© Lucas/Anticon. Reproduced with permission.
PETs in Public
A. Michael Froomkin
University of Miami School of Law
Abstract
Privacy in US public places is under
assault from an epidemic of both public and private cameras and other
identification and tracking technologies, linked to electronic dossiers
of the myriad electronic records that we increasingly leave behind us
in meat space and online. Unfortunately, two deep-rooted
legal doctrines will interfere with attempts to use the legal system to
stem this assault through law: wide First Amendment limits on the
prohibition of the legal equivalent of electronic note-taking, and the
public/private distinction, which largely disables private law remedies
aimed at preventing monitoring in public, whether based in tort,
contract, or even property. Governments being the
largest surveillers in public only compounds the political and legal
problems.
If the law will not do the job for us
collectively, can individuals use self-help? Are there any
practical privacy-enhancing technologies (PETs) that individuals can
use to preserve existing social norms of visual privacy? True, a focus
on PETs in public can reasonably be critiqued for accepting the frame
that privacy protection is the individual’s responsibility
rather than a public good. Even so, this question matters: if
there are plausible techniques, the gaps in existing law may be
regarded as less serious – unless the government bans use of
those PETs. Even so, if effective technical counter-measures
beyond exposure, activism, ‘sousveillance’ and the
like do exist, then focusing on how the law treats counter-measures,
and removing or blocking obstacles to their deployment, might
ultimately be a more productive strategy for privacy advocates faced
with deep and long-standing constitutional, common-law/traditional, and
political/expedient bars to blocking the deployment of cameras and
associated tracking technologies.
The array of possible PETs on offer
limited but it is not zero, and they potentially complement each
other. One means of avoiding unwanted visual identification
in public is to mask oneself. Masking has many disadvantages:
it can be hot and uncomfortable, may resonate unpleasantly in some
communities, and may violate state and federal anti-mask
laws. Without new norms of social signaling, masking will
also prevent many desirable forms of social intercourse, such as
unexpectedly recognizing friends across the street. Masks
also do not protect against cell phone tracking and other electronic
emissions, and depending on the material may be vulnerable to
sense-enhanced searches. Masks are currently
outside the vocabulary of fashion, but it is not implausible to imagine
that they might become a hot fashion accessory. Resistance
may be colorful.
Electronic counter-measures are likely
to be more expensive or inconvenient. Cell phones can be
turned off to prevent tracking. External wireless camera and
RFID signals can be blocked, although doing so may infringe FCC
regulations and other laws, and in some cases might be a tortious
act. Even devices designed to signal the existence of
wireless cameras might be subject to regulation, as suggested by the
precedent of bans on radar
“fuzz-busters”. There appears to be a
strong asymmetry between on the one hand the constitutional and other
obstacles to laws that might block monitoring devices and on the other
hand the ease with which the state can regulate devices which fight
back.
The prospect for jamming or blocking
cameras with land lines or tapes is far more
uncertain. It has been suggested, for example, that
a cluster of high-intensity infra-red LEDs might overwhelm the
charge-coupled device arrays in some digital cameras, but this risks
damaging them, which in turn brings risks of civil or even criminal
enforcement. Besides deleterious effects on the mechanism,
bright almost laser-like bursts of light might also have unwanted
effects on misplaced bystanders. Similarly,
carrying along one’s own little cloud of smoke, while perhaps
dramatic, is unlikely to be practical, may be unwelcome to others
– and may violate nuisance or anti-pollution laws.
Each of the PETs described above is
uncomfortable or expensive, if not impractical (even masks get quite
hot in the Miami summer). If the relatively frail, limited
– and in some cases hypothetical -- individual
countermeasures available to the shy or retiring (or usual suspects)
seem too feeble a response to the enclosure of the privacy commons, it
is nonetheless valuable to understand what PETs can and especially what
they cannot do. We then are better placed to consider whether
there are complementary legal solutions that would be both helpful and
still possible. Part of the answer may lie in at least
repealing as many of the limitations on self-help as possible
– such as anti-mask laws. But, if the
privacy commons is to be preserved – and that may be
impossible – then part of the answer will have to lie
elsewhere in law or in mores.
One possibility worth exploring is
defining some areas – town squares, public parks -- as
“no-monitor zones” – places in which
technologically enhanced monitoring would be forbidden. Such
a limited place and manner restriction, one which is clearly
content-neutral, might not create the same tensions with the first
amendment as would a more general ban on what amounts to electronic
note-taking.
Another, more likely, possibility, is
that some activities that are currently performed in legally public
physical spaces will move into legally private (if perhaps
psychologically public) virtual spaces. This trend is already
visible in the rise of virtual worlds such as Second Life and World of
Warcraft, and it is likely to continue even without the extra impetus
from changes in physical privacy rules. Although not immune
from public law, virtual spaces sometimes enjoy some ambiguity as to
which jurisdiction’s law applies. In practice, at
least at present, the governing legal regime is predominantly private,
contract, law. The relative absence of public law and its
security imperatives creates an opportunity for creating zones of
relative privacy in the new online ‘public’ square,
or at least in delinking virtual world activities from other on- and
off-line behavior via pseudonymizing avatars. There is
however an irony here: any virtual world which seriously seeks to
prevent participants (including perhaps state agents) from wholesale
recording of avatars’ behavior will either need to allow
invisible and untraceable avatars (changing if not spoiling the game)
or will need a ‘trusted’ hardware platform on which
to deploy strong digital rights management (DRM) technologies to
prevent unauthorized taping. That is the same DRM
technology whose tracking and tracing functions enable the
dossier-creation which, when tied to information gathered in public,
help make public surveillance such a threat.
Biography
A. Michael Froomkin is a Professor at the University of Miami School of Law in Coral Gables, Florida, specializing in Internet Law and Administrative Law. He is a founder-editor of ICANNWatch, and serves on the Editorial Board of Information, Communication & Society and of I/S: A Journal of Law and Policy for the Information Society. He is on the Advisory Boards of several organizations including the Electronic Freedom Foundation and BNA Electronic Information Policy & Law Report. He is also a member of the Royal Institute of International Affairs in London.
Professor Froomkin writes primarily about Internet governance, electronic democracy, and privacy. Other subjects include e-commerce, electronic cash, the regulation of cryptography, and U.S. administrative and constitutional law.
Before entering teaching, Prof. Froomkin practiced international arbitration law in the London office of Wilmer, Cutler & Pickering. He clerked for Judge Stephen F. Williams of the U.S. Court of Appeals, D.C. Circuit, and Chief Judge John F. Grady of the U.S. District Court, Northern District of Illinois. Prof. Froomkin received his J.D. from Yale Law School, where he served as Articles Editor of both the Yale Law Journal and the Yale Journal of International Law. He has an M.Phil in History of International Relations from Cambridge University in England, which he obtained while on a Mellon Fellowship. His B.A. from Yale was in Economics and History, summa cum laude, phi beta kappa with Distinction in History.
Prof. Froomkin is married to University of Miami Law Professor Caroline Bradley. They have two children.
Homepage: http://www.law.tm.
Personal blog: http://www.discourse.net.
Publications: http://www.law.miami.edu/publications/facpub.html#froomkin