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First-Cut Working Paper of 10 January 2017
Intended as a contribution to a Chapter for Koops B.-J. (ed.) 'Homes and Computers: The Privacy Expectations in Physical and Digital Spaces'
Roger Clarke and Bert-Jaap Koops **
Caveat: At this stage in its development, the Working Paper uses and cites a large number of the author's own publications. The intensity of self-citation will be diluted with the background references as and when the document is converted into a formal publication.
© Xamax Consultancy Pty Ltd and Bert-Jaap Koops 2016-17
Available under an AEShareNet licence or a Creative Commons licence.
This document is at http://www.rogerclarke.com/DV/PDS.html
This Chapter identifies the original and continually changing conceptions of computing as a basis for understanding the forms of privacy intrusiveness that they have given rise to. The Chapter's purpose is to support the examination of two key questions: (1) What are the reasonable expectations of privacy in digital spaces? (2) What boundary-markers are available whereby legal protections for privacy can be established, whose breach requires legal authorisation?
Humans partition physical space. Depending on the purpose and nature of the partitioning, and the kind of entity that has ownership or possession of a particular space, the law recognises various formal rights for individuals within it, and various constraints on those rights. Among other things, those laws influence the surveillance of human behaviour within physical spaces, and interventions by other parties into human activities.
The notion of digital space, on the other hand, reflects the virtualisation of a great deal of human activity during the last few decades. At its most vague, digital space corresponds with Gibson's idea of cyberspace - 'the shared hallucination' that there is a non-physical location within which activities occur. More specific conceptions of digital space can be built by reference to the technologies that enable communication and behaviour, the functions that those technologies perform, and the affordances that they make available to users.
A great deal of change has occurred in computing and communications technologies. During the period 1985-2005, intrusions into individuals' digital space occurred, but were not well-supported by the available infrastructure. Corporations and governments were unhappy with those limitations, and have worked assiduously to overcome them. As a result, consumer devices are now insecure by design rather than by accident. The Internet as a whole, the Web in particular, and services provided over them, provide their operators and third parties with a wide range of capabilities for conducting surveillance of people's behaviour within digital space.
The analysis in the paper supports evaluation of the extent to which legal protections for people in physical spaces, particularly the home, provide insight into the shape that laws should take in order to provide appropriate protections for people in digital space.
A team of researchers is comparing intrusions into the home with intrusions into computers. This preliminary Chapter investigates the notion of 'computer system' in the context of (lawful or unlawful) intrusions. The intention is to establish a foundation for the examination of two key questions: (1) What are the reasonable expectations of privacy in digital spaces? (2) What boundary-markers are available whereby legal protections for privacy can be established, whose breach requires legal authorisation?
These preliminary notes first give brief consideration to human behaviours in physical space, and of surveillance of those behaviours and interventions into them. The idea of 'digital space' is then considered, with an initial focus on its psychological and sociological characteristics. Key attributes of the technologies that enable digital space behaviour are then identified, together with the features relevant to surveillance and intervention.
Human societies partition physical space. Some forms of partitioning may not be apparent to the naked eye, whereas others have visible boundary-markers, such as pegs, fences and signs. Some boundary-markers separate physical spaces from their surroundings using structures such as fences, walls and rooves.
Various kinds of partitioning have specialised laws associated with them. One way in which this is done is by recognising ownership of real estate, and providing qualified rights to the owners that they can enforce against other parties. These rights commonly relate to an area of land, and to some (often vaguely-defined) space above and below it. Aerial photography from altitude has been joined by high-resolution satellite imagery and more recently low-level drones carrying digital cameras, exacerbating the challenges involved in determining and balancing existing rights and establishing new ones. Tenancy brings with it a related but different set of rights, constraints and responsibilities. Volumes that are enclosed, particularly as buildings, i.e. with protection from above as well as the sides, attract additional rights, and further qualifications.
The rights and qualifications vary a great deal depending on the nature of the property and of the owner. Industrial land and buildings, and those of utilities and commercial organisations, need to be distinguished from domestic dwellings. More constrained rights apply inside private motor vehicles (cars, caravans, trucks) and more qualifications again inside shared vehicles (ships, trains, planes, busses, taxis). Individuals' rights may also be different where their presence in the space is in the context of employment or a contract for services.
The primary function of most structures may be to protect people and objects against the weather. However, a structure has the effect of shielding the individuals inside it from observation by people outside it. People have long valued that protection, especially in that most comforting of all structures, the place that each of us calls 'home'. The notion of 'home' may have begun as an emotional idea, but it is embedded in human rights documents, in particular UDHR 12, ECHR 8, ICCPR 17 and the Charter of Fundamental Rights of the European Union 7. (The US Bill of Rights 6, on the other hand, uses the term 'house').
Buildings have windows and doors, and outsiders can enter buildings through them, and can see through them. Insiders can communicate their permission or otherwise for people to enter and to observe. Outsiders may or may not respect those communications. Outsiders can use aids in their observation, such as telescopic lenses. They can also observe emanations outside the visual spectrum, and detect the operation of devices, the passage of electronic communications, and perhaps its content. Unlike physical observation, surveillance of forms of electromagnetic radiation outside the human-visible spectrum may be feasible despite walls enclosing the building-space.
Substantial bodies of law exist that create, qualify and balance the rights of individuals within and without buildings. For a review of one country's law relating to the use of visual surveillance, see Clarke (2014).
The purpose of this study is to consider the extent to which laws that apply to the spaces inside structures, particularly the home, apply in the new kinds of spaces in which we now live, behave, communicate and transact.
[DO WE NEED TO MENTION, EVEN EXAMINE, SOME OF THE FOLLOWING?
[TO WHAT EXTENT DO WE NEED A REVIEW OF SURVEILLANCE HERE?]
[Do we need to consider any other aspects of my 'framework for surveillance analysis', at Clarke (2009) ?]
The term 'digital space' has occasionally been used in connection with virtual reality technologies, by which is meant those designed to give a person an impression of three-dimensional space, often with the images moving, or contrived to appear to be moving, in the fourth dimension of time. In the present context, however, the sense in which the term is being applied is not based on physical dimensions, but rather its use is metaphorical. It refers to a substitute for physical space in which a great many activities can be undertaken despite the absence of place.
During the 1990s, for example, the longstanding term 'marketplace' was complemented by the neologism 'marketspace', to refer to the virtual context in which buyers and sellers discover one another, and transact business (Rayport & Sviokla 1994, Weill & Vitale 2001, Clarke 2001). In retrospect, this had been undertaken by exchange of letters for millenia, and by telegraph and then telephone during the nineteenth century; but it became mainstream, visible and exciting from 1986 onwards, when the London Stock Exchange closed its trading 'floor' and converted to online trading, and US exchanges followed.
In adjusting our stone-age understanding to the new context of near-ubiquitous, near-instantaneous, and nearly-always-on telecommunications, it is only reasonable for us to anchor ourselves in the familiar, by using a metaphor drawn from the old physical world - despite knowing full well that we're conversing with disembodied others, remote in space and often remote in time as well. Sometimes our interactions are with 'real people', and at other times they are partially intermediated, e.g. through the use of boilerplate to compose responses, or of IVR to capture customer data prior to connecting to a human operator, or by projecting avatars - visual images, usually of one of the person's alter egos. Increasingly often, however, people fail the reverse Turing Test, and unknowingly interact with a software agent rather than a person.
At its most abstract, the notion of digital space relates to 'the shared hallucination', and possibly 'mass hallucination' that people experience when using sufficiently advanced networked electronic tools. Gibson coined the term 'cyberspace' for this idea in a short story (1982), and popularised it in his novel 'Neuromancer' (1984). He later deprecated the term as being "evocative and essentially meaningless. It was suggestive of something, but had no real semantic meaning" (in a documentary made in 2000, 'No Maps for These Territories').
In order to develop a sufficient understanding of privacy in digital space, we need to peel back the metaphor. More analytically, digital space refers to the (non-)place where people perceive themselves to be when they use electronic tools to interact with other entities, whether for economic, social, cultural or political purposes (Clarke & Pucihar 2013).
Digital space can be regarded as the summation of the set of affordances available to users of networked infrastructure. This reflects the available technologies, including the end-point devices used by each party, the local and tele-communications facilities, the remote services accessed by means of those facilities, and the expertise that the parties apply in their use of the available tools. The set of affordances varies over time, as technologies mature, as new ones emerge, and as old tools fall out of use. To the enthusiastic user, digital space appears as a smorgasbord of opportunity, activity, interpretation and appropriation. Less apparent are the affordances available to other parties, which may be used to benefit the individual's interests, and to their detriment.
[Do we need at this point a preliminary discussion of boundary-markers in digital space?
[The technical aspects of the discussion (e.g. access controls, 'deep Web', content-encryption, VPNs, etc.) can't be addressed until after s.5.
[But perhaps this section could consider analogues to fences and signs (e.g. the expectation of respect for them), and to walls (e.g. the expectation of impermeability), and to windows and doors (e.g. the deprecation of 'peeping tom' behaviour, and the expectation of being able to close doors and draw curtains, thereby denying visibility of behaviour).]
The 'space' notion has gained considerable currency in relation to economic transactions, but is less widely used in other contexts. Here, the concern is with human behaviour, individual communicative actions and transactions, irrespective of their purpose, and therefore including social, cultural and political as well as economic contexts. Table 1 identifies a range of activities that are commonly undertaken in contemporary digital space.
After (Clarke 1994, 2011, 2014)
Computers originated as devices for computational purposes, at first physical (most notably Babbage's Analytical Engine of 1837), then electromechanical (Z2/Z3 in 1939-40, then Harvard Mark I/II in the early-to-mid-1940s), and subsequently electronic (Colossus in 1944, ENIAC in 1946). Components ('peripherals', 'terminals') were developed to enable data and instructions to be loaded into computers and for results to be provided back to humans.
Automated data processing commenced in 1890 using Hollerith cards for the US Census. The functions that computing installations could perform were extended from computation to electronic data processing, first at the Lyons Tea Company in 1951 and then for the US Census in 1952. The handling of 'unit records' (applying to a single entity) matured rapidly through 'file management' of many like records, to database management of multiple kinds of records, and from structured data to data-formats that exhibit only limited structure (text, image, sound).
Progressively, techniques that enabled communications among the components within a single computer were joined by local area networks that connected multiple devices within a small area. Tele- (distance) communications technologies already existed, and were harnessed and enhanced so that data could be exchanged between computers that were remote from one another. This began during the 1960s, and matured through to the 1990s. Communications depends on intermediating devices, in particular modems and codecs to convert internal signals to and from those used on networks, and routers to enable messages to reach their intended destination and to do so quickly and reliably.
As first components and then computers proliferated, and as they came to be connected, several network architectures emerged (Clarke 2004). Star topologies are associated with powerful 'master' devices at the centre, and 'dumb' 'slave' devices on the periphery. Client-server architectures involve dispersed or 'distributed' computing power, with the devices on the periphery of the network requesting services from central devices. These began within organisational boundaries, but as early as the late 1960s, and in earnest from the mid-1980s, the emphasis shifted from intra-organisational to inter-organisational systems (Clarke & Pucihar 2013). Client-server approaches became Internet-mediated from the mid-1990s. Peer-to-peer (P2P) architectures, in which many devices are capable of operating as both clients and servers, have also enjoyed several phases of widespread use.
For the first 35 years, computers were large and expensive. The progressive miniaturisation of electronic components saw the emergence of micro-computers from the mid-1970s. These could be purchased, assembled and used by individuals. From the late 1970s, pre-assembled 'personal computers' became common. During the 1990s, the maturation of local area networking combined with the widespread availability of Internet infrastructure to enable the gaps between islands of computing to be conveniently and cost-effectively bridged. Extra-organisational systems emerged, to enable corporations to at first reach individuals, and then to enlist them (Clarke 1992).
Progress in telecommunications technologies saw mobile phones emerge in the mid-1980s, originally for voice telephony only. The capacity of cellular networks grew, however, enabling low-volume data transmission applications to emerge with SMS in the mid-1990s, and grow from the late 1990s onwards. The capability for small, handheld devices of moderate capacity to operate untethered, and access remote data, ushered in the era of mobile smartphones in the earl-to-mid-2000s. Since Apple's release of the iPhone in 2007 and the iPad in 2010, smartphones and tablets have taken devices off people's desks and laps, and literally put them in people's hands.
Originally, computers ran a single program at any one time. With computational power continually increasing, that constraint was soon overcome, and layers of software emerged that provide common services and (nominally) make it easier to write software that performs useful functions. The deeper layers of systems software (including operating systems and database management systems) are distinguished from the higher layers of application software that are familiar to users. Originally, systems software and much of the application software for a device was provided by the hardware manufacturer. From about 1970, software was 'unbundled', resulting in a highly competitive market for software during the period 1970-2010. This has since been somewhat compromised by constraints imposed by hardware providers (particularly Apple) and systems software providers (particularly Google).
For many years, 'word processing' was one of the most important forms of application software for consumers, but the capture, preparation and editting of many other data-formats are now supported, particularly for image, sound, video and animation. Structured data is supported variously by spreadsheet management software, primarily for numerical data, and database management software such as those for handling small business accounting and family history data collections. Messaging applications have come in a succession of waves since 1972, and a great variety of capabilities (email, chat/IM, SMS/text, video-chat) continue to be used by some proportion of consumers.
From c.1985 until early in the new century, most applications were reasonably consumer-friendly, and the exercise of control over consumers by corporations was limited to a few forms such as system software features that reported consumer data back to the provider, cookies that leaked consumer data from web-browsers to web-servers, and spyware that gathered data from consumer devices by even more underhand means.
The various strands of development outlined in this section can be drawn together in order to identify successive eras of the technologies underlying digital space. In Table 2, a model of developments during the 65 years since the emergence of computing is presented. This postulates that a new phase is under way, which is much less friendly to the interests of consumers.
After Clarke (1994, 2003, 2004, 2016)
This era, featuring master-slave architecture, was driven by the then available technology and its economics, with scale being essential in order to achieve efficiency
This was characterised by centralisation that was appealing to organisations, but that was no longer justified by technology and economics, and that was undermined by the appeal to many users of distributing hardware and processing to the peripheries
This was justified by the changed economics of computing and communications. Client-server and in some cases peer-to-peer architectures, based on many-and-small devices under user control, were demonstrably more flexible and adaptable than arrangements that featured control by few-and-large devices
This features a sharp power-shift back to the centre. Elements include:
In greater detail, the key elements that underlie the realities of consumer computing c. 2020 are described in Table 3.
The purpose and effect of these services was to enable service-providers to excite consumers into participating, thereby gaining access to vast quantities of data about consumers (Clarke 2004, 2014)
The http protocol was originally client-oriented. It was inverted by means of a collection of tools loosely called Web 2.0. This resulted in service-providers gaining access to rich streams of data from consumers' devices (Clarke 2008)
Google established a new approach to advertising on Web-pages, since adopted and adapted by Facebook and others. By applying the copious quantities of data purloined from consumers, ads quickly came to be far more precisely targetted, resulting in effective manipulation of consumers' behaviour (Cringely 2005, Harris 2006, Clarke 2008)
Control of consumer computing was wrested away from individuals and into the hands of service-providers. From 1975 to 2010, desktops and laptops had featured considerable independence of operation and data management. Since c. 2010, a majority of usage has quickly passed to phones and tablets. These are not general-purpose computing devices sold to consumers, but are instead closed 'appliances' managed by their suppliers, for the benefit of suppliers, subject to the constraint of being attractive to consumers (Clarke 2011). Desktop systems software is also being migrated towards the appliance model
Since about 2000, but much more rapidly since 2010, Software as a Service (SaaS) offerings have proliferated, and have encouraged consumers to rely on service-providers for both the storage and the processing of their data. The effect of these changes has been abandonment by consumers of control over their data, and new and poorly-managed risks (Clarke 2011, 2013, 2015)
During the second decade of the 21st century, a digital surveillance economy has come into being (Clarke 2016). The handling of social transactions provides a foundation for targeted advertisements that strongly influence consumers' economic behaviour, and the infrastructure is in place for the handling of economic transactions as well. Most data relied on by consumers is not on their devices. The consumer is reliant on remote services, which are provided by corporations that are distant and powerful, that set their Terms of Service and Privacy Policies to suit themselves, and that have very little responsibility for service and data-access reliability or even continuity.
The loss of control by consumers may shortly be reinforced by the emergence of many forms of 'eObjects', by which is meant "an object that is not inherently computerised, but into which has been embedded one or more computer processors with data-collection, data-handling and data communication capabilities" (Manwaring & Clarke 2015). Although some aspects of the Internet of Things euphoria may be positive from a consumer perspective, a great many of the potential applications involve further empowerment of corporations over individuals. Chip implantation may also gather pace, reducing people themselves to 'eObjects' radiating data.
In their present form, information technologies are primarily passive, in the sense that they do not operate directly on the physical world. Generally, computers can be used to model and monitor behaviour in the physical world, but not to intervene in that behaviour. On the other hand, there is already a range of circumstances in which software, or human action at distance mediated by software, has a direct physical effect. For example, automated teller machines dispense cash, and the sluice-gates of dams are operated in such a manner.
The marriage of 'effectors' with computing and communications extends the notion of robotics from localised units to distributed information technology complexes (Clarke 1993, 2005, 2014). This further complexification of information technologies can be expected to gather pace in the coming years, such that human behaviour in digital space is subject not only to surveillance threats but also to intervention, both remotely by other humans and of an automated nature.
The threats that this harbours for individuals are exacerbated by the ongoing abandonment of algorithmic computing in favour of empirical computing techniques. Software developed using procedural programming languages embodies an explanation of the means whereby the result was obtained, and, by implication, of the reasons why the particular inferences were drawn. Software development fashions have changed substantially, however. An increasing proportion of software uses techniques such as neural networks and machine-learning approaches. These involve prior examples being used to 'train' a program. Subsequently, an instance is fed to the 'trained' artefact and it draws inferences about the new instance on the basis of the accumulation of prior examples that it has been exposed to. This is not rationality, but pure empiricism. Decision-making based on such techniques is inscrutable. This has the effect of denying challenge, appeal, and recourse against inappropriate decisions (Clarke 1991, 2014, 2016).
[EXPAND THESE NOTES]
A major feature of networked computing, and particularly of end-user devices, is their inherent insecurity (Clarke & Maurushat 2007, Norton 2014, Hardy 2016). During the period 1980-2000, much of this insecurity arose because of the ignorance of technology-providers (and everyone else) about the risks involved. Since then, however, much of the insecurity has been designed-in (Clarke 2016).
[Do we need a discussion here of privacy-relevant technical aspects of digital space, including security features (e.g. access controls, 'deep Web', content-encryption, VPNs, etc.)?]
[TO WHAT EXTENT DO WE NEED A REVIEW OF SURVEILLANCE HERE?]
[If this is needed, replace the above structure with the typology of Koops et al. (2016) ]
[Do we need to consider any other aspects of my 'framework for surveillance analysis', at Clarke (2009) ?]
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Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in Cyberspace Law & Policy at the University of N.S.W., and a Visiting Professor in the Computer Science at the Australian National University.
Bert-Jaap Koops is a Full Professor at the University of Tilburg Law School, in the Tilburg Institute for Law, Technology, and Society (TILT). During 2016-17, he is Distinguished Lorentz Fellow at the Netherlands Institute for Advanced Science (NIAS) and Lorentz Center.
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