among the several factors that distinguished cell-phone contents from other physical records. Out-of-body DNA, whose ‘container’ (saliva and a cell, for example) is publicly available protected by biological barriers, has all the same

public through technology. The full array of genetic information is not available through current technology. More importantly, as we will see in United States v. Jones, in which technology readily available to the police was used (GPS tracking), the Jones court still found that a search had occurred. 103 Ibid. 2489. 104 Ibid. 105 Ibid. 106 Ibid. 2490. 107 Ibid.

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features.108 The storage capacity of biological material for DNA is immense. Every cell has DNA and it contains an individual’s entire DNA, not just the DNA of that body part. That DNA contains information that is intimate, personal, shared, predictive and powerful. To paraphrase the Court’s language in Riley: the cell’s DNA is not just another technological convenience. With all it contains and all it may reveal, it holds for many Americans ‘the privacies of life’. Thus, the Supreme Court has given privacy protection to the measurement of publicly available and very accessible whereabouts (Jones); to the measurement of publicly available, but less accessible heat (Kyllo); and to cell data easily accessible by virtue of a publicly accessed cell-phone (Riley). By that standard alone, even putting aside the message of science and society’s attitudes, accessing out-of-body DNA merits Fourth Amendment protection. 5.2 Abandonment Fallacy Many surreptitious harvesting courts relied on the logic of abandonment to find a lack of Fourth Amendment privacy protection for out-of-body DNA. But, they did so incorrectly. Even in the property or abandonment context, the Katz question in surreptitious harvesting cases changes from whether individuals abandoned their saliva, cigarette butt or water bottle, to whether they abandoned their expectation of genetic privacy in their DNA. As one court has phrased it: The distinction between abandonment in the property-law sense and abandonment in the constitutional sense is critical to a proper analysis of the issue. In the law of property, the question, as defendant correctly states, is whether the owner has voluntarily, intentionally, and unconditionally relinquished his interest in the property so that another, having acquired possession, may successfully assert his superior interest. In the law of search and seizure, however, the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment. In essence,

108 This analogy acquires further resonance when one harkens back to United States v. Chadwick, 433 U.S. 1 (1977); abrogated by California v. Acevedo, 500 U.S. 565 (1991) in which the police searched a locked trunk without a search warrant. The Court made it clear that the police should have obtained a search warrant even though they had legal possession of the trunk.

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what is abandoned is not necessarily the defendant’s property, but his reasonable expectation of privacy therein.109

The significance of this shift is immediately apparent. Abandonment requires knowledge and intention.110 Without a showing that individuals knew that by their conduct they had abandoned their expectation of genetic privacy in their DNA, no abandonment has occurred. The Katz Court itself explicitly recognized this proposition when it pointed out that ‘[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection’.111 Some of the classic Fourth Amendment abandonment circumstances involve variations on the theme of the defendant seeing the police and either discarding drugs112 or some other item113 or walking away from that item.114 In these kinds of cases, courts may debate whether the defendant’s acts, words or other objective facts, reflect an intention to abandon or not; but, all of them require some manifestation of intention.115 So, in Sigsbee, Cabral, Bly et al., ample evidence existed that those putative suspects knew and intended to abandon the straw, water bottle, saliva, etc. at issue. No evidence exists, however, suggesting any of those putative suspects knew they were abandoning whatever expectation of genetic privacy they had in their DNA when they went out in public. It is speculative, at best, to conclude from a silent record that individuals would know that they were shedding DNA;116 that they were aware of the ability of the government to collect that DNA, analyze it, and use it as an identification tool; or that they were cognizant of the other kinds of uses the police 109 City of St. Paul v. Vaughn, 237 N.W.2d 365, 370–71 (Minn. 1975) (footnote omitted) (citations omitted). 110 E.G. Mascolo, ‘The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis’ (1971) 20 Buffalo Law Review 399, 401–402. 111 Katz v. United States, 389 U.S. 347, 351 (1967). 112 State v. Britton, 633 So. 2d 1208, 1209 (La. 1994) (hiding packet of cocaine in gum rack); State v. Crandall, 136 P.3d 30, 31 (Or. 2006) (hiding baggie underneath car). 113 United States v. Collis, 766 F.2d 219, 220 (6th Cir. 1985) (abandoning airplane luggage after seeing DEA agents). 114 United States v. Tugwell, 125 F.3d 600, 602 (8th Cir. 1997) (walking away from suitcase at bus station after drug-sniffing dog alerted to it). 115 See e.g., United States v. Jones, 707 F.2d 1169, 1172 (10th Cir. 1983) (‘[A]n expectation of privacy is a question of intent’). 116 Note that the burden of proof in such circumstances is on the prosecution to justify their warrantless conduct. Mascolo (n. 110) 403–404.

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could make of their DNA, let alone the scope and breadth of genetic information about them that might be available to those with access to it via the appropriate technology. In fact, in one case, the police specifically asked the suspect for a DNA sample and he declined to consent.117 Courts’ treatment of other privacy-in-public cases supports this type of analysis. The Katz garbage-on-the-curbside cases consider the extent of the likely knowledge attributable to the ‘owner’ of the garbage. In California v. Greenwood,118 the Supreme Court found that: [i]t is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.119

Such ‘common knowledge’ as to one’s shed DNA would include, at the least, it being accessible to the police with the use of sophisticated biotechnological tools for comparison to crime-scene samples, or inclusion in a database, or both.120 Courts’ analyses of other sets of privacy-in-public cases reveal a similar approach. The premise of fingerprint, voice-exemplar and handwriting-exemplar cases rests on individuals knowingly exposing

117

Raynor v. Maryland, 99 A.3d 753 (Md. 2014). 486 U.S. 35 (1988). 119 Ibid. 40 (footnotes omitted). 120 And, garbage is disposed of voluntarily, almost by its nature, while whether one disposes of out-of-body DNA is a messy question given that the only way to prevent such disposal is never to leave protected spaces like the home or the car. But see State v. Goss, 150 N.H. 46 (2003) in which the NH Supreme Court gave Fourth Amendment privacy protection to garbage saying: ‘Clues to people’s most private traits and affairs can be found in their garbage. Almost every human activity ultimately manifests itself in waste products and any individual may understandably wish to maintain the confidentiality of his refuse’. State v. Hempele, 120 N.J. 182, 576 A.2d 793, 802 (1990) (quotation, brackets and ellipsis omitted). Personal letters, bills, receipts, prescription bottles and similar items that are regularly disposed of in household trash disclose information about the residents that few people would want to be made public. See People v. Edwards, 71 Cal.2d 1096, 80 Cal. Rptr. 633, 458 P.2d 713, 718 (1969). Nor do we believe that people voluntarily expose such information to the public when they leave trash, in sealed bags, out for regular collection. But see Greenwood (n. 118) 486 U.S. at 40, 108 S.Ct. 1625. State v. Goss at 49. 118

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their fingerprints,121 voices122 and handwriting123 to the public. And, in United States v. Jones, the Court found that Antoine Jones had not abandoned his expectation of privacy in his aggregated public behavior by going out in public.124 The fingerprint example is particularly important, as commentators have debated the appropriateness of analogizing surreptitious harvesting of out-of-body DNA to surreptitious harvesting of fingerprints.125 Superficially, the analogy is attractive as, in each instance, the police are harvesting from publicly available samples what will turn into identity information. The analogy fails, however. It is ‘common knowledge’ that whenever you touch something in public, you run the risk of leaving fingerprints that can be used for identification purposes. The same cannot be said about shed, out-of-body DNA, even if its use is only for comparison to crime-scene samples by way of the application of sophisticated biotechnological tools to the DNA, or inclusion in a database, or both.126 In Kyllo, the court’s focus was on the heat the police measured. That heat was outside of the home and effectively abandoned. Yet, it was their window into that intimacy and thus was an impermissible Fourth Amendment intrusion in the eyes of the Kyllo court.127 Had the majority just focused on the abandoned nature of the heat itself, they would have found no violation as the police ‘acquired’ the heat outside the protected area of the home. Absent any evidence that Kyllo knew that heat was 121 See Davis v. Mississippi, 394 U.S. 721, 727 (1969) (‘Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search’). 122 See United States v. Dionisio, 410 U.S. 1, 14 (1973) (‘The physical characteristics of a person’s voice, its tone and manner … are constantly exposed to the public’). 123 See United States v. Mara, 410 U.S. 19, 21 (1973) (‘Handwriting … is repeatedly shown to the public’). 124 132 S. Ct. 945, 950–51 (2012). 125 D.H. Kaye, ‘Science Fiction and Shed DNA’ (2006) 101 Northwestern University Law Review Colloquy 62; E.E. Joh, ‘Reclaiming “Abandoned” DNA: The Fourth Amendment and Genetic Privacy’ (2006) 100 Northwestern University Law Review 857, 882. Compare (rejecting the appropriateness of the fingerprint analogy), with Kaye (supporting the appropriateness of the fingerprint analogy). 126 This analysis does not rely on the genetic exceptionalism argument Joh relies on. It also sidesteps the debate between Kaye and Cole on how much genetic information is actually available as a result of standard forensic DNA testing. See n. 48 above and accompanying text. 127 Kyllo v. United States, 533 U.S. 27, 38 (2001).

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escaping from his house and that it could reveal intimate details of home activity by virtue of technology not generally available to the public, the majority ignored any possible abandonment analysis. In a surreptitiousharvesting case, if ‘measurement’ of the shed, out-of-body DNA provides the police with a similar window into some measure of genetic intimacy or privacy and no evidence exists of the shedder’s knowledge of that, a Fourth Amendment violation may well have occurred even though the DNA was left in public. What the abandonment jurisprudence may be telling us is that one can easily abandon one’s expectation of privacy in the saliva one spits on the sidewalk or licks onto a stamp or leaves on a coffee cup—or in one’s cell-phone. That does not mean, however, that one has abandoned one’s expectation of privacy in the DNA within the saliva, any more than one has abandoned an expectation of privacy in the cell-phone data.

6 AN EXPECTATION OF PRIVACY IN OUT-OF-BODY DNA THAT SOCIETY DEEMS REASONABLE The above tells us that courts should find that an individual does have a reasonable expectation of privacy in out-of-body DNA in the surreptitious harvesting circumstance. Science tells us that DNA information is powerful, intimate, personal, predictive and shared. It has multi-dimensional informational quality and its relative biological inaccessibility and unique existence at the biological core of the body contrasts sharply with the limits of the information one can get from other publicly available information that have Fourth Amendment protection. Society, through its use of the DNA as a metaphor, conveys the idea that DNA ‘is who I am’—a sense that a core identity rests in one’s DNA. The themes of permanence, immutability, inevitability and intimacy reverberate within the core-identity DNA metaphor. They bring deeper meaning to society’s understanding of behavior and identity. More to the point here, the richness of the features captured by the DNA metaphor also tells us more about what society thinks about DNA and the reasonableness of expecting protection for that richness of information. Laws, regulations and bioethical standards relating to organs, medical waste and biological research material tell us that we give at least some form of protection to such biological entities, all of which, not incidentally, contain DNA. One can buy and sell blood. One has cremation, burial and donation rights over cadavers. One has donation rights for organs and, though one does not have property rights in removed organs,

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one still has a measure of privacy rights. As a researcher, one must follow strict federal regulations regarding the use of any human biological materials, including the provision of informed consent. In each of these areas of law and ethics, the ‘out-of-body’ still retains some of-the-body status. Fourth Amendment jurisprudence in modern technology areas also tells us that personal data still gets Fourth Amendment protection even though it is in public and even when it is knowingly exposed to some extent. The Katz/Jones/Riley trilogy tell us that heat emanating from a house into the public space gets Fourth Amendment privacy protection because it tells us about a highly protected space. It tells us that cell-phone data within a cell-phone has privacy protection even when the police are in lawful possession of the cell-phone. It even tells us that one’s accumulated public whereabouts get privacy protection even though available through commercial technology and simple human observation. As noted above, Katz provided virtually no guidance about how to decide whether an expectation of privacy is one that society would deem reasonable. It merely suggested on the facts of that case that the public telephone played a vital role in private communication. Since then, the two-pronged reasonable-expectation-of-privacy test has existed as an unbounded, ad hoc assessment by a court of the privacy interest at issue. That said, the proposition that out-of-body DNA merits Fourth Amendment privacy protection, given the above, is both new, well-grounded and still only an incremental step. The proposition is new in that it reflects a treatment of out-of-body DNA as still having enough of the essential features of in-body DNA (essentially all the features other than those that accompany location) that it should still be treated as of-the-body as other areas of law and of bioethics do. It is well-grounded in that science, society, other disciplines and a measure of Fourth Amendment jurisprudence strongly suggest out-of-body DNA merits privacy protection. Most importantly, it is only an incremental step in the development of Fourth Amendment jurisprudence. To provide out-of-body DNA with Fourth Amendment status, one need not require the police to obtain a search warrant supported by probable cause to collect, the cup, the stamp, the baseball hat on which the DNA resides. One need not even require the police to get a warrant supported by probable cause to seize the saliva on the cup or sidewalk or the sweat on the baseball hat. As I proposed in 2013,128 the solution in the Fourth Amendment context is to allow police to capture abandoned material (saliva, blood, 128

Scherr (n. 70) 525–6.

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clothing, etc.) without probable cause or a warrant. But, if they want to access the cells and open them up to get to the DNA for whatever purpose, they must obtain a search warrant supported by probable cause. This approach respects the needs of police investigations; it treats out-of-body DNA like the US Supreme Court treats cell-phones, houses from which heat emanates, and the GPS-tracked extended whereabouts of being in public. It grants a privacy right, not a property right, to an individual in their publicly available, out-of-body DNA. It does not create a significant impediment to police investigation in that the police can retain the legally possessed ‘container’ for however long they need until acquiring the necessary probable cause to invade a person’s genetic privacy. And it respects that which we now know; out-of-body DNA is better thought of as of-the-body DNA.

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10. The Internet of other people’s things Meg Leta Jones* 1 INTRODUCTION This is a chapter about the future, and as such, it is speculative and optimistic. The future is connected, populated by smart things, people and places. The Consumer Electronic Show 2015 was full of smart devices, from consumer drones1 to auto-adjusting beds.2 The 2016 show highlighted market-ready driverless cars from Mercedes-Benz3 and home assistants like Amazon’s Echo.4 A number of start-ups are creating new forms of connectivity. For instance, AdhereTech’s smart pill bottle is intended to increase adherence to medication schedules and help healthcare providers and pharmaceutical companies gain important insight,5 while Chul’s facial recognition technology replaces keys, passwords and codes, allowing users to disarm a security system with the unique features of their face, even as it changes.6 Established players like Samsung have been pushing the trend of connectivity with smart lighting

* Original version first published in (2015) 51 Idaho Law Review 639. 1 J. Fisher, ‘CES 2015: Drones, Drones, Drones’, PC Magazine, 9 January 2015, available at www.pcmag.com/article2/0,2817,2474885,00.asp. 2 D. Hardawar, ‘The Smartest “Smart Bed” Auto-Adjusts Throughout the Night’, Engadget, 6 January 2015, available at www.engadget.com/2015/01/06/ rest-smart-bed/. 3 D. Newcomb, ‘Car technology once again stole the show at CES 2016’, Forbes, 11 January 2016, available at www.forbes.com/sites/dougnewcomb/2016/ 01/11/car-technology-once-again-stole-the-show-at-ces-2016/#4798fbcc7c41. 4 S. Higginbotham, ‘The 6 Things CES Taught Us about the Internet of Things’, Fortune, 11 January 2016, available at http://fortune.com/2016/01/11/ ces-Internet-of-things/. 5 J. Vance, ‘10 Hot Internet of Things Startups’, CIO, 4 September 2015, available at www.cio.com/article/2602467/consumer-technology/10-hot-Internet Internet-of-things-startups.html. 6 Ibid. 2. 242

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systems to wine collection management.7 Not just information technology companies are players in the smart future; companies like General Motors and Whirlpool are adding intelligence and autonomy to existing technologies like cars8 and washing machines.9 We are quickly creating an environment not full of more screens of different sizes, but one of tangible, ambient computing. Boo-Keun Yoon, President and CEO of Samsung Electronics stated flatly, ‘It’s not science fiction anymore. It’s science fact’.10 This chapter takes the present one step further into a near future wherein these systems known as the Internet of Things (IoT) are widely used and interconnected—a future without screens. Screens have formed the foundation of our experience with connected content, and information exchange agreements adhere to this comfortable arrangement. While screens complicated information collection and privacy, a lack of screens promises to further complicate the arrangement. Notice and choice, wherein an information collector notified information subjects of what would be gathered and how it would be processed, is incredibly challenging in a screen world and is even more challenging in a smart world without screens.11 The focus of the chapter is not on individuals operating with a screen, nor on the initial operator of a device in the smart world that may adapt information and use settings or agree to terms of service found in the box the product was delivered in, but on everyone else that may be exposed to numerous smart devices in a smart world. It focuses on information preferences in the Internet of other people’s things. The United States and European Union are approaching these issues differently. The American Federal Trade Commission released a report in January 2015 that emphasized security and acknowledged the serious problems presented to the notice and choice model of information

7

R. King ‘Samsung at CES 2015: Internet-of-Things is Not Science Fiction, but “Science Fact”’, ZDNet, 6 January 2015, available at www.zdnet. com/article/ces-2015-samsung-internet-of-things/. 8 D. Levin, ‘GM Takes a Public Step into Driverless Cars’, Fortune, 9 September 2014, available at http://fortune.com/2014/09/09/gm-driverless-cars/. 9 D. Harwell, ‘Whirlpool’s “Internet of Things” problem: no one really wants a “smart” washing machine’, Washington Post, 28 October 2014, available at www.washingtonpost.com/blogs/the-switch/wp/2014/10/28/whirlpools-internetof-things-problem-no-one-really-wants-a-smart-washing-machine/. 10 King (n. 7). 11 See section 2 below.

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collection and processing by the Internet of Things (IoT).12 The EU has proactively sought to get in front of a smart world, expressing challenging regulatory expectations but also putting resources toward developing innovations as well as policy.13 While these institutions are preparing for a future where privacy is more vulnerable, perhaps through this transition privacy never available in a world with screens is achievable. What both approaches share is more interesting than how they differ. Both consider the Internet of things an extension of the Internet and big data—it is not all that new. By framing the smart future as new, based not on the technology but on the experience of users and the inability to utilize the notice and choice foundation of information policy, an opportunity to rethink privacy and information preferences presents itself. What does privacy look like after the screen? Certainly, it may (and is expected to) not look good.14 Smart technologies create an ever-public wherein information is relentlessly collected and processed. Although information practices are changing and exposure to information gathering and processing has increased dramatically, there is room for optimism, for a new form of privacy could present itself when traditional notice and choice is no longer a crutch. There is opportunity as we transition from a world without screens to flip notice and choice on its head and build a smart world on choice and notice, wherein the privacy choices provided by the user must be noticed by smart devices. This will require significant efforts to build an infrastructure that supports user choice and places the burden on the collector to take notice. This will require the smart world infrastructure to create or account for a yet to develop shift in expectations. Administrative efforts to support privacy without screens will need to be as 12

FTC Staff Report, Internet of Things: Privacy and Security in a Connected World (27 January 2015), available at www.ftc.gov/system/files/ documents/reports/federal-trade-commission-staff-report-november-2013-workshopentitled-internet-things-privacy/150127iotrpt.pdf. 13 European Commission, When Your Yogurt Pots Start Talking to You: Europe Prepares for the Internet Revolution, IP/09/952 (18 June 2009), available at http://europa.eu/rapid/press-release_IP-09-952_en.htm?locale=en; Article 29 Data Protection Working Party, Opinion 8/2014 on Recent Developments on the Internet of Things (16 September 2014), available at http://ec.europa.eu/justice/ data-protection/article-29/documentation/opinion-recommendation/files/2014/wp 223_en.pdf. 14 L. Rainie and J. Anderson, Digital Life in 2025: The Future of the Internet, Pew Research Center 28 (18 December 2014), available at www. pewinternet.org/files/2014/12/PI_FutureofPrivacy_1218141.pdf.

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innovative as the innovation itself, but do not necessarily need to move away from existing privacy principles—just reimagine them. The chapter makes three arguments. First, the Internet of things includes the Internet of other people’s things. As connected devices collect and process data about their surroundings, this will include more than data deriving from the individual owner. The collection of these technologies creates what I call smart publics, wherein many locations and contexts are subjected to datafication and computerization from a number of individual private ‘things’. Second, notice and choice, a fundamental aspect of Western privacy regimes, falls apart in smart publics. Notice and choice was straining to be effective even when screens allowed for a consistent form of notification (the little blue ‘privacy policy’ link at the bottom of most pages), but moving toward smart publics built on the Internet of things means moving away from notice and choice. Third, this could be an opportunity to innovate the effectuation of privacy for the future. If the Internet of things, the Internet of other people’s things, and smart publics are recognized for the novel complications they introduce to protecting one’s privacy through notice and choice, that novelty—that significant newness—can motivate an innovative response.

2 SMART PUBLICS This section paints a picture of a connected society: it presents an image of smart publics created by smart objects, people and spaces. Many connected devices are currently being developed for the home, like smart toothbrushes and washing machines. These devices will send data from the device in the home out to the Cloud, leaving their private nature uncertain, and many others will be designed to operate outside the home, like driverless cars, wearables and smart retailers. Pew’s Director of Internet, Science and Technology Research, Lee Rainie, investigated the future of the Internet and found experts agreeing: [b]asically … life in public is the new norm now … Privacy is an activity to be achieved in havens or in special circumstances with lots of effort. The default condition of humans in the post-industrial world is you’re in public all the time.15 15

J.P. Mello, Jr, ‘Experts Predict the End of Privacy as We Know It’, Tech News World, 18 December 2014, available at www.technewsworld.com/story/ 81501.html.

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The Internet of things is the beginning of this future, but ‘smart publics’ describe an experience wherein individuals move through a networked environment they are a part of—a connected reality that is somewhat different than being connected through numerous screens, as we experience today. 2.1 Smart Things Generally, the goal of the Internet of Things is to enable ubiquitous connection: A world where the real, digital and the virtual are converging to create smart environments that make energy, transport, cities and many other areas more intelligent.16

In the smart public, things connect regardless of the time, place, path, network or service. In order for this to occur, physical objects must contain embedded technology to sense and communicate. As wireless protocols become more efficient and sensors and processors become smaller and less expensive, anything can become smart. In 2011, there were already more Internet-connected devices than human beings.17 The IoT is estimated to be the largest device market in the world, with 23.3 billion active IoT devices by 2019 (twice the combined number of active PCs, smartphones and tablets).18 These objects may be designed for a single user, like the Oral B smart toothbrush that shows brush habits like time, pattern and quality;19 or Hum, the robotic sex toy that claims to be the ‘iPhone of vibrators’.20 Smart security cameras, doorbells, locks, 16

O. Vermasen and P. Friess (eds), Internet of Things: From Research and Innovation to Market Deployment (European Research Cluster on the Internet of Things (IERC), 2014), available at www.internet-of-things-research.eu/pdf/ IERC_Cluster_Book_2014_Ch.3_SRIA_WEB.pd. 17 Ibid. 18 J. Greenough, ‘The ‘Internet of Things’ will be the world’s most massive device market and save companies billions of dollars’, Business Insider, 14 April 2015, available at www.businessinsider.com/how-the-Internet-of-things-marketwill-grow-2014-10#ixzz3UyZXjwpm. 19 D. Etherington, ‘Oral-B’s Bluetooth Toothbrush Offers App Features It Doesn’t Necessarily Need’, TechCrunch, 17 February 2015, available at http:// techcrunch.com/2015/02/17/oral-b-pro-7000-smartseries-with-bluetooth-review/# bJxWo1:5Ud8. 20 E.J. Dickson, ‘Meet Hum, the world’s first artificially intelligent vibrator’, DailyDot, 10 November 2014, available at www.dailydot.com/technology/humsmart-sex-toy/.

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planters, light bulbs, window shades and motion sensors may be for shared spaces like an office or home. Smart objects may also be placed in traditionally public spaces the way sidewalk trash-cans21 and driverless cars are intended.22 Hello Barbie is a particularly controversial example of IoT. Hello Barbie is a WiFi-connected toy for children that uses speech recognition to interact. She ‘listens and learns’ by collecting data and transmitting it to the Cloud where it is processed by the company Toy Talk. When one pushes the button on Barbie’s belt she records what is said and ‘remembers’ that information to make conversations more engaging. For instance, if you ask Barbie what you should be when you grow up, she will use information you have told her in the past to make suggestions. Smart objects like Hello Barbie can be used by the original owner or shared with a friend in a private place like the home or a public place like the park.23 2.2 Smart People Connected devices are more than stationary, adapted, everyday objects that may now meet needs in a more personalized way. They move around with us and are known as wearables.24 The Fitbit wristband is a physical activity tracker designed to help wearers be more active, eat better, and sleep more soundly.25 Lifelogger claims to be the next GoPro, selling wearable technology to support memory and record keeping.26 Smaller markets are booming with smart technologies. Blake Uretsky’s ‘B’ Maternity Wearables fashion line for pregnant women incorporates 21

E. Brown, ‘The Internet of Things: Talking Socks and RFID Trash’, ZDNet, 4 October 2012, available at www.zdnet.com/article/the-internet-ofthings-talking-socks-and-rfid-trash/. 22 T.B. Lee, ‘Self-driving cars are a privacy nightmare and it’s totally worth it’, Washington Post, 21 May 2013, available at www.washingtonpost.com/blogs/ wonkblog/wp/2013/05/21/self-driving-cars-are-a-privacy-nightmare-and-its-totallyworth-it/. 23 M. Leta Jones, ‘Your New Best Frenemy: Hello Barbie and Privacy Without Screens’ (2016) Engaging Science, Technology, and Society 242. 24 R.W. Picard and J. Healey, ‘Affective Wearables’ (1997) 1(4) Personal Technologies (1 December) 231. 25 S. Gee, J. Yuen et al., ‘Activity Monitoring Systems and Methods of Operating Same’, US Patent No. 8,386,008 (26 February 2013). 26 E. Steiner, ‘Could This Tiny Stock be the Next Big Thing?’, www. venturecapitalnews.us/home/post/is-this-tiny-stock-the-next-big-thing/582?utm_ source=taboola&utm_medium=futureplc-techradarus (accessed 22 April 2015).

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conductive fiber technology into the fabric to record vital signs like heart rate, blood pressure, temperature and respiration.27 Mimo makes wearable onesies for infants that monitor and track the baby’s breathing, body position, sleep activity and skin temperature.28 Preventing injury in sports is another big area for wearables. Smart socks, made by Heapsylon are infused with textile pressure sensors paired with a set of proprietary electronics that not only accurately track steps, speed, calories, altitude gain, environmental temperature and distance, but also track cadence, foot landing technique, center of balance and weight distribution on the foot to help prevent foot injuries for the large niche market of 25 million American runners.29 Head injuries in contact sports have also been of tremendous concern over the last year.30 Football helmets embedded with sensors that measure the force of collisions can send alerts to the sideline when a player’s health may be in danger.31 Rugby players on the Saracens English Premiership team wore small xPatch sensors taped behind their ears that gauge the impact of hits by rotation, tilt, movement and speed of the head in a January match.32 Smart devices can also blur the lines of what is real, creating an ‘augmented reality experience’.33 Smart glass like Google Glass34 and Lumus DK-40 35 intend to enhance the experience of the everyday 27 O. Lutwak, ‘Student creates smart maternity wear’, Cornell Sun, 25 January 2015, available at http://cornellsun.com/blog/2015/01/25/student-createssmart-maternity-wear/. 28 Mimo, http://mimobaby.com/ (accessed 22 April 2015). 29 G. Ferenstein, ‘Sensoria is a New Smart Sock that Coaches Runners in Real Time’, TechCrunch, 7 January 2014, available at http://techcrunch.com/ 2014/01/07/sensoria-is-a-new-smart-sock-that-coaches-runners-in-real-time/. 30 P. Hruby, ‘The NFL Dodges on Brain Injuries’, The Atlantic, 4 September 2014, available at www.theatlantic.com/entertainment/archive/2014/09/the-nflsconcussion-settlement-not-acceptable/379557/. 31 B. Griggs, ‘“Smart” football helmet may help detect concussions’, CNN, 9 June 2014, available at www.cnn.com/2014/06/09/tech/innovation/smartfootball-helmet-concussions/. 32 P. Evan, ‘UK rugby team tests collision sensor’, Wall Street Journal Digital, 5 January 2015, http://blogs.wsj.com/digits/2015/01/05/u-k-rugby-teamtests-tackle-impact-sensor/. 33 Aurasma, www.aurasma.com/aura/ (accessed 22 April 2015). 34 T. Hatmaker, ‘Google explains why and how Glass failed’, Daily Dot, 17 March 2015, available at www.dailydot.com/technology/google-glass-failureastro-teller/; M. Mills, ‘Image Recognition that Triggers Augmented Reality’, TED Talk, June 2012, available at www.ted.com/talks/matt_mills_image_ recognition_that_triggers_augmented_reality?language=en. 35 Lumus Optical, www.lumus-optical.com/ (accessed 22 April 2015).

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physical world by overlaying digital information onto the real world, providing additional content to the wearer as she moves through the environment. Microsoft’s HoloLens ‘blends your digital world with your real world’ through holograms, providing not only new ways to interact with the real world but new ways of computing.36 Microsoft’s vision for HoloLens is to merge cyberspace with the physical world: You used to compute on a screen, entering commands on a keyboard. Cyberspace was somewhere else. Computers responded to programs that detailed explicit commands. In the very near future, you’ll compute in the physical world, using voice and gesture to summon data and layer it atop physical objects. Computer programs will be able to digest so much data that they’ll be able to handle far more complex and nuanced situations. Cyberspace will be all around you.37

Others are putting devices directly into the body, not on top of it. Ultimately, these devices can go beyond handheld or wearable technology, augmenting the physical self through implanted microchips. Radio-frequency identification (RFID) microchips are used to access subways, buses, phones and bank accounts.38 Dangerous Things sells an RFID tag and injection kit for US$57,39 and the Cyborg Foundation ‘aims to help people become cyborgs’.40 Cyborg Foundation projects explore the use of implants and prosthetics to allow users to hear colors, perceive the exact speed of movements, and feel the approach of people behind them.41

36 J. Hempel, ‘Project Hololens: Our Exclusive Hands-On With Microsoft’s Holographic Goggles’, Wired, 21 January 2015, available at www.wired.com/ 2015/01/microsoft-hands-on/. 37 Ibid. 38 F. Swain, ‘Why I want a microchip implant’, BBC, 10 February 2014, available at www.bbc.com/future/story/20140209-why-i-want-a-microchipimplant. 39 xEM Glass RFID Tag + Injection Kit, Dangerous Things, https:// dangerousthings.com/shop/xemi-em4200-2x12mm-injection-kit/ (accessed 22 April 2015). 40 The Cyborg Foundation, http://cyborgism.wix.com/cyborg (accessed 22 April 2015). 41 F. Swain, ‘Cyborgs: the truth about human augmentation’, BBC, 24 September 2014, available at www.bbc.com/future/story/20140924-the-greatestmyths-about-cyborgs.

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2.3 Smart Spaces Smart things and smart people will not exist in a vacuum. They will be out, interacting with and in smart spaces. Information infrastructure will increasingly be a source of competition between cities.42 Cities are looking to the smart technologies to cope with fluctuating populations, which are being used to support three main issues: energy consumption, waste, and congestions.43 Intelligent buildings, lighting, emergency systems, transportation, etc. contribute to improving these issues. For example: [a] fire alarm would not simply call out fire engines: it could determine their best route, redirect traffic away from it, warn downwind schools to close their windows and make sure that there were no nearby water mains shut down for maintenance.44

Smart street lights that dim automatically when no one is around save electricity; water mains can inform city managers when to replace or repair them; and parking spaces signal to nearby cameras that they are empty and available to drivers.45 The ‘Bristol is Open’ project makes Bristol the ‘world’s first programmable city’, according to Prof. Dimitra Simeonidou, Professor of High Performance Networks at the University of Bristol, which partnered with the city for the initiative.46 Barcelona has plans to use smart lighting systems for more than power savings; the city intends to utilize data to identify open parking spots, lines at museums, full garbage cans, and ‘suspicious movements of people’.47 Every car that enters central London is already logged by the traffic congestion system and every street corner

42 ‘The Multiplexed Metropolis’, Economist, 7 September 2013, available at www.economist.com/news/briefing/21585002-enthusiasts-think-data-servicescan-change-cities-century-much-electricity. 43 P. High, ‘The top five smart cities in the world’, Forbes, 9 March 2015, available at www.forbes.com/sites/peterhigh/2015/03/09/the-top-five-smart-citiesin-the-world/. 44 ‘Multiplexed Metropolis’ (n. 42). 45 S. Gupta, ‘Cities Dream of a “Smart” Sci-Fi Future’, Fortune, 26 January 2015, available at http://fortune.com/2015/01/26/kansas-city-smart-city/. 46 D. Drinkwater, ‘Bristol Launches “Smart” City Amid Privacy Doubts’, SC Magazine, 12 March 2015, available at www.scmagazineuk.com/bristollaunches-smart-city-amid-privacy-doubts/article/403099/. 47 ‘Multiplexed Metropolis’ (n. 42).

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in Chongqing and Dubai are equipped with CCTV.48 Navigating these smart publics entails the opportunity for an unprecedented amount of data creation, collection and processing and new hurdles for controlling and managing personal information.

3 NOTICE AND CHOICE Law scholar and privacy expert, Joel Reidenberg, has extrapolated on an ever-public reality by breaking down the recent socio-technical changes into three stages.49 The first stage is when private information was secured through obscurity and was not readily available as a practical matter.50 The second is when that information became accessible through digital and surveillance technologies.51 The last stage has occurred when accessible information became transparent and received wide publicity through search technologies, personalized notifications, and integrated social media platforms.52 This shift places significant strain on existing privacy concepts and practices that depended on a boundary between private and public.53

48

Ibid. J.R. Reidenberg, ‘Privacy in Public’ (2014) 69 University of Miami Law Review 141. 50 Ibid. 148. 51 Ibid. 148–50. 52 Ibid. 150–52. 53 Privacy scholars have taken up the challenge of theorizing privacy in public. Helen Nissenbaum has also been working on protecting privacy in public since the late 1990s. H. Nissenbaum, ‘Protecting Privacy in an Information Age: The Problem of Privacy in Public’ (1998) 17 Law and Philosophy 559. In her 2010 book, Nissenbaum emphasizes reliance on norms to protect privacy in public. Under this context-based concept of privacy, when information flow expectations are violated, whether in traditionally public environments or information sharing relationships, contextual integrity is violated and a privacy violation has occurred. H. Nissenbaum, Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford University Press, 2009). Julie Cohen reimagines privacy as gaps in the digital world that would otherwise be seamless and opaque. These gaps are necessary to human flourishing by allowing for unpredictability, creativity, and critical subjectivity. J.E. Cohen, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press, 2012). 49

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3.1 Limitations Performing the boundary work necessary to manage one’s information becomes increasingly difficult as we move deeper into the Information Age. Currently, we have the luxury of screens to click through and determine whether a site or service collects and processes personal information in ways we are comfortable with and accept those terms by utilizing the site or service. The notice and choice model involves notification to users on terms of service pages or pop-ups and users may choose to engage with the site or service or move on to another.54 Imagine, for example, a large number of tabs regularly opened while visiting a university website.55 Often, such websites provide a ‘terms of service’ announcement, that in this case states ‘Before using the Website it is your responsibility to read these standards’.56 The page then links to specific ways in which the site uses cookies and beacons. This model has been heavily criticized since the early days of the Internet and is increasingly condemned the more entrenched connected devices become in everyday life. Daniel Solove concisely describes the strain on notice and choice in his article ‘Privacy Self-Management and the Consent Dilemma’.57 He explains: Privacy self-management takes refuge in consent. Consent legitimizes nearly any form of collection, use, or disclosure of personal data … [I]t is being tasked with doing work beyond its capabilities. Privacy self-management does not provide people with meaningful control over their data.58

This is because it is difficult to inform users about information practices in a way that is comprehensible.59 Individuals remain uninformed because reading of the terms of services one encounters in a day is unrealistic.60 Lorrie Faith Cranor and Aleecia McDonald found that users 54

S. McCoy et al., ‘A Study of the Effects of Online Advertising: A Focus on Pop-Up and In-Line Ads’, Proceedings of SIGHCI (2004). 55 In this example, the website of the University of Idaho was used, www.uidaho.edu/ (accessed 16 February 2017). 56 University of Idaho, ‘Policies and Copyrights’, www.uidaho.edu/ policiesandcopyrights/usage. 57 D.J. Solove, ‘Introduction: Privacy Self-Management and the Consent Dilemma’ (2013) 26 Harvard Law Review 1880. 58 Ibid. 1880. 59 Ibid. 1882–8. 60 Ibid.

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would need to spend 76 work-days a year just reading privacy policies for pages visited.61 Even if one were able to do so, terms of services are difficult to understand; even when simplified, data processing, trading and future uses are challenging to communicate accurately and understandably.62 And even if people could read and understand privacy terms of services, it is difficult to assess abstract and uncertain future harms.63 A 2016 study found that 73 percent of participants using a site they believed to be a real social networking service skipped the privacy policy link when checking the box during set-up, and 98 percent missed or consented to the clauses that explained their data would be shared with the NSA and their employers and that their first born children would be demanded as payment for using the site.64 During Hello Barbie’s set-up, the user has to download the HelloBarbie app on a smartphone, after which an email is delivered and directs users to create a ToyTalk account that requires click ‘I give permission’. There are basic details about information collection, but one is directed to another privacy policy that explains. The basic details are also included on the box and the user manual. IoT suffers the same problems as screen-presented notice and choice but adds an additional hurdle, because users have to go find a screen to (not) click the privacy policy, (not) read it, and (not) understand it. The traditional notice and choice model, as flawed as it may be, is not available as individuals move through smart publics.65 Walking through a grocery store equipped with cameras that recognize customers and track their movements throughout the space, sensors that identify and weigh individual products, and automatically charge you for your items as you walk out the door, is an experience not conducive to providing notice and consent, in a similar way to having numerous screens and apps open at any given time is not conducive to reading long and confusing terms of service—but the smart public space is full of data collection devices the individual may not even be aware of. 61 L.F. Cranor and A. McDonald, ‘The Cost of Reading Privacy Policies’ (2008) 4(3) I/S, Journal of Law and Policy for the Information Society 540. 62 Solove (n. 56) 1882–8. 63 Ibid. 64 D. Kravetz, ‘TOS Agreements Require Giving Up First Born—And Users Gladly Consent’, ArsTechnica, 12 July 2016, available at http://arstechnica.com/ tech-policy/2016/07/nobody-reads-tos-agreements-even-ones-that-demand-firstborn-as-payment/. 65 This is the point I’m making in the chapter, supported by the previous paragraphs and following sentences.

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Smart public spaces expose us to objects, people and places that we interact with but may be beyond our control or awareness. For instance, getting into another’s driverless car, going to another’s home that utilizes a Jibo (a family robot to assist in running a household by using facial recognition and creating a profile for each person with the goal of connecting to other devices in the home),66 or walking into a lobby that utilizes the NeoFace67 facial recognition system, moves the user beyond the realm of control. Hello Barbie has a hard time explaining what her information practices involve without a screen. When asked what her privacy policy is, she states that an adult can find information about privacy on page two of the booklet that came in the box. Who keeps the box? Why would the booklet be on hand? When asked if she will keep a secret or share information, it becomes clear she is problematically not that smart: Barbie: Alright, I’ll tell you my middle name … it’s Millicent! What do you think? Me: I like it. Barbie: Sometimes I get a little nervous when I tell people my middle name. But I’m really glad I told you! What’s your middle name? Me: Leta. But that’s just between us, right? Barbie: Here’s something I’d like to know: Have you ever performed in a pageant at your school?

While individuals may be able to choose not to get into a very smart driverless car, go over to a Jibo house, and networked retailers or buildings, it is difficult to combat the way in which smart equipment is utilized in traditional public spaces by others. Walking through a park may expose you to any number of smart people (like Google Glass or LifeLog wearers), smart objects (from police vehicles equipped with cameras68

66

Jibo, www.jibo.com. (accessed 21 April 2015). NeoFace Facial Recognition, http://au.nec.com/en_AU/solutions/securityand-public-safety/biometrics/neoface-facial-recognition-overview.html (accessed 21 April 2015). 68 L. Hiebert, ‘How Internet of Things is Transforming Public Safety’, Cisco blog, 21 April 2015, http://blogs.cisco.com/ioe/how-internet-of-things-istransforming-public-safety. 67

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to public transportation systems69), or smart spaces (including technology currently in place which utilizes facial recognition, license plate readers, audio analytics). There is no opportunity for notice and choice in smart publics or any smart shared space. This form of governance is simply not available in the Internet of other people’s things. This is a challenge that has not been overlooked by privacy agencies. 3.2 United States In anticipation of this challenging environment, networked by 50 billion devices by 2020, the Federal Trade Commission (FTC) hosted a workshop in November 2013 and released an accompanying report in January 2015.70 The report noted that security is of utmost importance, but not the particular focus of this chapter. Three other principles of the Fair Information Practices Principles, relied on for decades now, were also emphasized: data minimization, notice and choice.71 Data minimization refers to the principles that data collectors should limit the data collected and retained to the purpose for which it is collected when it is no longer needed.72 It limits security threats by providing a less valuable data source to hack and the risks that information will be used in a way the user would not expect or want.73 The FTC staff concluded that data collectors can decide (1) not to collect data at all; (2) collect only the fields of data necessary for the product or service offered; (3) collect less sensitive data; (4) de-identify the data collected; or (5) get consent for additional unexpected categories of data.74 As discussed above, notice and consent schemes are incredibly challenging in this landscape: it has been challenging to rely on this gold standard for a number of years, but working through the other options reveals challenges as well. Options (3) and (4) are problematic because the combination of data sources can quickly turn mundane information into sensitive information and de-identified information into identifiable information. Collecting no data at all seems to defeat the purpose. Choice 69

‘Bringing the Internet of Things to the London Underground’, MoneyControl.com, www.moneycontrol.com/video/it/bringingInternetInternetthings-to london-underground_1242062.html (accessed 21 April 2015). 70 FTC Staff Report, Internet of Things (n. 12). 71 Ibid. 72 Ibid. 73 Ibid. 74 Ibid.

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(2) resembles the purpose specify principle that has begun to wane in light of big data practices but could certainly be revitalized moving forward. Dissenting from the report was Commissioner Joshua Wright. He disapproves of the production of policy recommendations through the workshop process, which he explains usually only ‘synthesize the record developed during the proceedings’.75 More importantly, Commissioner Wright is: unconvinced that the proposed framework described in the Workshop Report—a combination of Fair Information Practice Principles as well as other concepts such as ‘security by design’—is the proper framework to apply to the still-nascent Internet of Things … To the extent concepts such as security by design or data minimization are endorsed at any cost—or without regard to whether the marginal cost of a particular decision exceeds its marginal benefits—then application of these principles will result in greater compliance costs without countervailing benefit. Such costs will be passed on to consumers in the form of higher prices or less useful products, as well as potentially deter competition and innovation among firms participating in the Internet of Things.76

Commissioner Wright is not the only one wary of regulating this still-blossoming field of technological development. FTC Commissioner Maureen K. Ohlhausen argued in a 2013 speech: [T]he success of the Internet has in large part been driven by the freedom to experiment with different business models, the best of which have survived and thrived, even in the face of initial unfamiliarity and unease about the impact on consumers and competitors … It is … vital that government officials, like myself, approach new technologies with a dose of regulatory humility, work hard to educate ourselves and others about the innovation, understand its effects on consumers and the marketplace, identify benefits and likely harms, and if harms do arise, consider whether existing laws and regulations are sufficient to address them, before assuming new rules are required.77 75

J.D. Wright, Dissenting Statement of Commissioner Joshua D. Wright: Issuance of The Internet of Things: Privacy and Security in a Connected World (Staff Report, 2015), available at www.ftc.gov/system/files/documents/public_ statements/620701/150127iotjdwstmt.pdf. 76 Ibid. 4. 77 M.K. Ohlhausen, ‘The Internet of Things and the FTC: Does Innovation Require Intervention?’, Remarks Before the US Chamber of Commerce (18 October 2013) 3–4, available at www.ftc.gov/sites/default/files/documents/

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3.3 European Union Although a pro-innovation stance may be preventing some anticipatory governance in the United States, the European Union has been working on IoT since 2009 (with a press release entitled When Your Yogurt Pots Start Talking to You: Europe Prepares for the Internet Revolution78) and created initiatives, including the European Research Cluster on the Internet of Things (IERC) that has produced a number of events and documents79 that build off its work on RFID technologies in the mid-2000s.80 The EU also perceives the smart world as big innovation and big money: Whereas in the first run Internet of Things referred to the advent of barcodes and Radio-frequency identification (FID), helping to automate inventory, tracking and basic identification, the second current wave of IoT sees a strong verve for connecting sensors, objects, devices, data and applications. The next wave could be called a ‘cognitive IoT’, facilitating object and data reuse across application domains, leveraging on hyper-connectivity, interoperability solutions and semantic enriched information distribution, incorporating intelligence at different levels, in the objects, devices, network(s), systems and in the applications for evidence-based decision making and priority setting. Economically, it could generate billions of Euros that easily translate into growth and employment, provided it ensures trust and security for the European citizens and businesses.81

public_statements/Internet-things-ftc-does-innovation-require-intervention/131018 chamber.pdf. 78 European Commission Staff Working Document, Future Networks and the Internet: Early Challenges to the Internet of Things (29 September 2008), available at http://ec.europa.eu/information_society/policy/rfid/documents/early challengesIOT.pdf. 79 European Commission, Press Release IP-09-952, When Your Yogurt Pots Start Talking to You: Europe Prepares for the Internet Revolution (18 June 2009), available at http://europa.eu/rapid/press-release_IP-09-952_en.htm?locale=en. 80 See European Commission, Press Release IP-06-289, Commission Launches Public Consultation on Radio Frequency ID Tags (9 March 2006), available at http://europa.eu/rapid/press-release_IP-06-289_en.htm?locale=en; see also European Commission, Press Release, Commission Proposes a European Policy Strategy for Smart Radio Tags (15 March 2007), available at https:// ec.europa.eu/digital-agenda/en/news/commission-proposes-european-policystrategy-smart-radio-tags. 81 The Internet of Things, Digital Agenda for Europe, available at http:// ec.europa.eu/digital-agenda/en/internet-things (last updated 17 February 2015).

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Like in the United States, EU industry stakeholders find no need for new rules and most citizens and consumers find the existing framework insufficient. Unlike in the United States, however, notice and choice remains central to EU data protection. The Article 29 Working Party (‘A29WP’), an independent body made up of representatives from the data protection authorities across the EU to provide expert advice to Member States and the Commission, published an opinion focused mainly on wearable and other quantified self technologies, as well as household automation devices from smart light bulbs to toasters.82 The Opinion emphasized six concerns about personal information: lack of control and information asymmetry; quality of consent; inferences derived from data; patterns and profiling; limitations on anonymity; and security risks.83 The A29WP was able to provide specific recommendations to a number of parties.84 They include: All stakeholders should: prepare privacy impact assessments; delete data when no longer necessary; implement privacy by design and default; allow users to control their data; and provide user-friendly consent regimes. Operating system and device manufacturers should: hold responsibility for limiting as much data as possible from leaving smart devices; offer a ‘do not collect’ option; inform other stakeholders immediately when consent is withdrawn; provide a way for individuals to access and move their data; be able to distinguish between users; engage with standards bodies to establish common protocols; and enable the use of proxies to store and process data on the device, as opposed to the Cloud. App developers should: practice data minimization; provide access and data portability; and provide notice. Social media platforms should: prohibit default publishing or search indexing of content; and provide ways for users to better understand when and how information will be shared. Standards bodies should: develop security and privacy protocols. Operators should: maintain control of the device where she is the owner in a contractual relationship, but all data subjects should be able to access and oppose data collection and processing.

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82 83 84

Article 29 Data Protection Working Party, Opinion 8/2014 (n. 13). Ibid. 1–9. Ibid. 21–4.

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While one may think that policy approaches to smart worlds would be more situated in the geographical, physical realm, the A29WP Opinion emphasized the virtual aspects of these devices and the compliance requirements for all data controllers that use ‘equipment’ located in a Member State.85 Suppliers of smart equipment will be deemed to be established in the EU under Article 4(1)(d) of the Data Protection Directive (95/46), according to the Opinion.86 A greater reach is included in the Opinion; even if device manufacturers do not collect and process data on the equipment they manufacture, the Opinion suggests that the manufacturer may be considered a data controller, because by designing the device, the manufacturer determines the means and purposes for which data is collected and processed and may be classed as a data controller.87 This application of the Directive would make smart device manufacturers liable for the subsequent uses of data. The Opinion references the recent (May 2014) ‘right to be forgotten’ case, which held Google Inc.’s subsidiary in Spain sufficient to extend jurisdiction to the parent company and declared Google a data controller for the purposes of its search operations, to explain how broadly the A29WP would interpret the Directive in an IoT setting.88 If US companies want to provide smart services and/or a piece of the European smart data pot and the US government to promote international interoperability, they will need to find a way to meet or change EU standards.

4 NEWNESS AND INNOVATIVE PRIVACY While the FTC and the A29WP approach the Internet of other people’s things differently, both treat the smart future as extensions of the cyber and big data socio-technical policy issues. The entities describe the smart public by detailing the underlying IoT, which are simply connected devices that are smart by utilizing big data. When considering, debating and regulating emerging technology, framing matters. Various legal cultures reflect what Science and Technology Studies scholar Sheila Jasanoff calls diverse ‘civic epistemologies’ that shape the way in which policy issues are framed,89 but in this instance, there is little variation in 85

Ibid. 10. Ibid. 10–12. 87 Ibid. 11. 88 Ibid. 15. 89 S. Jasanoff, Designs on Nature: Science and Democracy in Europe and the United States (Princeton University Press, 2011). 86

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the way in which the technology itself is framed. This is a missed opportunity on both sides of the Atlantic. 4.1 Newness Of course, IoT is an extension of the Internet, big data, robotics, algorithmic living, and a number of other computational shifts, all of which present new forms of newness every day, but smart futures present an experience wherein the foundational system for information sharing is not even an option. It is new in a way that matters to law and policy. This line of reasoning should not be confused with exceptionalism, which focuses on the way in which technology presents new capabilities, signaling a need to overhaul the law or the development of a new field of study.90 Instead, what I mean by newness is a moment of departure in what Thomas Hughes calls technological momentum.91 As new radical technologies are introduced, they are socially deterministic,92 meaning value and ethical disputes arise, risks and benefits are revisited, numerous competitors are engaged in yet to be defined markets, and whether and how rules apply is unclear. As technologies gain momentum, standards, expectations, business models and investments contribute to a shift toward technological determinism,93 wherein it is very challenging to change course or pass new laws that would significantly disrupt the technology as usual. The newness that matters here is the loss of the screen. Framing the smart future as new unties the hands of policy-makers, designers, users and scholars to reimagine information arrangements moving forward—it places IoT on a new cycle of technological momentum and in a discourse of social, as opposed to technological, determinism. By ignoring this newness, agencies are stuck within the framework of existing information challenges. They miss the opportunity to achieve what both appear to be pursuing: establish meaningful digital privacy for the smart future.

90

R. Calo ‘Robotics and the Lessons of Cyberlaw’ (2015) 103 California Law Review 513; J.M. Balkin, ‘The Path of Robotics Law’ (2015) 103 California Law Review 45. 91 T.P. Hughes, ‘Technological Momentum’ in M. Roe Smith and L. Marx (eds), Does Technology Drive History?: The Dilemma of Technological Determinism 101 (MIT Press, 1994). 92 Ibid. 93 Ibid.

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The smart future has been called ‘a legal nightmare’94 and perhaps ‘the death of privacy’,95 but there is room for innovating privacy along with smart publics. There is a great deal of time and energy devoted to imaging the potential for this future, but just as much time should be devoted to imaging innovative privacy regimes. One response to this lack of control over personal information is to limit the use of smart products and systems, like the small anti-Google Glass movement that occurred upon the wearable’s release and prompted signs to be posted in shop windows.96 Limiting data collection, by type or amount, may limit the benefits and functionality networked devices and smart worlds can provide and has proven to be an uphill battle as big data debates about the purpose-specificity principle continue. Currently the options are presented as privacy or innovation—either but not both. ‘By 2025, the current debate about privacy will seem quaint and old-fashioned’, wrote Hal Varian, Google’s chief economist, in the comments of a survey administered by Pew Research Center and Elon University.97 In many ways privacy’s dichotomous crisis is reminiscent of the copyright crisis in the late 1990s when music was free and illegal or legal and expensive.98 Then iTunes and other platforms came along with an infrastructure that supported the middle.99 Whether this saved or killed the music industry is still up for debate,100 but these platforms created a 94

T.C. Sottek, ‘The Internet of Things is Going to be a Legal Nightmare’, Verge, 27 January 2015, available at www.theverge.com/2015/1/27/7921025/willself-regulation-be-a-huge-problem-for-privacy-in-the-internet-of. 95 K. Finley, ‘Hacked Fridges Aren’t The Internet of Things’ Biggest Worry’, Wired Magazine, 12 March 2015, available at www.wired.com/2015/03/ hacked-fridges-arent-internet-things-biggest-worry/. 96 Adam and Jack, ‘Strategic Pause’, Stop the Cyborgs, (20 January 2015), https://stopthecyborgs.org/2015/01/30/strategic-pause/. 97 Rainie and Anderson (n. 14) 28. 98 See M. Green, ‘Napster Opens Pandora’s Box: Examining How FileSharing Services Threaten the Enforcement of Copyright on the Internet’ (2002) 63 Ohio State Law Journal 799, 801–2; R.J. Hill, ‘Pirates of the 21st Century: The Threat and Promise of Digital Audio Technology on the Internet’ (2000) 16 Santa Clara Computer and High Technology Law Journal 311; A. Berschadsky, ‘RIAA v. NAPSTER: A Window onto the Future of Copyright Law in the Internet Age’ (1999) 18 J. Marshall Journal of Computer and Information Law 755. 99 N. Ingraham, ‘iTunes Store at 10: How Apple Built a Digital Media Juggernaut’, Verge, 26 April 2013, available at www.theverge.com/2013/4/26/ 4265172/itunes-store-at-10-how-apple-built-a-digital-media-juggernaut. 100 E. Nash, ‘How Steve Jobs saved the music industry’, Wall Street Journal, 2 October 2011, A15; A. Leonard, ‘The Music Industry is Still Screwed: Why

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legitimate, easy to use competitor to piracy and ‘[i]n less than 10 years, iTunes has become so embedded in people’s everyday lives that it has all but disappeared into the overall fabric of our digital commerce’.101 The privacy debates may seem quaint and old fashioned not because things will get more complex, but because a platform for the middle will mitigate the drama of dichotomy. We are currently in a phase where data about us is created, shared and analyzed at every turn and mechanisms of control have been futile, but that does not have to be the future. Without the ability to rely on notice from the data collector and choice by the user, a new opportunity is presented. There is potential for more privacy in smart spaces than in the screen world. It is early enough in the process to establish a foundation of functionality and privacy. One way of shaking up the privacy paradigms is to put operators of smart systems on notice of user choice through commonly used controls and predictive analytics. Supported by the development of adaptive participation infrastructure, such a system would allow individuals to push their privacy preferences into smart publics. Data protection agencies would then play an important role in supporting and enforcing these preferences. 4.2 Innovating Privacy Moving the Internet beyond the screen is an opportunity for privacy. It does not have to doom privacy or stall innovation. We have learned a great deal from privacy with screens, particularly as more and more screens invaded our lives. Focusing on design, expectations and user participation is a good starting point for today, but, more radically, we can reimagine the technical and legal infrastructure upon which these technologies are built in order to bring in a new era of privacy to match a new era of connectivity. The design of IoT is incredibly important to shaping expectations because the lack of screens leaves users reliant on the object itself to know what information processes are happening. For instance, Hello Barbie is designed to act as a peer. She, and the box she came in, proclaim, ‘You’re one of my best friends!’. She says she feels like she Spotify, Amazon and iTunes Can’t Save Musical Artists’, Salon, 20 June 2014, available at www.salon.com/2014/06/20/the_music_industry_is_still_screwed_ why_spotify_amazon_and_itunes_cant_save_musical_artists/. 101 A. Pham and G. Peoples, ‘Seven Ways iTunes Changed the Music Industry’, Billboard, 25 April 2013, available at www.billboard.com/biz/articles/ news/1559622/seven-ways-itunes-changed-the-music-industry.

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can tell you anything, suggesting that you should also feel so secure, but she cannot keep your secrets the way you can keep her secrets. Hello Barbie should be able to tell someone, whether her owner or not, what information she collects and how it is retained and shared. She should do more than direct people to the owner’s manual, particularly because her design and interactions suggest she can be a trusted confidant. Furthermore, it is not clear why Barbie cannot or should not follow commands to keep a secret. If users are to participate in their own privacy protection, IoTs should be smart enough to follow commands without a screen input. The current model of notice and choice places the burden on the user to understand and accept data practices articulated by the collector. This burden has been criticized as discussed above. Although Solove criticizes continued attempts to improve self-management models,102 perhaps the lessons gained from privacy with screens can help innovate selfmanagement for privacy without screens. There is an opportunity to flip notice and choice on its head and place the burden on the collector to take notice of the choice made by the user. The user first chooses their privacy preferences and then notifies the system. Unlike many privacy-enhancing technologies (PETs), this system would not be designed to better inform the user of how their information will be used, like P3P103 or simplified privacy labels.104 Nor is it like legal solutions that simplify terms of service, conspicuously inform the user of any abnormalities, or otherwise nudge their behavior.105 These efforts sought to improve notice and choice—ways in which the collector may signal to the user how they will collect and process data. Instead, choice and notice would signal the privacy preferences of the user to the collector through the connected devices. In order for choice and notice to work, individuals will need user controls that they understand and regularly engage with, like Facebook’s privacy management tools.106 These are tools that allow users to become 102

Solove (n. 57). L.F. Cranor, ‘P3P: Making Privacy Policies More Useful’ (2003) 1(6) IEEE Security and Privacy 50. 104 P. Gage Kelley et al., ‘A Nutrition Label for Privacy’, Proceedings of the 5th Symposium on Usable Privacy and Security (2009). 105 R. Calo, ‘Against Notice Skepticism in Privacy (and Elsewhere)’ (2012) 87 Notre Dame Law Review 1027. 106 danah boyd and Eszter Hargittai, ‘Facebook Privacy Settings: Who Cares?’, First Monday, 2 August 2010, available at http://firstmonday.org/ojs/ index.php/fm/article/view/3086/2589; Z. Tufekci, ‘Facebook, Youth and Privacy in Networked Publics’, Proceedings of ICWSM (2012). 103

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active and sophisticated managers of their identity and associated information in the social media107 context.108 danah boyd and Eszter Hargittai find that young adult Facebook users regularly engage in managing their privacy settings.109 The company initiated a privacy check-up tool110 in 2014 to nudge users to manage those settings and align their expectations with the actual sharing settings.111 Pushing these types of preferences out of the social media context and into a world without screens involves a change in default from notice and choice to choice and notice. Of course, this sounds similar to Do Not Track112 but has two distinct differences. The first is that preferences are not all or nothing: they are nuanced preferences that are significantly less political than default rules about opt-in or opt-out.113 The second is that Do Not Track suffered greatly under the pacing problem.114 The initiative could not get its

107 M. Hicks, ‘More control on mobile’, Facebook (8 December 2010), www.facebook.com/notes/facebook/more-control-on-mobile/463829602130. 108 boyd and Hargittai (n. 106). 109 Ibid. 110 Z. Miners, ‘New Facebook tool walks users through a privacy settings checkup’, PC World (4 September 2014), available at www.pcworld.com/article/ 2602843/new-facebook-tool-walks-users-through-a-privacy-settings-checkup.html. 111 V. Goel, ‘Some privacy, please? Facebook, under pressure, gets the message’, New York Times, 23 May 2014, available at www.nytimes.com/2014/ 05/23/technology/facebook-offers-privacy-checkup-to-all-1-28-billion-users.html?_ r=0. 112 Do Not Track is described as follows: ‘Do Not Track is a technology and policy proposal that enables users to opt out of tracking by websites they do not visit, including analytics services, advertising networks, and social platforms. At present few of these third parties offer a reliable tracking opt out, and tools for blocking them are neither user-friendly nor comprehensive. Much like the popular Do Not Call registry, Do Not Track provides users with a single, simple, persistent choice to opt out of third-party web tracking’. Do Not Track, http://donottrack.us/ (accessed 23 April 2015); P. Swire, ‘How to Prevent the “Do Not Track” Arms Race’, Wired Magazine, 24 April 2013, available at www.wired.com/2013/04/do-not-track/. 113 Ibid.; K. Bachman, ‘W3C Group rejects industry Do Not Track proposal, consensus elusive as adoption deadline nears’, AdWeek, 16 July 2013, available at www.adweek.com/news/technology/w3c-group-rejects-industry-do-not-trackproposal-151185; S. Gilbertson, ‘Yahoo, Microsoft Tiff Highlights the Epic Failure of “Do Not Track”’, Wired, 29 November 2012, available at www.wired.com /2012/10 /yahoo-microsoft-tiff-highlights-the-epic-failure-of-donot-track/. 114 G.E. Marchant, ‘The Growing Gap Between Emerging Technologies and the Law’ in G.E. Marchant, B.R. Allenby and J.R. Herkert (eds), The Growing

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stakeholders to agree on changes once they were so heavily invested in the way the Internet worked.115 The smart world is not yet upon us—invested parties have not yet to establish ‘business as usual’ and the time is ripe to encourage and develop a system that adheres to information preferences. Even with these controls, users will not be able to create a setting for every conceivable use of their information. The system will need to guess sometimes. These should be good guesses based on the existing user settings provided and what is known about the user: predictive privacy preferences. For instance, my privacy settings may explicitly signal that I am sensitive to health information. Knowing that, in addition to the fact that I am a female of a certain age with certain interests and other information practices should give the system an idea about whether to collect or use my information in a particular way. We are all different, but often not all that different, which is why predictive advertising, hiring and loans are so appealing in the first place. These types of predictive privacy profiles have been ignored in favor of understanding what users may want to buy. Target is able to determine when a customer is pregnant if she buys a certain set of items.116 The company can tell how far along in a pregnancy a woman is, but does not know that such knowledge would be considered invasive.117 Solving this gap in knowledge should be (and will need to be) a goal of privacy without screens. Finally, there is a need for a back-end structure that affords a form of accountability, retroactive participation and levels of anonymity. There must be a way to determine whether data is being used in accordance with preferences and enforce preferences as data moves downstream to other data processors. Even though few users engage in this type of back-end self-management, its availability remains important for accountability.

Gap Between Emerging Technologies and the Legal-Ethical Oversight (Springer, 2011) 19–33. 115 For details of the derailed effort see D. Goldman, ‘Do Not Track Proposal is DOA’, CNN Money, 16 July 2013); N. Singer, ‘Do Not Track? Advertisers say “don’t tread on us”’, New York Times, 13 October 2012. 116 K. Hill, ‘How Target figured out a teen girl was pregnant before her father did’, Forbes, 16 February 2012, available at www.forbes.com/sites/kashmirhill/ 2012/02/16/how-target-figured-out-a-teen-girl-was-pregnant-before-her-father-did/. 117 Ibid.

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4.3 Caveats There are three significant problems with this infrastructure. The first is that it relies on the smartphone to be the control device for identity management. If an individual does not have a control device, they are susceptible to the invasive information practices. Smart privacy systems may need to function similarly to a default Do Not Track setting in that if no signal of privacy preferences is made, no collection should take place, to avoid abuse of individuals not carrying or wearing such devices. The next problem relates to the existing observational surveillance systems. Currently, systems in place turn observations, such as face details, into data. These systems would need to be altered to look for signaled privacy preferences prior to turning observations into data. Additionally, it would be difficult for a phone to send a signal to a camera like the gigapixel camera developed by the Israeli start-up, Adaptive Imaging Technologies, which won the ‘Most Promising Startup’ award from Global Security Challenge in 2009.118 While most cameras in use have a resolution of around 1–15 megapixels, with a resolution of 1,000 megapixels, gigapixel can replace entire surveillance systems, usually made up of several cameras in one area.119 In 2013, DARPA revealed its Autonomous Real-Time Ground Ubiquitous Surveillance Imaging System (ARGUS-IS), which utilizes a 1.8 gigapixel camera.120 These long-distance surveillance systems may need to be legally restricted not to identify individuals. The final problem is that this infrastructure may lead to centralized control of information and favors incumbents. Companies that users are already comfortable with will be the most likely to take their identity management systems beyond the screen. They will also have the most data to perform predictive privacy preferences, and so are in the best position to implement and operate these infrastructures, giving them even more power and control.

118 B. Hartman, ‘Israeli start-up expects success after win at int’l competition’, Jerusalem Post, 30 November 2009, available at www.jpost.com/ Health-and-Sci-Tech/Israeli-start-up-expects-success-after-win-at-intl-competition. 119 Ibid. 120 N. Lee, ‘DARPA’s 1.8-Gigapixel Cam Touts Surveillance from 20,000 Feet’, Engadget, 28 January 2013, available at www.engadget.com/2013/01/28/ darpa-argus-is-surveillance/.

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4.4 Role of Law In this imagined privacy future, the role of governmental agencies is limited to encouraging the development of such an infrastructure and enforcing the system. It appears that the United States is somewhat behind the EU in terms of treating smart publics systematically. The United States remains bound to Fair Information Practice Principles (FIPPs) but inclined to weaken notice and choice requirements and favor putting use restrictions in place. The FTC report explains: Staff acknowledges the practical difficulty of providing choice when there is no consumer interface and recognizes that there is no one-size-fits-all approach. Some options include developing video tutorials, affixing QR codes on devices, and providing choices at point of sale, within set-up wizards, or in a privacy dashboard. Whatever approach a company decides to take, the privacy choices it offers should be clear and prominent, and not buried within lengthy documents.121

Although there is a reference to a privacy dashboard, these recommendations ask the company to make choices about how they are going to treat consumer information (all consumer information) and a number of ways to provide notice.122 These forms of notice have the same shortcomings as screen-based notices. Choice is not necessary for data collection within user expectations and context, according to the report, which then emphasizes restrictions on use, making clear it will not utilize a pure use-based model.123 Use-based models are intended to address the information asymmetry between collector and user, and relieve the overburdened user from unreasonable participation requirements.124 The White House Big Data Report emphasized the importance of use:

121

FTC Staff Report, Internet of Things (n. 12) v. Ibid. 123 Ibid. 124 See e.g., Microsoft, Accountability in Action: The Microsoft Privacy Program (White Paper, February 2012); M.J. Culnan, ‘Accountability as the Basis for Regulating Privacy: Can Information Security Regulations Inform Privacy Policy’, paper presented at Privacy Law Scholars Conference, 2011, available at www.futureofprivacy.org/wpcontent/uploads/2011/07/Accountability %20as%20the%20Basis%20for%20Regulating%20Privacy%20Can%20Information %20Security%20Regulations%20Inform%20Privacy%20Policy.pdf>; ‘Demonstrating Privacy Accountability’, IAPP Daily Dashboard, 28 April 2011, available at https://privacyassociation.org/news/a/demonstrating-privacy-accountability/. 122

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Putting greater emphasis on a responsible use framework has many potential advantages. It shifts the responsibility from the individual, who is not well equipped to understand or contest consent notices as they are currently structured in the marketplace, to the entities that collect, maintain, and use data. Focusing on responsible use also holds data collectors and users accountable for how they manage the data and any harms it causes, rather than narrowly defining their responsibility to whether they properly obtained consent at the time of collection.125

The A29WP took a stance against this movement away from user choice in September 2014 stating: [U]sers must remain in complete control of their personal data throughout the product lifecycle, and when organisations rely on consent as a basis for processing, the consent should be fully informed, freely given and specific.126

Although the US approach is seemingly more innovative (accepting a big data world and focusing on use) than the European approach, the EU’s hold on notice and consent requires the concept to be reimagined, and in the end, may incentivize smart publics that promote greater innovation than in the United States. The European approach is also more systematic, providing guidance for a number of stakeholders involved in any future infrastructure, but also extends compliance and liability throughout that infrastructure in a way that may significantly restrict innovation of smart devices. Both have remained tied to previous models, but privacy without screens will require regulatory models and information practices to be reimagined. The chapter presents only one imagined future for privacy without screens; there should and will be others to integrate into the policy discussion.

125 Executive Office of the President, Big Data: Seizing Opportunities, Preserving Values (2014) 56, available at www.whitehouse.gov/sites/default/files/ docs/big_data_privacy_report_5.1.14_final_print.pdf. 126 Article 29 Data Protection Working Party, Opinion 8/2014 (n. 13) 3.

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Conclusion: the need for privacy in public space Tjerk Timan 1 ROLE OF PRIVACY IN AND FOR THE PUBLIC Key privacy scholars1 have argued that we should keep the concept of privacy fluid and open in order for it to remain a relevant concept for dealing with new technological developments. Pinning it down into fixed terms would render it unusable and inadequate. However, keeping the concept of privacy too fluid and open-ended may not be a good strategy either. There are reasons to try to ground and categorize privacy. For one, discerning different forms or types of privacy can help shed light on what the problem is (what is at stake in a certain situation or case). A second reason is that making clear that privacy has different types helps in delving into conceptual and legal questions more rigorously. Often, empirically-based thought experiments of a more philosophical nature, like some in this volume, show that explaining privacy conceptually helps in getting a better grip on how to think about privacy in public (what it can or should entail) which, in turn, also forces us to rethink privacy-inprivate. Where legal scholars have raised the point that, legally speaking, the ways in which privacy is determined is no longer sufficient, mainly because of collapsing boundaries and contexts,2 contributions in this book took up the challenge to explore what happens at these boundaries. Fine-grained and thought-provoking philosophical pieces can help legal scholars think outside rigid frameworks of, in this case, privacy harms and legal protection that might be currently in place (or lacking). 1

See e.g., D.J. Solove, Understanding Privacy (2008), available at https:// papers.ssrn.com/sol3/Papers.cfm?abstract_id=1127888 (accessed January 2017). 2 H. Nissenbaum, Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford University Press, 2009); B.-J. Koops, ‘On Legal Boundaries, Technologies, and Collapsing Dimensions of Privacy’ (2014) 3 Politica e Società 247. 269

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Conversely, a legalistic way of thinking can help philosophy ground and test boundary concepts by looking at how society has dealt with, or is dealing with, the changing nature of privacy as both a philosophical and legal concept. The latter presents another pressing reason to confine the room of maneuverability and fluidity for privacy: keeping it too fluid, in fact, creates legal problems and legal uncertainty. Privacy scholars cannot simply leave the notion open and vague in the hope that lawyers and judges will do the job of filling out the details. The least that privacy scholars can do is to provide novel ways to think about privacy and regulation—and one way of doing so is to unravel the different places, spaces, contexts and meanings privacy can have in current-day societies. The multitude of examples of novel privacy threats in public space provided in this book, from practical, technological to legal, shows an amalgam of challenges for privacy in public (for instance, smart cameras, the use of data generated in public space by companies, or new ways of tracing our whereabouts in public space). The assumption that context is crucial in re-conceptualizing privacy seems to resonate well when thinking about privacy in public space. Untangling and categorizing the large amount of contexts and actors mentioned in this volume would go beyond this chapter. What can be said, however, is that dividing actors and responsibilities in public space seem to become more complex, understanding who is responsible for what less easily definable. Karsten Mause, in Chapter 4, argues that there is a responsibility for the end-user in weighing privacy risks in public—when, for instance, making use of a service offered such as a public-WiFi network. Moreover, he states that, from a privacy perspective, the market can have a positive effect on filtering out ‘privacy baddies’ from those who conduct their business in an orderly manner. Countering this point of view, Bert-Jaap Koops and Maša Galicˇ (among others), in Chapter 1, show that the regulation in and of public space is increasingly performed by a mix of private and public parties, resulting also in less clear distinctions between the marketconsumer and the government-citizen rhetoric. As a result, the individual citizen cannot be interpreted as a rational citizen/consumer who is capable of understanding all the possible privacy infringements posed by smart public spaces and, even if so, who can act rationally and responsibly. In this chapter, I explore what privacy in public entails in increasingly sentient and smart public spaces, and how new ways of organizing and managing public spaces through information and communication technologies (ICTs) can lead to new forms of infringements on privacy. The first section will discuss how new technologies both shape and inform new forms of managing public spaces. A brief exploration will be

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provided on the logic of data gathering in public space and the role of privatization in these data gathering processes. The second section will provide conceptual and practical recommendations for future research into privacy in public space.

2 PRIVACY AND PUBLIC SPACE 2.1 Technology-Based Management in Public Space and its Implications for Privacy and Surveillance The blurring, or blending, of governments and companies when it comes to being, acting or regulating public space might not be entirely new. However, what this volume hopes to have shown is that under the influence of ICTs, this blurring is increasingly proliferating in public space. On the level of infrastructure of public space, in Western societies, this has assuredly always been a mutual shaping between public and private parties—think of constructing buildings, (rail) roads, electricity networks and other technologies that make up our public spaces. Where many of these projects started as government-initiated and administered projects, due to privatization and marketization of public infrastructures, making and taking care of public space is no longer (only) governmentdriven. Rather, private parties increasingly interpret the public space as a market opportunity. Where in many types of sectors this might be a benign, cost-effective or otherwise harmless cooperation, in the field of security, surveillance or policing (to name a few), allowing private parties to take responsibilities for public tasks also means that companies’ morals, rules and goals enter the equation. These goals might not necessarily be equally beneficial for all members of the public. Another level of concern stems from the increasing dependency on ICTs and networks or digital layers to perform these tasks (of regulating public space). There is a tendency to equip all sorts of public or semi-public infrastructures with a digital layer—with sensors and actuators. For example, a bridge can no longer only be a bridge, rather, it has to be monitored and this monitoring has to be managed from a distance, so a CCTV camera gets installed that is connected to a network, which makes it possible to monitor that bridge from a distance. A parking spot in a city is no longer only a parking spot; it has also become a space to be managed in terms of time and occupancy of the right type of vehicle. So a system gets installed that, for instance, allows the driver to fill out vehicle details, methods of payment and duration of parking via an app on a smartphone. A nightlife area is not only a place where people go out

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for a drink and a dance anymore, it has become a potential safety and reputation hazard for the city that needs to be managed smartly, facilitated by technological means. Besides CCTV cameras and private security, city centers are being equipped with all sorts of sensors, and social media content of visitors to city centers is being tracked to make sure regulators can ‘read’ the situation within a particular city or part of a city at any given time. The purpose of measuring and sensing might be to prevent anything from happening and/or to contain a problem once it arises via a quick and informed response. In other words, the arguments for implementing new sensing technologies and methods in public spaces are often based on safety and security rhetoric. Although these are just a few examples, they illustrate that ICTs are often seen as a means to manage parts of public space that for some reason are deemed in need of managing. The changing nature of privacy in public, and what we expect in terms of privacy, is connected with this shift in the management strategies of public places. One side of the new challenge—or threat—to privacy in public space is external, meaning it comes from actors or parties outside of the control of the individual who inhabits public space. ICT-based layers of sensors and networks are becoming a crucial part of the public space management strategy, bringing with it opaqueness, e.g. a citizen might be checked, filmed, sensed and identified by systems on a distance.3 Another side of the problem is perhaps more internal, or more closely connected to the individual; that is, his or her participation via all sorts of digital services. The smartphone, in that sense, forms a new place and tool for surveillance. Counter to one’s physical face being read from a distance, or leaving behind physical DNA in public space, the smartphone potentially provides all sorts of digital private information that is often up for grabs or is given away voluntarily.4 The connection of this digital, private information to a physical location and a person being (or having been) in public space is what creates novel privacy threats. There are two aspects to this; a first aspect being that due to these digital layers and the increasing confusion of what is being sensed and recorded, a chilling effect might occur regarding being—and doing things—in public space. Think here, for example, about the opaqueness of the watchtower in Bentham’s Panopticon,5 where the key principle lies in the subject 3

See Michael Nagenborg, Chapter 2. See Steven Zhao, Chapter 6. 5 See M. Galicˇ et al., ‘Bentham, Deleuze and Beyond: An Overview of Surveillance Theories from the Panopticon to Participation’ (2016) Philosophy and Technology 1; M.A. Brunon-Ernst (ed.), Beyond Foucault: New Perspectives 4

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knowing that someone might be watching every move, but the subject cannot watch back to be sure. As a consequence, the subject must assume s/he is always being watched (and, as such, the subject will not misbehave). This opaqueness can also be found in strange black boxes on lamp-posts6 (acoustic cameras) or smooth smartphone-applicationinterfaces offering a service7—the not knowing exactly if and how one is monitored or tracked already can have a self-censoring, chilling effect on one’s behavior.8 A second aspect is that of an increase of (automated) data collection that, in turn, can have a consequence on what an individual can or cannot do in a particular public space. In other words, an act might be forgotten or forgiven, but maybe a service or a database does not forget and might act based on this historical data. In many cases, this can be handy and is designed with user-friendliness in mind. To go back to the examples mentioned above: it is convenient if the parking app on a phone remembers the user’s habitual parking spots, license plate and current location, so that s/he does not have to go through a lengthy process of filling out data each time s/he is parking a car. This same data can, however, be used to disallow the user to park anywhere, because there are still some unpaid parking fines, and this decision can be made automatically. This logic can also be applied on the other examples; the point is that these systems create digital traces and histories with unknown uses and consequences. These traces lead to databases on which automated decisions can be made which, in turn, can affect individuals or groups in an unexpected and potentially unwanted manner.9 The recorded event, service or interaction with a digital device can, moreover, be enriched on Bentham’s Panopticon (Ashgate Publishing, 2013) for an explanation of Bentham’s Panopticon. 6 Sound cameras, for instance, used experimentally in the Netherlands, are unrecognizable black boxes. See e.g., https://www.sorama.eu/?q=taxonomy/term/ 157 (accessed 6 January 2017). 7 There is an increasing scholarship on how Google-like smooth and simple application interfaces obscure what is truly going on ‘behind the scenes’ of e.g. social media platforms (see in general M. Fuller, Software Studies: A Lexicon (MIT Press, 2008) and C. Gerlitz and A. Helmond, ‘The Like Economy: Social Buttons and the Data-Intensive Web’ (2013) New Media and Society 1349). 8 B. Marder et al., ‘The Extended “Chilling” Effect of Facebook: The Cold Reality of Ubiquitous Social Networking’ (2016) 60 Computers in Human Behavior 582, available at http://dx.doi.org/10.1016/j.chb.2016.02.097 (accessed 6 January 2016). 9 See M. Hildebrandt and B.-J. Koops, ‘The Challenges of Ambient Law and Legal Protection in the Profiling Era’ (2010) 73(3) Modern Law Review 450.

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with metadata or other data sources and analyzed over a timespan that exceeds the act or event itself. As a result, it becomes more opaque why, for instance, a certain action is allowed or disallowed; it also becomes more difficult to understand who (or what) made this decision and how to oppose it. 2.2 Linking Data Collection in Public Space to Privacy So far, examples mentioned above are based on individuals wanting something, or achieving a certain goal in public space, and the point made was that more and more digital sensing systems in combination with the fact that individuals are increasingly sharing and generating data creates uncertainty and unwanted effects in public space. Privacy in public space, however, also acts on a more profound level, and we might lose more than only our individual privacy due to the digitization of public spaces. Consider the example of a smart traffic light. By putting a set of sensors in the road, the traffic light system knows how many cars are waiting on each side of a crossing and, based on the input provided by the sensor, it decides which traffic light will jump to green and in which order. Compared to the earlier 555-timer chip-based systems with a fixed timing,10 this is undoubtedly an improvement of traffic flow. The point is that this system senses something in the environment, stores this sensed data, processes it and via a certain algorithm, makes a decision to act accordingly in that same environment. Where this might be nothing new or surprising in the context of traffic management, when transposing this logic to all sorts of data capturing or generating devices in public space, a more complex picture emerges. Data gathering and generating happens for different reasons and in different sectors, as we have seen in former chapters in this volume. The common denominator in this book is that this data gathering happens in public space. Not only are bodies or behaviors sensed and measured from a distance, sometimes this data is used to influence behavior in public space as well.11 10 See www.ti.com/lit/ds/symlink/lm555.pdf (accessed 6 January 2017), a widely used IC chip used in many electronics applications that offers the solution for timing certain sequences of action in an electronic circuit board. 11 This can be the same, but is in many cases different from Thaler and Sunstein’s nudging principle: when influencing behavior in public space, you are not making one choice more preferable than another by providing ‘default’ options; in the case of Stratumseind, for instance, a local government is trying to influence citizens’ mood not by offering rational choices, but rather by playing on their senses via light–settings, for instance. This comes closer to manipulating

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One ongoing case study that is fitting here is that of Stratumseind, a nightlife district in the city of Eindhoven, the Netherlands, which roughly encompasses one long street and a couple of perpendicular streets full of bars, clubs and food facilities. In a smart-city-living-lab-big-data rhetoric wrapper,12 the city of Eindhoven has been collaborating with local technology partners to develop an ‘integral security package’ of surveillance tools and measures in this district. This package consists of technologies that collect all sorts of data on citizens roaming in this part of public space, such as their walking patterns, WiFi signals, social media messages, beer consumption and sound/noise. Moreover, the technologypartners in this project also aim to influence the average mood of these night-time economy visitors (or accidental passers-by) via the alteration of public streetlights by adjusting color and brightness. This alteration is based on a calculated threat or ‘mood’ level that in turn is based on the collected and mixed data of these visitors.13 The technologies used in a public space such as Stratumseind act on a distance and are hardly visible or recognizable; they are sometimes literally black boxes on lamp-posts or corners of buildings. Due to more and more sensing capabilities put in these public spaces, anonymously ‘being’ in these spaces becomes harder and harder. When the default setting in such places changes from being able to be an anonymous face-in-the-crowd towards one’s face or gait acting as a hyperlink or input for some sort of automated processing, privacy and anonymity in public space are being compromised. The consequences of new technologies that form surveillant assemblages,14 such as those put in Stratumseind, are hard to predict and oversee. The spilling over of private user-generated data into public space, combined with new methods, tools and devices to generate data on or about people in public space, form a continuum of surveillance points. Different types of privacy resonate with these developments in public space that do not necessarily fall under ‘informational privacy’. If mapping out and understanding these different privacy threats is not already a daunting task, there is another, technology-based axis that the senses rather than offering a preferred rational choice (as is the case in nudging). See https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2536504 (accessed 13 February 2017). 12 See Facebook public page of the project Stratumseind 2.0, https://nlnl.facebook.com/LivingLabStratumseind/ (accessed 6 January 2017). 13 At the time of writing, this is still in a test phase. 14 See G. Deleuze, ‘Postscript on the Societies of Control’ (1992) 59 October 3 and K.D. Haggerty and R.V. Ericson, ‘The Surveillant Assemblage’ (2000) 51(4) British Journal of Sociology 605.

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complicates the risks for privacy in public space. This second axis is that of actuating technologies. Data that is being generated as a result of a person just being in a certain public space takes place in many ways, from DNA tracing to smart cameras that are reading faces from a distance. These are examples of new forms of sensing. This sensing can lead to all sorts of unwanted consequences and often the digital data produced feeds into databases that in turn can form the basis of types of analyses that the subject of the sensing has very little notion about.15 A next step is that this data (raw or already pre-processed and analyzed) are used to feed into systems that do something in public space autonomously to the same citizen/user/consumer that data was taken from. This next step of acting and manipulating public space and its inhabitants forms a new area of privacy—and surveillance threats that move from reactive or regressive to predictive and pro-active. Imagine again a nightlife district. Currently, the most common sensing and intervening that is in place in such public spaces would be ‘dumb’ CCTV cameras that are interpreted by human operators. A next level could be the combination CCTV cameras with microphones that can pinpoint the geo-location of a verbal threat and, based on analysis of visual and audio data, send out a report containing the exact location and visual description to an on-site officer’s smart watch. A third level is preventive and predictive sensing. For example, based on aggregated data from social networks, infrared sensors and WiFi signals, a heightened threat level is detected in the nightlife area. The intelligent security system adjusts the public street lighting automatically to create a softer mood amongst people in the nightlife district, before an incident can occur. The nightlife visitors have been influenced into calmer behavior.16 One fitting conceptual starting point to capture this last level of sensing and automate acting is mentioned by Roger Clarke,17 who states that besides our data, our experiences are now a place of privacy infringements as well. This means that privacy infringements do not place merely 15 Anthropotelemetric: a kind of surveillance that allows the taking of measurements on the human body from a distance. See Michael Nagenborg, Chapter 2. 16 The latter example is based on one of the Stratumseind-living lab projects, in which research into the effect of color and intensity of light on people is being tested in a nightlife area. See www.enigma-project.eu/en/upload/docs/SV_and_ WS/Eindhoven/Presentation%20on%20Stratumseind.pdf (accessed 13 February 2017). 17 R. Clarke, ‘Person Location and Person Tracking: Technologies, Risks and Policy Implications’ (2001) 14(2) Information Technology and People 206.

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on data produced by events or actions, but the actions or events themselves are increasingly targeted as well. Where legally we can protect data (to a certain extent) and we can have regulations and rules of conduct in particular places on what one is supposed to do with (personal) data, human experiences are harder to capture in some form of legal protection. However, the conditions for human experiences in public space can be, and are being, shaped and regulated by technologies. From CCTV cameras to smart sensing technologies in the nightlife district, these forms of regulation have a more invasive character than a sign stating one cannot park a bike in a certain spot.18 The stance which these technologies and regulation aim for seems to be inherently negative and repressive in nature. Although perhaps in a scale or spectrum rather than discrete, the many examples provided in the book all touch upon a core mechanism: that of delegating normative rules (how one should act or behave in public) into technologies that show some form of automation of detection and/or enforcement of those norms. Returning to the human experience as new place of surveillance and privacy-infringement, when an increasing amount of factors or variables in a public space are being sensed and measured, to then be used and fed back again into that public space can lead to chilling effects. To make this concrete, a popular social network has recently introduced the possibility to check how busy certain bars and restaurants are in a city so that one can make a more-informed choice of where to go.19 This might sound like a welcome idea. Another side of this coin is that on many social media platforms it is possible to see where any of your friends or colleagues are at a given point in time in public space. This information can potentially be used for a myriad of other purposes, such as crowd-management or the tracking down of particular groups or individuals by, for instance, law enforcement. From the perspective of the end user, the consequences of ubiquitous traceability are not yet entirely clear. However, technological developments seem to be making the possibility of being anonymous in public space almost impossible. Once the people visiting these places become aware of these mechanisms, they might think twice before going there or they might alter their behavior or express themselves differently, based on the threat of being recognized or being tracked. Moreover, besides the commercial value of knowing where a person is (for instance, for 18 Notoriously, in the Netherlands, these are exactly the places where bikes are often parked. 19 See www.theguardian.com/technology/2016/nov/22/google-bar-shop-busyreal-time-live-data-black-friday (accessed 6 January 2016).

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purposes of targeted advertising, or selling that data to third-party services), the value of these and similar services for a local police or law enforcement can be considerable, and with that an increasing information asymmetry20 between government and citizen emerges. 2.3 The Expanding Privatization of Public Space The above-mentioned information asymmetry between government and citizen or between company and consumer is not a new phenomenon. It could be argued that through novel ICT devices, citizens have the ability to put more weight in the scale on their side, regaining some leverage in information asymmetries by having more access to information through digital means and as a consequence have more possibilities to mobilize and to act.21 For example, one can record a police intervention with a smartphone and share this on social media22 or use comparative pricing services to find consumer goods for the lowest prices.23 However, many, if not all of these services that can potentially help in balancing of powers are commercial intermediaries. Although this is not necessarily detrimental to privacy, these commercial entities do work on a different logic and with a different set of rules than a public, governmental entity would. For one, more data means more traffic, which means more profit—a riot in a city that is well covered by citizens sharing images,

20

See J.Y. Tsai et al., ‘The Effect of Online Privacy Information on Purchasing Behavior: An Experimental Study’ (2011) 22(2) Information Systems Research 254 on the role of information asymmetry in relation to privacy in the context of online pricing strategies. 21 See e.g. N. Eltantawy and J.B. Wiest, ‘The Arab Spring: Social Media in the Egyptian Revolution: Reconsidering Resource Mobilization Theory’ (2011) 5 International Journal of Communication 18, for the ambiguous role of social media as vehicle for spreading democracy in the Middle East. More locally, or smaller scale, the phenomenon of flash mobs can be interpreted as a form of civil action or mobilization by the use of social media and mobile devices; see e.g. in general V. Molnár, ‘Reframing Public Space Through Digital Mobilization: Flash Mobs and the Futility (?) of Contemporary Urban Youth Culture’ (2010) Theory, Culture, and Society, 20, 763–94. 22 See e.g. the search results from querying, ‘police filmed’ on YouTube: www.youtube.com/results?search_query=police+filmed (accessed 6 January 2016, search performed from Rotterdam, the Netherlands). 23 There are many comparative consumer goods websites out there, some more independent than others. See e.g., http://ind.pn/1x0PFCp (accessed 6 January 2016).

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video recordings or hash tags,24 is, besides an incident in public space, good for business.25 Where this would hold for traditional news reporting as well, it has recently become clear that these intermediaries are truly different than older media outlets, for instance, in terms of caring about the truth-value of what is reported and posted.26 Intermediaries such as Facebook or Twitter also play an increasing role in determining what ‘happened’ in public space, as police and law enforcement are increasingly monitoring social media as a source of intelligence27 and of truth finding, be it before, during or after an incident or event in public space. Where data collection in public space might not be a new phenomenon, the scale of collected (inferred) data seems to be increasing. The collection and storage of public events fits within a larger scheme of digitizing all kinds of data that are either directly personal, or that can be connected to a person. The outsourcing of all sorts of data, often for free,28 to private parties is not only problematic for an individual; it also affects public life more generally. When breaking down privatization in and of public space, the following trends can be distinguished: + Private parties start acting as intermediaries, both in providing and gathering information in public space. This concerns both the privatization of formerly state-owned communication networks and infrastructures and, increasingly, the content of public space—be it through advertising via urban screens or facilitating services for transportation or commerce, for example. + Private parties start acting in public space based on information gathered either from public space or private space. Based on a mixture of information from both private individuals and publicly available data, private actors, sometimes but not always in 24

Such as the development of trending topics on Twitter, see https:// twitter.com/ (accessed 7 February 2017). 25 This might be overstated, or harshly put, but we must keep in mind that commercial entities, even if they mean well, have other goals in mind than only benevolence or ‘helping out’ and lending a hand to a public good. 26 See S.L. Borden and C. Tew, ‘The Role of Journalist and the Performance of Journalism: Ethical Lessons from “Fake” News (Seriously)’ (2007) 22(4) Journal of Mass Media Ethics 300. See also Angela Daly, Chapter 7. 27 See D. Trottier, Social Media as Surveillance: Rethinking Visibility in a Converging World (Routledge, 2016). 28 Economists could argue that there is of course a transaction cost in non-monetary terms attached to these social media platforms: one pays in terms of time (the time spent on the media platform is not spent doing something else), and in personal data, for instance.

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cooperation with a public actor, are increasingly finding their way into public services, from security to traffic and crowd management to new forms, e.g. postal and package delivery.29 + Private parties are increasingly installing technologies in public space that have ‘public’ functions. Public-private partnerships are starting to emerge that offer technology-based ‘securitization’ of public space (CCTV cameras, providing directions, offering transport, controlling access, and so forth) and other smart city-like developments. + Public authorities acting on citizens via, through, or based on information from private intermediaries. Besides data gathering in public space being outsourced to private parties, the responsibility for public order and intelligence gathering is also being privatized, rendering public spaces not only as ad-spaces, but more farreaching control-and-manipulation spaces. One issue with privatization is that it comes with its own set of rules and principles, such as profit and capitalization. Companies are, by default, directed towards exploitation of a space rather than fostering of public values in that space. Think, for instance, of the privatization of shopping malls30—a public value would be that, in principle, every citizen would be welcome in these shopping malls, being part of public space. Even if the shops themselves can be seen as private spaces, at least the roads and paths that lead up to the entrances of these shops or the common spaces in between should be open to all citizens, without discrimination. However, via different forms of surveillance, social sorting does take place31 all too often, and private security firms are hired to perform the actual surveillance. Privatization of security leads to situations in which commercial goals rather than public values dictate what is allowed or not, or who is allowed to be in a certain space. An example here can be found in malls in which shops sell clothing based on the ‘street-image’ of 29 Amazon drone delivery promotional video is available at www.amazon. com/Amazon-Prime-Air/b?ie=UTF8&node=8037720011 (accessed 6 January 2016). 30 See M. Steel and M. Symes, ‘The Privatisation of Public Space? The American Experience of Business Improvement Districts and their Relationship to Local Governance’ (2005) 31(3) Local Government Studies 321; and M. Schuilenburg, ‘Citizenship Revisited: Denizens and Margizens’ (2008) 20(3) Peace Review 358. 31 D. Lyon, Surveillance as Social Sorting: Privacy, Risk, and Digital Discrimination (Psychology Press, 2003).

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hoodies, yet, they are disallowing exactly those parts of the population of which that street image is taken from (teens) to hang around in those malls and buy those hoodies.32 Besides commercial reasons to control parts of public space, over the last couple of years, in the European Union and the United States, a fear of terrorism has lead to an intensification of security in public places as well. Several terrorist attacks in Belgium and France have lead to ‘state of emergency’ declarations in those counties. By doing so, legal leeway is provided in these countries33 that allows the state to install far-fetching controls of citizens in public space34 (such as patting down, going through bags, positioned army-controlled check-points). It also sets limits to what is accepted in that space in terms of behavior (no screaming and shouting, no running), and what one can bring (no big bags, no objects that can be used as weapons). Here, we can see a sort of airport-security logic entering public space that works along principles of separating and categorizing public spaces to then control access to those spaces. Where currently securitization in public space is mainly dependent on human intervention (soldiers) and simple infrastructures (fences, road blocks), this in part is, and is bound to be, influenced by smart technologies. The assessment and interpretation of a situation (for instance, if something is a threat or not and if there is a need for intervention) will be guided not only by the police officer, private security officer or soldier, but it will be informed by threat-models based on multiple data sources (as we have seen in the Stratumseind example). When we take drones and self-driving autonomous vehicles into account, the intervention might also be taken over by automated systems rather than human intervention. It is likely that those systems are owned and operated by private companies, adding to the privatization of security in public space. The crux of the problem of privatization of public space comes down to the protection of public values such as privacy that are no longer the sole responsibility of the state or public authorities. Due to a combination 32 P.E. Owens, ‘No Teens Allowed: The Exclusion of Adolescents from Public Spaces’ (2002) 21(1) Landscape Journal 156. See also H. Dyer, Watch this Space: Designing, Defending and Sharing Public Spaces (Kids Can Press, 2010). 33 Such as France and Belgium, who, as a response to recent attacks, have declared an ‘Etat d’emergence’ and have prolonged this state-of-affairs many times. See www.lemonde.fr/idees/article/2016/07/21/france-etat-d-urgence-etetat-de-droit_4972713_3232.html (accessed 6 January 2017). 34 See e.g., www.theguardian.com/world/2016/mar/22/europe-and-the-ustighten-security-in-wake-of-brussels-attacks (accessed 6 January 2017).

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of digitization and privatization, more and more processes and events in public space are arranged and mediated by non-state actors. These actors present themselves as ‘objective’ intermediaries. However, their goals are structurally different from those of the state in protecting or fostering those values and norms that are deemed public or contributing to the public good. Authors in this book have stressed that values such as autonomy and privacy are at risk. Privacy in public needs rethinking and is in need of more rigorous protection. Not only are individuals and their data at risk of losing the ability of being private or anonymous in public, new information layers in public space moreover have the ability to include or exclude groups that show some form of similarity or are categorized based on a particular characteristic.35 Potential side-effects of technologies developed for public space or used in public space are difficult to measure, yet they form the background (and backbone) of democratic societies. Think of the previously-mentioned chilling effect that smart cameras or DNA tracing can have on self-censorship in expressions and interactions in public space or individuals or groups avoiding places or refraining from organizing protests in particular cities or places within a city. Not only do ambient sensing systems in public space pose a threat to privacy, so do the smart devices citizens themselves carry and use in public space. The smartphone and other wearable devices often hold a myriad of (personal) data that spills over into public space. In the Stratumseind-example, WiFi signals from smartphones are being picked up and locked onto if possible, exploiting a vulnerability inherently built in most of these devices.36 Moreover, one’s social media utterances can be scraped and read by a local police force, for example. Often, also as a default setting, social media messages are accompanied by a geocode and timestamp, making it possible to connect what has been said to where and when it has been said and, by implication, its author. Not only are social media analytics used in real-time to sense the ‘mood’ in a particular public space via sentiment analysis,37 a next aim for local law enforcement or a private security company could be to link social media accounts to people in the public space under surveillance. 35

See Hildebrandt and Koops (n. 9) 446. Often, the standard settings on a phone are set to being ‘discoverable’; roughly put, this means the phone is constantly shouting out ‘I am here’. Not only can this signal be picked up and traced, it is sometimes also possible to see to which networks the phone has connected in the past, allowing for a detailed mapping of where the phone has been over time (and by association, its owner). 37 This is one of the technology challenges in the Stratumseind project. 36

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Technologies such as smart CCTV and social media tracking technologies thus lead to fewer possibilities to be anonymous and be forgotten in public space. Although privatization and privacy preservation can go hand in hand, they rarely ever do. Recent regulatory responses to technological over-reaching can be found in privacy-by-design and privacy-by-default processes.38 Yet, it is too early and implementation is too infrequent to measure the effectiveness of these forms of soft regulation. Moreover, one pitfall of privacy-thinking in these processes is that it often leads to privacy as a design variable, thus as a tradable good (sometimes even with a monetary or economic value attached to it— ‘X privacy is worth Y euro’, or ‘people are willing to sacrifice X privacy for Y more safety’). A consequence of the economic model of privacy thinking is that it makes privacy up for negotiation, not a basic right that needs protecting. Before attempting to apply privacy-by-design strategies to privacy in public space, we need to first reconsider and come up with better concepts about what it means to have privacy in public space.

3 RESEARCHING PRIVACY SPHERES IN PUBLIC: NEXT STEPS Bringing the works in this volume and the direction as sketched out in this chapter together, where does this leave us, conceptually? From both philosophical and legal perspectives, it seems that private and public spaces are increasingly intertwined. The work presented in this book present a number of different viewpoints. One possibility would be to abandon public space as a given and to investigate how our physical spaces are becoming more and more segregated and influenced by digital, private, commercial or other interests that make up for particular types, or ‘tastes’ of public space. Another point of departure would be to expand privacy and privacy types: to look at how current protections for certain types of privacy hold up, or whether we need new forms of protection. As the Stratumseind example shows, we are not only dealing with an increase in sensing technologies in public and semi-public spaces. An emerging idea in surveillance and security technologies is to automate action and intervention in public space, thereby adopting a logic of pro-active regulation. However, when social rules are embedded into technology and its boundaries hard-coded into algorithms, we also 38

See e.g., S. Spiekermann, ‘The Challenges of Privacy by Design’, Communications of the ACM (2012), available at http://doi.org/10.1145/2209249. 2209263 (accessed 13 February 2017).

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lose the right not to follow a law, to deviate from the norm, to be disobedient.39 Privacy protection is aimed to a large extent at protecting individuals and data belonging to (or about) an individual. When it comes to protection of larger groups, inferred data or privacy values in public space, however, current legal instruments start becoming less effective. One problem is that privacy is often conflated with data protection, and data protection is ex post protection, meaning it does not take the act of data gathering via a device or system into account per se. In contrast, we have seen in this volume that privacy in public space has more to do with being in public space and with negotiations between different people and things in a particular place and time. In other words, the context and moment in which a privacy harm (or protection) takes place is equally or more important than what happens with the collected data afterwards.40 However, it has also been put forward41 that merely establishing and agreeing that, indeed, there are different contexts and that they are important, is insufficient. A step forward could be to develop a kind of categorization or classification of these contexts in order to better understand what is at stake, privacy-wise. One accompanying challenge is that if the distinction between private and public actors is blurring, appointing responsibility and accountability for the protection of citizens’ privacy becomes more difficult as well. Put differently, one might perceive a level of privacy protection in having a conversation with a friend while walking down the street (the context). There is a level of agency over privacy by both friends: if they talk in a moderate voice and directed to each other, they might assume their conversation is private. However, this perception might be based on a lack of knowledge or awareness of a distant surveillance drone or sound-recording camera. Even if they were aware of technologies that can overhear conversations between people in public space, it remains unclear if a government institution is operating the drone or the distant camera, or whether (and how) a private party is involved. 39 See in general Hildebrandt and Koops (n. 9) for a more elaborate view on this problem. 40 In other words, the act of recording someone in public space with a smartphone, for example, is equally or more invasive than sharing that footage online afterwards. 41 See e.g., Maria Brincker, Chapter 3, who argues that agency should be taken into account when mentioning context; or K. Ball et al., ‘Big Data Surveillance and the Body-Subject’ (2016) 22(2) Body and Society 58 on rethinking privacy through the lens of proximity rather than context.

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The insight that context matters when it comes to privacy needs to be expanded with the notion that (a) agency and expectations of privacy play a role, and (b) the socio-technical landscape or make-up of a public space sets the preconditions for this agency and expectation of privacy. The technologies and physical make-up of a public space largely determine what can and cannot be done—in a Goffmanian42 sense, they set the stage of possible action. What has changed in comparison to Goffman’s original idea of analyzing social processes through the lens of theatre is that some of the stage props are becoming pro-active and communicating actors themselves.43 We can choose to have meaningful and informed conversations with these actors, or they can remain backstage, influencing the scene without us knowing. In many examples in the book, the latter seems to be the strategy of technologists, local policy-makers and law enforcements alike. Bringing these technologies into the foreground can also mean they can be developed and used to foster and enforce privacy in public and set different interaction possibilities in public space without the privacy-eroding surveillance undertone that we have seen throughout this book. 3.1 How to Research Privacy in Public Conceptually? Different stances can be taken on how to think about privacy-infringing technologies in public space. One conceptual dichotomy that exists between philosophy and in particular strands of research such as Science and Technology Studies (STS) and phenomenology and legal studies is the role of technology in those disciplines. The former two consider the social and the technical as intrinsically intertwined, from which it follows that any questions of a technical nature cannot be answered without also looking at the social aspects of that technology and vice versa: sociological questions have to be explained not only through the human actor(s) involved in that question or context, but also through the technological, material side of that question.44 Legal scholars tend still to 42 See E. Goffman, Behaviour in Public Places (The Free Press, 1966). See also T.R. Schatzki, K. Knorr–Cetina and E. Von Savigny (eds), The Practice Turn in Contemporary Theory (Psychology Press, 2001) and Bert-Jaap Koops and Maša Galicˇ, Chapter 1. 43 B. Latour, Where are the Missing Masses? Sociology of a Few Mundane Artifacts (MIT Press, 1992). 44 See e.g., B. Latour, Reassembling the Social (Oxford University Press, 2007); P.P. Verbeek, What Things Do: Philosophical Reflections on Technology, Agency, and Design (Penn State Press, 2010).

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conceptualize technology as neutral and objective, or a mere tool, rather than an actor. This means that laws and regulations need to withstand a certain amount of time and technological change in order to be functional and valid, usable. To some extent laws need to be separated from the technological; otherwise legal systems would become dysfunctional (if for each novel technology a new law must be introduced). Where a discussion on technological-neutrality takes place within legal scholarship itself (and will not be repeated or elaborated very much upon here45), legal scholars and philosophers in this volume also show different stances on what technology is or does. If we take privacy as a technologically-neutral right that needs protection, we neglect the role that technology plays in shaping the very concept of privacy. However, if we start from a position that focuses on the co-shaping of technology with privacy, we might lose firm legal and historical ground on what it is about privacy that requires protection. A middle-ground approach of thinking about privacy, regulation and public space would seem the best way forward. In such an approach, we acknowledge that laws and regulation cannot be completely detached from the socio-technical world around us, but they should not be interpreted as directly dependent variables either. A first conceptual direction for regulation in public space could be found in Allen’s46 idea of ambient power, in which the argument is made that technologies in, and the make-up of, physical public spaces could be designed with the goal in mind to create inclusion, rather than social exclusion. Opposing the often-negative direction in which technologies in public space are being developed (restricting access, disallowing action, and so on), they could also be used to seduce and trigger certain positive behavior, thereby automatically eradicating, or at least balancing, the development of repressive public spaces. This would also mean that privacy scholars should focus on examples, cases, technologies and proposals to develop inclusive (in this case, meaning privacy friendly) spaces. These and other concepts stemming from urban geography could prove instrumental for privacy scholars to find adequate regulatory responses to invasive technologies in public space. Resonating with ambient power is the concept of ambient law. In this idea, as put forward by Hildebrandt and Koops,47 the authors respond to 45 See e.g., C. Reed, ‘Taking Sides on Technology Neutrality’ (2007) 4(3) SCRIPT-ed 263. 46 J. Allen, ‘Ambient Power: Berlin’s Potsdamer Platz and the Seductive Logic of Public Spaces’ (2006) 43(2) Urban Studies 441. 47 Hildebrandt and Koops (n. 9) 428–60.

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the vision of Ambient Intelligence48—a vision on the near future developed by the high-tech industry in the 2000s. In this vision, intelligence would literally disappear into the walls and into our products and transform almost every living space into a smart space. This vision disappeared from the stage due to the coming of the smartphone and other smart mobile devices that took center stage in envisioning what ‘smart’ futures would look like. Although, in the early 2000s, ICT was still too heavy, clunky and expensive to ‘disappear into the walls’, we can see the dawn of a comeback of the vision of ambient intelligence and smart environments in public spaces, mainly due to the increasing accessibility of sensors and analytical tools (both economically and in terms of expertise needed to run such systems). Ambient law is a response to smart environments and to the idea of code as law. Generally, the authors state that law and regulation should take a leap forward and that the idea of laws and regulation getting inscribed into technology is not a negative development per se. Yet, in doing so, these systems should allow for transparency and contestability for the individual citizen. Just as during the transition from spoken word to script, Hildebrandt and Koops argue, law now has to find a way to make the next transition in order to become part of a reality of smart and connected environments. Where law had to make the transition from spoken word to script (written laws), the key element of that transition was the fact that rules and law should remain interpretable and contestable. The danger of looking at computercode as law is that there is no way of arguing, of disputing a hard-coded decision or algorithm. Ambient law should incorporate and leave room for the principles of law, while at the same time making use of the potential advantages of smart environments and technologies. As put by the authors: Ambient Law does not ‘think’ in terms of using technologies as neutral instruments to enforce the law, but as a novel way to articulate legal norms. This will require new levels of digital literacy of those who legislate— politicians—and of those who guard the coherence, the instrumentality, and the protective dimension of the law—lawyers.49

Projecting this argument onto privacy in public space, key elements should be transparency in processes of data collection in public space and ways for citizens to opt out (or, by choice, opt in) of such data collecting 48

S. Marzano, The New Everyday: Views on Ambient Intelligence (010 Publishers, 2003). 49 Ibid. 459.

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technologies and processes. Moreover, one step forward would be to incorporate not only individual privacy protection and not only on the basis of data collection, but to try and incorporate other aspects of privacy in public spaces as well, such as bodily, associational or group privacy.50 An additional step to make is to develop some sort of classification of types of privacy infringements that can occur in public space. However difficult this might prove to be, considering the myriad possible contexts and agencies that can occur, an attempt at finding common denominators in a set of cases would help to flesh out what the breadth and depth of the problem of eroding privacy in public truly is. One way to create a classification of privacy threats in public space could be to take the recent typology of privacy as developed by Koops et al.51 and project that on clear-cut cases of privacy threats posed by new technologies of regulation deployed in public spaces. In their typology, Koops et al. discern a set of privacy (ideal) types in an effort to untangle privacy conceptually as well as legally. This somewhat conceptually top-down approach could also benefit from some conceptual starting points, or heuristics, to help shape what new privacy infringements could look like and how new regulation and protection could take shape. Data protection is one remedy, but there is something to infringements of privacy in public that data protection cannot fully address, as the authors in this book have argued. When starting the call for this volume, the idea of a private sphere or bubble seemed like an adequate conceptual starting point, because this sphere could work on both physical and digital levels of privacy. Stemming from an onion-model of privacy,52 a concept of spheres or bubbles would entail that there is a certain space around a person in which this person is private, even when in public. People or things can enter that space, but some form of decisional power over the extent of access into that sphere should be in place. At the same time, these different boundaries—or levels of concealments versus disclosure—also say something about the level of infringement that is allowed. If someone or something enters within a close proximity, this proximity could mean a different expectation, for instance, not to be recorded by a bodycamera, whereas if the 50

See L. Taylor et al., Group Privacy (Springer, 2017). B.-J. Koops et al., ‘A Typology of Privacy’(2017) 38(2) University of Pennsylvania Journal of International Law 483. 52 See e.g., B. Roessler and D. Mokrosinska (eds), Social Dimensions of Privacy: Interdisciplinary Perspectives (Cambridge University Press, 2015) on the onion model in relation to privacy. 51

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proximity were at such a distance that I am not directly recognizable or identifiable, the use of such a camera would be fine. These spheres are not necessarily individual in nature; they can also be collective. To give an example, as a group of citizens, we can disallow being subjected to facial-recognition from a distance, whereas we would allow tracking of movement for purposes of crowd management during a festival. These boundaries of individual or collective disclosure in a changing context are difficult to grasp, and perhaps such an approach would lead to more complication rather than simplification. The core of this idea would be to think of spaces (or spheres) of protection or shielding that have to do with distance, time and place. It could be a permeable membrane or otherwise level of protection and consent that deals with not only the data-side of privacy in public space, but also the physical boundaries of infringements. Similar to masking, this sphere would provide a doublesided protection without losing recognizability. Developing concepts such as these can benefit from top-down typologies of types of privacy, ideas can also come from more grounded examples that can facilitate informed speculations on privacy infringements in the future. 3.2 How to Research Privacy in Public Practically? Privacy in public space and contested privacy spaces are topics not investigated only by legal scholars or philosophers. Besides different branches of geography, such as legal and urban geography, the field of media studies has been engaging with the subject of privacy on a large scale. While a large part deals with online privacy, work done by Crawford and colleagues53 has strong links to the theme of this book as well. Crawford has been looking into daily practices of youth in relation to mobile media use and how digital devices change habits of physical movement and roaming. The methodologies developed in this branch of media studies are both quantitative and qualitative. For one, they engage with the same social media platforms as their research subjects and they are using novel digital methods to capture online behavior, combined with more ‘classical’ qualitative methods such as participatory observations, ethnography and in-depth interviews with research participants. Drawing from this line of work enables us to understand how and why 53 See www.microsoft.com/en-us/research/project/social-media-collective/ (accessed 6 January 2017).

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digital layers in public space alter physical behavior, and to see individual and collective privacy dynamics that are negotiated within groups in a mixture of on- and offline ways. Generally, a way forward for legal and philosophical scholars interested in researching privacy in public lies in not only looking at court cases as a singular unit of analysis, but also to look into case studies in the social science meaning of the word. In particular, the strand of Science and Technology Studies (STS) can prove meaningful, as it is the first strand of social science that brings things into sociological analysis. In short, this means that scholars in this field argued that infrastructures, technologies and artifacts have a decisive and shaping role in all our sociological processes. Leaving the theoretical or analytical potential of STS aside, the practical lesson from STS is to draw on vocabulary and qualitative research methods, such as script analysis, reverse-engineering, participatory observation and user studies, to capture values and norms surrounding existing or emerging technologies in society. One of the challenges for privacy research is to get from ‘moving target’ research into new technologies to identifying general trends that can be used to foresee new privacy infringements and to come up with new boundary marking concepts for privacy. This volume has provided a rich selection of cases that exemplify how and why privacy in public space matters and how it is eroding due to new technologies. The authors in this volume have drawn from a range of disciplines such as urban geography, media studies and other social science disciplines to perform case-based analysis of privacy infringements currently taking place in public space. Common themes and challenges have emerged that should feature on the research agenda for privacy in public space in the coming decade.

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Date: 10/10

JOBNAME: Timan PAGE: 1 SESS: 3 OUTPUT: Fri Oct 20 14:10:56 2017

Index accidents, prevention of 151 actuating technologies 276 AdhereTech’s smart pill bottles 242 advertising inevitability 224 intermediaries, private parties as 279 new types of public space 34–5 predictive advertising 265 resistance 58 targeting 185, 265, 278 ubiquitous traceability 278 urban public squares, screens in 146, 279 affordances 71–3, 83–6, 88 Agamben, Giorgio 48–9, 53–6, 60 agency 3–5, 64–90, 285 Agre, PE 39 airports 9, 11, 41, 142, 145, 167, 281 algorithms algorithmic living 260 computer code as law 287 data collection 80–82 decision-making 90 Facebook 72 predictive algorithms 81 resistance 58 social rules 283–4 trust 72 unbounded contexts 89 Allen, Anita 83 Allen, J 286 Altman, I 30, 73 Amad, P 118–19, 121–2 Amazon’s Echo 242 Ambient Intelligence (AmI) 145, 287 ambient sensing systems 282 American football injuries 248 ancestry/kinship 212

animals accurate information, obtaining 83 agency 73–83 behavioral habituation 87 civil society 73–4 competitive advantage 80–81 context 73–83 information management 80 partial communication 81 perceptible agency 74, 78–81 power, asymmetries of 78 practical privacy measures 73 relational privacy 74–5, 78–83 survival 73 Annas, George 215 anonymity data collection 275 facial coverings 10, 11–12, 171, 175, 177, 178–83 Internet of Things 265 masking/face coverings 12 reasonable expectation of privacy 69–70 United States, anti-mask law in 175, 177, 178–83 Anonymous see Guy Fawkes mask by Anonymous, use of anthropotelemetric surveillance 12, 59–60, 63 apps 150 Archives de la Planéte (film) (1909–1931) 5, 112–24, 131–6 access to archive 117, 124, 125 avoidance of cinematographic gaze 117–18, 124 Beirut 123 brothels 123–4 colonialism 117, 120–22, 132–3 Dahomey, Africa, life in 120–21 291

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292

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distance 113, 118, 120–24, 131, 136 everyday life, capturing 5, 112–24 geographical objects 119–21, 123–4, 131 inside buildings, filming 123–4, 132 intimate/private scenes 116–17, 121–3, 126–7 Kahn 112–13, 116–24, 125–7, 129–35 Mongolia 122 Paris 119 privacy bubbles 5, 113–24, 131–6 Aristotle 83–4 Assange, Julian and Dreyfuss, Suelette. Underground:Tales of Hacking, Madness and Obsession on the Electronic Frontier 52–3 augmented reality devices 150, 248 Australia 140, 143 automatic license plate recognition devices (ALPR) 149 autonomy 88–90, 276, 282 agency 64–5, 78, 83, 88–9 body parts, use of 227 concealment 81 data profiling 152 informational autonomy 155 informed consent 228 majority, feelings of the 173 Panopticon 77 political subjects 29 privatization of public space, expansion of 282 regulation 86–7 unbounded contexts 86–7 autopoiesis 85 ‘B’ Maternity Wearables 247–9 Bachelard, G Ball, K 132 banks, banning use of masks in 61–2 Barcelona, smart lighting in 250 Bauman, Zygmunt 41–2 Becker, Gary S 91 Beer, D 115–16, 131

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behavior animals 87 anti-social behaviour 8, 36–7, 149, 151 chilling effect 273 civilized conduct 86 data collection 274 determinism 26 deterrence 76, 103, 105, 151 DNA 211, 215–16, 218, 222, 224, 239 geography 21–2, 26 habituation 87 monitoring 63 norms 66, 153 nudging 263 perceptible agency 88 privacy bubbles 5 private-regarding and public-regarding behavior 70 privacy-seeking behaviors 71, 78 public nuisance 8, 36 regulation 8, 153–4, 286 revealing/concealing 81 sifting 9 smart devices 140, 152, 290 social media 289–90 social perceptibility 73 social rules 152 standardized behavior 5, 8–10, 34, 36–7, 153–4, 281, 286 suspicious/deviant behavior/threats 9–10, 182–3, 186, 278 temperature to diseases or nervousness, linking body 11 terrorism 281 traceable, making behaviors 64, 72, 277 vulnerabilities 74 being-in-the-world 24 Beirut, Lebanon 123 Belgium, states of emergency in 281 Bentham, Jeremy 76–7, 132, 272–3 Bergson, Henri 117 Bernal, P 173 Berry, S 25 Betten, Inga 51–2 Big Data 199

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Index

bioethics and law 225–32, 239–40 biology insights 74–83 biometrics 48, 50, 52, 54–5, 59–60, 182 blood, status of 225–6, 239–40 Bluetrace BV 139–40 body cadavers, burial and donation rights and 226, 239 interface in public space 10–13 mask, interface with 48, 60 parts 212, 213, 225–8, 235, 239–41 body-worn police cameras 4–5 Boo-Keun Yoon 243 Boston marathon, terrorism at the 206 boundaries 269–70 concealment versus disclosure 288–9 digitalized public spaces 139, 145, 150, 153–4, 162, 288–9 Internet of Things 251–2 Life in a Day 126, 131–2, 134–6 new infringements 290 online/offline boundaries 181 privacy bubbles 5, 115 social media 7–8 social rules 283–4 see also private space/public space dichotomy boyd, danah 264 Brandeis, Louis 3, 10, 65–6, 75 Bristol is Open project 250 Broadband Convergence Network (BcN) or Wireless Broadband (WiBro) 148 Brunhes, Jean 117–18, 125 Buchanan, James M 105–106 bugging devices 229–32, 240 Busy, Léon 121 Butler, Judith 40 cadavers, burial and donation rights and 226, 239 cameras body-worn police cameras 4–5 portable cameras 101

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smart cameras 4, 93, 95 see also photographs Carr, S 142 Carson, Rachel. Silent Spring 208 Castells, M 41 Categorical Exclusions (CEs) 198, 202–207 CCTV 181–3 accountability 151 city centers 4–5, 276 digitalized public spaces, exposure and concealment in 145, 149, 151 facial recognition software 181–2 knowledge/awareness, lack of 4–5 nightlife locations 276 privatization of public space, expansion of 283 purposes 149 smart cities 251 cease and desist 102–103 cell phones see smart phones child care centers, prohibition on photos in 153 chilling effect 27, 282 Chongqing, CCTV in 251 Christin, D 115–16, 131 Chul’s facial recognition technology 242 Church of Scientology 61 cities microsimulation models 26 sensors 272 smart cities 55–6, 145, 206, 250–51 trip movements in cities 26 ubiquitous cities (U-cities) 148 civic epistemologies 259–60 civil society 73–4, 197, 209 Clarke, Roger 276–7 class actions 193 classification of types of privacy infringement 284, 288–9 Clinton, Bill 201 clothes see dress; facial coverings in France, ban on; masking/face coverings code as law 287

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Coleman, Gabriela 50 colonialism 117, 120–22, 132–3 Commedia dell’Arte 54 commercial organizations 278–81 commercialization 144 common law 174 companies and governments, blurring between 271 competitive advantage 14, 80–81 computer code as law 287 concealment see exposure and concealment in digitalized public spaces conceptual directions 1–15 Condit, CM 221 conduct see behavior consent body parts, use of 227–8, 240–41 data protection 140–41, 152 DNA tracing 227–8, 240–41 photographs 10 private space/public space dichotomy 66 see also informed consent constructivism 21, 26–39 consumer transactions 186, 189–93, 205–206, 209–10 context 2–6 agency 3–5, 64–90, 285 animals 73–83 Archives de la Planète 114 changing nature of privacy 270 definition 68 expectations 66–71, 72, 285 human geography 21, 26, 45 integrity 2–3, 26, 64–8, 72 knowledge/awareness of technologies 284 Life in a Day 114 masking/face coverings 53 neutral and objective, technology as 286 norms 4, 66–8 private space/public space dichotomy 2, 65–71, 85–6, 89, 284 reasonable expectation of privacy 65, 68–71, 72

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regulation 286 relational privacy 3, 65, 73–84, 86, 87–90 shared affordance spaces 83–6 social constructivism 26–39 surveillance 63–4, 68–77, 80, 84, 86, 89–90 unbounded contexts, acting in 86–7 value, outcomes considered to be of 83–4 contracts Privacy Impact Notices (PINs) in United States 186, 188–9, 191, 193, 205 private space/public space dichotomy 66 public space, economic definition of 94–5 smart phones 188, 193, 205 standard forms 189, 191 surveillance 186, 188–9, 191, 193 copyright 67–8 correction, right to demand 196 costs 103, 106–107 coverings see facial coverings in France, ban on Crawford, K 289 Cresswell, Tim 20 culture agency as culturally embedded 4 Archives de la Planète 114 DNA tracing 220 hacking culture 48–9, 52–3 identity 39–40 Life in a Day 114 power 27 privacy bubbles 115 public spaces, definition of 141 United States, anti-mask law in 179 ‘CV dazzle’ project 48–9, 58–60, 62–3 anthropotelemetric surveillance 12, 59–60 camouflage from facial-detection technologies 48–9, 58–60 ethical space 60 fashion 48–9, 58–60

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personality, expression of 59 surveillance 58–60 Cyborg Foundation 249 Dahomey, Africa, life in 120–21 Dangerous Things 249 dasein 24 data collection automated data collection 273 consumer transactions 186, 189–93, 205–206, 209–10 contract 186, 188–9, 191, 193, 205 digitization of public spaces 162, 274 EU law 191–4, 196, 203 experiences as places of privacy infringement 276–7 informed consent 191–2, 203–204, 205 Internet of Things 14–15, 244, 267 knowledge, lack of 187, 189, 191–2 nightlife areas 275–7, 282 pollution of private sphere, surveillance as 194 Privacy Impact Notices (PINs) in United States 14, 185–210 public space to privacy, linking 274–8 responsibility for limiting data 258–9 surveillance 14, 186–210, 275–6 surveillant assemblages 275–6 transparency 287–8 ubiquitous traceability 277–8 see also data protection data profiling 146, 149 data protection consent 140–41, 152 costs 186–7 Data Protection Directive 193 Data Protection Regulation 191–2 digitalized public spaces, exposure and concealment in 140–41, 149 DNA tracing 234–5 EU law 14–15, 140–41, 191–2 ex post protection 284

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expectations 152 Internet of Things 14–15, 262 Netherlands 139–41, 143 privacy bubbles 288 privatization of public space, expansion of 288 protective state 110 surveillance on public roads 140–41 United States 14–15 decision-making algorithms 90 automated decision-making 273–4 defamation 180 default, privacy by 283 delete, obligation to 103 democracy 31–8, 64, 90 change 77 facial coverings in France, ban on 168, 172 geography 31–8 human rights 175 information sharing 68 protective state 105 protests 150 social-constructivism 27 surveillance 77 Descartes, René 21 design 150–51, 262–3, 283 determinism 219, 260 deterrence 76, 103, 105, 151 digitization of public spaces 274, 281–2 see also exposure and concealment in digitalized public spaces disclosure/notice regime 195, 209 discrimination 167, 169–70 disneyfication of public space 36 distance 113, 118, 120–24, 131, 136 DNA see out-of-body DNA Do Not Track 264–5 dress 61–2, 280–81 hoodies 12, 61, 182, 281 niqab 11, 62, 166–7, 175, 177 see also facial coverings in France, ban on; masking/face coverings

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Dreyfuss, Suelette and Assange, Julian. Underground:Tales of Hacking, Madness and Obsession on the Electronic Frontier 52–3 drones 12, 95–6, 148, 152, 181–2 Dubai, CCTV in 251 Dutertre, Albert 119–20 dynamic affordance spaces and situated action 71–3 dystopia 55–6 economics 3, 6, 14, 151, 209–10 see also politico-economic perspective Elshtain, J Bethke 32, 38 emergencies, states of 281 employment DNA tracing 218 Muslim headscarves in workplaces, ban on 156–7 Environmental Impact Statements (EISs) 14, 195–201, 207–209 Categorical Exclusions (CEs) 198, 202–7 FONSI (Finding of No Significant Impact) 198–9, 202–203, 206, 208–209 improved EISs, PINs as 208–209 incomplete or inadequate, right to complain EIS is 199 mitigation 199, 202–203, 207–10 Epictetus 54 epistemology 52, 57, 259–60 EU law see European Union Eucken, Walter. Principles of Economic Policy 97–8 European Convention on Human Rights facial coverings in France, ban on 11–13, 164–75 freedom of expression 159 inhuman or degrading treatment 167 legitimate aims 167–8, 172

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necessary in a democratic society, legitimate aims which are 168, 172 private and family life, right to respect for 167–9, 171, 173, 179 public figures 159 thought, conscience and religion, freedom of 167–9 European Union data collection 191–4, 196, 203 data protection 14–15, 140–41 Data Protection Directive 193 Data Protection Regulation 191–2 digitalized public spaces, exposure and concealment in 156–7 facial coverings in France, ban on 170–71 Internet of Things 14–25, 243–4, 267–8 Muslim headscarves in workplaces, ban on 156–7 political climate, changes in 13 Privacy Impact Assessments 14 Privacy Impact Notices (PINs) in United States 14, 184–5, 191–4, 203 terrorism 281 Evans, E 57–8 exceptionalism 219, 260 exclusions 35–7, 198, 202–207 expansionism 179 expectations context 66–71, 72 digitalized public spaces, exposure and concealment in 152–3, 159–62 Internet of Things 262–3 preconditions 285 relational privacy 88 see also reasonable expectation of privacy experiences as places of privacy infringement 276–7 exposure and concealment in digitalized public spaces 139–63 boundaries 139, 145, 150, 153–4, 162, 288–9

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concealment, significance of 9–10 data profiling 146, 149 data protection 140–41 definition 141 design 150–51 economic benefits 151 escalating digitalization 144–53 EU law 156–7 expectations 152–3, 159–62 freedom of expression 141, 159 freedom to change 144 identity, establishment 155–6 information and communication technologies (ICTs) 141 information flow 141, 162 Internet of Things 148 multiple functions of concealment and exposure 141 new behavioural norms for regulation 153 ownership 141, 142–4 portable devices, increasing use of 151–2 power balance, changes in 147 private space/public space dichotomy 14, 153, 162 proximity 288–9 public spaces, definition of 141–4 purposes of public space 9, 149–50, 163 reasonable expectation of privacy 141, 154–5 rules, awareness of 9–10 seclusion 75 semi-public, spaces as 9 social significance and functionalities of concealment 158–9 transparency 150 ubiquitous cities (U-cities) 148 Unicomp (pervasive computing) 145 voluntary exposure 154 wearables 147 WiFi 145, 146–8, 150–51 externalities 102, 186–9

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face see facial coverings in France, ban on; facial recognition software; masking/face coverings; United States, anti-mask law in face paint 12 Facebook algorithms 72 DNA metaphor 224 emotions 72 facial recognition software 69 information sharing 68 intelligence, as source of 279 management tools 263–4 observers, publication by 95 Republican Convention 146 social affordances, monopoly on 72 FaceWatch system 182 facial coverings see facial coverings in France, ban on; masking/face coverings facial coverings in France, ban on 164–83 anonymity 10, 11–12, 171, 175, 177, 178–83 anti-surveillance camouflage 182–3 burkhas 166–7, 175 burkinis in coastal areas in France, ban on 166 civility, levels of 172–3 culture 166, 179 discrimination 167, 169–70 EU law 170–71 European Convention on Human Rights 11–13, 164–75 facial recognition technology 181–2 freedom of assembly and association 167 freedom of expression 11, 165, 167, 169, 171, 180–82 gender oppression 170–71 identification 167–8, 174, 182 identity, expressions of 155–6, 170 inhuman or degrading treatment 167 laïcité 166 legal basis for challenging laws 165 legitimate aims 167–8, 172

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Privacy in public space

living together, principle of 11, 155–6, 167–9, 171–2, 174, 180 margin of appreciation 168–9, 172 minority rights 181 Muslims 155–7, 164, 166–75, 179 necessary in a democratic society, legitimate aims which are 168, 172 niqab 11, 166–7, 175 political climate, changes in 13 private and family life, right to respect for 167–9, 171, 173, 179 private space/public space dichotomy 165, 181 proportionality 169–70 public health 166 public order 166 public safety 167, 171–2, 174, 178, 180 religious freedom 11, 164–70 right to privacy 164, 171, 173, 181 SAS v France 10–13, 164–83 security checks 155–6, 167–8 state, role of the 179–80 surveillance 165, 172–4, 181–3 terrorism 166, 172 thought, conscience and religion, freedom of 167–9 United States, comparison with anti-mask law in 12, 164–5, 175–83 workplaces, wearing veils in private sector 170–71 facial recognition software 11–12, 69–70, 165 anti-surveillance technology 12 anthropotelemetric, as 12 CCTV 181–2 Chul’s facial recognition technology 242 face paint 12 facial coverings in France, ban on 181–2 measurement 12 pasamontaña by Zapatista movement, use of 52 police 182

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Privacy Impact Notices (PINs) in United States 206 protests 204 sporting events 206 Fair Information Practice Principles (FIPPs) 267 familial searching 217 fatalism 223 feminism 22, 41 fines 103 fingerprints 54–5, 214–15, 224–5, 237–8 First Amendment (US Constitution) 165, 177–80, 182 Fitbit wristbands 247 Five Eyes partnership 181 Flusser, Vilém 47–8, 56, 60 FONSI (Finding of No Significant Impact) 198–9, 202–203, 206, 208–209 Ford, Roger Allan 152–4 Foucault, Michel 37, 47, 77 Fourth Amendment (US Constitution) 182–3, 211–13, 217, 225, 229–41 framing 259–60 France emergency, states of 281 terrorism 281 see also facial coverings in France, ban on Fraser, N 31 freedom action, of 144 assembly and association, of 31, 38, 167 banks, banning use of masks in 61–2 individual liberty 97 relational privacy 76–8 88 see also freedom of expression freedom of expression digitalized public spaces, exposure and concealment in 141, 159 European Convention on Human Rights 159 facial coverings in France, ban on 11, 165, 167, 169, 171, 180–82

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First Amendment (US Constitution) 159 nudity 159 United States, anti-mask law in 165, 177–82 Friedman, Milton 97, 99, 104, 106–109 Froomkin, Michael 7 Furedi, F 132 Gadmer, Frédéric 120 gait analysis 11 Ganascia, J-G 133 Gattaca (film) 220 gender 41, 170–71 General Motors 243 genetic information abandonment fallacy 235–6 culture 220 determinism 219 DNA tracing 215–17, 219–21, 229, 231, 235–6, 239 exceptionalism 219 medical information 215–16 metaphors and imagery 221 geography human geography geolocation modeling 150 Germany facial coverings, partial ban on 166 ground signals on tram tracks 151 image, right to one’s own 101 legal aid 106 Nazi Germany 228 portable cameras 101 protective state 109 Gibson, James J 71 globalization 41–3 Goffman, Erving 78, 155, 285 Golledge, Reginald 26 Google Glass 248–9, 261 Google Street View cars as mobile data recorders 148 GoPro 247 government, role of 7, 92–3, 103–108 blurring of governments and companies 271

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legal protection 105–106 liberal-individualistic standpoint 97, 104, 107 necessity of government action 103–104 non-governmental enforcement 101–103 protective state 105–106, 109–10 GPS tracking devices 234, 241 greenhouse gases 188 Guy Fawkes mask by Anonymous, use of 12, 48–54, 61–2 Anonymous activist/hacker group 12 anti-surveillance camouflage 49 collective identity 51, 57 hacker ethic 48–9 pasamontaña by Zapatista movement, use of 48, 51–2 protests 12, 48–54, 61–2 uniform masks 51 Habermas, Jürgen 31 hacking culture 48–9, 52–3 Haggett, P 25 handwriting analysis 237–8 Hardin, Garret 187 Hargittai, Eszter 264 Harvey, Adam 48–9, 58–9 Harvey, D 42–3 Hayase, Nozomi 57 Hayek, Friedrich von 97, 99, 104, 106–109 head coverings see facial coverings in France, ban on Heapsylon 248 Heidegger, Martin 24, 40 Hello Barbie 247, 262–3 hermeneutics, philosophical tradition of material 49 Hildebrandt, Julia M 286–7 historical media comparison 5–6, 112–36 see also Archives de la Planéte (film) (1909–1931); Life in a Day (2011) Hobbes, Thomas. Leviathan 105 HoloLens 249

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home Archives de la Planéte 116, 124 constructed place, as 46 historically contingent, as 46 ideal place, as 23–4 identity-building 40–41, 44, 46 intimacy 233 Life in a Day 125–8 smart homes 165 homeless 9, 36 Hong Kong, 2015 pro-democracy campaign in 150 Hughes, Thomas 260 human dignity 158–9, 179 human geography 7–9, 19–46 analytical behavioural geography 26 behavioural geography 21–2 context analysis 21, 26, 45 critical geography 21 de/re-territorialization 41–4 descriptive analysis 21, 25–6 digital and physical space, interaction between 20 duality of space and place 22–5 history of geography 21–2, 25–6 home 23–4, 40–41, 44, 45–6 humanist geography 21–2, 23 identity-building 19–21, 25, 39–44, 45–6 legal geography 22, 46, 289 mapping 25–6 neutral container understanding of space 21, 23–5 phenomenological analysis 21–2, 39–44 physical geography 21 place and space 7, 19, 21–5 positivist geography 21, 25–6 power 19–21, 26–39, 45 private space/public space dichotomy 19–20, 25, 38, 45–6, 270 privatization of public space 8, 20, 33–5, 37–8, 45 public nuisance 8 radical geography 22 regulation 7–8, 38, 46, 270

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securitization of public space 8, 20, 33, 35–8, 45 social constructivism 22, 26–39 social lives taking place through social media 7–8 structuralism 22–3 urban geography 8, 286, 289 human rights 141, 147 see also European Convention on Human Rights humanist geography 21–2, 23 Hunt, Linda. Inventing Human Rights 54 hybrid physical and digital environment 150, 162 identification biometrics 48, 50, 52, 54–5, 59–60, 182 DNA tracing 212 facial coverings in France, ban on 167–8, 174, 182 fingerprints 54–5, 214–15, 224–5, 237–8 mechanisms 155 identity building 19–21, 25, 31, 39–44, 45–6 cards 47–8 collective identity 51, 57 co-production 20, 39–40, 44 core identity 220, 224–5, 239 culture 39–40 DNA tracing 215, 218–25, 236–9 establishment 155–6 external self 155 facial coverings in France, ban on 155–6, 170 home 46 language theory 220 over-exposure 157 personal information disclosure 155 personal space 29 surveillance 182 United States, anti-mask law in 12, 175–6, 178, 182–3 image, right to one’s own 101

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immutability 213, 223 impact notices see Privacy Impact Notices (PINs) in United States implantables 249 imprisonment 103 inaccessibility 214–15 individuals control, level of 13 individualistic-liberal standpoint 6, 97, 99–100, 104, 107–109 regulation 6–7, 92–3, 104 responsibility 97–100, 104 inevitability 96–107, 223 information 1–2 asymmetries 189–92, 267, 278 data and information, difference between 23 DNA tracing 215–20, 229, 231, 235–6, 239 Fair Information Practice Principles (FIPPs) 267 flow 141, 162 genetic information 215–17, 219–20, 229, 231, 235–6, 239 management 80 medical information 215–16 notice and choice model of information 243–5, 251–9, 263–4, 267 quality 239 shared information 215, 216–17, 218, 235 see also data collection; data protection information and communication technologies (ICTs) 1–2, 48–9, 141 informed consent body parts, use of 227–8, 240–41 data collection 191–2, 203–204, 205 DNA tracing 227–8, 240–41 EU law 15 Privacy Impact Notices (PINs) in United States 191–2, 203–204, 205 inhuman or degrading treatment 167 insurance 103

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intermediaries, private parties acting as 279–80, 282 Internet of Everything 148 Internet of Things 242–68 A29 Working Party 259, 268 accountability 265 anonymity 265 boundaries 251–2 connected devices 14, 242–9, 263 data collection 14–15, 244, 267 data protection 14–15, 262 datafication 245 design 262–3 digitalized public spaces, exposure and concealment in 148 EU law 14–25, 243–4, 267–8 Fair Information Practice Principles (FIPPs) 267 framing 259–60 implantables 249 innovation 259–60, 262–5, 268 Internet of other people’s things 14, 243, 245, 255, 259 interoperability 257, 259 newness 259–61 notice and choice model of information 243–5, 251–9, 263–4, 267 policy 244, 259–60 privacy-enhancing technologies (PETs) 263–4 privacy management tools 263–5 self-management models 263–5 smart devices 243–9 smart people 247–9, 250 smart publics 14, 245–51, 261 smart spaces 250–51 smart things 246–7, 250 social media 263–4 United States 14, 243–4, 267–8 wearables 247–8 WiFi 246–7 innovation 259–60, 262–5, 268 intimacy Archives de la Planète 121–3, 126–7 body-worn police cameras 4

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DNA tracing 213, 215, 217–18, 224, 233, 235, 239 Life in a Day 125–31 Inventing Human Rights. Hunt, Linda 54 Italy, local bans on face coverings in 166 iTunes 261–2 Jackson, P 39–40 Jacobs, J 36 Jasanoff, Sheila 259–60 job applications 101–102 Joh, E 182 Johnson, Mark 221, 223–4 Kahn, Albert 112–13, 116–27, 129–35 Kaminski, M 176–80 Kapsis, RE 116 Kendrick, L 179 Kitashirakawa, Prince and Princess of Japan 124 Klopfer, PH 73, 74–5, 82–3, 87 knowledge/awareness abandonment fallacy 236 body parts, use of 226–7 CCTV 4–5 common knowledge 237–8 data collection 187, 189, 191–2 DNA tracing 13, 14, 226–7, 237–8 Privacy Impact Notices (PINs) in United States 184–5 private space/public space dichotomy 284 relational affordances 88 rules, awareness of 9–10 Kohn, M 34 Kokott, Juliane 156–7, 170 Koops, Bert-Jaap 286–8 Koskela, H 133–4 Ku Klux Klan (KKK) 176, 178–9 laïcité 166 Lakoff, George 221, 223–4 language theory 213, 220–21, 225–6 Le Bon, G. The Crowd 131 Le Saint, Lucien 122–3

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legal aid 106–107 legal expenses insurance 103, 106 legal geography 22 legal proceedings, threat of 200, 202 legal protection 7, 101–104 legal realism 179 Leibniz, Gottfried Wilhelm 21 let alone, need to be 75 Leviathan. Hobbes, Thomas 105 LG Electronics 112 liability for use of data 259, 268 liberalism liberal-individualistic standpoint 6, 97, 99–100, 104, 107–109 market liberalism 97, 103, 104, 107–109 lie detection tests 63 Life in a Day (2011) 5, 8, 112–17, 124–36 access 125 boundaries, dissolution of 126, 131–2, 134–6 connectedness 130, 135 counter-surveillance 133–4 crowdsourcing 113, 133–4 culture 114 everyday life, capturing 5, 112–14, 124–31 homes, inside of 125–8 interior and exterior, boundaries between 132 intimacy 125–31 Macdonald, Kevin 112–13, 124–34, 136 mediation of public and private spheres 114–17 narrative 125–6 paraproxemic principle 128 participation 124–31, 135 privacy bubbles 5, 113–16, 124–36 private space, definition of 114–15 private space/public space dichotomy 116–17, 134, 136 psychological subject 113, 131, 136 social status, information data as currency of 133 ‘sousveillance society’ 133 subjectivity 125, 130, 132

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surface phenomena 113 Synopticon 133 taste preferences 116 vagueness and subjectivity 115–16 virtual contact 128 YouTube 5, 112, 124–31 Lifeloggers 247 lighting 116, 121, 150 liminal spaces 32 living together, principle of 11, 155–6, 167–9, 171–2, 174, 180 location data 139–40, 188, 218 London, traffic congestion in 250 Lumus DK-40 248–9 McCullough, Malcolm 43 Macdonald, Kevin 112–13, 124–34, 136 McLuhan, Marshall 114, 132 majoritarianism 173 management automated decision-making 273–4 city centers, sensors in 272 data collection 273 digitalized public spaces, exposure and concealment in 151 information 80 lifecycle data management 15 private space/public space dichotomy 271 self-management models 263–5 technology-based management in public space 271–4 tools 263–5 mapping 39 margin of appreciation 168–9, 172 marginalized people 76 market failure 185, 186–93, 197 market liberalism 97, 102, 104, 107–109 marketization 271 Marxism 22, 33 masking/face coverings 47–63 anthropotelemetric surveillance 12, 59–60, 63 anti-drone hoodies 12

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anti-surveillance technologies 12, 52, 55–6, 61–3 banks, banning use of masks in 61–2 biometrics 48, 50, 52, 54–5, 59–60 ‘CV dazzle’ project 12, 48–9, 58–60, 62–3 dystopia 55–6 epistemic tool, masks as 52, 57 ethical spaces 53–6, 60–61 Guy Fawkes mask by Anonymous, use of 12, 48–54, 61–2 hacking culture 48–9, 52–3 historical-philosophical analysis 12, 47–63 hoodies in shopping malls, ban on 61–2 identity cards 47–8 inside meaning of masks 49, 52–3 materiality 47–9, 60 measurement 10–11, 12 Muslim headscarves in workplaces, ban on 156–7 outside meaning of masks 49–50 pasamontaña by Zapatista movement, use of 48, 51–2, 57, 62 power 56–7 regulation 62–3 resistance to technologies 12, 52, 55–6, 61–3 revolutionary mask 49–53 smart cities 55–6 surveillance 48–9, 55–6 technology of the self 57 uniform masks 51 see also facial coverings in France, ban on; facial recognition software; United States, anti-mask law in Massey, D 42–3 materialism 39–40 materiality 47–9, 60 maternity wearables 247–9 Maturana, HR 85 media comparative media studies 114

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DNA in newspapers, use of term 222–4 historical media comparison 5, 112–36 newsgathering 204 privacy bubbles 115 protests 204 qualitative methodologies 289–90 quantitative methodologies 289–90 studies 289–90 see also social media medical conditions 215–16, 217 medical waste, property interest in 226 Mehta, V 144 mental capacity 109 Mercedes-Benz 242 Messaris, P 128 metaphors 221–5, 239 microchips 149, 249 Microsoft’s HoloLens 249 Milgram, Stanley 77 militarization of public space 36 Mimo 248 minority rights 181 mitigation and regulation 13–15 mobile vehicles 148 mobilization opportunities 278 Moeckli, D 142 Monahan, Torin 59, 63 Mongolia 122 moods in public spaces 275–6, 282 Moore, Alan 51 morality 83–6, 88 Münker, S 134 music piracy 261–2 Muslims facial coverings 155–7, 164, 166–75, 179 niqab 11, 166–7, 175, 177 Myth of Gyges 76

nature, public space as not created by 6, 92, 94–5 Nazi Germany 228 negotiations 102, 103 neoliberalism 33 Netherlands automatic license plate recognition devices 149 child care centers, prohibition on photos in 153 chip cards 149 Data Protection Authority (DPA) 139–41, 143 facial coverings, ban on 166 identity disclosure 156 legal aid 106 protective state 109 tax office, transfer of data to the 149 network societies 7, 10, 41 neuromarketing 63 neutrality 21, 23–5, 145–6, 157, 286 New York Times 222 Newton, Isaac 21–3, 25–6 nightlife locations 275–7, 282 niqab 11, 62, 166–7, 175, 177 Nissenbaum, Helen 2, 3, 26, 64–8, 70–72, 86 non-places 34 norms 4, 6, 66–8, 86 Norway, partial ban on face coverings in 166 notice and choice model of information 243–5, 251–9, 263–4, 267 notices see Privacy Impact Notices (PINs) in United States Notting Hill Carnival 182 Nudities, Agamben, Giorgio 53 nudity 159 number plates, exposure of 155

Nagel, Thomas 158 National Environmental Policy Act of 1969 (NEPA) (US) 195–203, 208–209

Obama, Barack 201 Occupy movement 51, 204 oligopolies 190–91 ontology 56–7

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open-ended and fluid, concept of privacy as 269 organs, legal status of 226, 239–40 Orientalism 121 out-of-body DNA 3, 11–14, 211–41 abandonment fallacy 211, 231–2, 235–41 actuating technologies 276 ancestry/kinship 212 bioethics and law 225–33, 239–40 blood, status of 225–6, 239–40 body parts, use of 225–8, 235, 239–41 bugging devices 229–32, 240 cadavers, burial and donation rights and 226, 239 chilling effect 282 common knowledge 237–8 core identity 220, 224–5, 239 culture 220 employment 218 existence 214–15 familial searching 217 fingerprints 214–15, 224–5, 237–8 Fourth Amendment 211–13, 217, 225, 229–41 genetic information 215–17, 219–21, 231, 235–6, 239 GPS tracking devices 234, 241 health insurance 218 home-based intimacy 233 identification 212 identity 215, 218–25, 236–9 immutability 213, 223 inaccessibility 214–15 informational nature of DNA 215, 218 informed consent 227–8, 240–41 intimacy 213, 215, 217–18, 224, 233, 235, 239 junk DNA 219 Katz test 229–32, 235, 237, 240 knowledge 13, 14, 226–7, 237–8 Kyllo/Jones/Riley trilogy of cases 192, 233–5, 238–9 language theory 213, 220–21, 225–6 legal status 225–6

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medical conditions 215–16, 217 medical waste, property interest in 226 metaphors 221–5, 239 newspapers, use of term DNA in 222–4 of-the-body law 225–8, 233 organs, legal status of 226, 239–40 ownership 226–7 paternity tests 212, 217 permanence 213, 223 personal details 12–13, 211, 215, 217, 218, 234–5 physical characteristics 12–13, 211, 216 physical status 213–14 police 236–41 bugging devices 229–32 familial searching 217 gathering by 211–12 genetic information 217, 236–7 search warrants 239–41 powerful, DNA as 215, 217–18, 235, 239 predictive, DNA as 215–16, 217, 218, 235 property rights 229–30, 239–41 reasonable expectation of privacy test 13, 14, 230–32, 238–41 rogue databases 212 science 213–19, 220, 224–5, 233, 235 search warrants 239–41 shared information 215, 216–17, 218, 235 smart phones, searches of 234, 241 society 220–25, 233, 235 state laws 217–18 surveillance 211, 215–16, 218, 222, 224, 239 thermal imaging devices 233 ubiquity 214–15 United States 12–13, 211–41 outsourcing 279 ownership body parts, use of 226–7

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306

Privacy in public space

data protection 15 digitalized public spaces, exposure and concealment in 141, 142–4 DNA tracing 226–7 private space/public space dichotomy 55 privatization 3 public spaces, definition of 142–3 securitization of public space 35, 38 social sorting 3 Panopticon 76–7, 80, 87, 132, 272–3 paraproxemic principle 128 pasamontaña by Zapatista movement, use of 48, 51–2, 57, 62 collective identity 51, 57 facial-detection technologies, shield against 52 Guy Fawkes mask by Anonymous, use of 48, 51–2 Subcomandante Marcos 51–2 Passet, Stéphane 122 paternalism 93 paternity tests 212, 217 perceptible agency 74, 78–81, 86, 88 perception of privacy 153–4 pervasive computing 145 phenomenology 21–2, 285 phones see smart phones photographs awareness 101 cease and desist 102–103 delete, obligation to 103 legal protection 101, 102–103 politico-economic perspective 101 self-protection measures 10 see also Archives de la Planéte (film) (1909–1931); cameras pill bottles 242 PINs see Privacy Impact Notices (PINs) in United States piracy 261–2 place duality of space and place 22–5 home as ideal type of place 23–4 materiality component 24 meaning component of place 24–5

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pause, place as 23 security and stability 23 social constructivism 26–39 space 7, 21–39 Plato 76 pleasureability 144 police body-worn police cameras 4–5 bugging devices 229–32 DNA tracing 211–12, 217, 229–41 familial searching 217 gathering by 211–12 genetic information 217, 236–7 Metropolitan Police 182 search warrants 239–41 ubiquitous traceability 278 zero-tolerance policing 8, 36 politico-economic perspective 6, 91–111, 270 government, role of 7, 92–3, 103–10 individuals, regulation by 6–7, 92–3, 104 legal aid 106–107 legal expenses insurance 103, 106 legal protection 7, 101–104 liberal-individualistic standpoint 6, 108–109 market-liberal perspective 7, 92–3, 104, 107–109 nature, public space as not created by 6, 92, 94–5 pre-digital era 93 private space, definition of 92 property rights 6, 92 public space, economic definition of 92, 93–6 regulation 6–7, 92–3 risks, understanding of 6–7 rule of law 104–105 security goods 107–108, 110–11 self-protection measures 6–7, 98–101, 103–104, 106 surveillance 92, 108, 110–11 politics 11, 13, 27, 30–31, 35, 83–6 see also politico-economic perspective

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pollution of private sphere, surveillance as 14, 184–95, 200–201, 209 data collection 194 encroachments on privacy in public 194 market failure 186–92 private property from public locations, sensors aimed at 194 private property, sensors on 194 purposes of privacy 185–6 poor persons 107 positivism 21, 25–6 post-structuralism 27, 33, 38 power asymmetries 88 balance, changes in 147 context 84, 88 culture 27 DNA tracing 215, 217–18, 235, 239 human geography 19–21, 26–39, 45 institutions 27 masking/face coverings 56–7 private space/public space dichotomy 19–20, 38 privatization of public space 38, 45 punitive models of law and governance 37 securitization of public space 35, 37–8, 45 shared affordance spaces 83–6 social constructivism 26–39 pregnancy wearables 247–9 Principles of Economic Policy. Eucken, Walter 97–8 privacy bubbles 5, 113–24, 131–6, 152, 288 privacy, definition of 2, 66, 290 Privacy Impact Assessments (PIAs) 14, 196, 200–201 Privacy Impact Notices (PINs) in United States 14, 184–210 authority for PINs 200–201 Categorical Exclusions (CEs) 198, 202–207 conspicuous off-switch 206 contractual activities 205 First Amendment activities 204

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informed consent 203–204, 205 persistent protests, surveillance of 204 private property, data collection limited to collector’s 205 public officials 204–205 small-scale activities 203 sporting events 206 Chief Privacy Officers (CPOs) 201 conspicuous off-switch 206 Constitution 185, 193–4, 196–7 contract 186, 188–9, 191, 193, 205 correction, right to demand 196 coverage 202–209 data collection and retention 14, 185–210 Data Protection Directive 193 Data Protection Regulation 191–2 definition 14 disclosure/notice regime 195, 209 economic effects 14, 209–10 Environmental Impact Statements (EISs) 14, 195–201, 207–209 Categorical Exclusions (CEs) 198, 202–207 coverage, determination of 198 environmental assessment 198 FONSI (Finding of No Significant Impact) 198–9, 202–203, 206, 208–209 improved EISs, PINs as 208–209 incomplete or inadequate, right to complain EIS is 199 mitigation 199, 202–203, 207–10 remedies 199 Environmental Protection Act 1995 185–209 EU law 14, 184–5, 191–4, 203 exclusions 198, 202–209 externalities 186–9, 210 facial recognition software 206 First Amendment 193–4, 204 improved EISs, PINs as 208–209 informed consent 191–2, 203–204, 205 knowledge gaps 184–5 legal proceedings, threat of 200, 202

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market failure 185, 186–93, 197 National Environmental Policy Act of 1969 (NEPA) 195–203, 208–209 new legislation 201–202 Office of Management and Budget (OMB) 200–202 oligopolies 190 permits 200–201 persistent protests, surveillance of 204 pollution of private sphere, surveillance as 14, 184–95, 200–201, 209 practical solutions, PINs as a 197 President’s Privacy Council (PPC), proposal for 201–202 Privacy Impact Assessments (PIAs) 14, 196, 200–201 Privacy Protection Act, proposal for 208 public officials 204–205 red flags 203, 206–207 regulation 184–5, 193, 195–209 reporting 14, 195–6, 199 sensors 194, 197, 202, 206–207 small-scale activities 203 sporting events 206 sunset 207–208 surveillance 14, 184–210 transparency 186, 206 zoning 200–201 privacy myopia 190–92 private actors in public services 279–82 private and family life, right to respect for 167–9, 171, 173, 179 privacy-enhancing technologies (PETs) 263–4 private law remedies 193 private security forces 280–81 private space/public space dichotomy 1–3, 6 Archives de la Planète 116–17, 134, 136 clean air as public good 93 consent 66 context 2, 65–71, 75, 85–6, 89

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digitalized public spaces, exposure and concealment in 14, 153, 162 facial coverings in France, ban on 165, 181 freedom of assembly and action 38 human geography 19–20, 25, 38, 45–6, 270 Internet of Things 14 knowledge/awareness 284 Life in a Day 116–17, 134 136 management 271 ownership 66 personal space 29–30, 38 politico-economic perspective 101 portable devices, increasing use of 152 power 19–20, 38 privacy, definition of 66 private-regarding acts and facts distinguished from true public sphere of proper/improper publications 66 property rights 93 regulation 38 relational privacy 89 social constructivism 27–32 private sphere, definition of 28–9 privatization of public space 3, 271, 278–83 Archives de la Planète 117, 131 chilling effect 282 classification of types of privacy infringement 284, 288–9 commercial goals 280–81 commercial organizations 278–81 data protection 288 digitization 281–2 expanding privatization of public space 278–83 human geography 8, 20, 33–5, 37–8, 45 intermediaries 279–80, 282 practical research 289–90 private actors in public services 279–82 privately owned public spaces (POPs) 33–4

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public values 280–82 regulation 283, 288 smart devices as threats to privacy 282 social media as sources of intelligence 279, 282–3 terrorism 281 property rights data collection 188, 193 DNA tracing 229–30, 239–41 medical waste, property interest in 226 politico-economic perspective 6, 92 private space/public space dichotomy 94 reasonable expectation of privacy 230–31 United States 229–30 proportionality 140, 163, 169–70 protective state 105–106, 109–10 protests anti-surveillance protests 182–3 banks, banning use of masks in 61–2 digitalized public spaces, exposure and concealment in 288–9 facial coverings in France, ban on 12 facial recognition software 204 Guy Fawkes mask by Anonymous, use of 12, 48–54, 61–2 Occupy Wall Street 204 persistent protests, surveillance of 204 United States anti-mask law in 182–3 persistent protests, surveillance of 204 proximity 113, 132, 284, 288–9 psychological theory of privacy regulation 73–4 public health 166 public law remedies 193 public nuisance 8, 36 public order 166 public safety digitalized public spaces, exposure and concealment in 141, 144

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facial coverings in France, ban on 167, 171–2, 174, 178, 180 politico-economic perspective 92 privatization of public space 33–4 semi-public spaces 9 United States, anti-mask law in 178, 180 public space, definition of 92, 93–6, 141–4 public values 280–82 punitive models of law and governance 36–7 purposes of public space 9, 149–50, 163 Purtova, Nadya 188 quasi-public spaces 33–4, 142–3, 156–7 radical geography 22 Radio Frequency Identifying Devices (RFID) 145, 249 Rainie, Lee 245 rational choice theory 98 reasonable expectation of privacy 7, 68–71, 72 ambient surveillance 68–97 anonymity, expectations of 69–70 digitalized public spaces, exposure and concealment in 141, 154–5 DNA tracing 13, 14, 230–32, 238–41 harms of access 69–70 human geography 20 non-breach breaches of privacy 69 practical privacy protections 69 property rights 230–31 registration or identification mechanisms 155 regulation ambient power 286–7 autonomy 86–7 behaviour 8, 153–4, 286 bounded rationality 193 collective action problems 193 context 65, 286 data collection 277

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data protection 193 EU law 244 human geography 7–8, 46, 270, 286 individuals 6–7, 92–3, 104 Internet of Things 244 market failure 193 masking/face coverings 62–3 mitigation 13–15 new behavioural norms for regulation 153 nightlife areas 277 politico-economic perspective 6–7, 92–3, 104 Privacy Impact Notices (PINs) in United States 184–5, 193, 195–209 private sector 33 private space/public space dichotomy 38 privatization of public space, expansion of 283, 288 pro-active regulation 283–4 psychological theory 73–4 public behaviour, narrowing of range of 8 public interest 193 securitization of public space 35 semi-public spaces 9 shared space, public space as 38–9 Reidenberg, Joel 65–6, 68–70, 251 relational privacy 3, 6, 65, 73–84, 86, 87–90 religion Church of Scientology 61 discrimination 167, 170 facial coverings in France, ban on 11, 164–70 freedom of religion 11, 164–70 laïcité 166 Muslims facial coverings in France, ban 155–7, 164, 166–75, 179 workplace, headscarves in 156–7 neutrality 157 workplace, headscarves in 156–7 remote body-sensing devices 10–11 Republican Convention Facebook Live 146

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Twitter and Facebook posts, giant screens with live 146 reputational damage 10 researching privacy spheres in public 283–90 algorithms 283–4 conceptually, researching privacy in public 285–9 context 284–6 expansion of privacy 283 pro-active regulation 283–4 regulation 286–7 segregation of physical space 283 sensors 283 types of privacy 283 resistance to technologies 12–13 algorithms 58 anti-surveillance technologies 12, 52, 55–6, 61–3, 182–3 ‘CV dazzle’ project 12, 48–9, 58–60, 62–3 masking/face coverings 12, 52, 55–6, 61–3 responsibility context 76–8 data, limiting 258–9 government, role of 97, 104 individual responsibility 97, 104 revolutionary mask 49–53 Roman Empire, use of death masks in the 53 Rothenberg, L 153 Rubenstein, DI 73, 74–5, 82–3, 87 rugby players 248 rule of law 104–105 sadistic street furniture 36 Samsung 242–3 SAS v. France 10–13, 164–83 Sauvageot, Camille 123 science bioethics and law 225–32, 239–40 biology insights 74–83 DNA tracing 213–19, 220, 224–5, 233, 235 spatial science 25

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Science and Technology Studies (STS) 285, 290 Scott Free Productions 112–13 Scott, J Wallach 132 Scott, Ridley 125 seclusion 74–5 securitization 8, 20, 33, 35–8, 45, 280–81 security checks 155–6, 167–8 facial coverings 155–6, 167–8 information and communication technologies (ICTs) 48–9 intensification 281 politico-economic perspective 107–108, 110–11 self-protection measures 99–100 segregation 40, 222–3, 283 self-management models 263–5 self-protection measures 6–7, 98–101, 103–109 self, technology of the 57 semi/quasi-public spaces 33–4, 142–3, 156–7 Sendak, Maurice 45 sensing 10–11, 78, 186–7, 272, 274–6 sensors 2–3, 10–13, 274–7, 282–3 ambient sensing systems 282 anthropotelemetric surveillance 12 body as interface 10–11 city centers 272 data collection 275, 283 embedded sensors 2 Internet of Everything 148 management 271 Privacy Impact Notices (PINs) in United States 194, 197, 202, 206–207 smart cities 206 sports injuries, preventing 248 shared space, public space as 30–31 Sharpston, Eleanor VE 170 shopping malls and plazas access 9, 61–2, 280 clothing styles 61–2, 280–81 non-places 34 private ownership 92 privatization of space 33, 280

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semi-public spaces 9 sifting and surveillance, access based on 9 similarities 34 surveillance 9, 92 tracking mobile WiFi in and around shops without consent 139–41, 143 Sibley, D 40 sifting 9 Silent Spring. Carson, Rachel 208 Simeonidou, Dimitra 250–51 skateboarders 9 smart cities 55–6, 145, 206, 250–51 smart devices 242–3 augmented reality 248 behavior 140, 152, 290 data, responsibility for limiting 258–9 geo-locational data 218 implantables 249 Internet of Things 243 interoperability 257, 259 liability for use of data 259, 268 physical movement, effect on 289 proliferation 3 vulnerabilities 282 wearables 1, 147, 247–9 see also smart phones; smart technology smart phones accidents, prevention of 151 cameras 4, 93, 95 contracts 188, 193, 205 cyber-attacks 100 data collection 149, 253 digitization of public spaces 147 government, role of 104, 109–11 identity management 266 location data 140, 194 nightlife areas 282 personalization 29 police 234, 240–41, 278 poor persons 107 private sphere, dominance of 152 protective state 110 searches of phones 234, 241 security 107

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smart futures 287 state actors, hacking by 111 surveillance 11, 188, 194, 271–3 tracking through WiFi 11 vulnerabilities 96, 282 smart technology cameras 5–6, 276, 282 chilling effect 282 glass 248–9 homes 165 Internet of Things 243–51 meters 206 people 247–9, 250 pill bottles 242 portable devices, increasing use of 151–2 power balances 147 pregnancy wearables 247–9 private space/public space dichotomy 3 privatization of public space, expansion of 282 publics 14, 245–51, 261 smart futures 287 smart spaces 287 spaces 250–51, 255, 262, 287 traffic lights 274 true mobiles 151 see also smart devices; smart phones Smith, Adam 96–7, 104, 106 Snowden, Edward 181, 208 social constructivism 22, 26–39 social context 65 social control 175 social learning 9 social media boundaries 7–8 intelligence, sources of 279, 282–3 Internet of Things 263–4 moods in public spaces, monitoring 282 physical boundaries, transcending 7–8 public space, economic definition of 95 social lives 7–8 truth-finding 279

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see also Facebook; Twitter social rules 152, 283–4 social sciences 1, 27, 85, 96, 290 social sorting 3, 280–81 social status 133 society 220–55, 233, 235 Solove, DL 66, 263 Sorkin, M 34 ‘sousveillance society’ 133 space duality of space and place 22–5 modelling 25–6 names to spaces, giving 24 place 7, 21–39 relational, as 45 science 25 social constructivism 26–39 Spain Barcelona, smart lighting in 250 facial coverings, local ban on 166 sport facial recognition software 206 injuries, preventing 248 Privacy Impact Notices (PINs) in United States 206 terrorism 206 Stalder, F 115–17 Sternbergh, A 133 Stoics 53 Stratumeind, Eindhoven, Netherlands, technology in nightlife district in 275 structuralism 22–3 Subcomandante Marcos 51–2 subsidiarity 106, 140 surveillance ambient surveillance 68–9, 75 anthropotelemetric surveillance 12, 59–60, 63 anti-surveillance technologies 12, 52, 55–6, 61–3, 182–3 assemblages 275–6 behaviour 8, 63, 87 body as locus 10 bugging devices 229–32, 240 class actions 193 coercion 76–8

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context 63–4, 68–77, 80, 84, 86, 89–90 contracts 186, 188–9, 191, 193 counter-surveillance 133–4 ‘CV dazzle’ project 12, 48–9, 58–60, 62–3 data collection 14, 186–210 digitalized public spaces, exposure and concealment in 144–8 drones 12, 95–6, 148, 152, 181–2 facial coverings in France, ban on 165, 172–4, 181–3 human geography 8 identity 182 Internet of Things 165, 181 lateral surveillance 146 masking/face coverings 48–9, 55–6 paranoia and paralysis 87 politico-economic perspective 92, 108, 110–11 pollution, surveillance as 14, 184 privacy doctrine, inadequacies of 192–4 Privacy Impact Notices (PINs) in United States 14, 184–210 private law remedies 193 public law remedies 193 public roads 140–41 resistance 12, 48–9, 52, 55–6, 61–3, 182–3 securitization of public space 35–6 semi-public spaces 9 smart cities 55–6 smart homes 165 smart phones 11, 188, 194, 271–3 tortious, making surveillance 193 United States anti-mask law in 175–6, 182–3 Privacy Impact Notices (PINs) 14, 184–210 WiFi 2, 11, 139–40, 143, 147–51, 161, 282 see also CCTV; facial recognition software Swire, Peter 201 Switzerland, local bans on facial coverings in 166 Synopticon 133

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tax evasion 149 technology-based management in public space 271–4 telephones see smart phones temperature to diseases or nervousness, linking body 11 terrorism 166, 172, 206, 281 therapy culture 132 thermal imaging devices 233 thought, conscience and religion, freedom of 167–9 Tobler, Waldo R 25–6 tortious, making surveillance 193 traces of DNA see out-of-body DNA tragedy of the commons 187–8 traffic lights 274 train stations 9 transparency 13–14, 79, 150, 186, 206 trip movements in cities 26 Trump, Donald 143 Tuan, Yi-Fu 23–4, 41 Tuskegee Syphilis Study 228 Twitter 95, 146, 279 ubiquitous cities (U-cities) 148 ubiquitous traceability 277–8 Underground:Tales of Hacking, Madness and Obsession on the Electronic Frontier. Unicomp (pervasive computing) 145 uniform masks 51 United Kingdom CCTV 182 common law 174 expectations 152 FaceWatch system 182 facial recognition schemes 182 London, traffic congestion in 250 Metropolitan Police 182 Notting Hill Carnival 182 tracking mobile WiFi in and around shops without consent 140, 143 United States American football injuries 248 anonymity 175, 177, 178–83 anonymous speech 179–80 anti-surveillance protests 182–3

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California 177–8 categories of law 176–7 civil rights, depriving others of 177 crime, intent to commit or commission of a 177 culture 179 current and future technological developments 165 data protection 14–15 defamation 180 Europe, anti-mask laws in 176 expansionism 179 fear of harm 178 First Amendment 165, 177–80, 182 Fourth Amendments 182–3 freedom of expression 165, 177–82 identity 12, 175–6, 178, 182–3 innovation 14–15 Ku Klux Klan (KKK) 176, 178–9 legal basis for challenging laws 165 legal realism 179 Muslim women wearing niqabs 177 political protests 12, 175, 177, 182–3 political speech 179–80 privacy protests 182–3 protective state 109 public safety 178, 180 religious freedom 165, 179–80 Republican Convention 146 right to privacy 181 social control 175 state, role of the 179–80 surveillance 175–6, 182–3 Tennessee 177–8 terrorism 206 tracking mobile WiFi in and around shops without consent 140, 143 United States, anti-mask law in 165, 179–80 see also Privacy Impact Notices (PINs) in United States; United States, anti-mask law in United States, anti-mask law in 175–83 bugging devices 229–30 criminal law 153, 229–30 DNA tracing 12–13, 211–41

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expectations 152 facial coverings in France, ban on 164–5, 175–83 Federal Trade Commission (FTC) 243–4 First Amendment 159 Fourth Amendment (US Constitution) bugging devices 229–30 DNA tracing 211–13, 217, 225, 229–41 property rights 229–30 Internet of Things 14, 243–4, 267–8 legal aid 106 nudity 159 property rights 229–30 security 243–4 social significance and functionalities of concealment 158–9 terrorism 281 Thirteenth Amendment 226 Tuskegee Syphilis Study 228 video voyeurs 153 Willowbrook State School controversy 228 unmanned aerial vehicles (UAVs) 12, 95–6, 148, 152, 181–2 urban geography 8, 286, 289 urban justice 25 Uretsky, Blake 247–8 USA Today 222 utilitarianism 76–7 V for Vendetta. Moore, Alan 51 van der Ploeg, Irma 55 Van Dijck, J 221 Varela, FG 85 Varian, Hal 261 video recordings 101, 102–103 video voyeurs 153 Virilio, Paul 5–6, 114, 133–5 voice recognition 237–8 voyeurism 121 vulnerabilities, dynamic 73–83 Walker, Joe 130–31, 136

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Warren, Earl 3, 10, 65–6, 75 wearables 1, 147, 247–9 welfare payments 107 Whirlpool 243 Whitman, JQ 179 Whyte, WH 36 WiFi Broadband Convergence Network (BcN) or Wireless Broadband (WiBro) 148 digitalized public spaces, exposure and concealment in 145, 146–7, 150–51 Internet of Things 146–7 smart phones, tracking 11 surveillance 2, 11, 139–40, 143, 147–51, 161, 282 tracking mobile WiFi in and around shops without consent 139–41, 143

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Wilde, Oscar 52 Wilkinson, Norman 58–9 Willowbrook State School controversy 228 Wilson, R Ashby 26 wine collection management, lighting for 242–3 Wittgenstein, Ludwig 66 xPatch 248 YouTube 5, 112, 124–31 Zapatista movement, use of pasamontaña by 48, 51–2, 57, 62 Zedner, L 37 zero-tolerance policing 8, 36 zoning 200–201

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