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97 Iowa L. Rev. 809 (2011-2012)
Self-Surveillance Privacy

handle is hein.journals/ilr97 and id is 815 raw text is: Self-Surveillance Privacy Jerry Kang, Katie Shilton, Deborah Estrin, Jeff Burke, and Mark Hansen' ABSTRACT: It has become clichi to observe that new information technologies endanger privacy. Typically, the threat is viewed as coming from Big Brother (the government) or Company Man (the firm). But for a nascent data practice we call self-surveillance, the threat may actually come from ourselves. Using various existing and emerging technologies, such as GPS-enabled smartphones, we are beginning to measure ourselves in granular detail-how long we sleep, where we drive, what we breathe, what we eat, how we spend our time. And we are storing these data casually, perhaps promiscuously, somewhere in the cloud and giving third parties broad access. This data practice of self-surveillance will decrease information privacy in troubling ways. To counter this trend, we recommend the creation of the Privacy Data Guardian, a new profession that manages Privacy Data Vaults, which are repositories for self- surveillance data. In addition to providing technical specifications of this approach, we outline the specific legal relations, which include a fiduciary relationship, between client and Guardian. In addition, we recommend the creation of an evidentiary privilege, similar to a trade-secret privilege, that protects self-surveillance data held by a licensed Guardian. We also answer objections that our solution is implausible or useless. We conclude by * Jerry Kang is Professor of Law, UCLA School of Law, Professor of Asian American Studies (by courtesy), Korea Times-Hankook Ilbo Chair in Korean American Studies. <kang@law.ucla.edu> <http://jerrykang.net>. Katie Shilton is Assistant Professor, College of Information Studies, University of Maryland. Deborah Estrin is UCLA Henry Samueli School of Engineering and Applied Science, Professor of Computer Science, Professor Electrical Engineering, Jon Postel Chair in Computer Networks, and Founding Director of the Center for Embedded Networked Sensing (CENS). Jeff Burke is Assistant Professor, UCLA School of Film, Theater & Television; Executive Director of REMAP, the Center for Research in Engineering, Media and Performance. Mark Hansen is Professor of Statistics, UCLA Department of Statistics; Professor (by courtesy) of DesignIMedia Art and Electrical Engineering. Helpful research assistance was provided by Jonathan Feingold, Emily Reitz, and Isaac Silverman. This paper was presented at the George Washington University School of Law Faculty Colloquium 201 1, Privacy Law Scholars Conference 2009, and UCLA School of Law Summer Workshop Series 2009. We are thankful for comments from Richard Abel, Ann Carlson, Eric Goldman, Dennis Heinson, Dennis Hirsch, Jeff Jonas, Sung Hui Kim, Ken Klee, William Klein, Tim Malloy, Jon Michaels, Stephen Munzer, Helen Nissenbaum, Marc Rotenberg, Noah Zatz, and Eric Zolt. This research was supported in part by the UCLA Academic Senate, UCLA School of Law, and the UCLA Center for Embedded Network Sensing. 8o9

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