Privacy on the Net: Presentation Notes

Segue from litigation and data trails to personal privacy and data trails:

* Take the Kyllo case.  In 1950, there’s no way that police can use heat sensors to determine whether you’re using lots of heat lamps in your home.  In 2000, thermal imaging makes it possible for police to scan the outside of a house and determine if it’s likely that someone is using heat lamps in their home.  Prosecutors used that information, along with other information, to secure a search warrant from a magistrate.  A prosecution followed from the ensuing search.  Technology advances, such that law enforcement can surveill in new and more effective ways.  Which of the two should happen?  1) The law should disallow use of the new technology to protect the status quo, the balance between government intrusion and a person’s right to privacy.  2) The people should adjust their expectations to align with the reality of what the technology can do.

One big-picture question: how should the law adapt to cataclysmic technological change?

These cataclysmic changes in information technologies over the past two decades or so, says Laurence Tribe and others, should prompt us to reconsider the principles that underlie our law.  What are the foundations of our system of jurisprudence?

Privacy vis-a-vis the government, at least in the United States, is much more clearly bounded by law — even though those boundaries have shifted tremendously with time — than privacy vis-a-vis private actors. 

So, with privacy, why do we think it’s important?  Do we think that privacy is a property right?  Is is privacy as a liability issue? 

If you’re editing the legal regime in response to radical change, what mechanically do you do?  Do you change a constitution?  Create a new federal law?  Edit existing law by adding provisions?  Edit existing law at the definitional level, i.e., at the margins?  Create a legal regime where the federal law states the general standards and then have administrative agencies adopt to the tech change? 

What about government working with industry?  (Begs TIA question).

Open up the conversation.  There are lots of ways that private actors collect information about you on the Net.  What are they?

* Cookies demo

* Amazon demo

* Double-click: 100 million online profiles, and Engage, 24/7, others have another 100 million-plus.  All data as of 2000.  Many more today, presumably.  Source: FTC Report to Congress, June 2000.

Do you care if online information is merged with off-line information?

Establish that there’s a huge trail of information out there that we leave.  Those trails can be mapped together in an image — a big data set that comprises an image — that sets forth an incredible narrative about us.  Are we adjusting our expectations, and our behaviors, accordingly?  Does the law need to do more for us?

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