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  • Series: Elgar Law, Technology and Society series x
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Tjerk Timan, Bryce Clayton Newell and Bert-Jaap Koops

As an introduction to the volume, this chapter presents a thematic overview of the contributions by authors from different disciplines on the topic of privacy in public space. Four main themes become apparent in the book and serve as conceptual directions for thinking about privacy in public space: the role of context, regulation and governmentality, the body as interface, and privacy mitigation and regulation.

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Bert-Jaap Koops and Maša Galič

In this literature review, we survey the rich scholarship in human geography on the conceptualization of space and place, aiming to make it accessible to legal, governance and other scholars engaged in the debate on (the right to) privacy in public spaces. Many legal, governance and other scholars still tend to think of physical place and space (expressions often used interchangeably) as empty and neutral containers relating to territory: straightforwardly empirical, objective and mappable. Human geography shows that space and place are relational, socially co-produced and dynamic. The construction of ‘places’, including places in public space, is intricately related to issues of access control, power relations and identity-building. Particularly since the 1990s, the ongoing transformation of urban public space, including shifts in design, management, financing, and the proliferation of (digital) surveillance (the ‘privatization’ and ‘securitization’ of public space) has emerged as a key focus of geographical concern. While geography’s insights are invaluable for researching and regulating the shifting urban spaces and places in relation to privacy in public, geographic research has often not yet reached the debate on this topic. This chapter remedies this gap by discussing, through a lawyer’s lens, key literature on (public) space and place, mapping out and highlighting different ways of thinking about public space and place in relation to major themes of context, power and identity, and thereby opening up this rich area to scholars grappling with the regulation of public space.

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Michael Nagenborg

A recent off-spring of ‘privacy by design’ are artefacts and gadgets that aim to protect the privacy of the users. An example is the work of Adam Harvey, who ‘explores how fashion can be used as camouflage from face-detection technology’ (http://cvdazzle.com/). In this contribution, the author explores the differences using camouflage and masks as two distinctive tactics, which aim to restore aspects of anonymity provided by becoming part of the crowd. Current technological developments on biometrics-from-a-distance (e.g. face recognition system) aim to re-identify the single individual and therefore undermine an important aspect of urban anonymity, which has traditionally been perceived as a condition of the liberal urban life-style. While Adam Harvey’s works are inspired by World War I naval camouflage design, his works lean towards the use of the mask in revolutionary movements such as the Zapatistas or by members of Anonymous. Such Masks need be considered as ‘inter-faces’ in the literal meaning of the word, which, in contrast to the idea of camouflage, allow the users to be visible and present, while protecting the identity of the user.

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Maria Brincker

As traditional public spaces rapidly change, the question arises whether pervasive surveillance is actually compatible with the nature of individual agency. It is known that new and largely unregulated technologies often both erode old de facto limitations of access, and erect new asymmetric barriers of knowledge, but how should we understand the harms of these new contexts? Based on our psychological and biological knowledge of social perception, embodiment and action choice it seems that these conditions present a toxic mix for our ability to gauge what I call our ‘relational privacy’, and thereby for our autonomous and purposeful action planning. If this functional analysis is right then boundless surveillance of our bodies and behaviors threatens rather than supports basic personal freedom and responsibility. However, in contrast to this analysis, the private-public dichotomy often implied in existing debates assumes that privacy concerns can be theorized without much attention to the functional and relational dynamics of our embodied agency. Building on, among others, Nissenbaum and Reidenberg’s work, this chapter seeks to counter this tendency. Two conclusions stand out: first, it seems that our action choices depend on the existence of limited contexts also in public, and thus actions in what we might term ‘unbounded contexts’ are typically performed through some kind of denial. Secondly, abundant availability of data traceable to persons cannot only undermine and coerce our choices, but even to a large extent completely bypass our current volitional action choices. Thus it seems that the contextual nature of our agency should be of utmost importance to political and legal privacy issues, and could usefully guide attempts to re-create more bounded public spaces.

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Karsten Mause

Starting at least with Adam Smith’s seminal book The Wealth of Nations (1776), there is a long tradition of politico-economic research investigating to what extent the state should intervene in the economy and other spheres of society. This chapter explores what ‘political economy’ as an interdisciplinary research program at the intersection of political science and economics can contribute to the debate on the governance issue of how to protect individuals’ privacy in public spaces. Following similar examinations of other phenomena in the existing politico-economic literature on the proper role of government, tools and insights from the toolkit of political economy are used to examine to what extent it is necessary for the state to secure individuals’ privacy in public spaces. Or, put differently, the authors take a market-liberal perspective in order to analyze to what extent individuals themselves are able to protect their privacy in public spaces.

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Julia M. Hildebrand

By comparing two paradigmatic attempts to visually capture and preserve everyday life on Earth at the beginning of the twentieth and twenty-first centuries, Albert Kahn’s Archives de la Planète (1909–1931) and Kevin Macdonald’s Life in a Day (2011), this chapter seeks to illuminate a shift in the visual, narrative and metaphorical mediation of public and private spaces. Theoretically, this qualitative analysis draws on the works of McLuhan and Virilio and their approaches to ‘public’ and ‘private’ as evolving concepts shaped by communication technologies. The exploration of the projects’ contents and contexts reveals that Kahn’s cinematographic footage is mostly concerned with anonymous public life filmed from respectful distances, visually demarcating and constructing ‘privacy bubbles’ in public spaces. This principle is strongly contrasted, if not dismissed, in its crowd-sourced successor emphasizing individual private, even intimate spheres recorded from utmost physical and psychological proximities in video-aesthetics. In lieu of a privatization of the public world by Kahn, Life in a Day prompted a collective production and publication of private worlds openly accessible on YouTube. The seemingly elitist, colonial surveillance in Kahn’s oeuvre shifts towards a proliferating digital self-surveillance roughly a century later. The inquiry helps reflect on the respective communication technology’s role in the culturally framed capture and formation of public and private spaces as expressed in these projects. Consequently, the chapter seeks to conceptualize the presence of privacy bubbles in public spaces from a media-historical lens.

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Stephen B. Zhao

The Dutch CBP recently decided that monitoring people in and around commercial shops by tracking their mobile phone WiFi-signal without notice for analysis is against Dutch law. The ECJ judged in František Ryneš that monitoring the footpath in public space with a surveillance camera is in general a violation of EU law. Both authorities rejected collecting and processing personal data in ‘public space’ without consent or notification, as digitalization of public space has become a global trend nowadays, resulting in escalating privacy threat of multiple forms. Based on case analysis and conceptual construction, this chapter seeks to address the scope of reasonable ‘expectation of privacy’ in digitalized public spaces. It elaborates: (a) the genera of public spaces, including commercial venues, governmental utilities, even private properties, etc., and their related characteristics; (b) the functionalities of concealment and exposure of personal information in multiple public spaces, for instance, to achieve safety, identity establishment, autonomy, dignity, mutual trust, public participation, cooperation and economic efficiency; (c) the substantial impacts brought about by the increasing digitalization of public spaces, especially regarding the functionalities of personal information concealment; and therefore (d) the justified, reasonable ‘privacy expectation’ in public spaces, and feasible thresholds for safeguard.

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Angela Daly

This chapter presents a critical analysis of the decision of the European Court of Human Rights (ECtHR) in SAS v. France. The implications of the case, concerning the French ban on face coverings, for Muslim women’s religious freedom are well known and have been discussed extensively in the literature. However, one important privacy implication that has been overlooked is the legality of covering one’s face in public, regardless of motivation. The chapter explores the case’s implications for privacy in public spaces, in the context of the ECtHR’s jurisprudence on privacy more generally. A comparative analysis with the United States is undertaken, as various US courts have ruled on the compatibility of anti-mask laws with the US Constitution. In the context of increasingly ubiquitous surveillance and blurring of the online/offline and public/private divides in contemporary society, this chapter determines the (perhaps unintended) consequences of SAS v. France for individual privacy and anonymity.

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A. Michael Froomkin

The US Constitution imposes limits on policy-makers that make adoption of EU-style privacy legislation protecting privacy in public difficult, and in some cases impossible. In the United States, therefore, one must devise innovative, if perhaps more limited, measures to protect privacy in public spaces. Encroachments on privacy through mass surveillance resemble the pollution crisis in that they impose an externality on the surveilled. By recasting privacy harms at least metaphorically as a form of pollution and invoking a familiar (if not uncontroversial) US regulatory solution, this proposal seeks a domesticated form of regulation with the potential to ignite a regulatory dynamic by collecting information about the privacy costs of previously unregulated activities that should, in the end, lead to significant results without running afoul of potential US constitutional limits that may constrain data retention and use policies. Counter-arguments focusing on the First Amendment right to data collection, the inadequacy of Environmental Impact Statements (EISs), and the supposed worthlessness of notice-based regimes are also addressed.

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Albert E. Scherr

Any conception of privacy in public spaces must account for the practice of surreptitious DNA harvesting. Surreptitious DNA harvesting presents a set of privacy problems different than other privacy-intrusion practices. Shed DNA is out-of-body DNA containing a kaleidoscope of intimate, personal, and powerful information. Viewed through DNA’s connection to the body, out-of-body DNA begs for protection, even when left in a public space. Viewed as merely an abandoned body trace, shed DNA too often provokes a physically-bounded conception of privacy that dissolves any instinct for protection because the DNA is no longer part of the physical self or the physical identity. This chapter proposes a re-conception of bodily privacy in a public space that calls for privacy protection for the genetic self (the genetic identity), irrespective of its physical location.