Figure 1.1 Free Smells: Jimmy John’s Restaurant, Seattle
You can look, but you can’t touch.
– Sign in a ceramics shop
Once the toothpaste is out of the tube, it’s hard to get it back in.
– H.R. Haldeman (1974) on Watergate
Free Smells
– Sign in Jimmy John’s Restaurant, Seattle
Introduction
In the introduction to the seminar that inspired this volume, Mireille Hildebrandt asked, ‘How does the architecture of the internet afford and constrain transformations in the substance of copyright and or privacy?’ A reverse question lurks as well, ‘How does the nature and setting of what is to be afforded or constrained affect the architectures (physical, social and legal) that appear?’ The electronic copyright and privacy issues treated in this volume, as important as they are, form a relatively small strand in the role that communication and data exchange/use play as universal aspects of human society (and maybe aspects of animal society as well, given their taking in and giving off of data/signals).1 Electronic information and data,2 as topical as they are, need to be seen within a broader context, which far transcends the latest newsworthy crise du jour.
The relative accessibility or inaccessibility of information is central to many current and enduring conflicts over communication and surveillance: from WikiLeaks, to discovered DNA; from censorship, gag rules, confidentiality and classification policies, to free speech zones, disclosure statements and freedom of information policies; and from warnings and laws about copying DVDs, sharing music files, using cell phone cameras in athletic clubs or videotaping in theatres, to requirements that police interrogations be videotaped and rules protecting a citizen’s right to make video and audio recordings in public (even of police who might be videotaping citizens at the same time).3 Controversies over the use of a hidden device to jam loud cell phone conversations in public or to remotely destroy information on a computer or illegally interpreted satellite TV signals, offer other illustrations of current contestation.4 A factor related to some of the above involves controversies over the legality and accessibility of the various material tools used to obtain and to block information.
The eternal conflicts involved with efforts to free up or to restrict accessibility are central to the concerns of this book – whether this involves pursuing the former in the name of freedom of information, free speech and democratic accountability or the latter on behalf of national security, law enforcement, diplomacy and property rights and its curious bedfellow, privacy.5
The presence or absence of various kinds of borders, which may include or exclude the flow of information, persons, goods, resources and opportunities, are central to the topic (Zuriek and Salter 2005; Andreas and Nadelmann 2006). The borders or barriers which, depending on their permeability, make information available or block it, can be physical, logistical or cultural. Examples of the former are distance, darkness, time, dense undergrowth, disaggregated data and the face (which may mask true feelings, but a masked face is an even better example). In the absence of a physical/technical blockage, some data are immediately available to anyone with normal senses and cognition, for example, seeing a person’s unmasked face or observing apparent gender, height and age. But we should also note the existence of rules that attempt to alter this initial availability-unavailability. Some obvious examples of rules to inhibit or facilitate the flow of data are those protecting privacy and confidentiality or those requiring informed consent or freedom of information.
Like the proverbial sound of the forest tree falling in the absence of a listener, the potential reception of the data depends on the senses of the receptor. ‘Naturally’ available visual and oratory data are not accessible to the blind and deaf, absent mechanical supports that amplify or convert data and one must know something of the sounds of a language to put it to use. Yet some data does have a relatively more literal quality as with certain signals in sign language. Contrast the seemingly more inherent meaning of indicators for ‘I’ and ‘You’, when pointing at oneself and another person with the sound for the words or their appearance in different scripts. Some Japanese and some other written pictograph inspired languages have remnants of a more ostensive reference. The relationships between properties of the physical world and the presence of rules and hard technologies – which become part of the physical world as a result of human actions – are understudied. Some natural conditions mean that there is no need for a protective rule (when protection is desired), at least until technology manages to pierce protective borders (note the nineteenth century development of photography or the current claims of brain wave reading technology used for lie detection). In other cases, this very protection can create a perceived need to have a rule and/or technology that overcomes the protective border.6 Rules (whether legal, administrative, or informal as with manners) are aspects of culture intended to direct behaviour. Table 1.1 combines the physical and cultural variables in order to yield a typology of types of information control or outcome with respect to the two kinds of border.
Table 1.1 highlights four situations that result from considering the presence or absence of cultural and physical borders with respect to the flows of personal information.
An example of where both cultural and physical borders are present is a prison (D). In the absence of either border, only manners and limits on the senses prevent seeing and making inferences about a person encountered on the street or overhearing the conversation of nearby persons (A). Anti-stalking laws and manners, such as ‘don’t stare’, illustrate cultural borders in the absence of a physical border (C). B illustrates the case of being beyond the range of another’s unaided seeing or hearing, which protects information even in the absence of rules.
| PHYSICAL BARRIER to CROSSING | |||
| No (Soft) | Yes (Hard) | ||
| CULTURAL (NORMATIVE) BARRIER to CROSSING | No (Open/free) Yes | A. Looking at a person speaking to you, city borders C. Staring, backstage regions, privacy and confidentiality expectations, religious and sacred areas, DVD, music file sharing | B. Sense limitations (darkness, distance, walls) D. Convents, military bases, vaults |
Of course, physical and cultural barriers are not independent, although in general more attention is given to how the latter alters the physical than how the physical conditions alter the culture.7 This chapter first considers the initial presence or absence of physical barriers or supports to data access. The latter part of the chapter considers how culture often subsequently creates or undermines barriers to data access. Relative to the givens (or at least starters) of the physical and temporal worlds, culture provides a more artificial kind of prop for information control. It tells us what data means (for instance, private or public) and in offering directives for behaviour such as for the freedom or protection of data, culture may seek to alter the givens of the natural world. My goal here is to categorize types of information about persons and to specify connections between the physical and the cultural, with a particular interest in how the former may condition the kinds of rules that appear.
As is now so well known, gigantic industries and state organizations (not to mention employers, parents and the curious) use ever more sophisticated tools to access others’ information and to a lesser extent provide tools to protect information. The qualitative and quantitative changes in surveillance in recent decades triggered my interest in the topic with respect to questions of privacy, information protection and resistance (Marx 2003, 2009, 2015c (forthcoming)). Since finishing a book on undercover police several decades ago, I have been concerned with issues involving secrecy and the revelation and concealment of information. This has involved empirical studies of topics such as work monitoring, caller-id, informers, whistle blowers, hotlines, freedom of information acts, notice and informed consent. Much of that prior work dealt with the uncovering of information that is relatively inaccessible, while not thinking much about information that is accessible.8 In contrast, this chapter begins with data that are relatively accessible, particularly as it involves the initial conditions around what comes to be information. Accessibility will be seen as a property of data, and after assessing this particular property, the chapter turns to the meaning of other properties that are used to characterize the perso...