The Grey Chronicles


Privacy and Code v.2.0

Code: And Other Laws of Cyberspace, Version 2.0Lawrence Lessig’s Code version 2.0 (2006) is the second edition of his book originally published in 1999. He considers two kind of privacy: Privacy in Private and Privacy in Public, and observes that, in both, digital technologies have changed the traditional protections.

Privacy in private, Lessig illustrates:

“The traditional question of «privacy» was the limit the law placed upon the ability of others to penetrate your private space. … 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. … 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 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.»” (Lessig, 2006: 201)

Annotations : This is fortunate for all of us. At least, the present digital technologies have not breached our privacy in private space and that the latter is ably protected by various laws. The core value, Lessig quoting Justice Stewart in Katz v. United States, 389 US 347, 351 (1967), is the protection of people, not places. But Lessig warns that cost of acquisition for digital technologies capable of breaching our privacy in private is decreasing.

Privacy in public, which Lessig states “seem at first oxymoronic” then asks:

“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.» The law provided no legal protection against the use of data gathered in public contexts. … 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.” (Lessig, 2006: 202)

Annotations : Every action we make in public produces some kind of record, i.e. in the memories of those people who saw those actions. These memories might be invariably incomplete accounts, partly true, and dependent on the values of the audience. Thus, even if the data about us in public are there, Lessig states that “in practice, they are costly to extract.”

“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. … 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.” (Lessig, 2006: 202)

Annotations : It might surprised you that Google, Yahoo and MSN keep a database of search requests. “Before search engines, no one had any records of curiosity; there was no list of questions asked. Now there is.” Lessig states “Curiosity is monitored, producing a searchable database of the curious.” (cf. 2006: 204) Also, e-mails in a Gmail account is kept by Google (cf. 2006: 206) and through the clever use of architecture chiefly to generate advertisement revenue while you read your e-mail, Gmail only lets deletion of e-mail one screen at a time? And some of us naively thought that our emails, believing them like traditional paper-based personal letters, are really private? Think again!

“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.” (Lessig, 2006: 203)

“[W]hen you go out in public, when you make transactions there or send material there, you give up any right to privacy. Others now have the right to collect data about your public behavior and do with it what suits them.” (Lessig, 2006: 217)

Annotations : Thus, everything we put out in public, such as our behaviour; or personal data we supply various Internet web sites—even though we are all doing the latter in the privacy of our homes— are all monitorable AND searchable? We all heard the expression: The Truth is out there. So the consequent question could be: Is it online? Vinton G. Cerf (2003) writes:

“Truth is a powerful solvent. Stone walls melt before its relentless might. The Internet is one of the most powerful agents of freedom. It exposes truth to those who wish to see and hear it. It is no wonder that some governments and organizations fear the Internet and its ability to make the truth known. The phrase «freedom of speech» is often used to characterize a key element of democratic societies: open communication and especially open government. But freedom of speech is less than half of the equation. It is also vital that citizens have the freedom to hear and see. It is the latter area in which many governments have intervened in an attempt to prevent citizens from gaining access to information that their governments wish to withhold from them.” [Emphasis added.]

Lessig also agrees, when he explains the lessons of the Pentagon Papers case:

“There is a need for the constitutional protection that the Pentagon Papers case represents only because there is a real constraint on publishing. Publishing requires a publisher, and a publisher can be punished by the state. But if the essence or facts of the publication are published elsewhere first, then the need for constitutional protection disappears. Once the piece is published, there is no further legal justification for suppressing it. … The Net does what publication of the Pentagon Papers was designed to do—ensure that the truth does not remain hidden.” [Emphasis added.] (Lessig, 2006: 240—241)

Annotations : So which weighs more: Truth or Privacy?


Cerf, Vinton G. (2003). The Free Flow of Informations is not Free, The Internet Under Surveillance 2003 Report. Paris: Reporters Without Borders, 2003. p. 7. back to text.

Lessig, Lawrence (2006). Code: And Other Laws of Cyberspace, Version 2.0. New York: Basic Books, Perseus, 2006. pp. 236—244. back to text: 1 | 2 | 3 | 4 | 5 | 6.

Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 LicenseDisclaimer: The posts herein do not necessarily represent any organization’s positions, strategies or opinions. Read the full version of self-imposed rules for this blog: A New Year; New Rules. Unless otherwise expressly stated, the posts are licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License.
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