Lessig on Privacy
So Larry Lessig just spoke at the UW, and I went, and it was the most amazing talk ever (hopefully it will be available online later). Even his answers to people's questions were as prepared and thorough and on-point as though he'd been asked to give a lecture about those questions. (They must have been PLANTS.) And then there was a reception and I got to talk to him. He complimented my Eldred T-shirt, and I said "My friend slept outside the Supreme Court to hear oral arguments in Eldred and all I got was this lousy T-shirt." "It's not that lousy," he said.
But that's not what I wanted to tell you. What I wanted to tell you is that I asked Lessig why he had not mentioned privacy during his talk (title: "Is Google (2008) Microsoft (1998)?"), and he said, Because I am a coward and I hold an unpopular view: I don't believe in privacy. (Well, maybe he didn't say exactly those last five words. To explain:)
Lessig wants all the data about us to be available, but for there to be several hoops to jump through before those data can be tied to a person, a named individual. Privacy based on controlling data is outmoded, he said. So: How do we fashion something that has all the features of privacy, but with open data? A "privacy-like" (my word, from seeing too many Rogue-like game posts by Leonard).
What is privacy, I asked him, if not access control to data? Well, that's what we need to figure out. Lessig said in his talk that companies cannot design public policy themselves - they need to be told. I brought this up when he told me he wants a regulatory framework to ensure this "privacy-like" thing comes about. First, it would be difficult to get the government to institute such a framework, I pointed out, when the government is trying to close up public records. Second, I asked, should the regulatory framework take cues from corporate privacy self-regulation, the doomed-to-failure attempt at policy, e.g. Google's trimming off part of users' IP addresses? (Or ISPs/remops not keeping logs, etc.) Maybe, said Lessig.
I had just been talking to Anita about how the collision between First Amendment/speech/public records/openness and privacy is the foremost theme of interest to me this quarter (basically Aaron vs. Doug, in ACLU-WA metaphor), and I need to figure out what I think about it all. (As well as how being a libertarian - the word I countered with when another talk attendee called Lessig a "capitalist anarchist" - and contract law fit in. How does Lessig grok all this stuff to be internally consistent?!) So, I told Anita, There, you've given me a career, thanks so much. And Lessig has given me a framework to start from: How do we re-fashion (rip, mix, burn/sample it, loop it, fuck it, eat it, and spit it out) privacy and let go of our "outdated" grabbiness over data, while retaining whatever core, "eye of a violet" features good old-fashioned privacy stands for/embodies/means?
I'm guessing (perhaps incorrectly) that what "privacy" is a placeholder for, to Lessig, is the "structures" my privacy professor, Peter Winn, keeps referring to - the very old English forms: Coke/Blackstone/Queen Elizabeth I; and the notions of privacy that come up in Supreme Court opinions and elsewhere. We need privacy so that we can have a place of retirement, even just inside our own head, to think and reflect and form opinions and feel our feelings. We need privacy to grow, basically, which is good for us qua individuals and qua members of society. There are plenty more of these "structures" too.
But what privacy interests people have means something different depending upon whether you ask the federal government, the Washington State government, another state's government, the EU, Scott McNeely, the ACLU, Orin Kerr, or Larry Lessig. So you see, I'm not sure just what Lessig thinks are the features of privacy that need to be protected even in an era of complete openness. (I didn't ask him. If privacy was outside the scope of a one-hour lecture, it was definitely outside the scope of a few minutes' chat post-lecture while others were waiting to talk to him as well.) So "Lessig on Privacy" is a rather misleading blog post title, really, as I have only the barest idea of what he thinks.
There you go, Internets, go to it! Please figure out how to reconcile "privacy" with somewhat-anonymized data disclosure.
P.S. Larry Lessig wants you to read this book.
But that's not what I wanted to tell you. What I wanted to tell you is that I asked Lessig why he had not mentioned privacy during his talk (title: "Is Google (2008) Microsoft (1998)?"), and he said, Because I am a coward and I hold an unpopular view: I don't believe in privacy. (Well, maybe he didn't say exactly those last five words. To explain:)
Lessig wants all the data about us to be available, but for there to be several hoops to jump through before those data can be tied to a person, a named individual. Privacy based on controlling data is outmoded, he said. So: How do we fashion something that has all the features of privacy, but with open data? A "privacy-like" (my word, from seeing too many Rogue-like game posts by Leonard).
What is privacy, I asked him, if not access control to data? Well, that's what we need to figure out. Lessig said in his talk that companies cannot design public policy themselves - they need to be told. I brought this up when he told me he wants a regulatory framework to ensure this "privacy-like" thing comes about. First, it would be difficult to get the government to institute such a framework, I pointed out, when the government is trying to close up public records. Second, I asked, should the regulatory framework take cues from corporate privacy self-regulation, the doomed-to-failure attempt at policy, e.g. Google's trimming off part of users' IP addresses? (Or ISPs/remops not keeping logs, etc.) Maybe, said Lessig.
I had just been talking to Anita about how the collision between First Amendment/speech/public records/openness and privacy is the foremost theme of interest to me this quarter (basically Aaron vs. Doug, in ACLU-WA metaphor), and I need to figure out what I think about it all. (As well as how being a libertarian - the word I countered with when another talk attendee called Lessig a "capitalist anarchist" - and contract law fit in. How does Lessig grok all this stuff to be internally consistent?!) So, I told Anita, There, you've given me a career, thanks so much. And Lessig has given me a framework to start from: How do we re-fashion (rip, mix, burn/sample it, loop it, fuck it, eat it, and spit it out) privacy and let go of our "outdated" grabbiness over data, while retaining whatever core, "eye of a violet" features good old-fashioned privacy stands for/embodies/means?
I'm guessing (perhaps incorrectly) that what "privacy" is a placeholder for, to Lessig, is the "structures" my privacy professor, Peter Winn, keeps referring to - the very old English forms: Coke/Blackstone/Queen Elizabeth I; and the notions of privacy that come up in Supreme Court opinions and elsewhere. We need privacy so that we can have a place of retirement, even just inside our own head, to think and reflect and form opinions and feel our feelings. We need privacy to grow, basically, which is good for us qua individuals and qua members of society. There are plenty more of these "structures" too.
But what privacy interests people have means something different depending upon whether you ask the federal government, the Washington State government, another state's government, the EU, Scott McNeely, the ACLU, Orin Kerr, or Larry Lessig. So you see, I'm not sure just what Lessig thinks are the features of privacy that need to be protected even in an era of complete openness. (I didn't ask him. If privacy was outside the scope of a one-hour lecture, it was definitely outside the scope of a few minutes' chat post-lecture while others were waiting to talk to him as well.) So "Lessig on Privacy" is a rather misleading blog post title, really, as I have only the barest idea of what he thinks.
There you go, Internets, go to it! Please figure out how to reconcile "privacy" with somewhat-anonymized data disclosure.
P.S. Larry Lessig wants you to read this book.