33 Pages Posted: 17 Jun 2009 Last revised: 28 Oct 2015
Date Written: June 11, 2009
This article explores the phenomenon of employee snooping, which I call “peeping.” The essay draws on mythology and literature to show the ancient roots of the phenomenon of peeping, and hopefully encourages discussion and raises awareness of peeping throughout the academic community.
Part I of the essay discusses recent political and celebrity peeping incidents, such as the passport records of candidate Obama.
Part II describes three, increasingly harmful, types of peeping; "the gaze," "the gossip," and "the grab." The “gaze” occurs simply when a person looks at another person without permission, such as Peeping Tom gazing at Lady Godiva or a modern-day Peeping Tom sneaking a peek into a database. The “gossip” occurs when the person tells other what he or she has seen. The “grab” is even more serious. It occurs when an employee grabs the personal information for profit, often at the behest of an outsider. A recent example is where the National Enquirer paid an employee at the UCLA Medical Center to turn over celebrities’ medical records on over 30 occasions.
Part III asks: “Why now?” Human curiosity, especially for the titillating or about the famous, is as old as human nature. There are specific reasons, however, why these peeping incidents are coming to our attention now. The number of detailed databases, accessible by numerous employees, has climbed sharply in recent years. Once a peeping incident occurs, the perpetrator can easily post the evidence to a blog or social networking site. Such databases also increasingly have logging and auditing software, so that the peepers can be caught after the fact. In short, the opportunity for peeping has climbed, and the possibility of catching the peeper has climbed as well. As a society, therefore, we are newly facing the question of how to respond when we catch the perpetrators.
Part IV explores what to do about this increase of peeping. The penalty for peeping for Tiresias and Tom was blindness, but that seems a bit excessive. Many of the most promising approaches are technical safeguards, and there are also useful administrative safeguards, from training employees to considering expanding the new California law giving notice in the event of a peep.
Part V applies these insights to a major current area of controversy - behavioral advertising on the Internet. A significant source of concern about tracking the Internet usage of individuals is that they will become subject to peeping, as happened for instance to Obama’s cell phone records once he became famous.
In short, this essay can encourage more discussion about peeping for writers from many fields beyond law and technology, including literature, mythology, sociology, anthropology, psychology and more besides.
Keywords: Privacy, Peeping, Cyberspace, Technology, Sociology, Mythology, Behavioral Advertising, Browsing, Obama, Celebrities
Suggested Citation: Suggested Citation
Swire, Peter, Peeping (June 11, 2009). 24 Berkeley Journal of Law & Technology 1164, 2009; Ohio State Public Law Working Paper No. 177. Available at SSRN: https://ssrn.com/abstract=1418091 or http://dx.doi.org/10.2139/ssrn.1418091