It’s been a pleasure to blog this week.  I hope you’ve enjoyed this conversation and I’d love to continue it.  If you’re interested in reading more, check out our book, Wild West 2.0.  It is the most-discussed Internet policy book of 2010 (Jimmy Wales called it “an invaluable guide” to the “brave new world of the Internet”) and it sold out Amazon.com once already.  Or, contact me directly through my site at davidcthompson.com.  Thanks again to Eugene and the whole Volokh Conspiracy for inviting me to participate this week.

This week, we’ve discussed the “Wild West 2.0” metaphor for the Internet.  Today, I’m going to present a few quick ideas that didn’t make it into this week’s posts.   I don’t have enough space to flesh them all out, but I hope to provoke some thoughts and discussions that will continue beyond this week.

What will widespread surveillance and facial recognition do to privacy? 

It’s always been the law in the U.S. that images you take in public are yours to use non-commercially.  There are a few exceptions around security, peeping Toms, and so-called “upskirt” photography, but basically you can take a photo from any public place and make any non-commercial use of it.

There are good reasons for this policy, ranging from a basic respect for the free press and free expression, to the First Amendment.

But, today, facial recognition is quickly becoming available on a wide scale.  For just one example, an application called Face.com allows Facebook users to use photo recognition to find their friends in photos (even if they have not been tagged, or if they have removed their tag).  Using the tool, it’s often possible to find hundreds of untagged photos of your friends (or yourself) posted by other people.

The Face.com developers just released an API (programming interface) to allow other websites to use the same technology.  So far, Face.com has restricted use of the technology to known faces, but nothing technological prevents them from using their database of hundreds of millions of Facebook photos to identify millions of people in public photos.

The results of just one company unleashing photo recognition on the Internet could be huge.  There are more than 3 billion photos on the site Flickr.com  , and billions more in the unstructured Web, on sites like Facebook, and in automated surveillance systems (every time you walk past a security camera, imagine your name being logged).

The figures above don’t even count the fact that some forms of advocacy corporate surveillance would increase in a world with easy facial recognition.  Why would anti-abortion groups not photograph every person who walks into an abortion clinic, use facial recognition to identify them, and use public name-and-address databases (see below) to target mailings (or harassment) to each person’s home?  Why would anti-gay advocates not do the same for people who frequent gay bars, or liberals target “Tea Party” activists, or statists target libertarians, etc?  Or insurance companies outside bars to monitor drinking and driving, smoking, or any other risk factor that could increase rates?

What does this mean for privacy?   If the freedom to take and post photos cannot or should not be changed, should there be regulation of the uses of facial recognition software?  Should it be a privacy tort to publicly identify private citizens by name if they are walking into an abortion clinic, a gay bar, a Tea Party rally, a divorce lawyer’s office, a police station (to “snitch”), or a substance abuse treatment facility?  What does it mean when Google indexes a list of these names and it comes up first for a search for your name?  How will it affect job prospects, inter-personal relations, and more?

Will we all just get over it and not care that our friends are getting abortions or divorces?  Will anti-gay groups get over the fact that some people visit gay bars?  Will political opponents stop harassing each other?   I hope so, but my hopes are dim.

The end result might be that we all wear low-fitting baseball caps each day, or the aptly-named “FlickrBlockrs” sunglasses that started as an art project but might fill a real need.   But should individuals have to proactively monitor their public image so fiercely?  (Read more about our ideas for privacy in the book, Wild West 2.0.)

Will the future allow a binary public/private distinction?

Right now, the law generally recognizes facts as “public” or “private” with very little gray area in between.  This has caused problems in the Fourth Amendment context, where seemingly-private facts (like your bank account information) are not considered “private” for Fourth Amendment purposes (thanks to the “third party doctrine,” the government simply ask your bank; many scholars find this doctrine problematic).

The Internet sharpened this problem by making “public-but-obscure” facts readily available online.  Privacy interests were often supported by practical obscurity; a court may have a list of all cases and convictions, but very few people bothered to trudge to the courthouse to find out.  The county clerk’s office may have a hardcopy list of home owners and their property values, but nobody actually checks.

But online, these records are being rapidly digitized and made searchable.  And because they are all “public” information for privacy purposes, there is currently no restriction on how the information can be displayed.  So far, no case of which I am aware has held that online “white pages” or “dossier” sites (like Spokeo.com, WhitePages.com, Intelius.com, and many others) cannot create a dossier of private-seeming information like your income, hobbies, credit score, home address, phone number, political contributions, and more—just so long as each data point was drawn from a “public” source.

The result of the end of practical obscurity has turned a lot of privacy upside-down.  Criminals now routinely use public records databases for identity theft purposes (itself illegal, but hard to catch), to stalk their victims at home (same), and to identify candidates for burglary or other attacks.  Millions of people (below) now casually flip through their neighbors’ dirty laundry online, ranging from bankruptcy filings to property records to divorce records.  Maybe this information has always been “public,” but it was never so readily available.

Will the law continue to recognize only “public” and “private” information?  Or will it develop shades of gray to recognize that obscurity can protect privacy while allowing “legitimate” uses.  Scholars have discussed ways to limit data like property records to their original purpose (making sure property taxes are apportioned fairly) by encouraging states to strip names from the data before publication; of course, this works only if there are no other records that correlate names to addresses.  Will that be enough?  Or is it a good thing that all these facts are public?

Does the Law Recognize the 300 Million Little Brothers Problem?

The section above should suggest it, but her it is expressly: we no longer live in a nation of Big Brother; we live in a nation of 300 million Little Brothers.

Much of our law is based around fear of surveillance by the government (Big Brother).  The Fourth Amendment is the easiest example; it is based around a fear of an overly intrusive government acting in its role as sovereign.  Statutory law like the Electronic Communications Privacy Act also seeks to protect individual privacy against the government.  And laws like the Stored Communications Act and HIPPA prohibit corporations from revealing certain information about you.

But now an equally real risk is 300 million Little Brothers.  We’ve moved from the Panopticon—where the guards can see everything—to a suburb of glass houses where everyone can see each other.  This is a powerful development for politics (we can now watch the watchers), but it has changed inter-personal privacy as well.  What laws (if any) should be updated to reflect this new reality?  Or should we all just get used to living in public–to quote Google CEO Eric Schmidt If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”  The power of the Internet is increasingly moving toward making sure that everybody knows what everybody does.  Is this the right direction?

David Thompson is co-author of the leading Internet policy book of 2010, Wild West 2.0 (Amazon) and general counsel of ReputationDefender, Inc.. The standard disclaimer applies: the views represented here are his alone and not those of any current or former employer.

Categories: Anonymity, Cyberspace Law, Internet, Privacy    

    58 Comments

    1. Rotunda says:

      Back in the 1990’s after the Lexis P-Track debacle, I was on several privacy panels at the FTC and DOC, and I wrote several times that we have much more to fear from big business rather than big brother. Private databases would be much bigger threats, and the government would be able to skirt the Privacy Act and any other legal limits on government data collection, by simply accessing third-party commercial databases. Third parties would be able to completely skirt US law by locating outside the country, since electronic access to their customers can be provided from anywhere.

      It has all come to pass.  (Quote)

    2. Kamal says:

      Will we all just get over it and not care that our friends are getting abortions or divorces? Will anti-gay groups get over the fact that some people visit gay bars? Will political opponents stop harassing each other? I hope so, but my hopes are dim.

      Honestly, this is the only solution. Information can’t be repressed anymore, it can only be made slightly more difficult to obtain. Censorship isn’t just difficult now, it’s literally impossible.

      I am far more optimistic than you are regarding people’s capacity to be tolerant. Intolerance comes from those who are isolated in their interactions. If you look at kids growing up today who use the internet as a daily interface to the world you will notice a startling difference between what they find acceptable and what the average person their age 20 years ago did. The internet is not creating new challenges to privacy — it’s dealing with the root cause that make privacy such a large concern (people’s fear of other’s intolerance to the truth).  (Quote)

    3. Chris Travers says:

      ...we no longer live in a nation of Big Brother; we live in a nation of 300 million Little Brothers.

      I don’t think this is either/or. Indeed anything the Little Brothers can do, the Big Brother can use to track people. These have the potential to build on eachother in very nasty ways to create a true surveillance state.

      For example, suppose the government writes some software to crawl Flickr and other sites, isolate faces, and run them through software licensed by Face.com. Add traffic light cams if you want....

      I think to save our nation from this sort of government surveillance we are going to have to do something. I personally think it’s going to require strengthening 4th Amendment jurisprudence and passing laws to prevent citizens from compromising privacy in unwelcome ways even in public places. How to square these with the first amendment is a difficult question.  (Quote)

    4. Kamal says:

      Chris Travers: I think to save our nation from this sort of government surveillance we are going to have to do something. I personally think it’s going to require strengthening 4th Amendment jurisprudence and passing laws to prevent citizens from compromising privacy in unwelcome ways even in public places. How to square these with the first amendment is a difficult question. 

      This is a bad move. It’s reflexive to think that increased knowledge and truth will cause more harm than good but this isn’t supported by experience. It’s going to create a more open and tolerant society.  (Quote)

    5. EvilDave says:

      Kamal: Censorship isn’t just difficult now, it’s literally impossible. 

      The MSM does a wonderful job of mis-information, hiding the ball (“gatekeeping”), and telling quarter-truths.
      Now you don’t wholly suppress information, you mix it with innuendo or outright lies, or simply report only a portion of the information to fit your agenda.  (Quote)

    6. EvilDave says:

      Kamal: It’s going to create a more open and tolerant society. 

      [sarcasm] Right. [/sarcasm]  (Quote)

    7. Kamal says:

      EvilDave: The MSM does a wonderful job of mis-information, hiding the ball (“gatekeeping”), and telling quarter-truths.
      Now you don’t wholly suppress information, you mix it with innuendo or outright lies, or simply report only a portion of the information to fit your agenda. 

      By MSM you mean the media, right? They are becoming far less relevant with these technologies.  (Quote)

    8. Kamal says:

      EvilDave: [sarcasm] Right. [/sarcasm] 

      Do you believe that if most homosexuals remained in the closet that society would accept them as much as they do now? Do you not think that shining a spotlight on it and bringing it into the public helps it gain acceptance?  (Quote)

    9. Chris Travers says:

      Kamal: This is a bad move. It’s reflexive to think that increased knowledge and truth will cause more harm than good but this isn’t supported by experience. It’s going to create a more open and tolerant society. 

      And a society where the government can track your every move, who you meet with, who you associate with, etc. I think you place way too much emphasis on good intentions of government.

      I’m less worried about the social impacts than the possibilities for government actions, such as determining who to place on no-fly lists and the like. It may allow government officials with a bit of digging to find enough on political opponents to brand them terrorism suspects or the like.  (Quote)

    10. Kamal says:

      Chris Travers: And a society where the government can track your every move, who you meet with, who you associate with, etc. I think you place way too much emphasis on good intentions of government.
      I’m less worried about the social impacts than the possibilities for government actions, such as determining who to place on no-fly lists and the like. It may allow government officials with a bit of digging to find enough on political opponents to brand them terrorism suspects or the like. 

      I just have more faith in democracy than you. I think that as we start breaking down barriers between cultures (and the internet is a great tool for this) problems such as ‘determining who to place on no-fly lists’ become more rational and less ‘gut’ based. For example, using information as opposed to ‘gut feeling’, we may see that many acts of terrorism come from conservatives who believe they are loosing their country and not just Islamic extremists. 

      We may even start looking at the dangers of terrorism in a rational way, comparing it to other causes of death and suffering. Without democratic access to this information we rely on representatives to feed us the truth; a task they continuously fail to do.

      Are there risks? Of course. Many bad things will happen as a result of this, but it’s inevitable, and if we allow the information to become public as opposed to remaining in a few powerful hands, we stand a better chance of remaining free and informed.  (Quote)

    11. EvilDave says:

      Kamal:
      Do you believe that if most homosexuals remained in the closet that society would accept them as much as they do now? Do you not think that shining a spotlight on it and bringing it into the public helps it gain acceptance?

      I went to a law school where people got their cars keyed for expressing the wrong opinion in class.
      Do you think that the attempts to publicize the signs of ballot petitions is done to “help tolerance” or done for purposes of intimidation?
      I know people that have lost jobs and been hammered in annual reviews because they voted for the wrong person.
      How about the people that have lost jobs or job offers because they (or someone else) posted things about their nighttime activities on Facebook?
      Is smoking more acceptable now? We know more about it don’t we?
      Has close contact with Western modernity made Muslims more tolerant? Or are we seeing a radicalization of many Muslims, especially those who are children of immigrants to Europe?
      .
      .
      I know you want to play your “moral authority” trump card with the homosexual comment, but it isn’t true.
      Everyone always “knew” about homosexuality. There are plenty of 19th and early-20th homosexuals both in literature and in real life. Hell, it is because of the Ancient Greeks that homosexuality and pedophilia used to be joined at the hip.
      It just wasn’t accepted. What made it accepted were marches (Stonewall), anti-discrimination laws, and then (The Left’s least favorite friend) corporations and their mandatory diversity classes.
      Even then homosexually would not have been very accepted had it not been for AIDS, or what used to be called Gay Related Immune Deficiency (GRID). Then there was a massive health-related push to turn AIDS from a “gay plague” to something “normal”.
      So, more information, didn’t lead to homosexually becoming tolerated. In fact, studies have been done that show that once people know too much about the intimate sexual practices of homosexuals, tolerance goes down. This is truly one case where ignorance is bliss.
      .
      .
      .
      We live in a very Puritanical time, for everything (oddly enough) except sex. We also live in a very partisan time.  (Quote)

    12. Seattle Law Student says:

      I have two concerns about this technology. 

      The first is that combination between photo databases such as flickr.com, traffic cameras, and the ubiquitous surveillance cameras (both public and private) and face and license plate recognition software is that people’s movements and purchases can be tracked by anyone who cares to find out what you’ve been up to. With data storage costing virtually nothing people can be tracked through time. What if that becomes discoverable during a dissolution proceeding, or to disallow your insurance? Alarming.

      Second, and in my opinion worse, is that the only politicians we’ll have in the future are the people who decided when they were 12 that they wanted to be senators. Given how willing people on both the left and right are to dig up dirt on their opponents, this sort of information will make finding a damning image or video virtually certain for anyone who hasn’t carefully guarded their image since adolescence. I thought GWB was an epic tool, and if I could have found footage of his drunk driving stop, him throwing up outside a bar, or better yet him doing blow — I would have made sure that every media outlet had it about .4 seconds later. You can bet there are conservatives out there (or reading here) who would have done the same with similar information about Clinton or Obama. 

      We will become governed by people who never lived for fear of being seen doing it. Government by teetotalers, the churchlady, and right living vegans terrifies me. I want politicians I can relate to — people who have lived lives worth living. I’m not saying I want president Larry Flynt, but I sure as heck don’t want the opposite extreme either.  (Quote)

    13. Chris Travers says:

      Kamal: I just have more faith in democracy than you. I think that as we start breaking down barriers between cultures (and the internet is a great tool for this) problems such as ‘determining who to place on no-fly lists’ become more rational and less ‘gut’ based. For example, using information as opposed to ‘gut feeling’, we may see that many acts of terrorism come from conservatives who believe they are loosing their country and not just Islamic extremists. 

      Whereas I, on the other hand, assume that any power that can be abused will eventually be. If we wanted to live in a real democracy, we’d lament the fact that Yates v. United States, Stevens v. United States, and Brandenburg v. Ohio came out the way they did. After all our democratically elected institutions had possibly valid reasons to crack down on the Communist Party, the KKK, and portrayals of animal cruelty.

      Today the challenge is preserving civil liberties in the struggle against international terrorist organizations. Do you REALLY want to provide the government tools ripe for abuse when the next crisis hits? You’re faith is entirely at odds with history here.

      But we don’t generally want to see this happen. Most of us do NOT want to live in a society where democracy means that the majority can oppress the minority. This fundamentally means limiting democracy to prevent that.  (Quote)

    14. Kamal says:

      EvilDave: Even then homosexually would not have been very accepted had it not been for AIDS 

      Um, what? No.

      EvilDave: I went to a law school where people got their cars keyed for expressing the wrong opinion in class. 

      Which explains a lot of your comments..

      EvilDave: Has close contact with Western modernity made Muslims more tolerant? 

      Being a westerner who visited Lebanon, yes — they have become quite tolerant and ‘western’. This might not fit in your obviously Judeo-Christian world-view (this ‘question’ gave it away, in case your wondering) but it is true irregardless.

      EvilDave: There are plenty of 19th and early-20th homosexuals both in literature and in real life. Hell, it is because of the Ancient Greeks that homosexuality and pedophilia used to be joined at the hip. 

      homosexuality and pedophilia were never ‘joined at the hip’, that’s a blatantly stupid remark. You think that in ancient Greece older men only had sex with young boys and not young girls? Your characterization of homosexuality is vile and wrong.

      EvilDave: , more information, didn’t lead to homosexually becoming tolerated 

      Correction: Inaccurate information — claims such as yours that homosexuality is somehow linked with pedophilia — lead to it being viewed as something wrong and unnatural. Once lies such as this were dispelled — when accurate information became available — it became accepted.

      EvilDave: In fact, studies have been done that show that once people know too much about the intimate sexual practices of homosexuals, tolerance goes down. This is truly one case where ignorance is bliss. 

      There is so much wrong with that, I don’t know where to begin.  (Quote)

    15. Kamal says:

      Chris Travers: Whereas I, on the other hand, assume that any power that can be abused will eventually be. 

      I don’t disagree with this. That’s why I believe that information, which is a very portent form of power, should be democratized and available to everyone. I am against Patents and IP Laws for this reason. 

      Chris Travers: Today the challenge is preserving civil liberties in the struggle against international terrorist organizations. Do you REALLY want to provide the government tools ripe for abuse when the next crisis hits? You’re faith is entirely at odds with history here. 

      Chris, here i strongly disagree. There is a greater threat to civil liberties from the fear of terrorism than from terrorist organizations. We need to stop being so eager to compromise our values out of fear. 

      These tools you are afraid of the government using would exist regardless of their public availability. Having them publicly accessible means you are able to verify what they claim, helping to prevent abuse. That is why laws against recording in public without consent, including police officers (which exist in some states) is very dangerous. 

      Chris Travers: Most of us do NOT want to live in a society where democracy means that the majority can oppress the minority. This fundamentally means limiting democracy to prevent that. 

      Though I don’t want that either, may I ask you why is it better to have the minority oppressing the majority?  (Quote)

    16. Chris Travers says:

      Kamal: Being a westerner who visited Lebanon, yes — they have become quite tolerant and ‘western’. This might not fit in your obviously Judeo-Christian world-view (this ‘question’ gave it away, in case your wondering) but it is true irregardless. 

      As always, it’s a bit more complicated than a simple yes/no answer (as I write this I am in Indonesia at the moment). On one hand, the United States has a great deal of international prestige and so there is a general trend towards wanting to be like the USA. Lebanon may be somewhat different than Indonesia. I don’t know. I haven’t been there.

      However, there’s also an undercurrent of Salafist thought which is down-right anarchist, believing that the only just society is one of essentially Islamist anarchy. So I think that there’s a more complex interaction here than most people want to admit.

      I’d also point out that the government of Iran is structured with eventual roots as being in Western society instead of Middle Eastern models (Islamic reinterpretations of Plato’s Republic). So westernization is nothing new.

      I will say that when I am in Indonesia, I avoid going to the embassy unless it’s absolutely required for some reason (I also don’t go out to night-clubs or stay in Western-owned hotels often). I’m not afraid of terrorists but why make oneself a larger target than necessary?  (Quote)

    17. Chris Travers says:

      Kamal: Chris, here i strongly disagree. There is a greater threat to civil liberties from the fear of terrorism than from terrorist organizations. We need to stop being so eager to compromise our values out of fear. 

      I don’t disagree with this, but how do you propose to fix that problem? It seems that damage containment (preventing the government from causing problems when crises occur) has to be a part of the strategy.

      The public has always been fairly easy to scare and tend to act from a sense of insecurity.

      Kamal: These tools you are afraid of the government using would exist regardless of their public availability. Having them publicly accessible means you are able to verify what they claim, helping to prevent abuse. That is why laws against recording in public without consent, including police officers (which exist in some states) is very dangerous. 

      The tools are only as good as the data that can be used. Furthermore if there are laws preventing private citizens from doing certain kinds of things, it becomes easier to argue that there is a reasonable expectation of privacy from the government which can affect search procedures.

      I don’t disagree with you about recording laws also. However, if there was a law stating that such recordings MUST be kept private unless part of legal action, that would alleviate a lot of the problems. That’s more the sort of thing I am suggesting.

      Kamal: Though I don’t want that either, may I ask you why is it better to have the minority oppressing the majority? 

      A lot of that can be dealt with in addressing the structure of appropriate legislation. To some extent it depends on what you mean by oppress, though. I certainly wouldn’t suggest that Brandenburg v. Ohio lead to the KKK oppressing everyone else.

      But a second option would be to pass a Constitutional amendment banning any and all forms of dragnet surveillance (including law-enforcement-based and national-security-based data mining) by any government entity, forcing law enforcement and national-security-types to do record-by-record review in investigations. This would keep information available while curbing government abuse but it doesn’t have any chance of happening.

      How would you propose to keep government from being able to go fishing for technical criminal violations by disliked individuals in your world where there is essentially no more privacy?  (Quote)

    18. Kamal says:

      Chris Travers: How would you propose to keep government from being able to go fishing for technical criminal violations by disliked individuals in your world where there is essentially no more privacy? 

      My hope is that with increased visibility into the imperfection’s in all our lives that people will be become more tolerant of the mistakes and differences of others. The desire for privacy reflects an internal feeling of shame for one’s actions. Be honest, this is where the desire for privacy comes from. Shame and fear. That is something I think we need to address. 

      But to your question, I don’t think there is a way to restrict this. I do hope that the frightening truth forces us to be more liberal in what we find acceptable in one another’s non-violent actions.  (Quote)

    19. David Schwartz says:

      The government’s ability to enforce bad laws is going to increase with technology until and unless we entertain ideas like a bureau of sabotage. We’re going to have to make the laws better or we’ll all suffer.

      The only strategy that’s an obvious non-starter is trying to limit what individuals and private entities can do to limit what the government can do. That’s like stabbing yourself in the gut so that someone else can’t stab you in the eye.  (Quote)

    20. fraktil says:

      Interesting article. I’m a bit worried we won’t stop valuing our privacy until it’s too late...

      FYI: It’s HIPAA (Health Insurance Portability and Accountability Act), not HIPPA.  (Quote)

    21. EvilDave says:

      Kamal: it is because of the Ancient Greeks that homosexuality and pedophilia used to be joined at the hip.  

      I misspoke or miss-typed.
      I should have said and meant “... that caused people to believe and think of homosexuality ...”
      I am aware that the Venn diagram of the two practices does not involve them totally or even substantially overlapping. The two practices are not correlated, or at least not correlated in such a way that homosexuality implies pedophilia.
      .
      And, less you have the wrong impression, I don’t really care about others sexuality. In fact, I don’t care about SSM, as long as it comes about via the legislature.
      You brought sexuality up as an example. An example, I find faulty.
      More information does not automatically cause tolerance.  (Quote)

    22. EvilDave says:

      Kamal: Being a westerner who visited Lebanon 

      It is nice that you have holidays, but the truth is children of Muslim immigrants to Europe are more radicalized than their parents.
      As people who have lived their whole lives in Europe, they are more informed about the West than their immigrant parents. They ain’t more tolerant.  (Quote)

    23. EvilDave says:

      Kamal: Which explains a lot of your comments.. 

      Yes, I learned a lot about the tolerance of The Left there.  (Quote)

    24. Chris Travers says:

      Kamal: The desire for privacy reflects an internal feeling of shame for one’s actions. Be honest, this is where the desire for privacy comes from. Shame and fear. That is something I think we need to address. 

      So, you are against privacy?  (Quote)

    25. saranyafa says:

      That’s a great collection!
      Thank you, we had a lot of fun to browse through all the links although there are a couple which don’t work anymore!!!

      Cheap Wholesale T-shirts   (Quote)

    26. David Schwartz says:

      Chris Travers: So, you are against privacy?

      I think his point is more that privacy is over-valued and that we’d do better to work on a world where we don’t need so much privacy rather than a world where we have more privacy. For example, one of the main reasons we need privacy is because of over-criminalization. Better laws would mean less need for privacy. Less need for privacy would mean less reason to sacrifice other values (such as freedom) for privacy.  (Quote)

    27. Lou Gots says:

      The concept of “public but obscure” information being private and priviliged may be an outgrowth of the pseudo-legal catch-phrase, “reasonable expectation of privacy.” Once used to illustrate the development of Fourth Amendmant law beyond its technologically obsolete identification with physical property, the words took on a life of their own, to the extent that some of us now think our public acts and public records are “private” just because we don’t know how to look these things up, and we “reasonably expect” that others are similarly unequipped.  (Quote)

    28. Adam B. says:

      I’m terribly disappointed in the Guest Poster’s lack of engagement with comments; this hasn’t been a “conversation” in the slightest. Still waiting for the answer to a rather basic question on his efforts to gut Section 230 protections:

      Suppose I’m the lawyer for a major political website which generates tens of thousands of user comments daily. When do I have “knowledge of liability-creating content,” (what is knowledge? what is liability-creating?) and what ability do I have to remove the content before liability attaches?

        (Quote)

    29. Chris Travers says:

      David Schwartz: I think his point is more that privacy is over-valued and that we’d do better to work on a world where we don’t need so much privacy rather than a world where we have more privacy. For example, one of the main reasons we need privacy is because of over-criminalization. Better laws would mean less need for privacy. Less need for privacy would mean less reason to sacrifice other values (such as freedom) for privacy. 

      I guess my concern with that viewpoint is that we have the 4th Amendment in part to prevent fishing expeditions for criminal charges against individuals by the government. I.e. one thing it’s supposed to help prevent is a shift to “show me the man and I’ll find you the crime.”

      For us to do away with privacy means that we don’t just trust our government for now to be wise and limited but that we’d trust it to be forever wise and limited. I’m not willing to gamble with my grandchildren’s country to that extent.  (Quote)

    30. Duracomm says:

      Kamal said,

      My hope is that with increased visibility into the imperfection’s in all our lives that people will be become more tolerant of the mistakes and differences of others.

      If the naivete in that statement was any denser it would risk creating a black hole.
      Those of us in the reality based community realize you can hope in one hand and spit in another and there is no doubt which one will fill up first.

      The desire for privacy reflects an internal feeling of shame for one’s actions. Be honest, this is where the desire for privacy comes from. Shame and fear. That is something I think we need to address. 

      I guess that explains why you don’t have doors on your bathroom. 

      Your statement is a clever re phrasing of every police state thugs favorite saying “if you have done nothing wrong you have nothing to be worried about”  (Quote)

    31. Chris Travers says:

      Duracomm: I guess that explains why you don’t have doors on your bathroom. 

      Your statement is a clever re phrasing of every police state thugs favorite saying “if you have done nothing wrong you have nothing to be worried about” 

      And I missed an opportunity to ask him for his credit card number..... ;-)  (Quote)

    32. Duracomm says:

      Seattle Law Student has a good point that needs to be emphasized.

      The 24 hour surveillance state risks driving the development of a political class filled with sociopaths that decided at a young age obtaining a political position where they can wield power over others is more important than actually having a life.

      The small number of politicians with any real world experience will completely disappear.  (Quote)

    33. SuperSkeptic says:

      Maybe this information has always been “public,” but it was never so readily available.

      This seems to be the crux of your position. I’m not sure how/where this fits into the wild west analogy. It doesn’t move me stand-alone, nor does it when applied:

      should it be a privacy tort to publicly identify private citizens by name if they are walking into an abortion clinic, a gay bar, a Tea Party rally, a divorce lawyer’s office, a police station (to “snitch”), or a substance abuse treatment facility?

      You imply Yes; I still say No. If I see you go into an abortion clinic, I can recognize you or otherwise find out who you are, and tell people about it. No problem. But because that task is made easier by the internet, now you propose that I (or the host of the website that enables this) am to be liable? I see you go into a gay bar in life, I can tell people about it. Maybe they’ll infer you’re gay, maybe not. (I’ve been to gay bars, how many people think I’m gay? Who cares?). You argue: I search the internet to find out you were at a gay bar a month ago, say, and the web host and I should now be liable for invasion of your privacy when I tell people about it? I could go on, but...

      It all seems like such an unnecessary over-reaction to a non-problem that will do such tremendous damage to free speech and information.  (Quote)

    34. SuperSkeptic says:

      Duracomm: The small number of politicians with any real world experience will completely disappear. 

      Unless we simply start voting for people with real world lives and experience. SLS, like Mr. Thompson, makes a facially compelling point that breaks down in application.  (Quote)

    35. Chris Travers says:

      Duracomm: The 24 hour surveillance state risks driving the development of a political class filled with sociopaths that decided at a young age obtaining a political position where they can wield power over others is more important than actually having a life. 

      I a not entirely sure I agree with this. Obama, for example, admitted to using not just marijuana but also cocaine. However, because he disclosed this publicly in his books, it just wasn’t possible to attack him for it. Compare to the response to “I didn’t inhale.”  (Quote)

    36. David Schwartz says:

      Chris Travers: I guess my concern with that viewpoint is that we have the 4th Amendment in part to prevent fishing expeditions for criminal charges against individuals by the government. I.e. one thing it’s supposed to help prevent is a shift to “show me the man and I’ll find you the crime.”

      For us to do away with privacy means that we don’t just trust our government for now to be wise and limited but that we’d trust it to be forever wise and limited. I’m not willing to gamble with my grandchildren’s country to that extent.

      We needn’t trust it forever. Just as recent changes threaten privacy and require a response, so future changes that threaten freedom will require a response. We just have to keep moving in the right direction, which is maximizing freedom.

      In a trade-off between freedom and privacy, we should almost always prefer freedom. It’s simply much more valuable.  (Quote)

    37. Ken Arromdee says:

      Kamal: I think that as we start breaking down barriers between cultures (and the internet is a great tool for this) problems such as ‘determining who to place on no-fly lists’ become more rational and less ‘gut’ based. 

      The main problem with the no-fly list is bureaucracy–the no-fly list is prone to errors and there is no way to correct them, leaving people permanently screwed. Becoming more tolerant isn’t going to help with this–tolerance is relevant to intentions, not implementation.  (Quote)

    38. Robert B says:

      David Schwartz,

      We’ve needed a Bureau of Sabotage for a long time. It’d be an excellent Experiment :) and might actually be useful, aside from how cheap it would be to implement  (Quote)

    39. LarryA says:

      Why would anti-abortion groups not photograph every person who walks into an abortion clinic, use facial recognition to identify them, and use public name-and-address databases (see below) to target mailings (or harassment) to each person’s home? Why would anti-gay advocates not do the same for people who frequent gay bars, or liberals target “Tea Party” activists, or statists target libertarians, etc?

      In such situations I’d think publishing the photos and names on a website would be more effective than sending junkmail. However, the targets of these attacks could use the same tactics against their accusers. Spamming, harassment, and outing people aren’t going to be very popular activities in that environment. Flame not, lest ye be flamed.  (Quote)

    40. Elliot says:

      So, when does a software product come out that subtly changes an image so it won’t match in facial recognition? If I want to post a pic with identifying info, I just zap it so it is perfectly recognizable by humans, but won’t match a pic taken on the street.

      I’d suggest it is a mistake to think we won’t adapt to the new technology. A very simple example is the use of phoney names on sites like this. For all of you who think Elliot is a jerk, ever wonder if we are actually colleagues?  (Quote)

    41. Michael says:

      I’d just as soon Google had never photographed my yard or my house. For all the high blown rhetoric, I think this was more in Google’s pecuniary interest than anything else. To me it’s like file sharing music. If you want to see my yard, drive over. If I want to hear your concert, I should buy a ticket or a CD.  (Quote)

    42. Hidden in Plain Sight says:

      Kamal:
      Kamal said: ...The desire for privacy reflects an internal feeling of shame for one’s actions. Be honest, this is where the desire for privacy comes from. 

      Wow. How to respond to such an idiotic statement?

      Ever thought about the thousands upon thousands of people who have been threatened and live in fear of their identity/location being found? How about the 10s of thousands of kids who are need protection from abusive parents and other miscreants. 

      You really think it’s a great idea for anyone and everyone to put pictures online and tag people at will when facial-recognition tools exist that will enable anyone, anywhere to anonymously access data from billions of photos with only a few clicks? Forget about the government (well, not entirely), 300 million little brothers already exist.

      Your naivete of the real world is amazing in its depth.  (Quote)

    43. David Schwartz says:

      Hidden in Plain Sight: Ever thought about the thousands upon thousands of people who have been threatened and live in fear of their identity/location being found? How about the 10s of thousands of kids who are need protection from abusive parents and other miscreants.

      Compared to billions of people who want to exchange information freely, it’s a pretty small price to pay.  (Quote)

    44. Chris Travers says:

      David Schwartz:
      Compared to billions of people who want to exchange information freely, it’s a pretty small price to pay.

      I’m still concerned about an ability for “Show me the man and I’ll find you the crime” to develop here. Once privacy is a thing of the past, doesn’t it become possible for arbitrary mob rule through the organs of democracy? Like it or not the 300 million little brothers are a part of that mob.

      We shouldn’t forget the way that the Soviet Union punished dissidents using generally applicable laws. And if you say “end overcriminalization” I’m not sure how you even define that, much less do it.  (Quote)

    45. SC says:

      Kamal:
      .The desire for privacy reflects an internal feeling of shame for one’s actions.Be honest, this is where the desire for privacy comes from. Shame and fear. 

      It sounds like this is something you have to deal with. The desire for privacy comes from a need to balance individuality with sociability.  (Quote)

    46. Laura(southernxyl) says:

      My desire for privacy comes from my conviction that my business is my business.  (Quote)

    47. Seattle Law Student says:

      Chris travers said: I a not entirely sure I agree with this. Obama, for example, admitted to using not just marijuana but also cocaine. However, because he disclosed this publicly in his books, it just wasn’t possible to attack him for it. Compare to the response to “I didn’t inhale.”

      Everyone knows Ms. California had sex with her boyfriend: no scandal, but a video pops up and Big Effing Deal. Paris Hilton, Tommy lee/Pamela Anderson, and numerous others will tell you that there is a big difference between what everybody “knows” and what everybody has seen. Obama would have been unelectable if there were a photo of him lip-locked with a 3 foot bong floating around. 

      What is real and what is “real” are two very different things. Everybody knows he smokes cigarettes, a legal substance, but the only photos you’ll find of it are (poorly)doctored photos on conservative websites. His people know an image is infinitely worse than the ephemeral knowledge of his nicotine habit. So do conservatives. 

      Tobacco companies know that a photo of a diseased lung on a cigarette pack will hurt business far more significantly than block text. I think this is true across the board. We are extremely visual, and absent photo evidence, True things are less true.  (Quote)

    48. David Schwartz says:

      Chris Travers: I’m still concerned about an ability for “Show me the man and I’ll find you the crime” to develop here. Once privacy is a thing of the past, doesn’t it become possible for arbitrary mob rule through the organs of democracy? Like it or not the 300 million little brothers are a part of that mob.

      Think how hard government abuses will be to conceal in a “private surveillance state” where the government doesn’t have the power to limit the private use and exchange of information.

      I’m all for limiting government power, but trying to limit private power on the theory that individuals can assist the government is a suicidal recipe. It’s absurd on its face.  (Quote)

    49. Chris Travers says:

      David Schwartz: Think how hard government abuses will be to conceal in a “private surveillance state” where the government doesn’t have the power to limit the private use and exchange of information.

      I’m all for limiting government power, but trying to limit private power on the theory that individuals can assist the government is a suicidal recipe. It’s absurd on its face. 

      I could live with an extension of the 4th Amendment to cover data mining and dragnet public surveillance of otherwise public facts.

      And abuses against unpopular groups don’t even need to be entirely hidden as long as a law has in fact been violated, selective enforcement might be welcomed.  (Quote)

    50. ohwilleke says:

      A much similar lower tech system has been tested by the LAPD.

      A unit on a squad car constantly monitors licence plates encountered in traffic and compares them to stolen car and outstanding warrant lists.

      While writing down licence plates and comparing them to lists are both things ordinary people could do, taking down every license plate would take another officer in every car and comparing them in real time is something only a computer could do.

      Effectively, every person encountered undergoes a warrant check every time that person drives near a police car.  (Quote)

    51. VaLawGuy says:

      The danger is not limited to privacy concerns but extends to personal safety and security. Consider the dangers of widespread access to face recognition software and a large database of photos. For example, what if Google started tagging photos of people, perhaps including people tagged in Facebook, and then developed an enhanced Google Image search feature (“Google Face Search”) that allowed users to upload a photo to be auto-tagged? (Such as through Picasa Web.) Several harmful scenarios are easily imagined:
      * Burglar sees Person A coming out of Best Buy with a new large screen TV and takes a photo of the person. Later, Burglar uploads the photo to Google Face Search, which identifies Person A as Anthony Smith. He then does a search for Anthony Smith near the vicinity of the Best Buy and locates Mr. Smith’s address. He monitors Mr. Smith’s home and steals the TV when he’s away at work.
      * Stalker/Sexual Predator takes a photo of Person B in the mall. Later, Burglar goes home and uploads the photo to Google Face Search, which identifies Person B as Betty Smith. He then does a search for Betty Smith near the vicinity of the mall and locates Ms. Smith’s home and work addresses. He then proceeds to stalk and/or sexually assault Ms. Smith.

      It seems to me that we need a law prohibiting the unauthorized inclusion of persons in face recognition databases, at least publicly accessible databases.  (Quote)

    52. Duracomm says:

      One other point about Kamal’s statement,

      The desire for privacy reflects an internal feeling of shame for one’s actions. Be honest, this is where the desire for privacy comes from. Shame and fear. That is something I think we need to address. 

      College student “weekend partier” may not care about the fact that he barfed on his shoes at a party(aside from the bother of scrubbing the barf off of the shoes).

      However human resource manager B doing a web or image search for information on prospective hire college student “weekend partier” may be concerned enough to not offer him the job.

      Not being ashamed of something, not even being aware of it, or caring about it for that matter does not mean it might not have an impact. 

      That is a privacy benefit you and others who scoff at privacy appear to be completely oblivious to.  (Quote)

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