1. Privacy Chris Kelly chris.kelly@bakernet.com iLaw July 5, 2002

2. One Descriptive Framework Privacy in Space Privacy in Decision Privacy in Information

3. Value-laden Framework Privacy as Secrecy Privacy as Autonomy Privacy as Control

4. Privacy as Secrecy Key claim is that most additional observation is illegitimate –Common in the public parlance Not really true in most social circumstances and public places –Observation provides benefits –Observation is always a risk in public places –Some value in anonymity –Costs too… Current expectations (reasonable or not) threatened by changing economics and politics

6. Ellison “Central databases already exist. Privacy is already gone” Q: “In 20 years, do you think the global database is going to exist, and will it be run by Oracle?” A: “I do think it will exist, and I think it is going to be an Oracle database. And we're going to track everything.”

8. McNealy “You have zero privacy anyway. Get over it.”

9. Accountability balance Observation and recording provide market- driven, consumer selected features –Leveraging purchase data, viewing information, etc. for consumer benefit through personalization Complete absence of observation promotes antisocial behavior –Does not cause it, but removes threats to it Observation and assessment have always been part of everyday life –Norms in basic social interaction –Law enforcement

11. Diffie on National ID Card “Maybe this is just the scaling of society” But if national ID cards will become the norm, at least offer a provision for reciprocity: Anyone who demands to see an ID card will be required to show theirs as well.

12. What constrains Big and Little Brother There are legal, social, economic and architectural rules that regulate the balance –Law: U.S. Fourth Amendment and many similar international provisions, privacy laws –Norms: Surveillance kept from sensitive areas, public relations risks of being too intrusive, self- regulation –Market: Public relations risks, self-regulation, declining marginal value of basic data as it becomes abundant –Architecture: Can be leveraged to benefit pro- privacy values (e.g., P3P, do-not-call lists, “ADV” labeling combined with filtering)

13. The U.S. Constitution Privacy as secrecy is a good thing –Constitutionally protected: “persons, houses, papers, and effects” in Fourth Amendment But it has its limits –Accountability balance is built in: only “unreasonable” searches and seizures forbidden

14. Privacy as Control Focus is not on preventing surveillance in the first instance, but on setting rules for data usage –Medical records, financial records as models Fair Information Practices –Implementation of EU Data Protection Directive –Piecemeal approach of US law

15. Is cyberspace separate? Certainly has changed the economics of and basic assumptions about data collection Architecture as data-collection friendly

18. Moving away from separatism… Real space and cyberspace are not really separate at all, or at least they won’t be for long Need to make regulation of information flow the focus –Some protection of solitude (privacy as secrecy) in the name of control –But needs to be balanced to allow customer- driven personalization and accountability

19. …but context is still important Law regulates people and their relations, and that context is mediated by the social context of place. –“people, not places” from Katz –But people are in places, relevant distinctions can be made –Example: no surveillance in the home