Regulating Real-world Surveillance

• Publication year: 2021

REGULATING REAL-WORLD SURVEILLANCE

Margot E. Kaminski(fn*)

Abstract: A number of laws govern information gathering, or surveillance, by private parties in the physical world. But we lack a compelling theory of privacy harm that accounts for the state's interest in enacting these laws. Without a theory of privacy harm, these laws will be enacted piecemeal. Legislators will have a difficult time justifying the laws to constituents; the laws will not be adequately tailored to legislative interest; and courts will find it challenging to weigh privacy harms against other strong values, such as freedom of expression.

This Article identifies the government interest in enacting laws governing surveillance by private parties. Using social psychologist Irwin Altman's framework of "boundary management" as a jumping-off point, I conceptualize privacy harm as interference in an individual's ability to dynamically manage disclosure and social boundaries. Stemming from this understanding of privacy, the government has two related interests in enacting laws prohibiting surveillance: an interest in providing notice so that an individual can adjust her behavior; and an interest in prohibiting surveillance to prevent undesirable behavioral shifts.

Framing the government interest, or interests, this way has several advantages. First, it descriptively maps on to existing laws: These laws either help individuals manage their desired level of disclosure by requiring notice, or prevent individuals from resorting to undesirable behavioral shifts by banning surveillance. Second, the framework helps us assess the strength and legitimacy of the legislative interest in these laws. Third, it allows courts to understand how First Amendment interests are in fact internalized in privacy laws. And fourth, it provides guidance to legislators for the enactment of new laws governing a range of new surveillance technologies-from automated license plate readers (ALPRs) to robots to drones.

INTRODUCTION .............................................................................. 1114

I. TECHNOLOGICAL AND SOCIAL CHANGES INSPIRE LEGAL EVOLUTION ................................................................ 1118

II. THEORIES OF PRIVACY AND INFORMATION GATHERING .............................................................................. 1120

A. Privacy as Withdrawal into Private Spaces ........................ 1122

B. Privacy in Public ................................................................ 1126

C. The Need for a New Approach .......................................... 1130

III.PRIVACY AS BOUNDARY MANAGEMENT ......................... 1131

A. The Boundary Management Framework ............................ 1132

B. The Government's Interest in Boundary Management ...... 1135

1. Allowing an Individual to Calculate Her Desired Degree of Disclosure ................................................ 1136

2. Preventing Undesirable Behavioral Changes ........... 1136

C. Enabling Boundary Management Protects Important

Social Values ...................................................................... 1139

IV.POTENTIAL CRITICISMS OF BOUNDARY MANAGEMENT ......................................................................... 1140

V. BENEFITS OF THE BOUNDARY MANAGEMENT FRAMEWORK ............................................................................ 1141

A. Descriptive Accuracy ......................................................... 1141

1. Private Spaces and Physical Barriers ....................... 1142

2. Distance, Vantage Point, and "Sense Enhancement" .......................................................... 1148

3. Ephemerality ............................................................ 1151

B. Determining the Strength of the Legislative Interest ......... 1154

C. Identifying the First Amendment Interest in Privacy Protection ........................................................................... 1155

D. Guiding the Enactment of New Laws ................................ 1158

1. Drone Laws as an Example ...................................... 1158

2. Robots and the Not-So-Distant Future ..................... 1162

CONCLUSION .................................................................................. 1165

INTRODUCTION

Privacy is situated; it exists in context. That context can have physical, social, and temporal dimensions. While a growing number of scholars have discussed the importance of context to surveillance online, it often gets neglected in the physical world.(fn1) Courts oversimplify physical context, characterizing a situation as private if it takes place in the home, and public if it takes place outside. But in practice, surveillance subjects in the physical world rely on and use detailed temporal, social, and physical features of their environment when calculating their ideal degree of disclosure to others at a given moment.

When the introduction of new surveillance technologies undermines features of the physical environment that people once relied on in calculating their degree of privacy or openness, the state may intervene. For example, celebrities once relied on physical distance and physical walls to keep out snooping paparazzi. When paparazzi started using visual and auditory enhancing technologies to overcome both distance and walls, California enacted a paparazzi law to protect individuals from a "constructive invasion of privacy" through the use of a "visual or auditory enhancing device."(fn2) In 2014, California amended this law to expand its coverage to constructive privacy intrusions by "any device" in order to reach aerial surveillance by drones.(fn3)

Surveillance technologies from video cameras to drones have inspired the enactment of a number of laws governing surveillance by private parties in real physical space. These laws have received surprisingly little in-depth analysis as a category.(fn4) This Article brings these laws together under one umbrella and proposes a way to understand the government's interest in enacting them.

The government has an interest in protecting privacy. But merely identifying the government interest in surveillance laws as an interest in privacy protection is inadequate because privacy can mean many different things. The understanding of privacy behind legislation can greatly affect the scope of that legislation, and the ability of the government to justify it to constituents and in court.

This Article asks what theory of privacy drives the government to protect individuals from having information about them gathered by private, nongovernmental actors. Without a theoretical understanding of why these laws exist, arguments over whether they should exist at all will continue to be had on a case-by-case basis. This has led to piecemeal legal protection.(fn5) Legislators will find it easier to decide when such laws are necessary if they can better identify and discuss the government interests at stake. Understanding the government interest is crucial for making decisions about both when to enact these laws, and when these laws can withstand balancing against other values, such as freedom of expression.

In the 1970s, social psychologist Irwin Altman conceived of privacy as boundary management:(fn6) the process of dynamically managing the degree of disclosure of one's self to others. Privacy is not a single state of being; it is a process of calibration set in physical, social, and temporal space. Altman's great insight is that when a physical space changes, a person's ideal degree of disclosure does not necessarily change with it. So if a wall functionally disappears because of a new surveillance technology, a person who once relied on it for protection from disclosure may now start changing her behavior, to maintain the same desired degree of disclosure that existed when the wall protected her.

Building on this conception of privacy, this Article proposes that the government has a two-pronged interest in enacting surveillance laws to govern private actors. First, it has an interest in providing notice to individuals, both to let them recalibrate their ideal level of disclosure and to encourage governance of surveillance through social norms. Second, the government has an interest in preserving some situations as surveillance-free, to prevent undesirable behavioral shifts.

Understanding the government interest this way descriptively maps on to the laws legislators have in fact been enacting. A number of surveillance laws provide notice to an individual so she can optimize disclosure calibration, while other laws preserve certain situations as surveillance-free. Understanding the government interest in surveillance laws as an interest in boundary management should enable legislators to thoughtfully enact new laws and enable courts to better assess the strength of the privacy interest at stake.

The privacy interests at stake in these laws will soon be weighed against an interest in free speech.(fn7) Courts will soon need to assess surveillance laws for their compatibility with freedom of expression, as courts of appeals recognize a burgeoning First Amendment "right to record."(fn8) While the outcome of this balancing is outside the scope of this Article, a theory of the privacy interest at stake in surveillance laws can help courts assess when the interest is strongest, and when it is...