Introduction

In mid-July, Amazon remotely deleted copies of George Orwell’s novels “1984” and “Animal Farm” from its customers’ kindles. The stealth deletions angered customers, made big headlines, and created lots of online buzz. There are a variety of legal issues related to the incident---for example, whether Amazon violated its own terms of use, and the difference between buying a book and buying a nonexclusive license to read a book. Of course there are also the obvious and often-mentioned parallels to the content of Orwell’s novels. Fundamentally, however, the episode embodies some of the core themes from this course: growing recognition that the private realm requiring legal protection is no longer contained within a physical space, and consumers’ increasing unease with corporations’ electronic monitoring of their activities.

“Placeiness”

At the start of this course, we discussed how Fourth Amendment law has remained static as new technologies have developed which change the way that people manage their identities. While the Fourth Amendment still only protects “places,” technology has become so intertwined with everyday life that identity is really contained in a dataflow of information, not in a car or house. Nowhere To Hide offered ample evidence of the ways that companies monitor and mine this dataflow for information about consumers, assembling increasingly detailed data about individuals and the aggregate population, to which the government has easy access.

Losing The Freedom To Read

Books are a good example of an area where previous privacy controls, both innate and legally imposed, have been rendered obsolete by new technologies. Before, there was no way for companies or the government to know what someone was reading at any given time, unless they obtained a search warrant for that individual’s home. If someone used a public library to access reading materials, state laws required that the government obtain a court order showing good cause based on specific facts before viewing a user’s borrowing record. Even when the FBI ran the Library Awareness Program, where it attempted to monitor the reading habits of “suspicious” individuals with Eastern European or Russian-sounding names, the program required the active participation of librarians, a professional body with ideologically opposed interests, to be effective.

The shift from physical books to electronic copies has changed this schema. For example, the ACLU of Northern California is campaigning against Google Books because the program can monitor exactly what pages in specific books users read, and even notes they make in the margins. The ACLU is worried that without strong privacy protections, browsing and reading history will be collected, analyzed, and turned over to the government or third parties without users’ knowledge or consent. When the online versions of newspapers require readers to sign in to view content, they are similarly able to monitor the reading habits of users. In addition, Amazon’s remote deletions showed that not only can Amazon monitor what kindle users are reading, it retained the power to access those materials and make changes, also without readers’ knowledge or consent. The ease with which this was accomplished is especially troubling given the history of censorship and book banning in both the U.S. and abroad.

The Public Reaction

Many commentators (including The New York Times), and individuals commenting on news stories relating to the incident, noted that had Amazon sold physical copies of the books, it would not have been able to enter its customers’ homes and remove the book from nightstands. People seemed to expect the privacy rights they retained in a physical place---their home---to extend to the electronic spaces in which they lived their lives. Some have argued that people do not expect privacy when using google, gmail or facebook---that we have sold our right to privacy in exchange for free software and convenience. However, I think that the general reaction to Amazon’s actions shows that people do have privacy expectations when using new technologies, and that people expect the privacy they enjoy in their own cars and homes to extend to electronic spaces. Similarly, Amazon’s response (a promise to never repeat the incident), shows that when consumers are angry enough, companies will respond to their concerns in order to maintain market share. The kindle is a bit different from activities that only occur in electronic spaces, because it is a physical object that you hold in your hand, making it not so different from reading physical books. Given the parallels between the two activities, it especially makes sense that people would translate their privacy expectations regarding actual books to electronic ones.

Conclusion

People have given up privacy in exchange for cheaper deodorant at the grocery store and more gigabytes of email storage space. However, they are not willing to cede everything to corporate America for free. There is a point at which people are no longer able to stomach the loss of their private identities, and companies are treading closer and closer to that line. The problem, which my colleagues have discussed, is translating repeated episodes of consumer outrage into changes in the law. While the manner of assembling an effective coalition and the mode through which changes should occur are unclear, people are beginning to understand that their right to privacy is being rendered obsolete as they increasingly live their lives in electronic spaces.

-- ElizabethDoisy - 05 Sep 2009

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