There was a controversial educational exercise at St John’s University that highlighted the differences between what public perception of privacy and the legal definitions of the concept. A law professor at the university asked students to go out into public places and listen to other people’s conversations. The goal of the exercise, which was an optional assignment, was to illustrate the disconnect between the common perception of privacy in public spaces and the legal reality. Students were instructed to see how much information they could find out about a person using only Google as a resource. Many students were surprised with the results, with some reporting that they were able to find out a person’s identity. The lesson became a topic of debate after the professor wrote a New York Times op-ed about it. Much of the debate centered around the ethics of asking students to surveil strangers.
Even though the actions of the students were completely legal, it still constituted a violation of privacy. The people being surveilled believed their privacy was being protected by obscurity. This norm relies on the fact that the information being shared is hard to understand or obtain by others. The protections provided by obscurity can be rendered obsolete by the ease with which information gleamed from “private” conversations in public places can be cross-referenced with the huge amount of data on the internet. Despite the shortcomings revealed by the surveillance exercise, privacy via obscurity is still useful when you consider the cost of collecting the information. Unless you are the target of a determined actor, it is very unlikely that someone would be willing to invest the huge time commitment required to surveil you long enough to find any interpretable information. Communities that are subject to mass surveillance, where anybody can be considered a target, do not have luxury of relying on obscurity. Fully aware of the transparency in their public spaces, these conditions lead to fear and uncertainty that inhibits people’s actions in public.
I took issue with the both the methods and conclusions of the aforementioned educational exercise. I don’t believe that the educational value of the exercises merited the non-consensual violation of privacy the students engaged in. The idea that privacy in public is protected not by law but societal norms could be taught in a different way. The professor concludes the op-ed by saying that the most significant action people can take would be to respect the privacy of others, and to watch what they say in public. The first action is already a societal norm, and the second action implies that we should act as if we are under mass surveillance.
Privacy in the digital age is not dead, but its preservation will require work. Apart from the time and effort investments needed to conduct the surveillance, the discomfort felt by the students shows the presence of another privacy protection. Breaking these societal norms creates an internal conflict that stems from the fact that most people value the ability have privacy in public places. Resisting the proliferation of facial recognition and other dangerous surveillance technologies is one of the ways we can preserve the norms of privacy. Facial recognition and its ability to significantly decrease the cost of surveillance has the potential to create mass surveillance conditions that can modify our societal norms.
