February 21, 2011  

Location Privacy: Is Privacy in Public a Contradiction in Terms?

We would like to invite you to read Geodata Policy’s first guest blog posting by Robert Gellman. This article is timely given the update of the Electronic Communications Privacy Act (ECPA) and the recent Federal Trade Commission (FTC) report, Protecting Consumer Privacy in an Era of Rapid Change, which highlights the sensitivety of “precise geolocation data” (p. 61). Robert Gellman is a privacy and information policy consultant in Washington, DC: http://www.bobgellman.com/.

Is Privacy in Public a Contradiction in Terms?

Robert Gellman, Privacy and Information Policy Consultant

February 21, 2011

Is there such a thing as privacy in a public space?  When you walk down the street, anyone can observe you, make notes about your location, appearance, and companions, and even take your picture.  If so, then it would seem that you have no reasonable expectation of privacy.

However, most people would be unhappy if they found themselves followed all day.  For most of human existence, this type of surveillance was impractical because of the great expense of following someone around.

This is a good place to pause and say that this is a short essay and not a law journal article.  The law of surveillance is complex, and the answers can be different if the person doing the surveillance is a government agent, an employer, or an average person, or if you’re taking pictures or recording conversations.

Is privacy in public a case of the irresistible force meeting the immoveable object?  Should your location privacy deserve some protection even when you are in public?

These questions are much harder to answer today because of technology.  It’s cheap to track people in public today.  There’s no need to pay a private detective.  Technology does it.  First on the list are cell phones.  Your cell phone broadcasts your location constantly to a cell phone tower, and your provider knows where you are.  Cameras are everywhere, taking pictures in malls, parking lots, building corridors, on the street, at red lights, and on the highway.  Facial recognition software is getting better all the time.  Photos placed on the Internet can be scanned to identify individuals as well as the date and GPS coordinates where the photos were taken.  Digital signage in stores and elsewhere can record behavior, approximate age, gender, and ethnicity, and can sometimes identify individuals using a variety of devices.  I recommend a pioneering report on digital signage by my colleague Pam Dixon.  It’s at the World Privacy Forum website.

Even though not all the technological and organizational links are yet in place, it’s not hard to envision the possibility that, in the near future, every action you take outside your home may be observed and recorded by someone.  This is more or less what happens today online, where there is a good chance that some website or advertiser (and probably many more than one) records every site you visit, every page and ad you see, and every click you make.

So let’s follow John Doe through an interesting day.  He leaves his house, gets in his car, and drives to work.  All the details, including the clothes he wears, the route he drives, and the stop signs that he rolls through, are captured.  The surveillance system sees him go into his office building, into an elevator, off on the eighth floor, and walk into Room 801.  Later, it sees him leave, walk down the street, go into a restaurant, and order lunch.  Maybe what he orders for lunch isn’t recorded.  I’m not sure there’s lunch recognition software yet.

After lunch, John visits his general practitioner.  He leaves and goes to a medical laboratory and later to a drug store.  We can begin to make more interesting inferences about him now.  Later, he enters the office of an oncologist.  He goes to a bookstore, where the store’s digital signage observes him picking up (but not buying) books about colon cancer.  We could continue watching John buy groceries, visit an adult bookstore, drive to the house of his ex-wife, or do anything else that people do.  You get the idea.

Does John Doe have a reasonable expectation of privacy in the information that ubiquitous public surveillance collects?  Before you answer, let’s consider a few cases.

In United States v. Knotts, a 1983 Supreme Court decision, the police surreptitiously attached an electronic beeper to an item purchased by a suspect.  They used the beeper to track the movements of the suspect’s car.  The Court held that a person traveling in a car on public streets has no reasonable expectation of privacy in his movements.  The Court didn’t care if the police watched or used technology.  It found no Fourth Amendment violation either way.

Washington State defined the crime of voyeurism as viewing, photographing, or filming someone without knowledge or consent while in a place where he or she would have a reasonable expectation of privacy.  So when a pervert took upskirt photos of women in the mall, his conviction was overturned because no one has a reasonable expectation of privacy in a shopping mall.  Had the perv taken photos in a bathroom, the conviction would have been upheld.  The state changed the law to make it crime to film the intimate areas of another person without that person’s knowledge and consent under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place.  So parts of you are protected from surveillance, even if you and your parts are in public.  That seems to make sense.

Recently, there’s been a wave of stories about the arrest of people who filmed police doing their jobs in public.  The arrests are typically for illegal wiretapping, often because they record speech and not just pictures.  The rules can be different about the legality of recording speech and recording pictures.  Either way, the cops don’t much like being recorded and having the results posted on YouTube.  On the other hand, in some jurisdictions, the police themselves record highway stops so preserve a record of their actions and show, perhaps, that the police are not engaging in racial profiling.  None of this filming seems offensive.

In Knotts, the Supreme Court kept the door ajar to the possibility that privacy in public could deserve protection.  The defendant argued that upholding the use of a beeper would mean twenty-four hour surveillance of any citizen of this country will be possible.  The Court took note of the argument, stating essentially that it would cross that bridge when necessary.  It did not dismiss the idea entirely.

We seem to be at that bridge today.  Universal surveillance is inexpensive, practical, and already in place.  It’s only a matter of time until the gaps are filled.  So what’s the right answer for privacy in public?  I’ll wait while you figure it out.  Come back when you’re ready.

For me, some things aren’t that hard.  Banning upskirt photos in public places is unobjectionable.  What’s important is that it establishes the principle that there is some privacy even in public spaces.  Perpetual surveillance of anyone is also unwelcome.  We’ve shattered the glass, and how we have to decide which pieces to pick up.

Some of the usual privacy principles reflected in Fair Information Practices (see http://bobgellman.com/rg-docs/rg-FIPshistory.pdf) should apply to the information that results from surveillance.  Limits on use and disclosures are essential, as well as other protections.  That’s a start.

The most important rules would restrict data storage and linkage.  It’s one thing for a parking lot to film cars and people.  We can decide how long it is reasonable to keep the records for security or insurance purposes.  However, allowing the lot to keep the records forever or to extract the information and connect it with information from other parking lots, merchants, and government agencies in a consumer profile is too much.  If your cell phone provider keeps records of where you are and where you’ve been for a good reason, that’s fine.  Selling the information to merchants or giving it to your spouse’s divorce lawyer (certainly without prior notice to you and a chance to object) is too much.

I think that we can more easily agree on the principle of limits for the use of surveillance information.  It will be harder to decide exactly what those limits should be, but it’s the first step that is the most important.  That’s my starting point.  If you have another idea or a different perspective, that’s why this blog allows comments.

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6 responses to “Location Privacy: Is Privacy in Public a Contradiction in Terms?”

  1. Ken Pimple says :

    Readers of this post might find Helen Nissenbaum’s theory of “contextual integrity” (a way of making sense of privacy in public) interesting. See her book, “Privacy in context: Technology, policy, and the integrity of social life” (Stanford University Press, 2010), especially Part III.

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