Privacy in Electronic Public Space: Emerging Issues

Rohan Samarajiva (Ohio State University)

Introduction

Telecommunications networks (including the National Information Infrastructure being promoted by the Clinton Administration in the U.S.) are increasingly being perceived as important to the well-being of the economy and the polity. Use of telecommunication networks is increasing dramatically. Telecommunication networks are no longer limited to the conveyance of voice messages from one point to another. The kinds of information that can be transmitted over telecommunication networks now include voice, data, and images. No longer are these networks limited to point-to-point communication. Conferencing capabilities enable many-to-many communication. Automatic dialers combined with taped human or voice-synthesized messages "broadcast" to many points. Interactive or recorded mass announcement services allow simultaneous access to identical messages by multiple users. Along with these developments, telecommunication and privacy--two terms that were hardly if ever mentioned in the same sentence--have become strongly linked in the past two to three years, owing to a number of reasons.

There is significant public concern over privacy. Surveys conducted by Louis Harris & Associates & Alan Westin (1990, 1992) over the past 15 years show a dramatic and non-volatile increase in public concern in the U.S. The most recent findings, released in September 1993, show a 4% rise in the group concerned about privacy from 79% to 83% in one year. The very concerned group is the majority now, with a 6% increase over the past year to 53% (Westin, 1993, p. 13). As well, more or less similar findings are presented in the recent Canadian survey sponsored by industry and government (EKOS Research Associates, 1993).

Much of this concern is related to telecommunication. A Bellcore-sponsored U.S. national survey (Katz, 1991) revealed that over one-fourth of the respondents associated the telephone with privacy invasions. The survey, conducted door-to-door, included the question "Please give me an example of what you would consider an invasion of your personal privacy." It was reported that the respondents were not prompted on what constituted an invasion of privacy and were not given any indication that the survey had anything to do with the telecommunication industry. Telephone-related examples amounted to 28.5% of the total 1,303 responses. Within the telephone-related category, telephone tapping (a form of information outflow, where the boundaries of the primary communicating parties are violated by a third party) was the highest of all the categories at 14%, followed by telemarketing (a form of information inflow, where an unknown and undesired party initiates communication) at 12%. The second-ranked grouping of categories was physical intrusion (20.4%), followed by internal state inquiries (e.g., personal questions, financial status questions) (16.4%), information distribution (e.g., individuals and companies giving out personal information, banking information) (12.8%), limits on actions (e.g., abortion restrictions) (7.0%), and government intrusions (6.9%). This survey points to the privacy significance of telephony, but it takes little effort to extrapolate to all forms of networked, interactive media.

Privacy is connected to core communication policy concerns. These include pricing (e.g., who will pay for the privacy-invasive enhancements and the privacy-enhancing responses that will follow?), competition (e.g., what will be the terms and conditions of access to customer information generated by sophisticated interactive systems?), infrastructure (e.g., will the new features that affect customer privacy drive interactions/transactions off the network?).

There is already significant policy activity on privacy. Without much explicit discussion, privacy issues have crept into policy agendas. A recent research report published by the National Regulatory Research Institute documents the numerous (and, in most cases, unconnected) privacy policy initiatives undertaken by federal and state telecommunication regulators in the U.S. (Burns, Samarajiva, & Mukherjee, 1992). In Canada, perhaps for the first time anywhere in the world, the safeguarding of privacy has been formally enacted as being among the objectives of national telecommunication policy in the Act respecting Telecommunications (1993). The question is no longer whether communication decision-makers in the private and public sectors will deal with privacy. It is whether they deal with it in a systematic and informed manner, or not.

Privacy and Surveillance

Privacy

Examination of privacy can begin from law or from everyday practice. In the former, one would examine the fundamental law of the specific jurisdiction (e.g., the federal constitution and the relevant provincial constitution), the statutes, precedent, and the common law, as applicable. This path is of limited utility because privacy, though fundamental, is also highly contested, as evidenced by the routine interrogation of U.S. Supreme Court nominees on their positions regarding the existence of a right of privacy. Furthermore, the level of contestation and concern is so widespread that it may be premature for a stable and generally acceptable definition of privacy to emerge.

An alternative approach is that of developing a definition from research on face-to-face human interactions in public spaces conducted by sociologists and communication researchers. By the term "space" I mean a social space constructed by human beings through interaction. By a public space, I mean a space that is relatively open to access, rather than a physical location that is owned by some level of government. Human interactions in "physical" public spaces such as sidewalks are governed by mutually accepted ground rules rather than formal rights. Erving Goffman (1963, 1971) studied these ground rules in detail. His research dealt with physical public space and face-to-face interactions. He saw ground rules regulating dealings between those who share hardly any common organizational or family affiliations, the classic examples being people navigating busy streets, signalling directional changes and rights-of-way to total strangers.

There are significant commonalties between these physical public spaces and the domain of interactions in the public switched telecommunication network (PSTN), or electronic public space. The PSTN offers the possibility of initiating dyadic or group communication links from among millions of individuals, and of having one or more individuals among these millions initiate communication with oneself at any given time. In terms of potential, the moment of "entering" the PSTN by lifting the handset is similar to entering a physical public space such as a plaza where one could initiate contact with any one of the multitude inhabiting that space, or having any one of those individuals initiate contact. In the case of electronic space, the possibility is that of initiating contact with a person or persons already in that space (e.g., in the case of conference calls or chatlines), or, more commonly, of initiating contact with a person or persons whose physical private space (i.e., a telephone-equipped home) and physical public space (i.e., a restaurant or a pub with a telephone) abut the electronic space.

In practice, individuals do not normally establish contact with totally unknown persons or for no legitimate reason in physical space or in electronic space. The predominant pattern is for individuals to navigate their way through public space obeying its ground rules to establish contact with a known person or persons or with an unknown person or persons for legitimate reason, at which point the dyad or larger group effects a complete or partial withdrawal from the public space into a private space. In both physical and electronic public spaces, the possibility of unintentional collision exists, bumping into a bystander in the former and dialling a wrong number in the latter. In both physical and electronic public spaces, the boundaries between public and private spaces are defined by implicit, and sometimes explicit, negotiation between the communicating parties, but also between them and third parties (Samarajiva & Shields, 1993). Infringements of these boundaries and /or the use of coercion in the negotiating process constitute violations of a basic ground rule identified by Goffman (1971): "... in Western society, as probably in all others, there is the `right and duty of partial display.' Two or more individuals present together have the right and duty to make some information generally available concerning their relationship and the right and duty to leave unsignaled other information about their relationship" (p. 198). Drawing on Goffman's work and subsequent scholarship on communication processes (e.g., Altman, 1975; Petronio, 1991), it is possible to define privacy as the capability to implicitly or explicitly negotiate boundary conditions of social relations. This definition includes control of outflow of information that may be of strategic or aesthetic value to the person and control of inflow of information, including initiation of contact. One thoughtful observer pithily described concerns over outflows as the "none-of-your-business" aspect of privacy, and concerns over inflow of information as the "leave-me-alone" aspect of privacy (Rhodes, 1991).

Surveillance

The term surveillance is used in the non-pejorative sense proposed by Harold Lasswell to describe one of the principle functions of communication processes, that of disclosing threats and opportunities (1948, p. 51). All organizations engage in surveillance of their environments to reduce uncertainty. Organizations tend to be systematic in their collection of information, and to store the collected information in relatively permanent form. Surveillance is affected by the uses to which the collected information can be put and by the relationship between costs and perceived benefits. Surveillance is but one of the methods of reducing uncertainty and increasing control.2 Mass-market advertising has been very effective in the past in reducing uncertainty and increasing control. In advertising-driven, mass-marketing environments where more or less similar products are sold on a mass scale to customers perceived to have more or less the same characteristics, firms have little incentive to collect detailed information on individual customers.

The gradual demise of mass production and mass advertising currently underway has contributed to the shifting of the incentives for customer surveillance. Mass customization (whereby non-identical and apparently custom- made products and services can be produced on a mass scale at concomitant low unit costs) creates incentives for the collection of information about customers for use in the production-marketing process. This shift in incentives has given rise to relationship or database marketing, whereby manufacturers and /or retailers of products seek to establish ongoing service-type relationships with their customers, and to collect, store, and manipulate information about customers with a view to controlling their behaviours. Providers of services who have always had relationships with customers have moved to deepen and systematize the informational aspects of those relationships. The rapid drop in the costs of collecting, storing, and manipulating information--and the parallel increase in the capabilities of the relevant information- communication technologies--have affected the ratio of perceived benefits to costs, contributing to increased information-gathering by firms.

Surveillance in and of itself is not problematic, though it must always be seen in relation to the privacy interests of surveilled parties. But today's corporate surveillance practices are cause for serious concern. The systematic nature of corporate information collection, the increased sophistication of the manipulation of collected information, the relative permanence of such records, and the relative distance between the data manipulators and customers or data subjects places the customer at a distinct disadvantage in these relationships.

Emerging Policy Issues

Transaction-generated Information

Following Thomas McManus (1990, p. 43), transaction-generated information (TGI) refers to information that is produced as the by-product of a transaction. Information contained in long-distance telephone bills (time of call, duration, and the number called) is a good example. It does not tell us what the conversation/transaction was about, but tells us something about the transaction that, together with contextual information, we can use to make inferences regarding the transaction. Discussion of TGI must begin from an examination of the surveillance incentives of the late-twentieth-century business organization. Facing saturated markets and ineffective mass advertising media, firms increasingly engage in surveillance of customers and prospects at a detailed level. In their concern to maximize the quality of the data used to control customer behaviour, firms tend to value information yielded by customers under conditions that favour accuracy, including information that is involuntarily yielded by customers in the course of transactions with the firm (transaction-generated information) (Gandy, 1993; Larson, 1992).

Advertising-supported mass media firms have had little or no formal transactions or ongoing relationships with their customers. This is not to deny their interest in finding out about the behaviour and proclivities of their customers. This desire, however, has had to be satisfied by intentional information-seeking acts such as audience surveys, ratings, competitions, and so on. By contrast, telecommunication firms, including cable companies, have had strong and ongoing relationships with customers by reason of their service-providing and billing activities. However, their traditional monopoly status and pricing schemes (predominantly flat-rate or two-part tariffs, at least in North America) have muted the incentives to collect TGI. This incentive structure is undergoing a rapid transformation at the present time particularly because of the shift of these firms toward a mixed monopoly/competitive status (i.e., monopoly local exchange service provision along with "competitive" enhanced services), and such a structure poses some unusual problems as sketched below.

(1) In competitive markets, customers facing intrusive information-collection have the option of moving to less privacy-invasive suppliers. This option is unavailable to customers of the monopoly arms of these mixed monopoly/competitive telecommunication firms, particularly residential customers. (2) The transfer of information gathered by the monopoly arm of the telecommunication firm to the competitive arms skews the "playing field" in those markets, hurting competitors in the short term and customers in the long term, and affecting public-policy objectives in both cases. (3) Given the increased use of telecommunication facilities in all aspects of life (e.g., ordering of goods and services, preparation and facilitation of face-to-face interactions of all types, information retrieval, maintenance of romantic and family relationships), these transactions are likely to yield more information about core patterns of customer behaviour. (4) Whereas the TGI collected by a competitive firm is, by definition, limited to a slice of the relevant market and /or the populace and is of limited value in terms of making general conclusions about behaviour, the TGI collected by a telecommunication monopoly more or less covers the entire market and is thus more valuable. (5) The ongoing redesign of interactive networks enables the incorporation of information-intensive technologies such as Signalling System 7 (SS7) protocols and "call-management service" software that can build surveillance into the very medium of interaction. This is enabled by specific technological capabilities and encouraged by the shift from flat-rate or two-part tariffs and the general incentive to engage in customer surveillance to control customer behaviour (Mukherjee & Samarajiva, 1993; Burns, Samarajiva, & Mukherjee, 1992).

Use-"Management" Services

Partly in response to customer concerns about telecommunication privacy and partly in the hope of making money out of network enhancements put in place for other reasons such as increasing capacity, telecommunication firms have begun to promote various use-"management" services such as "Call Display" or "Caller ID" (the U.S. term for the same service). Given the definition of privacy as the capability to implicitly or explicitly negotiate boundary conditions of social relations, use-management appears to be privacy- enhancing (Katz, 1990). The problems associated with many of these management services may be discussed using Call Display as an exemplar.

Call Display is not capable of identifying telephone callers. What it does is deliver the number of the telephone from which the call is being made to a device attached to the called telephone. Generally, this number can be seen by a person at the called telephone after the first ring. In order to identify the caller the number must be associated with a person. In some cases, this would be based on previous experience with a specific telephone number. In others, the association would have to be based on reference to some form of directory (ranging from a short list of telephone numbers maintained by the call-receiving person to a reverse telephone directory that is computer-searchable). Since most telephone numbers are associated with more than one person (e.g., in family households, in shared accommodations, in many office settings) the association may not be accurate.

Call Display greatly reduces the telephone user's ability to control the outflow of personal information associated with the use of basic telephone service. The outgoing information includes information that could be used to target the customer for marketing and other purposes as well as access information. Call Display delivers to the call-receiving party information (in computer-processable form) that a call was made from a specific telephone at a specific time. In conjunction with contextual factors, this information may yield a significant amount of additional information. For example, if the called number is that of a used-car dealership, it may be inferred that the person assigned the captured telephone number (or a member of that household) is in the market for a used car at that time. In addition the captured information constitutes access information. Access information is particularly useful for marketing purposes but is of great significance in interpersonal communication as well. It has been defined as:

information disclosed in public that can be used to locate an individual at some future time. Knowledge of a person's home or place of work clearly can function as access information, as can knowledge of one's full name, phone number, neighborhood, habitual routes, and hangouts. Access information between the acquainted is normally not problematic, [but] ... in encounters between the unacquainted, usually in public, . . . such information can be contested. (Gardner, 1988, p. 384)

Reduced control over outgoing information enables more parties (including individuals and organizations with which the user has had no direct dealings) to learn more about the subscriber (particularly by using the telephone number and other identifiers to access personal information in other databases) and to locate and access the customer by phone, mail, or in person. Thus, the loss of control over outgoing information leads to a loss of control over incoming information and face-to-face interactions as well. The user need not subscribe to Call Display to suffer these negative consequences. The majority of subscribers and users of telecommunication monopolies who choose not to subscribe to this discretionary service will still undergo a reduction of ability to control incoming and outgoing information. The default extraction of the telephone number of every calling party in the serving area and its delivery to subscribers of Call Display violates privacy.

The basic flaw in arguments in favour of Call Display is the assumption that more information will necessarily yield more control over the environment, specifically over incoming calls. This "high-surveillance" paradigm is not only harmful to privacy, it yields rather uncertain outcomes because of the inherent unreliability of the inferences required to make predictions and to a certain extent of the inputted data as well (Burns, Samarajiva, & Mukherjee, 1992, pp. 63-66).

Encryption

The Bellcore survey reported above (Katz, 1991) showed significant public concern about wiretapping. These findings emerged before the debate over the Federal Bureau of Investigations (FBI's) "Digital Telephony Proposal" began in the United States in early 1992. This debate, which pits the FBI against civil liberties groups, telephone companies, and computer companies, is likely to increase public concern over this issue. In addition, the current confused state of law regarding the tapping of non-wireline transmission modes in the United States (cordless/PCS [Personal Communication Services] appears to be unprotected, while cellular/PCN [Personal Communication Networks] may be protected in law, but not in practice), is likely to aggravate public concern over time. In addition, the national security concerns that have coloured U.S. policy on encryption for many decades are beginning to lose legitimacy in the post-Cold War era.

There are two principal encryption issues on the table in the U.S. (To tap or not to tap, 1993; Hoffman, 1993). The first is the FBI digital telephony proposal before Congress which would amend existing legislation to require that entities that provide communication services (including but not limited to telephone companies) make design modifications to facilitate surveillance by law-enforcement agencies with proper court orders. In effect, providers of communication services will be required to simplify or "dumb down" their facilities to satisfy the wire-tapping requirements of law enforcement. In addition to the problems of determining how much dumbing down is enough and the scope of the proposed legislation (early language appeared to include PBX manufacturers and users within its scope), the most direct implication for conventional telecommunication regulation is cost allocation. According to the first digital telephony proposal of March 1992, the Federal Communications Commission (FCC) was to be mandated to include such costs in the ratebase, in effect making captive, basic telephone users pay for the "dumbing down." This particular provision does not appear in subsequent versions of the proposal, but neither does an alternative funding scheme, leading to the conclusion that the rate-payer will pay the costs anyway.

The second encryption-related issue is regarding the "Clipper Chip," or the technology that would allow the encryption of messages through modification of terminal equipment. Here, the debate has been raging for many years between the National Security Agency (NSA) and the National Institute of Science and Technology on the one hand, and on the other the equipment manufacturers, encryption service suppliers, and assorted civil liberties groups. Faced with increasing resistance to controls on secure encryption technologies such as RSA, the government has proposed a "Clipper Chip" or an encryption device that has a "back door" that can be accessed without the knowledge of the users under certain specified conditions. The debate is continuing both in conventional modes and unconventional modes such as free distribution of encryption technology on the Internet.

The above issues affect privacy in relation to content of communication. Even if the U.S. government proposals on content surveillance are defeated, surveillance based on TGI will still be possible. "Electronic cash," along the lines of a proposed system being developed in the Netherlands (Chaum, 1992), is likely to give rise to debate in the near future. Here, the promise of the developers is that the system will enable anonymous, untraceable (cash-like) payments to be made on the network. This proposal is likely to yield a different sort of stakeholder distribution from the other cryptography issues, with most companies likely to ally themselves with government to ensure continued access to TGI.

Concluding Comments

There is significant concern over telecommunication privacy in North America, and possibly in other parts of the world as well. Public- and private- sector policy processes have begun to respond to these concerns, albeit in a fragmented and unsystematic manner. This article has defined privacy and surveillance, and has identified three areas of concern likely to demand the attention of private- and public-sector decision-makers in the near future, namely, issues related to transaction-generated information, to use-management, and to encryption. Based on the definition of privacy developed in this article, it is possible to derive normative criteria to guide policy-making in relation to the design of public telecommunication environments, broadly construed.

Privacy defined as the capability to implicitly or explicitly negotiate boundary conditions of social relations is an essential condition for the existence of autonomous individuals in society. These boundary conditions are negotiated communicatively. The manner in which this negotiation takes place in face-to-face situations and the ground rules that govern it have evolved, subject to cultural differences but still with a common core, over millennia. At base, the rule is simple: allow the parties in a relationship to negotiate the terms and conditions of the relationship. This rule can be used as a normative criterion to guide policy on network design.

Interaction environments designed to give primacy to short-term organizational objectives appear to deviate from the above rule and tend toward the power-laden architectures of coercive institutions such as prisons, including the panopticon originally proposed by Jeremy Bentham and introduced to contemporary social thought by Michel Foucault (Samarajiva & Shields, 1992). The current redesign of the public switched telecommunication network (and possibly the cable network as well) appears to be taking this path. For example, in the early applications for approval of Call Display with no blocking options, the telephone companies claimed that "providing a blocking function with [Call Display], as some advocate, would significantly reduce, if not totally negate, the benefits that Caller ID has proven it can deliver to telephone users" (Ohio Bell, 1991). The argument underlying this claim is that since a person placing a call has no way of knowing for sure whether the called party has the number display capability, he or she will have to assume that the called party does. This will make the calling party behave "appropriately." Blocking cannot be provided because it will be selected by the criminally deviant (e.g., obscene callers). In a no-block environment, all callers will behave with the expectation that call-receiving parties can receive and record their numbers and calling times. If blocking is provided in any form, this condition will not exist.

This argument has significant parallels with the logic of the panopticon. Bentham's panopticon was a design for a prison wherein prisoners would be secluded from each other completely and would know that they were visible to a central watchtower all the time. However, the tower would be opaque. Bentham delighted in the possibility that prisoners would behave in the desired fashion even when the guard tower was unoccupied, because there was no way of knowing whether the guards were present or not. Thinking that they were under observation even when they were not, the prisoners would internalize the prison. The telephone company view of the redesigned public switched telecommunication network is panoptical. It does not matter whether an individual does not subscribe to Call Display; it does not matter if the people whom the individual calls do not subscribe to Call Display; as long as the possibility exists that someone out there subscribes, the individual will behave "appropriately." The more moderate views espoused by North American telephone companies following the early defeats of Call Display no longer propound the pure panoptical view, but this early glimpse into their vision of the redesigned network indicates the need for great caution in approving or acquiescing to their redesign plans.

What is the alternative? Communication networks are technological environments for human interaction. They should be designed on the principle that human beings should be allowed to negotiate the terms and conditions of their social relations in technological public environments (electronic public space) in the same way that they negotiate such relations in "natural" public environments (physical public space). Where they require capabilities to authenticate parties or otherwise assess credibility (particularly because of design features of the environment such as the lack of visual cues), efforts should be made to provide such capabilities. For such an authentication proposal utilizing the technical features of the software used to offer Call Display, see Samarajiva (1991). According to the normative principle derived from the definition of privacy, such features should not be imposed on either party. It should be up to them to negotiate the terms and conditions of the use of such features.

Notes

1

The contributions of Peter Shields, Myles Ruggles, Johannes Bauer, Roopali Mukherjee, David Lawrence, Richard Potter, and Vicente Berdayes to the formation of ideas contained herein are gratefully acknowledged. All errors are the responsibility of the author. This article is based on a paper presented at the annual conference of the International Institute of Communications, Mexico City, September 21-23, 1993.

2

The term "control" is here used in the sense of increasing the probability of a desired outcome, rather than the absolute determination of an outcome, following Beniger (1986).

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