Michael R. Curry
Department of Geography
University of California, Los Angeles
Los Angeles, CA
ABSTRACT
The development of geographic information systems, and particularly their commercial cousins, geodemographics, raises a series of questions with respect to the issue of privacy. As serious as these concerns are, they have not been adequately addressed by those who use the systems. This paper points to four such areas of concern. The systems consist of and promote the widespread availability of unregulated data. They employ visual representations, where those representations seem in a special and direct way to attribute actions and beliefs to individuals and to residents of particular areas. They allow the development of a version of data matching that is particularly difficult to regulate. And they alter the individual's expectation of privacy, just as they allow compliant courts to erode those areas within which an individual can indeed feel safe and secure from search and surveillance.
1. INTRODUCTION
Among those geographers who have written about the social impact of geographic information systems and geodemographics there has been widespread concern about the issue of privacy. And yet, the reasons for that concern are not entirely clear. In this paper I attempt to understand what some of those concerns are, or might be. I point to four such areas of concern:
2. WISHING FOR THE PANOPTICON
The first issue is the widespread availability of unregulated data. It derives simply from the nature of the systems. In the 1960s people feared the creation by government of substantial databases of dossiers on individuals. But this assumed an image of the computer as large, expensive, and beyond the financial and technical means of all but a few.
The reality has been very different, just because of the extraordinary proliferation of very inexpensive computers, and with respect to the issue of privacy the reality is very much worse. With a centralized databank it was at least possible to conceive of knowing where each piece of data about an individual was, to correct or delete those data that were incorrect. But under the current situation no one can hope to know who has which set of data about a household or neighborhood, to know who has outdated or inaccurate data.
3. THE POWER OF THE VISUAL
3.1 Visual Generalization
A second feature of the systems derives from their reliance on visual representations. The problem is one of generalization, and of the way in which visual representations are "read." A version of this arises in the analysis of any statistical data, where it is referred to as the ecological fallacy. The fallacy is committed when from the fact that the average individual within an area has a characteristic one infers that any given individual within the area will have that characteristic.
Similarly, those who produce geodemographics use their analyses to characterize neighborhoods or areas in terms that by and large suggest that those neighborhoods are homogeneous. The areas are typified in colloquial and highly general terms, as "Boomtown singles," or "Hard scrabble."
3.2 Maps As Direct Representations
This feature combines with a second to create a problem greater than the one faced with strictly statistical presentations. This is because people tend to see maps as direct representations of reality in ways that tables and charts are not. Here the issue of privacy is raised just to the extent that it is possible to produce visual representations which any reasonable reader will directly read as associating characteristics of behavior or belief with individuals or members of households.
4. DATA MATCHING AND DATA PROFILES
This leads to a third way in which geographic information systems and geodemographics raise privacy concerns. As is well known, one of the earliest concerns raised by computers was that of data matching. The Computer Matching and Privacy Protection Act of 1988 was meant, at least in the arena of the government, to prevent the creation of large dossiers on individuals, by making the merging of databases more difficult. Yet geodemographics makes it possible to do just that, and in a way that circumvents the law.
This is because using such a system it is possible to create a profile of an individual which is based not on the collation of individual data across agencies, but rather on the combining of individual data with other publicly-available aggregate data, data about census block groups, postal carrier routes, consumption and purchases, and the like. Here one can create an image of what a person is very likely to be like, in terms of a wide variety of characteristics, and by using data which are publicly available.
Ironically, we are left in a situation in which it is perfectly legal to make decisions about individuals based on a data profile, a construction of suppositions, but not to make decisions based on facts. If this problem is raised where data are centrally located, it is raised in a more complex way in those cases in which data are widely held.
5. TECHNOLOGICAL CHANGE AND THE EXPECTATION OF PRIVACY
Finally, there is a fourth and in some respects most troubling way in which geographic information systems and geodemographics raise problems associated with the issue of privacy. The issue arises in the context of the question of the way in which technological change is or can be viewed as related to changes in the right to privacy. It seems to me that if we look at recent United States Supreme Court decisions, we find much related to the development of geographic information systems and geodemographics.
5.1 Concatenation of Search Results
The first of these issues was raised in Smith v. Maryland (1978). In Smith the issue was a pen register, installed by the telephone company to record the telephone numbers that had been dialed from the petitioner's home. The Court concluded that "we doubt that people in general entertain any actual expectation of privacy in the numbers they dial (743)." Similarly, in United States v. Place (1983) the Court concluded that because the drug-sniffing dogs in question were capable only of discovering one thing, here cocaine, the privacy interests of the people involved were not threatened; this was because the information, as in the pen-register case, was so limited.
The issue that these and like cases raise, in the context of information systems generally and geographic information systems more specifically, is this; what happens when each of these individual items of in formation is combined into a larger--and especially spatially coded--dossier?
5. 2 Technological Enhancement Of Vision
A second set of issues arise in the use of technology to enhance normal means of search. In a series of cases the courts have shown their willingness to entertain the use by law enforcement of increasingly powerful technologies.
In each of these cases we see the use of technologies which belong to a technological "family." In the case of the beeper, a geographic information system would allow not just tracking but mapping of the auto mobiles involved. In the case of Dow, the cameras used were mapping cameras. In Penny-Feeney the technology used is the very technology used in satellite remote sensing. And in Ciraolo and Riley the principles used are indeed those of remote sensing.
What is troubling here is that the Court has used a criterion for judging violations which may change along with technological change, and in two ways, both of which undercut the protection of privacy rights and support a society increasingly grounded in technological instrumentality.
5.3 The Normal And The Average
The first matter concerns the way in which the courts have developed a notion of "reasonable," a notion applied in its analyses of what is termed the "reasonable expectation" of privacy. Here Justice Harlan's concurring opinion in Smith v. Maryland (1978) is seen as clarifying the landmark 1967 Katz v. United States. In Smith he argued that a search has been carried out under the terms of the fourth amendment when the situation meets a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable" (361).
Then, in a concurring and influential opinion in Riley, Justice O'Connor interpreted "reasonableness" in the following way:
[I]f the public can generally be expected to travel over residential backyards at an altitude of 400 feet, Riley cannot reasonably expect his curtilage to be free from such aerial observation (455).
Here O'Connor characterized what is "reasonable" in a way that is strikingly like the way in which geodemographics describes cultures. For example, we characterize neighborhoods of "Blue Blood Estates" in terms of consumption patterns. There people subscribe to Barron's at 9.44 times the average for the nation as a whole. They buy Jaguars at 17.58 times that rate. And so on (Weiss, 271). In both cases behavior is characterized through the compilation of a list of averages. The normal and the reasonable have been redefined in statistical terms. But "normal" and "reasonable" in fact refer to questions not so much of what is but of what people believe ought to be.
5.4 From "Ought" To "Is" in Defining "Reasonable Expectation"
This raises the second issue, of the ways in which the courts have dealt with the matter of "what society is prepared to accept." Notwithstanding O'Connor, the Katz court had asked not what society does accept as reasonable, but rather what it is prepared to accept. The difference is fundamental, for it turns the question from what the typical person thinks ought to be done to what the average person does. It may very well be that in my neighborhood people hover over back yards in helicopters at 400 feet and that no one does anything about it; this says nothing about whether people are prepared to accept that as reasonable. Here, as in the first matter, the courts have deferred to a technological definition, one that can be calculated with a computer.
5.5 Thinking About Technological Change
Finally, the courts have acted within a remarkably simplistic understanding of the nature of technological change. In this notion of technological change, the whole equals the sum of its parts. But this obscures the possibility of systemic effects of technologies, like geographic information systems. This theory of technological change has led the Court to imagine that a society in which everyone's actions are under constant surveillance will be no different from one in which only some are sometimes under surveillance (Granholm, 1987).
At the same time, it has failed to recognize that technological change itself can recast the structure under which past decisions were made, and render those decisions obsolete. For example, there is in government offices today a huge store of data which are available to the public. But the decision to collect and to make those data freely available was made when "freely available" meant something very different from what it now means, when a geographic information system can make them instantly available to everyone.
6. CONCLUSION
I have spoken here of four ways in which geographic information systems create problems with respect to the issue of privacy. It would be a mistake to imagine that geographic information systems or computers have created this situation, just as it would be a mistake to imagine that it has been created by the courts. Here both are acting in accord with stronger currents, currents of positivism in science, of autonomous technology, and of individualism. But the differences among those four issues suggest that the issue of the effects of geographic information systems, and especially of geodemographics, on the right to privacy is a multi-faceted problem, which needs a multi-faceted solution.
7. ACKNOWLEDGMENTS
This research was supported in part by a grant from the Academic Senate of the University of California, Los Angeles. The author wishes to thank Travis Longcore for research assistance.
8. REFERENCES
8.1 Cases Cited
Boyd v. United States. 116 U. S. 616 (1886).
California v. Ciraolo. 106 S. Ct. 1809 (1986).
Dow Chemical Co. v. United States. 106 S. Ct. 1819 (1986).
Florida v. Riley. 488 U. S. 445 (1988).
Hester v. United States. 265 U. S. 57 (1924).
Katz v. United States. 389 U. S. 347 (1967).
Mason v. Montgomery Data. 967 F.2d 135 (5th. Cir. 1992).
Olmstead v. United States. 277 U. S. 438 (1928).
Smith v. Maryland. 442 U. S. 735 (1979).
United States v. Knotts. 460 U. S. 276 (1983).
United States v. Place. 462 U. S. 696 (1983).
United States v. Karo. 468 U. S. 705 (1984).
United States v. Penny-Feeney. 773 F. Supp. 220 (D. Haw. 1991).
8.2 References
Amsterdam, Anthony G. 1974. Perspectives on the fourth amendment. Minnesota Law Review 58: 349-477.
Bennett, Colin J. 1992. Regulating privacy: Data protection and public policy in Europe and the United States. Ithaca: Cornell University Press.
Branscomb, Ann Wells. 1994. Who owns information? From privacy to public access. New York: Basic Books.
Castner, Henry W., and Arthur H. Robinson. 1969. Dot area symbols in cartography: The influence of Pattern on their perception. Washington, DC: American Congress of Surveying and Mapping.
Clarke, Roger. 1993. Profiling: A hidden challenge to the regulation of data surveillance. Journal of Law and Information Science 4: 2, 403-19.
Columbia Human Rights Law Review, eds. 1973/1972. Surveillance. Dataveillance, and personal freedoms. Fair Lawn, NJ: R. E. Burdick. [Original text published as pages 1-235 of the Columbia Human Rights Law Review, Vol. 4, No. 1, 1972].
Commission of the European Communities. 1992a. Amended proposal for a council directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Brussels: European Community.
Commission of the European Communities. 1992b. Proposal for a council directive on the legal protection of databases. Brussels: European Community. Computer Matching and Privacy Protection Act of 1988. 5 U. S. C. Sec. 552a (1988).
Council of Europe. 1973. Protection of the privacy of individuals vis-a-vis electronic data banks in the private sector. Strasbourg: Council of Europe. Council of Europe. 1981a. Convention for the protection of individuals with regard to automatic processing of personal data. Strasbourg: Council of Europe.
Council of Europe. 1981b. Explanatory report on the convention for the protection of individuals with regard to automatic processing of personal data. Strasbourg: Council of Europe.
Council of Europe. 1986. Protection of personal data used for the purposes of direct marketing. Strasbourg: Council of Europe.
Crampton, Jeremy. GIS and privacy: Crossing the line? Presented at the workshop on geographic information and society Friday Harbor, WA, 11-14 November 1993.
Curry, Michael R Forthcoming. Data protection and intellectual property: Information systems and the Americanization of the new Europe. Environment and Planning A.
Dent, Borden. 1972. Visual organization and thematic map design. Annals of the Association of American Geographers 62: 79-93.
Fishman, Clifford S. 1988. Technologically enhanced visual surveillance and the Fourth Amendment: Sophistication, availability, and the expectation of privacy. American Criminal Law Review 26:315-58.
Flaherty, David H. 1967. Privacy in colonial New England. Charlottesville, VA: University Press of Virginia.
Flaherty, David H. 1989. Protecting privacy in surveillance societies: The Federal Republic of Germany. Sweden. France, Canada. and the United States. Chapel Hill: The University of North Carolina Press.
Flannery, James J. 1971. The relative effectiveness of some common graduated point symbols in the presentation of quantitative data. The Canadian Cartographer 8: 2, 96-109.
Foucault, Michel. 1977. Discipline and punish: The birth of the prison. Translated by Alan Sheridan. New York: Vintage Books.
Friedman, Lawrence M. 1990. The republic of choice: Law. authority. and culture. Cambridge: Harvard University Press.
Gavison, Ruth. 1983. Information control: Availability and exclusion. In Public and private in social life, edited by Stanley I. Benn and Gerald F. Gaus, 113-34. London: Croom Helm.
Gerstein, Robert S. 1984. Intimacy and privacy. In Philosophical dimensions of privacy: An anthology, edited by Ferdinand Schoeman, 265-71. Cambridge: Cambridge University Press.
Goss, Jon. 1994. Marketing the new marketing: The strategic discourse of Geodemographic Information Systems. In Ground truth: The social implications of geographic information systems, edited by John Pickles, New York: Guilford Press.
Goss, Jon. We know who you are and we know where you live: The instrumental rationality of GeoMarketing Information Systems. Presented at the workshop on geographic information and society Friday Harbor, WA, 11-14 November 1993.
Granholm, Jennifer M. 1987. Video surveillance on public streets: The constitutionality of invisible citizen searches. University of Detroit Law Review 64: 687-713.
Gutterman, Melvin. 1988. A formulation of the value and means models of the Fourth Amendment in the age of technologically enhanced surveillance. Syracuse Law Review 39: 647-736.
Larson, Erik. 1992. The naked consumer: How our private lives become public commodities. New York: Penguin.
Organisation for Economic Co-operation and Development. 1976. Policy issues in data protection and privacy. Paris: OECD.
Rachels, James. 1985. Why privacy is important. In Ethical issues in the use of computers, edited by Deborah G. Johnson and John W. Snapper, 194-201. Belmont, CA: Wadsworth Publishing.
Reiman, Jeffrey H. 1984. Privacy, intimacy, and personhood. In Philosophical dimensions of privacy: An anthology, edited by Ferdinand Schoeman, 300-16. Cambridge: Cambridge University Press.
Rule, James B. 1973. Private lives and public surveillance. London: Allen Lane.
Simmel, Georg. 1971/1903. The metropolis and mental life. In Georg Simmel on individuality and social forms, edited by David Levine, 324-39. Chicago: University of Chicago Press.
Steele, Lisa J. 1991. The view from on high: Satellite remote sensing technology and the Fourth Amendment. High Technology Law Journal 6: 2, 317-34.
Steele, Lisa J. 1993. Waste heat and garbage: The legalization of warrantless infrared searches. Criminal Law Bulletin 29: 19-39.
Steinberg, David E. 1990. Making sense of sense-enhanced searches. Minnesota Law Review 74: 563-629.
Stone, Geoffrey R. 1976. The scope of the fourth amendment: Privacy and police use of spies, secret agents, and informers. American Bar Foundation Research Journal 4: 1193-1271.
Tomkovicz, James J. 1985. Beyond secrecy for secrecy's sake: Toward an expanded vision of the fourth amendment privacy province. The Hastings Law Journal 36: 5, 645-738.
Video Privacy Act of 1988. 18 U. S. C. Sec. 2901.
Warren, Samuel, and Louis D. Brandeis. 1890. The right of privacy. Harvard Law Review 4: 5, 193-220.
Wasserstrom, Richard A. 1984. Privacy: Some arguments and assumptions. In Philosophical dimensions of privacy: An anthology, edited by Ferdinand Schoeman, 317-32. Cambridge: Cambridge University Press.
Weiss, Michael J. 1988. The clustering of America. New York: Harper and Row.
Westin, Alan F., Project director. 1972. Databanks in a free society: Computers. record-keeping, and privacy New York: Quadrangle Books.
Wirth, Louis. 1969/1956. Rural-urban differences. In Classic essays in the culture of cities, edited by Richard Sennett, 165-69. New York: Appleton-Century-Crofts.
Wirth, Louis. 1938. Urbanism as a way of life. American Journal of Sociology 44: 1-24.
Wolf, David B. 1992. Is there copyright protection for maps after Feist? Journal of the Copyright Society of the USA 39: 3, 224-42.
Wolf, David B. 1993. New landscape in the copyright protection for maps: Mason v. Montgomery Data. Inc. Journal of the Copyright Society of the USA 40: 3, 401-06.