*
Privacy, Visibility, and Exposure
 

Julie E. Cohen

Georgetown University Law Center

Abstract

This paper will consider the relationship between privacy and visibility in the networked information age.  It will argue that visibility is an important determinant of harm to privacy, but that understanding privacy harms in terms of visibility creates two kinds of problems, both of which the case of visual privacy illustrates.

First, visibility does not mean simply visual accessibility.  We are relatively obsessed with visual privacy; widespread visual surveillance touches a chord that equally widespread dataveillance does not.  The heightened salience of the visual threatens to divert attention from the other ways in which individuals are rendered visible in the networked information age.  Politically, this effect is exacerbated by disparities of power that render information-based surveillance even less visible and, thus, even less salient.  Within the academic literature on privacy, discussions of visual surveillance and information privacy tend to be separate.

Perceptual and analytical separation between visual privacy and information privacy makes it more difficult to understand the nature of visibility in the 21st century.  This becomes evident when one considers the new philosophical and sociological justifications now being advanced for recognizing privacy interests in public.  Scholars argue that public surveillance disrupts expectations of context (by allowing presence, appearance, and behavior in different contexts to be juxtaposed) and memory (by creating fixed records of presence, appearance, and behavior).  But even ubiquitous, 24/7 visual surveillance cannot work these disruptions by itself.  Instead, these disruptions are most likely to occur when visual surveillance and data-based surveillance are integrated.  Integration with data-based surveillance is required both for real-time identification of visual surveillance subjects and for subsequent searches of stored visual surveillance records.  To the extent that privacy is conceived as encompassing an interest against visibility, the adage that “a picture is worth a thousand words” requires rethinking.

Second, visibility is not a necessary condition for harm to privacy.  Here the implicit equation between (in)visibility and privacy makes it more difficult to conceptualize the other harms that public surveillance, including visual surveillance, causes.  In particular, the focus on visibility tends to mask a conceptually distinct privacy harm that is spatial.  Since the U.S. legal system purports to recognize an interest in spatial privacy, it is useful to begin there.  Whether surveillance invades a legally recognized spatial privacy interest depends in the first instance on property ownership:  Surveillance is fair game within public space, and also within spaces owned by third parties, but not within spaces that belong to the targets of surveillance.  These blunt distinctions are mitigated to a degree by the notion of reasonable expectations of privacy.  For purposes of this paper, the interesting thing about the reasonable expectations test is that it is fundamentally concerned not with expectations about space, but rather with expectations about visibility and the accessibility of information.  The concern with access to information reappears in debates about the precise nature of the injury worked by intrusion into private space.  Commentators who recognize a privacy interest distinct from the property interest seem to agree that the injury flows from unwanted access to self, and that access turns on the involvement of a human observer who perceives or receives information.  This reasoning also explains why no spatial privacy interest attaches in public spaces or in (most) spaces owned by third parties: The individual has consented to visibility.  In short, and paradoxically, prevailing understandings of spatial privacy lack any element of harm that is spatial: that flows from the ways in which surveillance alters the spaces of everyday life.

Conceptualizing the privacy interest as having an independently significant spatial dimension explains aspects of the visual surveillance problem that visibility alone cannot explain.  Surveillance infrastructures, including visual surveillance infrastructures, alter the experience of places in ways that do not depend entirely on whether anyone is actually watching.  Governments know this well; that is part of the point of deploying visual surveillance infrastructures within public spaces.  This dimension of the privacy interest, which I will call exposure, is also linked to context and time, but the linkages operate differently than in the case of visibility.  Exposure alters the capacity of places to function as contexts within which identity is developed and performed.

Biography

Julie E. Cohen is Professor of Law at the Georgetown University Law Center.  She teaches and writes about intellectual property law and information privacy law, with particular focus on digital works and on the intersection of copyright and privacy rights.  She is a co-author of Copyright in a Global Information Economy (Aspen Law & Business, 2d ed. 2006), and is a member of the Advisory Board of the Electronic Privacy Information Center and the Advisory Board of Public Knowledge.  From 1995 to 1999, Professor Cohen taught at the University of Pittsburgh School of Law.  From 1992 to 1995, she practiced with the San Francisco firm of McCutchen, Doyle, Brown & Enersen, where she specialized in intellectual property litigation.  Professor Cohen received her A.B. from Harvard University and her J.D. from the Harvard Law School.  She is a former law clerk to Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit.

* Duo, Vidiot, .