I always wanted walkout music and now I
think I can die happy that I have is
able to walk out to music it's great to
see you all here or not see you all here
but it's dangerous to ask a law
professor their opinion on more or less
anything but I will do my best to keep
it within the allotted time frame so I
think privacy has a problem and by that
I don't mean all that we consider to be
privacy but rather the term itself has a
problem and that's what it doesn't
really need anything if it ever did
privacy has ceased to be an effective
term to guide policy in the United
States and around the world I think
because it could mean so many different
things than what usually happens is we
end up talking past each other in a
number of different instances where we
might actually agree if we just define
what this term meant and so let me give
an example earlier this year Facebook
rolled out their new graph search
feature and I know that most of you are
probably certainly their Facebook users
are probably now familiar with that
feature and initially of course you know
as it happens anytime there's a new
product rollout for any kind of social
technology the hands went up and people
said well now they're gonna be some
privacy issues with this and thanks book
and a lot of other journalists and other
advocates wrote back and to try to
assuage our fears and they said well you
know there aren't really going to be any
privacy issues with this because nobody
new is seeing your information the same
people that could see your information
before will now have the same visibility
that they could afterwards and so
there's no privacy problems associated
with that I think this is problematic I
actually think that this is wrong I
think that this argument is based on a
common misunderstanding of the privacy
implications of sharing information
particularly socially with
one another and one of the points that I
hope to make today is that the law is
terrible about this the law has it's
very inconsistent about trying to
determine when self disclosed
information is private and what I think
we usually end up doing and many various
different contexts in the law is saying
well did you disclose it to a lot of
other people you did not try it or its
public and you hear this argument all
the time as an effect earlier today one
of our panelists made the assertion that
if you post something on facebook then
it's out there and it's public and I'd
like to push back on that because I
don't think that's reality it may be
that we feel that way but that's not I
think how most people consider their
communications nor do I think it's the
desirable states that we should steer
our privacy policy because I think that
there's a distinction between
information that is theoretically
accessible by some and perhaps
universally consumed by a significantly
larger group so and Jason actually
brought up earlier today the Erving
Goffman and Erving kind of gets into a
lot of this with what we disclose some
kinds of information to some people but
we would wish to withhold that
information from others and one of the
metaphors has been used as kind of this
front stage in the backstage and we need
a place where we can perform front stage
and then let our hair down backstage and
where our front stage might be for some
people it could be different for other
people so by a show of hands and I do
think I can make out hands here how many
here have personal information that
exists somewhere online but you are so
so thankful that it is not indexed by a
general search engine like Google or
Bing
show of hands just generally speaking
okay so that's at least half I mean the
other other half of you are probably
lying or at least you're not thinking
about it because unless you you know are
you know maybe in the 1% of the and
maybe this is the wrong audience to ask
I get a different result when I when I
asked my students
whoo-hoo start to think about the things
that they posted about five years ago
and say yeah I'm really glad that
doesn't show up in Google how many
people here have taken advantage of some
kind of access control or privacy
setting on a social technology so you
utilize yeah okay see all the hands
shoot up
who here has tried to use either a
pseudonym or some kind of named variant
so for me I would be woody or rwh or the
wood man or the woodster anyone here
all right so most of these um and
finally how many of you I don't you to
think about this for a second how many
of you have posted something online in a
social way so in some kind of social
communication and you knew that it was
going to a relatively large audience but
you crafted your communication in such a
way that would only be understood by a
small group of people so for example I
would could log on to Facebook and I
would say I totally nailed it and my
friends that didn't know I was taking a
test would have no idea what that means
my friends that knew that I've been
studying for the bar exam for the past
three months would say all right way to
go so who's done something like that
intentionally so so a pretty good show
of hands so everyone that raised their
hand has utilized two relied upon
something that I think we all rely upon
to protect our privacy perhaps more than
anything else and that's the concept of
obscurity and the concept of obscurity
is a context in which information has a
very low probability of being found or
understood by people that you don't want
to find or understand it I think it's
relied upon not only in our online
interaction but it's a part of our
everyday life and I bring this up
because I think that this is an
extremely underdeveloped legal concept
and I think it's an extremely although
perhaps less so underdeveloped design
concept I mean I think that we could
embrace this concept better moving
forward as a way to ease numerous
tensions in the law and be a little bit
more specific about what we're talking
about when we say
that term privacy which i think is a
very problematic term or at least it's
so value Laden and stretched that it's
really not helpful anymore so I hope to
make three points during this talk first
I hope to define
online obscurity and maybe obscurity
more generally and a clear and useful
way I hope to point out areas in which
the law has been terrible about
recognizing the purity where it should
and areas where the law has implicitly
valued obscurity but that's not the term
that we use to describe it and any of
this framework could help us to justify
a lot of laws that we might question
it's ineffective and finally I want to
propose a few different ways that it's
that we could embrace obscurity even
better both in the law and in the design
of technologies that deal with personal
information so first what does it mean
to be obscure we experience the concept
of obscurity all the time in our
everyday life most of our daily
experience is actually lived largely in
a zone of obscurity our social setting
so consider for example the plane ride
that you took to get here can you
remember the face of more than one
person that was on that plane I'm
guessing probably not unless you are an
incredible memory in which case Bravo
but you probably only remember one or
two people when you sit at a restaurant
people sit all around you but you don't
listen to most of their conversations
don't even register that they're there
you're living life in this zone of
obscurity
I think that's obscurity of the reason
that the statement you have no privacy
in public is dead wrong I think that we
recognize at least we desire and count
on having privacy in public all the time
for example I leadoff my privacy seminar
every semester by asking a question um
do we have any privacy in public and I
kind of phrase it in a way where I'm
kind of telegraphing the idea and my
students say oh no there's no privacy in
public and and I you know when public is
secret I can see that I say okay so if a
drone were to fly overhead and take a
picture of me walking outside of the
loss
what I have a innie act reasonable
expectation of privacy in that and my
students inevitably say no absolutely
not
I didn't say okay what if that same
drone was a sign to me and it followed
me everywhere I went in public to every
single state that never violated it
never looked inside my home it never
followed me inside a building that only
monitored my public comings and goings
for a solid year then with my privacy
have been violated and my students
squirm a little because they inevitably
want to say yes because they know that
they just committed to the statement
that there's no privacy in public but
there's something inherently wrong about
that activity versus say the snapshot
that came out of nowhere and so I think
that obscurity can it's a concept that
can help us ease this tension we simply
have a very low probability of any kind
of harm in most of our daily occurrences
we rely upon structural protections we
rely upon contextual protections to
protect us all the time and this is
increasingly happening online and so I
think it's a valued concept in the law
in some instances but the law does a
very poor job of recognizing the value
of obscurity and social technologies
because what we tend to do is fall back
on the password it's an easy line to
draw right and you've heard you've read
cases I'm sure and you've had
conversations with people that went
something along the lines of well they
posted it online and then there's
fossils that he put it behind a password
like yeah but okay what's private and we
tend to recognize the password as this
kind of talisman where oh well maybe
things were protected but there are lots
of things that can control access and
limit the probability of something being
found or understood besides passwords
and so I mean judges could do a much
better job of realizing the value of
context which of course gets that I'm
hellenism bombs theory of contextual
integrity privacy as contextual
integrity courts have somewhat
recognized obscurity obscurity kind of
has an older sibling
if some of you recall the case of
Department of Justice versus reporters
committee of freedom enforcement freedom
of the press which had to do with a FOIA
request for an errata sheet that
aggregated lots of different violations
through dusty old courthouses in the
United States and that request was
denied on personal privacy grounds
because it was seen that trying to
figure out whether someone committed a
crime in lots of different places
scattered throughout was very different
than having information aggregated all
in one place because the structural
protections in the transactional costs
the transactional costs were so high as
to make the likelihood that anyone to
find that information very low and so
using that I think the we can kind of
broaden this concept and explored a
little more to resolve some of the
tensions that we see in privacy law
right now so courts could do a better
job of recognizing it I think lawmakers
could do a better job of recognizing it
lawmakers might actually want to utilize
the security to justify laws that are
already on the books but seen as largely
ineffective so the driver's Privacy
Protection Act which many of you I'm
sure are very familiar with limits the
collection of certain kinds of
information and there are lots of
regulations and statutes that limit the
collection of certain kinds of
information and a lot of this
information is known by lots of
different people things like your home
address your a zip code other pieces of
information that it's difficult to
justify so I have conversations with my
mom all the time it's like your address
is in private and in the abstract it
probably isn't because you can be fine
you can find it lots of different places
but it could be justified as a way to
protect the obscurity of information by
making it more difficult to find or
understand okay so how do i define
obscurity at least in the online context
there are really four different ways one
is search well we use the the lock and
key metaphor
and it used to be the passwords were
kind of a lock and key to privacy but I
think there are lots of different things
that can make information more or less
obscure and so there are four factors
the presence of which makes information
less obscure and the absence of which
makes information more obscure so these
things are searched this ability can you
find something either at the site level
or at Google if not if it's dead to
search then it's kind of dead to the
world isn't at least as a general matter
unprotected access not just passwords
but encryption privacy settings
visibility settings I catch a lot of
flack for protecting my Twitter account
and it's only for BOTS I welcome all of
you to follow I I'm trying to hide from
bots I'm trying to exert a certain
amount of control over basically
generalized public access so I decrease
the likelihood of people finding I'm not
saying it's perfectly safe but in many
ways I consider obscurity to be good
enough privacy identification do I use
some kind of a name variant if it's
harder to link my identity to something
then I've got a greater probability of
protection so basically what I'm trying
to do here is reduce the odds if I post
something online as Woody that's better
than Woodrow Hartzog but certainly less
good than WH and certainly less good
than a completely made-up pseudonym and
so their degrees you and finally clarity
we produce obscurity as individuals all
the time we may not even know that
that's what we're doing but when I log
on to Facebook and I say it's positive
and you say I have no idea what that
means but it only makes sense if you
know that my wife and I are trying to
conceive and you say oh great job
congratulations and so how can obscurity
be better implemented in the law I think
there probably three different ways so
the first is we could try to ease up on
what's been called on the public private
dichotomy something's I had a completely
private and it's completely unprotected
and we're gonna go about it or its
public and you know if you want any kind
of privacy protection in it too bad I
think we can plot information along a
continuum where something is either than
most of
or is the most obvious and it lets us I
think get a more nuanced sense of how
valuable this information is and how
protected it should be one of the things
that I think we could explore is having
agreements to maintain obscurity
confidentiality agreements are extremely
important for lots of different kinds of
information but there's lots of
information that we might not mind you
sharing with other people I just don't
want you to put it online we just don't
want you associate our name with it and
so why not we try to engage in a few
more agreements where you say hey buddy
I'll share this with you but you got a
promise not to make it less obscure than
it is right now and so don't put it
online
don't you know just close it behind
certain visibility settings don't
associate my name with it don't provide
any more information that will allow
others to kind of decode the meaning for
this and so it's a way to kind of move
past our conference our agreement or
nothing with respect to online
agreements and finally having that
obscurity could be a design strategy so
for those that are designing social
technologies we wrestle a lot with well
how do we completely protect people when
they want to disclose information to
some but not others and I think the goal
should actually be to allow users to
create their own obscurity because it's
something that we very naturally rely on
and it works for most kinds of
information I think that it's a mistake
to try to value information is simply
public or something private and so when
we allow users to kind of create their
own obscurity I think that's much more
beneficial than when trying to design
for maybe something else like
confidentiality all right so in
conclusion I think that obscurity is a
really important privacy protective
state that has been virtually ignored in
most aspects of the law and something
that could help ease a lot of tensions
and our need to disclose information to
some people but not to all so thank you
very much
you