Surveillance as Loss of Obscurity

46 Pages Posted: 7 Jan 2016  

Woodrow Hartzog

Samford University - Cumberland School of Law; Stanford Law School Center for Internet and Society

Evan Selinger

Rochester Institute of Technology - Department of Philosophy

Date Written: January 6, 2016

Abstract

Everyone seems concerned about government surveillance, yet we have a hard time agreeing when and why it is a problem and what we should do about it. When is surveillance in public unjustified? Does metadata raise privacy concerns? Should encrypted devices have a backdoor for law enforcement officials? Despite increased attention, surveillance jurisprudence and theory still struggle for coherence. A common thread for modern surveillance problems has been difficult to find.

In this article we argue that the concept of ‘obscurity,’ which deals with the transaction costs involved in finding or understanding information, is the key to understanding and uniting modern debates about government surveillance. Obscurity can illuminate different areas where transactions costs for surveillance are operative and explain why making surveillance hard but possible is the central issue in the government-surveillance debates. Obscurity can also explain why the solutions to the government-surveillance problem should revolve around introducing friction and inefficiency into process, whether it be legally through procedural requirements like warrants or technologies like robust encryption.

Ultimately, obscurity can provide a clearer picture of why and when government surveillance is troubling. It provides a common thread for disparate surveillance theories and can be used to direct surveillance reform.

Keywords: surveillance, privacy, obscurity, theory

Suggested Citation

Hartzog, Woodrow and Selinger, Evan, Surveillance as Loss of Obscurity (January 6, 2016). 72 Washington and Lee Law Review 1343 (2015). Available at SSRN: https://ssrn.com/abstract=2711816

Woodrow Hartzog (Contact Author)

Samford University - Cumberland School of Law ( email )

800 Lakeshore Dr.
Birmingham, AL 35229
United States

HOME PAGE: http://cumberland.samford.edu/faculty/woodrow-n-hartzog

Stanford Law School Center for Internet and Society ( email )

Palo Alto, CA
United States

HOME PAGE: http://cyberlaw.stanford.edu/profile/woodrow-hartzog

Evan Selinger

Rochester Institute of Technology - Department of Philosophy ( email )

92 Lomb Memorial Drive
Rochester, NY 14623-5670
United States
(585) 475-2531 (Phone)

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