But this freedom could be constructed either through changes in the law or voluntarily. That is, the law could be rebalanced to encourage the freedom thought important, or this property could be redeployed to effect the freedom thought important.
The second strategy was the technique of the Free Software Movement, described in Chapter 8. Using copyright law, Stallman deployed a software license that both preserved the four freedoms of free software, and also required that those modifying and distributing free software distribute the modifications freely. This license thus effects a software commons, since the software is available to all to use, and this software commons has become a critical raw material fueling the digital age.
More recently, Stallman’s idea has been copied by others seeking to rebuild a commons in cyberspace. The Wikipedia project, for example, has built — to the astonishment of most — an extraordinary online encyclopedia solely through the volunteer efforts of thousands, contributing essays and edits in a public wiki. The product of that work is now protected perpetually (yes, I know, only for a “limited time”, but don’t correct me about that little detail) through a copyright license that, like the GPL, requires any modification to be distributed freely as well. (More on Wikipedia in Chapter 12.)
And so too has Creative Commons used private law to build an effective public commons. Again, following Stallman, Creative Commons offers copyright holders a simple way to mark their creative work with the freedoms they intend it to carry. That mark is a license which reserves to the author some rights, while dedicating to the public rights that otherwise would have been held privately. As these licenses are nonexclusive and public, they too effectively build a commons of creative resources that anyone can build upon.
Though I have spent a great deal of my time helping to build the Creative Commons, I still believe private action alone is not enough. Yet there is value in learning something from what this private action produces, as its lesson may help policy makers recraft copyright law in the future.
Chapter 11. Privacy
The conclusion of Part 1 was that code could enable a more regulable cyberspace; the conclusion of Part 2 was that code would become an increasingly important regulator in that more regulable space. Both conclusions were central to the story of the previous chapter. Contrary to the early panic by copyright holders, the Internet will become a space where intellectual property can be more easily protected. As I’ve described, that protection will be effected through code.
Privacy is a surprisingly similar story. Indeed, as Jonathan Zittrain argued in an essay published in the Stanford Law Review[1], the problems of privacy and copyright are exactly the same. With both, there’s a bit of “our” data that “we’ve” lost control over. In the case of copyright, it is the data constituting a copy of our copyrighted work; in the case of privacy, it is the data representing some fact about us. In both cases, the Internet has produced this loss of controclass="underline" with copyright, because the technology enables perfect and free copies of content; with privacy, as we’ll see in this chapter, because the technology enables perpetual and cheap monitoring of behavior. In both cases, the question policy makers should ask is what mix of law and technology might restore the proper level of control. That level must balance private and public interests: With copyright, the balance is as I described in the last chapter; with privacy, it is as we’ll explore in this chapter.
The big difference between copyright and privacy, however, is the political economy that seeks a solution to each problem. With copyright, the interests threatened are powerful and well organized; with privacy, the interests threatened are diffuse and disorganized. With copyright, the values on the other side of protection (the commons, or the public domain) are neither compelling nor well understood. With privacy, the values on the other side of protection (security, the war against terrorism) are compelling and well understood. The result of these differences, as any political theorist would then predict, is that over the past ten years, while we’ve seen a lot of legislative and technical changes to solve the problems facing copyright, we’ve seen very few that would solve the problems of privacy.
Yet as with copyright, we could restrike the balance protecting privacy. There are both changes in law and changes in technology that could produce a much more private (and secure) digital environment. Whether we will realize these changes depends upon recognizing both the dynamics to regulation in cyberspace and the importance of the value that privacy is.
We will think about three aspects of privacy, and how cyberspace has changed each of them. Two of these three will be the focus of this chapter, but I begin with the third to help orient the balance.
Privacy in Private
The traditional question of “privacy” was the limit the law placed upon the ability of others to penetrate your private space. What right does the government have to enter your home, or search your papers? What protection does the law of trespass provide against others beyond the government snooping into your private stuff? This is one meaning of Brandeis’s slogan, “the right to be left alone.[2]” From the perspective of the law, it is the set of legal restrictions on the power of others to invade a protected space.
Those legal restrictions were complemented by physical barriers. The law of trespass may well say it’s illegal to enter my house at night, but that doesn’t mean I won’t lock my doors or bolt my windows. Here again, the protection one enjoys is the sum of the protections provided by the four modalities of regulation. Law supplements the protections of technology, the protections built into norms, and the protections from the costliness of illegal penetration.
Digital technologies have changed these protections. The cost of parabolic microphone technology has dropped dramatically; that means it’s easier for me to listen to your conversation through your window. On the other hand, the cost of security technologies to monitor intrusion has also fallen dramatically. The net of these changes is difficult to reckon, but the core value is not rendered ambiguous by this difficulty. The expectation of privacy in what is reasonably understood to be “private” spaces remains unchallenged by new technologies. This sort of privacy doesn’t present a “latent ambiguity.”
Privacy in Public: Surveillance
A second kind of privacy will seem at first oxymoronic — privacy in public. What kind of protection is there against gathering data about me while I’m on a public street, or boarding an airplane?
The traditional answer was simple: None. By stepping into the public, you relinquished any rights to hide or control what others came to know about you. The facts that you transmitted about yourself were as “free as the air to common use.[3]” The law provided no legal protection against the use of data gathered in public contexts.
But as we’ve seen again and again, just because the law of privacy didn’t protect you it doesn’t follow that you weren’t protected. Facts about you while you are in public, even if not legally protected, are effectively protected by the high cost of gathering or using those facts. Friction is thus privacy’s best friend.
To see the protection that this friction creates, however, we must distinguish between two dimensions along which privacy might be compromised.
1.
See Jonathan Zittrain, "What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication,"
3.