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Comment by sschueller | Hacker News Reader

I don't understand why public is considered "lack a reasonable expectation of privacy".

In Switzerland this only applies if you are in public at a large gathering or event where the use of cameras etc. is expected. In any other situation in public, if you single out a specific person (even if their face is not visible but they are identifiable by clothing/tattoo or vehicle registration etc.) in a video you are violating their privacy and are required to get consent. This consent can also be revoked at any time later.

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I’ve been sitting here for a while trying to come up with how to eloquently put this in English and I cannot. Maybe English lacks the appropriate terminology to express the difference between privacy and publicity within the expanded scope of current technology. It’s my only language, and I like to think I’m pretty good at it, but I’m absolutely stumped as to how you’d exactly word exactly what you’re not understanding.

I feel like it’s a case of the language we speak shaping our interpretation of what is just, and doing so in such a way that it’s hard to even explain what we’re now missing.

The problem, in so many words, is that these days the act of being in public is public. That’s a weird sentence to write, and I’m not sure how else to put it.

Previously, the memory of any public act was restricted to those who were there to observe it at the time. Any acts in public were by themselves public. Acts in private were private. There was a third quasi-state: anonymous isn’t the right word, because you were always identifiable, but by happenstance you just weren’t. You were in public, but not publicised. Recognisable, but not recognised. Observable, but not observed. By definition though you were always in public, never in private.

Modern technology has somewhat erased the third state by slowly but surely eroding the cases in which you are not observed, tracked, recorded, or identified, by some technology or another. It’s made public very public, if you excuse the unavoidable pleonasm.

There’s no good word for the third state, that I can think of, and it makes me sad.

The challenge you have is not language related, but rather logic related. The issue our Swiss friend raises is valid, no matter the language.

Do Americans not have an expectation of privacy even when talking in public, based on the expectations of the individuals engaged in speech?

For example, when you are at a restaurant with friends, is there not an expectation of privacy within the context of your conversation with someone? Any reasonable person will have an expectation of privacy that will generally be limited to all those people around your table and with whom you will be making eye contact, as long as you are speaking at a tone that is reasonable for that context. No? Is the speaker going to be speaking so that everyone in the restaurant can understand their speech? No? So it’s not public then, right? Ignoring incidental overhearing, of course.

Inversely, if we consider what the American system clearly considers private, the home and, by extension, the car; if you have ever heard a conversation through thin walls between apartments or maybe a phone conversation on car speaker blasted speakerphone, is that private then? … are Phone conversations then also not private since in most cases the caller will not likely be aware that their direct conversation partner is blasting their conversation to the parking lot on the car’s speaker phone?

These scenarios, among others, beckon a requirement to make privacy expectations approaching unachievable. Is that reasonable? No, of course not.

And that’s before we explore things like focused beam microphones that make all conversations within any line of sight or even just things you whisper into someone’s ear not radically private based on the current American nonsensical definition reasonable and privacy.

The problem in America is not the speech part, but rather that the logic and reason itself has been inverted and perverted by sophists and abusive manipulators over the decades, which have turned everything upside down, including the definitions of “reasonable”, “public”, and “private”, i.e., the core logic of the matter.

None of the founders of America and the writers of the Constitution would recognize any of these current assumptions built into definitive and even the words they wrote, let alone all the illogical and lazy cruft that has been added after the twelfth amendment. They would think we’ve gone insane, because were have our, more accurately, sophist psychological manipulators and abusers have driven us so insane that we engage in the horrid abominations and abuses that are normalized all around us today. It has long been an ever worsening entropy problem.

Wait, why are you drawing the line at the 12th amendment and not the 16th?

To provide some clarity on my own position, I understand and echo your desire to have a society in which our quiet moments are not intruded upon. I am not arguing that the expectation that you not be monitored is unreasonable. What I am saying is that these feelings do not line up in a tidy way with the words “private” and “public”.

In all versions of modern English that I’m aware of, “public” is an antonym of “private”. In all conversations around this topic, they are often treated as though they are not. There’s an intuition gap that you rely on your conversational partner to cross. What you do is say “I have a right to privacy, and by privacy I do not mean literally private, I mean incidentally non-public, due to circumstance”, only not in so many words. It’s the way I talk about it as well, because there’s no well understood and unambiguous way to describe what I just called “incidentally non-public”.

Assuming, of course, that you accept that public and private are antonyms, you can demonstrate this intuition gap by instead of talking about public and private, using another pair of antonyms and talking about up and down, and instead ask the question: Does everyone have the right to be up while down?

That’s obviously a terrible and nonsensical question, but I feel it is exactly what some people read when they encounter someone’s desire for privacy in public. How can you be private in public? How can you be up while down?

This isn’t sophistry or maliciousness: it’s a real way that real people interpret the conversation. Failure to recognise the intuition gap is what leads to a failure to understand the other person you’re talking to.

If you're getting into the definition of public vs private you also need to consider what constitutes a reasonable expectation. Not just from our current reference frame of everyone having phones and every business having cameras, but from a few decades ago as well as a century, or more, ago. What may constitute a reasonable expectation today may be extremely divorced from that of when the laws were written. I love the nuance you are getting into, but I do think it needs to be taken at least one step further for a good conversation to take place. People are working with different assumptions and not communicating these well and results in very different versions of reasonable expectation. 50 years ago, even 20, it was pretty reasonable to assume that you could not, let along would not, be recorded unless you were involved in a large public demonstration. I think if we're getting down to public vs private that we should also consider this aspect. And I think we should recognize the difference between a private activity within a public space from a public activity within a public space. The ecosystem has changed and with it we must be a bit more nuanced.

The definition is at its root: “private” is by nature privative: it is essentially defined by what isn’t. If privacy includes “not being observed”, “not being recorded” and “not being overheard” it is hard to have a conversation around asserting the right to privacy, when some of those rights are violated indeliberately and necessarily by virtue of you just being in view or earshot of another person.

The thing you touch on at the end—not quite privity, not quite secrecy, not quite privacy—is the thing I wish I had a word for.

It’s exactly this ur-privacy, though, that people find missing in their lives and are trying to express a well understood, if cloudy, desire for. It’s also something that I tend to agree with the various European governments on, despite my annoyance at the “I know it when I see it” nature of the thing.

I think this is because it is more nuanced that you, or most people, are giving credit to. Privacy is not a binary option of private vs public but rather a continuum. This is where "reasonable expectation" falls and tries to create a division, a third option. But I think we need more since the environment has changed. As an example, if in a public place you pull yourself and your friend to a dark corner that's obscured you have increased your expectation of privacy. Because you're literally "hiding." The extreme of this might be a public bathroom where you definitely do have a legal expectation of privacy despite being a public place.

So the problem here is that we're trying to make clear cut discriminators when the world has gotten a lot messier. Unfortunately legal systems require discretization, because it is easier to legislate clear boundaries (laws are piecewise functions -- if-then-else). But the world is messy and it needs to be recognized that those discrete boundaries are fuzzy too (i.e. they are guides, not hard fixed and objective boundaries). Probably also coupled with human propensity to discretize continuous variables due to the compression effects. This really is why we have many "know it when I see it" definitions rather than hard rules and you may notice that as complexity is increasing (making this more common) and so is the disagreement with said loose definitions. Then we have a core problem of communication breaking down because everyone is working off a different set of assumptions, assuming everyone else has the same assumptions, and unwilling to accept other bases because our assumptions are objectively generated ;)

>Do Americans not have an expectation of privacy even when talking in public, based on the expectations of the individuals engaged in speech?

No, they don't, because that would not be a reasonable expectation.

>The problem in America is not the speech part, but rather that the logic and reason itself has been inverted and perverted by sophists and abusive manipulators over the decades, which have turned everything upside down, including the definitions of “reasonable”, “public”, and “private”, i.e., the core logic of the matter. . . None of the founders of America and the writers of the Constitution would recognize any of these current assumptions built into definitive and even the words they wrote

I'm pretty sure the founders of The United States and the writers of the Constitution would understand that speaking at a restaurant (in their day, more likely in a public house) with friends is public.

Ben Franklin was a newspaper-man. You think he didn't deal with things overheard and published? These people were revolutionaries - successful revolutionaries generally know that their acts can be witnessed if not done in private spaces.

>let alone all the illogical and lazy cruft that has been added after the twelfth amendment

Weird cut-off, friend. To me, some of the illogical and lazy cruft was added prior to that in order to justify owning other people.

>> Do Americans not have an expectation of privacy even when talking in public, based on the expectations of the individuals engaged in speech?

> No, they don't, because that would not be a reasonable expectation.

If you asked someone before 2000, do you think their answer would be different?

Would setting/context change that? i.e. a person talking to their friend on the street vs giving a speech at a protest/demonstration?

I think before you call reference to Ben Franklin, you have to also consider the differences in settings between today and then. A lot has changed and the discourse around the subject is not properly taking this into account, and often not even acknowledging the existence of change in the first place. "Reasonable expectation" is deeply contingent upon the availability, accessibility, and utility. This cannot be an ignored part of the conversation.

>If you asked someone before 2000, do you think their answer would be different

No, I don't. I do not think reasonable people ever had an expectation of privacy while in public, especially when they are interacting with other people/strangers.

>Would setting/context change that? i.e. a person talking to their friend on the street vs giving a speech at a protest/demonstration?

Setting and context could change the expectation of privacy, sure - if you're in a private place, it's different from being in public.

>I think before you call reference to Ben Franklin, you have to also consider the differences in settings between today and then. A lot has changed and the discourse around the subject is not properly taking this into account, and often not even acknowledging the existence of change in the first place.

Are you saying people have more of an expectation of privacy now? I thought your whole argument went the other way.

> No, I don't. I do not think reasonable people ever had an expectation of privacy while in public, especially when they are interacting with other people/strangers.

Yeah, I don't buy that. Let me be quite specific: do you think someone would answer the following question differently "what is the likelihood that you will be on camera if you walk to the library and back?" I absolutely guarantee the numbers will change and approach 0 pretty rapidly. This is not just a psychological question (which does matter too btw) but a technological one. Clearly Ben Franklin would have answered that he would not expect such a thing despite being a person of high fame in his time.

> Setting and context could change the expectation of privacy, sure - if you're in a private place, it's different from being in public.

Except that this isn't a binary option. A public bathroom is a public space yet I think most people would be hard pressed to argue that you do not have a reasonable expectation of privacy there, especially in a stall. In fact, this is even legally codified. There's a spectrum of private-public and it is not clean cut. What I've suggested above is that there are variables you aren't considering. A person's model on the expectation of privacy is dependent not just on their condition of public/private property, but also on their expectation of people having recording devices, the expectation of that use, the expectation of ability to notice them, as well as other more refined setting attributes like doors, locks, and other such things. It is far more nuanced than "inside vs outside." As another clear example, I have a higher expectation of privacy being in the middle of a national forest than if I lived in a apartment on the first floor in a big city. Obviously there are more conditions and we can't have a reasonable conversation without recognizing this.

> Are you saying people have more of an expectation of privacy now?

Obviously not. Reread. "availability, accessibility, and utility" is referring to recording devices and the ability to search through them. Additionally, your analogy doesn't even make sense since a lot of investigative journalism does "spy" on people in private settings (e.g. source information from a dissenting party about a conversation that happened in a private room on private property). Again, way more nuanced than you are giving credit for.

>Yeah, I don't buy that. Let me be quite specific: do you think someone would answer the following question differently "what is the likelihood that you will be on camera if you walk to the library and back?"

They'd probably answer that differently, same as if you asked them about someone filming them on their cell phone or any other technological change. That doesn't have much to do with your earlier question, though.

> There's a spectrum of private-public and it is not clean cut.

Sure, there is a spectrum, based on community norms. There is a degree of privacy you expect in a bathroom, and it is greater than the degree you expect at your table in a restaurant. I wouldn't describe being in a bathroom as being 'in public' though.

>Obviously not. Reread.

I think you should read the last paragraph you wrote on the comment I replied to. It was completely unclear. You were replying to a statement that even in Ben Franklin's time there was no expectation of privacy in public. You did not refute this, essentially saying 'times have changed, you're not considering how things have changed.' Logically, that means that there is now an expectation of privacy in public.

> That doesn't have much to do with your earlier question, though.

It has everything to do with the question. Being recorded is a different level of privacy invasion than being seen.

> I wouldn't describe being in a bathroom as being 'in public' though.

And thus why you can't assert that your definition is absolute. If people are disagreeing and you admit community norms differ, then you can't have an objective reference and that's my main point.

>Being recorded is a different level of privacy invasion than being seen.

Why do you think I used the newspaper-man example? Being recorded in text has happened for a long time.

>you can't assert that your definition is absolute. If people are disagreeing and you admit community norms differ, then you can't have an objective reference and that's my main point.

I never asserted that my definition was absolute. I applied the spectrum to your examples. A 'reasonable person' standard is not an arbitrary bright-line rule, it's representative of the community and what their idea of a reasonably prudent person's expectations and behavior are.

> Why do you think I used the newspaper-man example?

And a voice recording is even more reliable and convincing but hasn't existed for "a long time." A camera is even more so. Today's state is not equivalent to a written record. Basically take your newspaper-man, make them better, and make a lot more of them. Your argument is failing to convince me not because I haven't understood your argument, it is failing because the assumptions being made are shaky. I will not buy a claim that anyone honestly believes that a random person telling their friend about something they overheard is equivalent to that same person showing their friend an audio recording or a video.

This is what I have been consistently claiming and saying is a critical aspect where you keep just saying that people have memories. These are not the same, and it is not remotely reasonable to say that they are the same. And if this were all that mattered, then you'd have a reasonable expectation of privacy were you to walk around a non-metropolitan city late at night while everyone else sleeps, simply due to you having a reasonable expectation of everyone being asleep. If you want to be convincing, dig into the complexity and connections that are related to your argument. Think about the factors that interplay and through what mechanisms. Specifically look at how these variables changed over time (taking into account prevalence and utility). Honestly, I don't think you can do this without coming to a very different conclusion. You're lacking sufficient complexity to account for the relevant data. It is fine to start simple, but you gotta add complexity to make strong conclusions. Ignoring the difference between cameras and newspapers isn't helping.

Please read at least the 13th amendment before using the 12th as a cutoff! It's hard to believe you know what any of the amendments say if you're claiming those after the 12th are illogical.

> And that’s before we explore things like focused beam microphones

Let's drop that. Instead, let's remember that 20 years ago there was not an expectation that someone would be carrying a microphone and camera on them. It was also less likely that one could do so without you noticing. Not to mention the quality of those devices was exceptionally lower, making identification harder and requiring you to be in much closer proximity. Take that back just another decade and a camera needed to sit on your shoulder, making you easily identifiable.

A problem with a lot of these conversations is that they're using modern technologies and notions in reference to laws that were written well before these things. There is a big difference between a very small number of easily identifiable people who require large resources to record the public, doing so in low resolution, and the modern notion of trivially doing so, and in high definition. Not to mention the ease/cost of storage, ability to search, and share that we have today. The Overton Window has shifted so much that we're completely forgetting the landscape differences.

When you are in a physical space, you can look around you and somewhat reliably observe who can see you, hear you, and observe your actions. You've always then had the choice to base your actions and your speech on who will observe them, with the further knowledge that they might go on to share this with others.

The difference isn't that what you do now can be shared. It's the ease of sharing and the fidelity with which it can be shared.

I mostly agree, but there's part that you're missing. Ease is a critical issue, but the capacity to record was substantially different back then too, and thus the validity of what was being shared. There's a big difference in someone claiming you said something vs someone having a recording of it. 20 years ago everyone wasn't walking around with a camera and microphone in their pocket. It is not only the ease in sharing and identifying, but even the base capacity to perform the action in the first place. If you were being recorded on video in the past, you'd likely notice the bulky camcorder mounted on some guy's shoulder. (not even mentioning that resolution was very different and depth of field is not a negligible).

20 years ago you did not have a reasonable expectation to be recorded in the public physical space. This is contingent upon the probability of someone being able to perform an action, and even more so without you being aware of said action being performed. That wasn't that long ago...

That's what I was getting at with the fidelity attribute.

Before you could observe an event and remember it (poorly) and share it (slowly) but technology, for better or worse, has greatly increased the possible fidelity of that memory, which can now shared endlessly without losing quality.

Agreed. I also get flummoxed whenever I try to talk about this stuff.

Further, I've only recently appreciated that our modern folk understanding of right to privacy has eclipsed its twin, the right to personal autonomy.

The development of the doctrine regarding the tort of "invasion of privacy" was largely spurred by the Warren and Brandeis article, "The Right to Privacy". In it, they explain why they wrote the article in its introduction: "Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society". ...

They then clarify their goals: "It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is".

https://en.wikipedia.org/wiki/Privacy_laws_of_the_United_Sta...

Brandeis & Warren were motivated by the evils of "yellow journalism", the social media of its day.

"The U.S Constitution safeguards the rights of Americans to privacy and personal autonomy. Although the Constitution does not explicitly provide for such rights, the U.S. Supreme Court has interpreted the Constitution protect these rights, specifically in the areas of marriage, procreation, abortion, private consensual homosexual activity, and medical treatment."

https://www.justia.com/constitutional-law/docs/privacy-right...

I love the EU's notion of consent wrt privacy (h/t @sschueller). Will definitely learn more about their system. My hunch is consent is akin to respecting another's autonomy.

> I love the EU's notion of consent wrt privacy

Correct me if I'm wrong, but aren't the EU laws contingent upon legality?

Article 8.2

> Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned __or some other legitimate basis laid down by law.__ Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

I mean we can take this in good faith, but at the same time Article 20 says everyone is equal in the law but there are several royal families and constitutions that make said families above the law. I love the idea in principle (and far better than nothing) but I personally am not fully trusting. It is, after all, our duties as citizens within a democratic nation(s) to challenge the authority and laws, to keep them in check.

Sorry for delayed response.

> ...aren't the EU laws contingent upon legality?

Sorry, for EU & privacy, I've only read up on GDPR, briefly. Back when I was trying to wrap my head around USA privacy stuff, I'm embarrassed I didn't have the gumption to compare and contrast with other systems.

> our duties as citizens within a democratic nation(s) to challenge the authority and laws, to keep them in check.

Preach!

My notions about "trust", which confuses me endlessly, evolved while I was working on election integrity (voter privacy) and patient medical records. (Separate efforts.)

"Trust" in government is something like a qwan. Whenever I try to talk about trust, I usually end up contradicting myself.

I once heard the US Constitution was created in an orgy of mistrust.

We're familiar with checks & balances, which is fundamental and necessary and good. But we also need the mutual mistrust of all the belligerents, at every level, all the time.

I was a poll worker for a while. We'd tabulate and post our precinct's results the moment the polls closed.

For observers, that public posting was not a proof of truth, that these are the numbers. Rather, it was an attestation by the participating representatives of the major political parties that we all agreed to abide by the posted results.

As you can imagine, most of the time it's just a semantic difference. But it is a difference in perspective. And becomes far more than semantic once the margin of error becomes relevant (challenged ballots, provisionals, verifying the voter rolls, etc, etc).

And that's kind of where I am now wrt "trust". Applied to government, any given org, or my neighbors.

Secondly, my personal operating definition of trust has changed from "confidence" to "matches my expectations (predictions)".

I have almost zero confidence that my government, or any other person or org, will "do the right thing", whatever that might be.

Now I try to predict outcomes, based on past behavior and my folk understanding of the human condition, plus intuition, mixed with cynicism.

I can even "trust" liars, and terrible drivers, and walking my dog off-leash, and otherwise merely flawed entities, if I can predict their actions and the outcomes. (Cite "Everybody Lies" by Seth Stephens-Davidowitz.)

And if I want to change outcomes, to increase my "confidence" in a system, I have to participate, to maybe change the trajectory a few arc-seconds. Ideally, by focusing on durable structural and process reforms. Instead of demanding specific outcomes, which are easy to accommodate and are unlikely to change future outcomes.

Okay. Thanks for your reply and nudge and reading this far. I can't yet answer your question. And I felt compelled to (over) share my notions of trust, based on my past failures and shortcomings as an activist.

The distinction makes sense, but of course the counter-argument would be: what prevented someone, using earlier forms of technology, from documenting your presence at that public place and then publishing it ... say in written or illustrated form? We had newspapers, illustrators, journalists and printers well before photography, microphones and the Internet. Even if we remove those media, what is to prevent someone from communicating their observations verbally and having news of your presence spread by word of mouth? A conversation between two people at a coffee shop could be transcribed by pen & paper by an eaves dropper at an adjacent table. The wait staff or owner could report your presence to whomever they choose, including the media.

I'm a very private person and welcome more privacy protection, but I've always been swayed logically by the "no expectation of privacy in public" argument. As long as people can see you with your own two eyes and hear you with their own two ears, it seems to me like the existence of recorded media and more efficient distribution channels is moot.

What prevented documenting and publishing public acts in the past?

Merely an infeasibility to scale that with economically and socially reasonable levels of effort - actually an impossibility. The law and culture have not changed fast enough to keep up with obvious conclusions that result from the fast pace of technological change. There is a quantitative but not qualitative difference, but that's still an important difference!

For example, imagine that in the 70s, you might have had police officers with radios sitting on the shoulders of roads around a city, watching for a license plate and vehicle description to catch a suspect. That was reasonable, courts reasonably ruled that license plates were public information, that's the whole point of vehicle registration. But it would cost a pile of money to have professional humans use their eyes and brains for every hour you wanted to surveil those roads. It would have been impossible for humans to manually hand-write every plate and vehicle at rush hour, and if they could, it would be impossible for clerks to cross-reference traffic logs and store them in file cabinets, and if they could, it would be impossible to analyze the exploding warehouse of records to find anything of interest. And even if you could, the many humans in that chain would ask questions; you'd employ a tenth of the town to surveil their neighbors. But now, for less than it costs to have a single manned police cruiser on the road for a month, you can have 24/7/365 license plate monitoring on every road in and out of and through a city, logging events to a database that can analyze and query the computationally insignificant few hundred thousand results effortlessly. And that doesn't even get into the novel, unexpected, deanonymizing things you can do once you have reams of data!

A cop watching license plates was implicitly limited due to the cost of employing a human, that human's inability to be two places at once, that human's limited attention span, sensory capacity, and data recording abilities. It doesn't mean that removing those limitations and doing the same thing everywhere and all the time with omnipresent, omniscient, effortless nanobot surveillance is reasonable!

I think you're getting to the critical points here:

- manually, non-recorded, surveillance was difficult as it required a lot of man power. It also was contingent upon the trustworthiness of the source!

- Recorded surveillance was expensive and bulky, making it unlikely in the first place.

- Storage of data, both physical and digital (film or tape), was expensive, bulky, and difficult to search.

Now all that has changed, and in extreme ways. It is now very feasible and cheap to put up a camera to record 24/7, store that data for lengthy periods of time, and automatically search that data for cheap and in a reasonable amount of time as well. Acting like the 70's (or even 2000's) and 2020's are the same in expectations of surveillance is ludicrous at best.

>the act of being in public is public

the act of being in public may be widely distributed

I think there's a distinction between being recorded in the first place, and what the recording might be used for in the future. I think it's OK to permit a recording to take place in a public place without explicit consent, but still require consent to use that recording in (for example) publishing it where someone is a feature in that publication (as opposed to someone who happens to be in the background and remains otherwise unidentified).

Nowadays technology might mean that someone anonymous gets identified by a third party using automation. So it will become public knowledge, indexable on the person, as to where they were and what they were doing. But that was going to happen anyway. I'm not sure restricting recordings in the first place is really going to stop that.

I think the problem is that the environment has changed and people are applying those changes post hoc to the previous environment and when laws were written. Things have changed a lot and I think we need to act accordingly. Continuing as if it all is the same is like boiling a frog, and it is surprising how fast you can turn up the heat. It may seem drastic, but I have seriously considered messaging dang to nuke this account. Not just delete it, but purge all text as well. A strong divorce from the standards, but that is because [deleted] used to be reasonably sufficient to hide one's identity. We now live in a world where I can reasonably expect to be deanonymized by my words alone and that it is not unlikely that this capacity will be in the hands of the public in the next 5-10 years, along with entire copies of the internet. I do think what we've seen with digging up old tweets will take on a new and pervasive form (likely with even more error). But going back to specifically recording...

The truth is that we live in a _very_ different world than when these laws were set up. The idea of reasonable expectation was very different because you wouldn't reasonably expect to walk down the street being recorded since cameras were bulky, expensive, and uncommon. Now every single person has one in their pockets, most businesses are recording you, you're being recorded from airplanes in the sky[0], and not too long from now satellites will (governments already have this capacity but commercial is near there[1]). You didn't have a reasonable expectation for the person standing next to you to be capable of recording your conversation. It was possible for them to wear "a wire" but the likelihood was very low. Likelihood being low is equivalent to "reasonable expectation." The reasonable expectation of not being recorded didn't come from being hidden or out of sight, it came from the fact that the technology either didn't exist or wasn't prevalent. Not it is ubiquitous. And despite it seeming so normal, most of this change happened in the last 20 years.

But we're getting to the next paradigm shift, which makes all the above even more pervasive. ML/AI. I say this as someone that works in ML/AI and loves the field with a passion (you'll see me discuss it a lot here). But the technology also has downsides (commonly referred to as "malicious AI"). It isn't AGI, it is the ML that already exists. We can identify faces in a crowd and track them across different videos. We can take that 2 pixel person, segment it, and track it (done manually in the radiolab referenced in [0]). We can identify a person by the way that they walk (gait recognition[2]). We can track you by your wifi and bluetooth signal within a building. And so much more. This technology has supercharged the surveillance ecosystem (not somewhere I work in, obviously) and you bet it is being used by countries who don't have the best human rights records (let's not make this a (who's) dick (is the ugliest) measuring contest). Things have changed well beyond what we could have reasonably assumed 20 years ago, even 10. Now, it is not unreasonable to believe that such systems will also perform on the web and that your text is likely identified by you patterns, not just your fingerprint.

And this is really it. This stuff is so prolific that we've erased our memory of the past and re-framed this "normal" behavior as applicable to the past and try to justify it. 20 years ago you could walk down the street and reasonably assume that you would not show up on any single camera. Moreso, you could reasonably assume that if you did, you wouldn't show up on many. That that video was unlikely to make it to the internet. And that that video would likely be low grade and unable to identify you. These are all different things, but combined they sum to the expectation that there would not be a record of your movement contingent upon your ability to be identified (same applies to the internet and our chat forums in a similar line of reasoning). __STOP JUSTIFYING "REASONABLE EXPECTATION"__ without recognizing that the ecosystem has rapidly changed and is significantly different from when those laws were written. You are not making a strong argument but rather just reinforcing the surveillance paranoia (as in, people who are paranoid[3] about surveillance will increase said paranoia due to increased relaxation coupled with "nothing to hide" mentality that enables said surveillance).

=== TLDR ===

Just because you were in public didn't mean you'd reasonably expect to be recorded. The ecosystem has rapidly changed and we need to recognize this. 10-20 years ago you didn't have a reasonable expectation to be recorded (video or audio) in public as {government,corporate,civilian} recording capabilities were far less.

[0] Note that this is 2016 and has only grown since then. If you don't like buzzfeed (I just quick googled) Radiolab has 2 episodes on it ("Eye in the Sky"). https://www.buzzfeednews.com/article/peteraldhous/spies-in-t...

[1] Planet is getting ready to deploy a 30cm resolution (person = ~2 pixels) constellation called Pelican. It is not real time! But it shouldn't be unreasonable to believe it will be in the future. Current resolutions can already clearly identify cars. https://www.planet.com/products/pelican

[2a] PWC page https://paperswithcode.com/task/gait-recognition/

[2b] 2 random surveys: https://arxiv.org/abs/2102.09546 https://arxiv.org/abs/2206.13732

[3] Paranoia is a bad word because it implies an unjustified or unwarranted mistrust. I think we can all agree that to some degree there is justification. The disagreement is just how much. But I am using the term because it is more prolific and I think the context is appropriate to draw upon the dichotomy in how what was once thought to be tinfoil hat claims become reality: see Snowden. 50 years ago a person that claimed our every move would be tracked -- in the real world and virtual -- would have been called crazy. It was even the stuff of dystopian science fiction. Now we call that a Thursday.

> Just because you were in public didn't mean you'd reasonably expect to be recorded.

Sure, but as you say, times have changed and the law needs to keep up. I agree. In my post that you replied to, what I'm saying is that it's futile to adjust the law to prevent people from being recorded. It's better for the law to specify what is acceptable to do with recordings once they are made.

In Europe, that's already happening. For example, in Europe, processing any data relating to your identity, including what can be derived from such recordings, is quite limited under the law. Many uses that you might be concerned about already require your express consent.

Just to be clear, I'm not countering your premise, I'm adding to it and providing additional context to justify such an addition. I think you're mainly right that it is better to regulate the usage but I think that we should use the framing of what is being done in public to help define how that data can be used. E.g. a person randomly talking to their friend should have a more respected privacy than a person screaming in the middle of the streets.

so it’s illegal to film someone on a street in switzerland and post it online?

Sounds reasonable.

I wonder if there are exceptions for photographing police and other government officials? Seems like there should be. And what about the reverse? Are police body cams allowed?

Same applies, you can film the police but you can't post it online as they as individuals have a right to privacy as well. Misconduct is handled by the appropriate authoritative which will view such tapes but not by the Public although such footage will end up in the media with the police officer's identities anonymized.

Police body cams are permitted but the handling of the recordings is very strictly controlled. The same applies to public cameras such at train stations etc. There are clear signs indicating they are present and the footage has strict retention policies. In many cities now it is also illegal for these camera to do any type of face recognition.

In only very extreme situations can the government share footage with the media where a person is identifiable.

That's interesting. It must make it a lot more difficult for reporters trying to capture images and videos of newsworthy events. It seems like exposing corruption could be a lot more difficult if regulatory capture ever happens.

It gets more country-specific the deeper you get into it, but usually there are exceptions for people in the public eye (like politicians or celebrities), events of sufficient public interest, etc.

> you can film the police but you can't post it online as they as individuals have a right to privacy as well

This is perverse. What "privacy right" do police officers have when they are on duty or acting under color of law? I think no public official should have a right to privacy while they are actively performing their duties as public officials (this would not apply to their personal life, which is why there should also be very strict restrictions to ensure that all public work is done in public). I also count police officers in this, since they have extra-legal rights compared to the rest of us, being the very embodiment of the state's "monopoly on violence".

If a police officer is doing something heinous, why should they deserve any privacy at all outside of their personal life, where they in theory don't have the right to use their police powers?

Your baby/bathwater filter seems to be on the fritz.

If, as in the common case, a police officer is performing their duty correctly, why should they as a private individual be singled out, maligned, their personal safety be threatened, etc. etc?

If you’re coming at this from e.g. the US perspective where the situation with police is a very stylized us/them, this may feel odd.

If they're performing their duty correctly, a video of their work should not be harmful to them at all.

Situations like this are the only time I feel the saying "if you don't have anything to hide, you'd let people look" is appropriate, when concerning people with power "over" common folk. This wouldn't apply to officers doing plainclothes or undercover work, as there would be no reason for a bystander to assume they were a police officer being abusive or doing their job incompetently. This would apply to uniformed officers going outside of the bounds of what is reasonable. It's not a perfect solution, no, but it's a lot better than "uniformed officers have a right to privacy while uniformed and officering, and it is morally wrong to film them in the process of wrongdoing".

There must always be strong checks on authority, lest it be abused. Perhaps the US is up there in the list of offenders, but then again they're not the worst offender in the world by far. Any modern democratic nation is susceptible to authoritarians and fascists wresting control if they don't institute strong protections against it happening.

There are other reasons to protect someones privacy. An office may be doing everything to the book but accidentally shit his pants due to what he had for lunch. Having a video of this circulate in public and being the laughing stock of the town is why we have these laws. With the internet something like this would haunt a person for their entire life.

Everyone deserves the right to privacy and misconduct should be dealt with by the appropriate superiors/agencies and not by public shaming.

This is the norm in Europe. Filming a crowd is fine, making a picture of the Eiffel tower with people around it is fine, filming a specific person and publishing it without their consent generally isn't. "Generally" because obviously it gets more interesting in the specifics of when it is ok, but those are exceptions similar to how copyright has exceptions.

I guess that explains the distinct lack of public freakout videos from Europe.

I think that's more related to the fact that most Europeans normally speak languages other than English.

A bit difficult to post them when they are illegal, no?

Not at all actually. There is a constant stream of compromising material posted online in Europe. It's a huge problem actually, because it's notoriously hard to get such stuff taken down, as the authorities simply do not care.

“THE TOWER ILLUMINATED Controlled use The various illuminations of the Eiffel Tower (golden illumination, twinkling, beacon and events lighting) are protected. The use of the image of the Eiffel Tower at night is therefore subject to prior authorisation by the SETE. This use is subject to payment of rights, the amount of which is determined by the intended use, the media plan, etc.”

https://www.toureiffel.paris/en/business/use-image-of-eiffel...

If it's similar to Denmark or Germany, then yes. More or less.

If you use a wide angle lens form afar and the person in question is just a small blimp in the background it can be ok. At least that is how I understood it.

But you can't just walk up to a person and take their photo.

You also can't have a security / doorbell camera that records public road. I think if you watch it live, that part can be recorded. But no 24/7 background recording of public spaces.

I like it :)

Yes, you would need to make them unidentifiable by blurring their face, anonymizing their voice and any other feature that may identify them.

Wide shots of crowds are generally ok in public, the issue is focusing on specific people. For example someone having a mental breakdown in public.

You also can not have door bell or private cameras pointing to public streets/roads. You have to ensure your camera only records your property and you are required to post a sign that a camera is installed.

So having a dash cam in your car isn’t allowed?

At least here in Norway the issue isn't taking the photo or filming, but publishing it in any way.

https://eu.cobra.com/blogs/news/are-dash-cams-legal-europe

Not everywhere in europe, simmuliar applies to Doorbell cameras.

https://community.security.eufy.com/t/background-blur-for-th...

Jein (German word joke that combines Ja & Nein / Yes & No).

The short answer is: they are allowed BUT. There are many privacy rules that prohibit the actual use of these recordings (not limited to publishing but in court as well).

The assumption of privacy is very strong here.

It may or may not be OK to record without having a notice if your intention is a specific private use, like your own legal defense. It would certainly not be OK to publish a video clip of a specific person you encountered that may be embarrassing.

For example, you can be fined for publishing footage of an accident where someone was hurt and may feel embarrassed that other see them in that condition, but it may be OK to give it to police or legal council of people involved.

Is Switzerland as covered in security cameras as the USA?

Because there's not really a whole lot of public places aside from parts of national and state parks where one could reasonably expect to not be on a camera most of the time, right?

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