Surveillance as Loss of Obscurity

Privacy and Security

Article Snapshot


Woodrow Hartzog and Evan Selinger


Washington and Lee Law Review, Vol. 72, No. 3, pp. 1343-1387, 2015


Many people are concerned about surveillance but lack a coherent theory showing why it is harmful. This paper proposes that surveillance is threatening to us because we value obscurity. Modern surveillance law should recognize that it is reasonable to expect obscurity in public places.

Policy Relevance

Privacy reforms should focus on making it harder for the police to access information.

Main Points

  • New technologies like facial recognition technology, license plate readers, and drones have made people anxious about surveillance.
  • Judges and policymakers state that we cannot reasonably expect privacy in public, but the cases are confusing; is a shopping mall public? An office building?
  • Without a coherent theory to tie together different objections to new surveillance proposals, U.S. surveillance law has become a patchwork.
  • Obscurity is the idea that when information is hard to understand or find, it is safer.
  • When information is hard to find, people will only seek it out when it is worth the expense; privacy can be protected by increasing the transaction costs the police incur to find information.
  • The key concept of obscurity links together different privacy theories.
    • Some focus on the collection of large quantities of information, emphasizing “quantitative privacy.”
    • Some focus on surveillance that targets content, emphasizing “intellectual privacy.”
    • Raising the costs of obtaining information to preserve obscurity would protect both intellectual and quantitative privacy.
  • We can reasonably expect privacy even in public places, because, traditionally, we could rely on remaining obscure.
  • The fundamental problem with government surveillance is that government can access information too easily; reforms converge on the common goal of adding friction to the system to make a person or information harder to find or understand.


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