In democratic societies, citizens’ behavior is unduly
restrained if they fear being watched at every turn.
and participating in online parent-support social networks and chat rooms. She then applies for a job and
is rejected, suspecting it’s because a background check
identified her Web activities and flagged her as high
risk for expensive family health costs.
Such tales are offered to support the argument for
Web privacy. Did, say, the online bookstores assert
that the titles of Alice’s purchases would be kept confidential? Did AOL promise never to release information about her online searches? Did the chat service
guard against lurkers in the chat room, recording the
names of every participant? A policy regime based on
information hiding would focus on these potential
acts of data release, perhaps even taking the position
that it is Alice’s own personal responsibility to inform
herself about the privacy policies of Web sites before
using their services. This focus is misplaced. The
actual harm was caused not by the disclosure of information by the bookseller, AOL, or chat service, but by
the decision to deny Alice the job, that is, by the inappropriate, discriminatory, and possibly illegal use of
the information. It is quite conceivable that Alice
wants to be publicly identified as someone with an
interest in her child’s illness. Forcing her to hide it to
protect herself against improper information use significantly limits her ability to exercise her right to freedom of association. Rather, Alice (and everyone else)
should be able to live in an online environment that
provides transparent information use and accountability to rules that limit the harmful use of personal
information.
COPYRIGHT
Looking into copyright and government surveillance
reveals deficiencies in the reliance on information
hiding as a policy tool. In the copyright context,
information hiding commonly takes the form of digital rights management (DRM). As with personal
privacy, locking up information is extremely difficult, and efforts at up-front control over the information flow results in user frustration and
substantially imperfect security. This is a lesson that
even the most ambitious online businesses have
learned. For example, in early 2007, Apple CEO
Steve Jobs wrote that DRM has not worked nor is it
ever likely to work [ 5]. Soon thereafter, Apple
changed the way it sells music online by offering a
higher-priced version of its download service unencumbered by DRM. Apple now implements a basic
form of information accountability. The newly
unlocked tracks include the purchaser’s name and
other personally identifying information. That way,
if he or she shares the purchased music with, say, a
hundred million closest friends through the Internet,
the purchaser could be held accountable.
The Creative Commons, another approach to
online copyright protection, likewise does not rely on
up-front enforcement of licenses. Rather, its architecture, based on rights expression, not access restriction,
recognizes the value of having information flow freely
around the Internet but still seeks to impose certain
restrictions on how the information is used.
GOVERNMENT DATA MINING
Recent government use of advanced data mining
techniques is another example of the deficiency of
access-control and collection-limitation approaches
to privacy compliance on the Web. Laws that limit
access to information do not protect privacy here
because so much of the data is publicly available. To
date, neither law nor technology has developed a
way to address this privacy loophole [ 2].
Airline passenger screening by law enforcement
and national security agencies illustrates the growing
complexity of information handling and transfer.
Society may be prepared to accept (and even expect)
national security agencies to use aggressive data mining techniques over a range of information in order to
identify potential terrorism risks. But citizens find it
unacceptable to use the same information with the
same powerful analytic tools to investigate domestic
criminal activity. Therefore, we need rules in the U.S.
(and globally) that address the permissible use of certain classes of information, in addition to simple
access and collection limitations.
LEGAL FRAMEWORK
The information-accountability framework more
closely mirrors the relationship between the law and
human behavior than do the various efforts to
