There is a part of anyone’s life that is monitored, and there is a part that can be searched. The monitored is that part of one’s daily existence that others see or notice and can respond to, if response is appropriate. As I walk down the street, my behavior is monitored. If I walked down the street in a small village in western China, my behavior would be monitored quite extensively. This monitoring in both cases would be transitory. People would notice, for example, if I were walking with an elephant or in a dress, but if there were nothing special about my walk, if I simply blended into the crowd, then I might be noticed for the moment but forgotten soon after — more quickly in San Francisco, perhaps, than in China.
The searchable is the part of your life that leaves, or is, a record. Scribblings in your diary are a record of your thoughts. Stuff in your house is a record of what you possess. The recordings on your telephone answering machine are a record of who called and what they said. Your hard drive is you. These parts of your life are not ephemeral. They instead remain to be reviewed — at least if technology and the law permit.
These two dimensions can interact, depending upon the technology in each. My every action in a small village may be monitored by my neighbors. That monitoring produces a record — in their memories. But given the nature of the recording technology, it is fairly costly for the government to search that record. Police officers need to poll the neighbors; they need to triangulate on the inevitably incomplete accounts to figure out what parts are true, and what parts are not. That’s a familiar process, but it has its limits. It might be easy to poll the neighbors to learn information to help locate a lost person, but if the government asked questions about the political views of a neighbor, we might expect (hope?) there would be resistance to that. Thus, in principle, the data are there. In practice, they are costly to extract.
Digital technologies change this balance — radically. They not only make more behavior monitorable; they also make more behavior searchable. The same technologies that gather data now gather it in a way that makes it searchable. Thus, increasingly life becomes a village composed of parallel processors, accessible at any time to reconstruct events or track behavior.
Consider some familiar examples:
The Internet
In Part I, I described the anonymity the Internet originally provided. But let’s be clear about something important: That relative anonymity of the “old days” is now effectively gone. Everywhere you go on the Internet, the fact that IP address xxx.xx x.xxx.xxx went there is recorded. Everywhere you go where you’ve allowed a cookie to be deposited, the fact that the machine carrying that cookie went there is recorded — as well as all the data associated with that cookie. They know you from your mouse droppings. And as businesses and advertisers work more closely together, the span of data that can be aggregated about you becomes endless.
Consider a hypothetical that is completely technically possible under the existing architectures of the Net. You go to a web page of a company you trust, and you give that company every bit of your private data — your name, address, social security number, favorite magazines and TV shows, etc. That company gives you a cookie. You then go to another site, one you don’t trust. You decide not to give that site any personal data. But there’s no way for you to know whether these companies are cooperating about the data they collect. Its perfectly possible they synchronize the cookies data they create. And thus, there’s no technical reason why once you’ve given your data once, it isn’t known by a wide range of sites that you visit.
In the section that follows, we’ll consider more extensively how we should think about privacy in any data I’ve affirmatively provided others, such as my name, address, or social security number. But for the moment, just focus upon the identity data they’ve collected as I move around in “public.” Unless you’ve taken extraordinary steps — installing privacy software on your computer, or disabling cookies, etc. — there’s no reason you should expect that the fact that you visited certain sites, or ran certain searches, isn’t knowable by someone. It is. The layers of technology designed to identify “the customer” have produced endless layers of data that can be traced back to you.
Searches
In January 2006, Google surprised the government by doing what no other search company had done: It told the government “no.” The Justice Department had launched a study of pornography on the Net as a way to defend Congress’s latest regulation of pornography. It thus wanted data about how often, and in what form, people search for porn on the Internet. It asked Google to provide 1,000,000 random searches from its database over a specified period. Google — unlike Yahoo! and MSN — refused.
I suspect that when most first heard about this, they asked themselves an obvious question — Google keeps search requests? It does. Curiosity is monitored, producing a searchable database of the curious. As a way to figure out better how to do its job, Google — and every other search engine[4] — keeps a copy of every search it’s asked to make. More disturbingly, Google links that search to a specific IP address, and, if possible, to a Google users’ account. Thus, in the bowels of Google’s database, there is a list of all searches made by you when you were logged into your gmail account, sitting, waiting, for someone to ask to see it.
The government did ask. And in the normal course of things, the government’s request would be totally ordinary. It is unquestioned that the government gets to ask those with relevant evidence to provide it for an ongoing civil or criminal investigation (there are limits, but none really significant). Google has evidence; the government would ordinarily have the right to get it.
Moreover, the government in this case explicitly promised it would not use this evidence for anything more than evaluating patterns of consumption around porn. In particular, it promised it wouldn’t trace any particularly suspicious searches. It would ignore that evidence — which ordinarily it would be free to use for whatever purpose it chose — just so it could get access to aggregate data about searches for porn.
So what’s the problem this example illustrates?
Before search engines, no one had any records of curiosity; there was no list of questions asked. Now there is. People obsessively pepper search engines with questions about everything. The vast majority of these are totally benign ( “mushrooms AND ragout”). Some of them show something less benign about the searcher (“erotic pictures AND children”). Now there’s a list of all these questions, with some providing evidence of at least criminal intent.
The government’s interest in that list will increase. At first, its demands will seem quite harmless — so what if it counts the number of times people ask Google to point them to erotic pictures? Then, when not so harmless, the demands will link to very harmful behavior — searches that suggest terrorism, or abuse. Who could argue against revealing that? Finally, when not so harmless, and when the crime is not so harmful, the demands will simply insist this is an efficient way to enforce the law. “If you don’t like the law, change it. But until you do, let us enforce it.” The progression is obvious, inevitable, and irresistible.
Electronic mail is a text-based message stored in digital form. It is like a transcribed telephone call. When sent from one person to another, e-mail is copied and transmitted from machine to machine; it sits on these different machines until removed either by routines — decisions by machines — or by people.
4.
Declan MCullagh and Elinor Mills collected the practices of all major search engines in "Verbatim: Search Firms Surveyed on Privacy,"