|FROM ||Ruben Safir
|SUBJECT ||Re: [Hangout - NYLXS] rebeling against Digital Survalence
By Woodrow Hartzog and Evan Selinger
Dr. Hartzog is a professor of law and computer science. Dr. Selinger is
a professor of philosophy.
April 17, 2019
We are constantly exposed in public. Yet most of our actions will fade
into obscurity. Do you, for example, remember the faces of strangers who
stood in line with you the last time you bought medicine at a drugstore?
Probably not. Thanks to limited memory and norms against staring, they
probably don’t remember yours either.
This is what it means to be obscure. And our failure to collectively
value this idea shows where we’ve gone wrong in the debates over data
Lawmakers and industry leaders are missing the big picture. They are
stuck on traditional concepts like “transparency,” “consent” and
“secrecy,” which leads to proposals that reinforce broken mechanisms
like consenting to unreadable terms of service. They are operating under
the dangerous illusion that there’s a clear distinction between what’s
public and what’s private. Most people probably intuitively know that
their most deeply held secrets are private while the things about them
that are commonly known or widely broadcast are not. But what about
information about our everyday actions that is shared with some but not all?
Obscurity bridges this privacy gap with the idea that the parts of our
lives that are hard or unlikely to be found or understood are relatively
safe. It is a combination of the privacy you have in public and the
privacy you have in groups. Obscurity is a barrier that can shield you
from government, corporate and social snoops. And until lawmakers,
corporate leaders and citizens embrace obscurity and move to protect it,
your freedom and opportunities to flourish will be in jeopardy.
The concept was first meaningfully articulated in a landmark 1989
Supreme Court decision, Department of Justice v. Reporters Committee for
Freedom of the Press, which recognized a privacy interest in the
“practical obscurity” of information that was technically available to
the public but could be found only by spending an unrealistic amount of
time and effort. After the concept was introduced, most lawmakers,
judges and the tech industry promptly forgot about it. This has dulled
the potential of obscurity as a rallying point for change and leaves
society struggling to protect something in dire need of defining and
Understanding obscurity means paying attention to how space, time and
people’s cognitive limitations make it difficult for others to surveil
us or find out things about us.
Consider space. The further away people are, the harder it is to see
with the naked eye who they are and where they’re going. Usually, we are
visible only to those nearby. But cellphone location data can reveal
that same highly personal information to anyone with means and
motivation. We should be disturbed that apps often collect location data
simply because they can and that T-Mobile, Sprint and AT&T reportedly
have illegally sold customers’ 911 location data to third parties. And
we should be pleased that the Supreme Court ruled last year in Carpenter
vs. United States that, under the Fourth Amendment, cellphone records
can’t be seized without a warrant.
The Company That Sells Love to America Had a Dark Secret
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With the Birth of My Son, I Stopped Hiding
Consider time. Memories fade as time passes. But the internet has
impeccable recall. That’s why we should applaud the senators who have
proposed a bipartisan update to the Children’s Online Privacy Protection
Act that would give parents and children an “eraser button” to remove a
child’s data from platforms like Google and Facebook.
It’s also why we should be skeptical of Mark Zuckerberg’s announcement
that Facebook will become a more “privacy-focused platform” that
emphasizes features like ephemeral, expiring information. Truly
ephemeral communications are certainly obscure, but it’s unclear what
information Facebook will scrub on the front end (for users) and the
back end (from the company). The company’s history suggests we shouldn’t
let our guard down.
Obscurity is also a better way to understand Europe’s “right to be
forgotten” law, which can’t make anyone forget anything, but can make
the remnants of your awkward youth harder to find online.
Finally, consider cognitive limitations. Facial recognition technology
poses an immense danger to society because it can be used to overcome
biological constraints on how many individuals anyone can recognize in
real time. If its use continues to grow and the right regulations aren’t
instituted, we might lose the ability to go out in public without being
recognized by the police, our neighbors and corporations.
Creating strong regulations for the technology is going to be an uphill
battle, especially because it’s already become widespread, being
deployed at airports to make boarding easier and adopted by schools to
increase safety. It is even being used at summer camps so parents can
automatically receive photos in which their children appear.
Threats to our obscurity are growing because technology is making our
personal information easy and cheap to aggregate, archive and interpret
— with substantial growth in predictive analytics, too. To see what we
mean, just look yourself up on the website MyLife and marvel at how much
information has been cobbled together from different moments in your
life for anyone to see at the click of a button. Even speaking in hushed
tones to a friend at a crowded cafe might not be enough to protect your
obscurity if cameras are someday equipped with lip-reading artificial
Obscurity is vital to our well-being for several reasons. It gives us
breathing room to go about our daily routines with little fear of being
judged, sent unwanted ads, gossiped about or needlessly shamed.
[As technology advances, will it continue to blur the lines between
public and private? Sign up for Charlie Warzel’s limited-run newsletter
to explore what’s at stake and what you can do about it.]
Sign Up for The Privacy Project Newsletter
As technology advances, will it continue to blur the lines between
public and private? Explore what's at stake and what you can do about it.
Obscurity makes meaningful and intimate relationships possible, ones
that offer solidarity, loyalty and love. It allows us to choose with
whom we want to share different kinds of information. It protects us
from having everyone know the different roles we play in the different
parts of our lives. We need to be able to play one role with our
co-workers while revealing other parts of ourselves with friends and
family. Indeed, obscurity is one reason we feel safe bonding with others
over our shared vulnerabilities, our mutual hopes, dreams and fears.
Obscurity enables us to develop and grow as individuals. It provides us
collectively with spaces to explore new and controversial possibilities,
to transgress taboos and ignore arbitrary rules. You might have thought
you could skip church without anyone knowing, but churches are being
marketed facial recognition systems that will make sure your absences
are duly noted. It won’t stop there.
Obscurity protects us from being pressured to be conventional. This
buffer from a ubiquitous permanent record is especially important for
the exploratory phase of youth. To develop as humans, people must be
free to try things they might later regret. This is how we become better
people. Without obscurity, we wouldn’t have the freedom to take risks,
fail and dust ourselves off. We’d be stymied by the fear of being deemed
failures by a system that never forgets.
Finally, obscurity is crucial to democracy. Obscurity fosters civic
participation and gives us the confidence to attend political protests
and engage in political speech online without worrying about ending up
on a government watch list. It’s why the American Civil Liberties Union
worries about the government monitoring social media.
Things can be private even if others can see them. And there is so much
of our lives that industry and governments have yet to find. But in our
status-obsessed culture, it can be hard to appreciate that the opposite
of obscurity isn’t fame, but chillingly oppressive fear.
Woodrow Hartzog is a professor of law and computer science at
Northeastern University. Evan Selinger is a professor of philosophy at
Rochester Institute of Technology.
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