Legal Commentary

Thanks to Dan and the others for welcoming me to Prawfs for the first time. This month, I plan to share some thoughts about the future of legal research, my recent experiences teaching statistics to law students, and, to start, some ideas about my primary area of research, information privacy.

As a field of legal scholarship, information privacy has come of age, and thanks to the great work being done in this field, we understand better than ever the threats to privacy we face online and in the real world. Despite all of this good work, we have not yet fully accounted for a new category of threats to privacy: those that bridge our online and offline lives. I am beginning to conclude that when it comes to these "bridging" threats, the sum is often much more than the parts.

Threats online are marked by ceaseless surveillance and efficient number crunching. They raise the specter of the Digital Dossier, to use Dan Solove's compelling metaphor. Threats offline are marked by their potential to cause harm. Put these two together, and they each begin to work in the service of the other, enabling ruthlessly efficient searches that lead to real-world harm. I think we can develop a theoretical account for what makes bridging threats different, rather than continuing to think of all privacy threats--online, offline, and bridging--as variations on a single theme or, at least, points along a continuum of threat.

Instead, bridging threats have the potential to cause much more devastating harm than any of the threats we've seen so far, so we should watch them closely and consider regulating them readily. So far, I've come to this intuitively: the privacy threats I worry about most today--such as Facebook, NSA surveillance, cellphone tracking, and FBI hard drive searches--concern me much more than the privacy threats that operate only online--e.g cookie tracking or behavioral advertising--or only offline--airport screening or surveillance video cameras.

And the bridging threats of today seem to pale in comparison to what we will see soon. For example, Google, the grand champion of efficient surveillance, stated recently its goal "to be able to identify any image" snapped by any cell phone webcam, using its new service, Goggles, and its suddenly ubiquitous operating system, Android. Quotes like this might fill futurists and gadget hounds with wonder; they fill me instead with great concern.