The reconstruction of privacy through law: a strategy of diminishing expectations

Abstract

In a time of rapid development in privacy and data protection laws, the state of urban life has much to tell us about their long run effectiveness. Compared to even the recent past, major cities have largely lost the definitive public anonymity and obscurity that has characterised urban life for centuries. Saturated with sensors networked to powerful data analytics, they are at the epicentre of an ongoing revolution in governmental and commercial surveillance.In short, the future radical transparency of all human life is already emerging in our major cities. This paper addresses a crucial question. Given a hundred years of privacy and then data protection law, how did this happen? In this paper, I argue that the explanation for this long running failure lies substantially in the wider political economy of information law, which Radical transparency and the priorities of information lawCities have much to tell us about the global transformation towards a radical transparency of human life. Across the globe, major cities are saturated with myriad data gathering sensors embedded in every surface and device, from streets and buildings to vehicles and smartphones. Urban infrastructures and services, which were once entirely separate, are now integrated within overlapping, opaque governmental and commercial information systems that continuously extract and analyse vast arrays of data. 1 Anyone now present in a major city is ever more identifiable and traceable as gaps in surveillance networks narrow and disappear. 2 The anonymity that characterised urban life for centuries is vanishing. 3 Historic distinctions between public and private urban spaces, which have been vitally important to social and legal norms, are also collapsing. 4 This is, moreover, a highly intrusive form of transparency in which the goal of universal identifiability and traceability is to modulate behaviour, either individually or collectively. 5 Data analysis, previously well downstream from data extraction, is progressively at the forefront of urban services, determining which individuals or which patterns of behaviour merit which selective response. 6 Contemporary surveillance thus often includes the simultaneous singling out of particular personal attributes, habits and preferences at the point of data capture. 7 This rich stream of direct and derived personal information drives a myriad of governmental and commercial decisions, which are variously intended to deter or