QUESTIONS FOR professor
felix wu
BY JACKIE REEVES
Privacy in the Digital Age Felix Wu is worried about your privacy—especially about the way technology is changing the concept of privacy and the impact it has on society. As a lawyer and scholar, Professor Wu’s work has made him an expert in understanding how the law has been slow to respond to rapid social and technological changes. Last year, he organized a major
derlying question: Should we be able to track people’s movements over a long period of time? It’s a hard question because on the one hand, we expect that police are able to track movements in the sense of just watching the public roads. On the other hand, it seems very different to be able to find out where anybody has been over a long period of time. You find out things that you would never be able to find out otherwise.
conference on privacy in the digital age. Here he talks to Cardozo Life about the challenges we face in maintaining privacy, the value of dissent, and why studying Internet and information law is so important.
You have a scientific as well as a legal background. How do the two go together with respect to your legal work and research, and has your scientific background been helpful? PROFESSOR FELIX WU: I’ve been able to use my technical background to understand what computer scientists have been doing in terms of when privacy can be maintained in databases. This has involved actually looking at the technical results themselves with respect to these kinds of privacy problems. Much more subtly, my scientific background has also helped my legal thinking. My background is in theoretical computer science, and that involves trying to understand the structure of what computers can or can’t do. That has been very informative to my thinking about the law and what the structure of various laws ought to be. CARDOZO LIFE:
You spend a lot of time studying privacy law. What are some of the challenges faced in maintaining privacy in the Digi-
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tal Age while making sure that research and innovation continue to flourish? FW: If you look 20, 30, 40 years ago, the government could only get at so much information. What we’re finding today is that a lot of those natural limits are starting to fade, and now we can collect a lot of information that we previously wouldn’t have been able to find. Those natural limits, I think, at one point provided a kind of balance between the privacy of individuals versus other useful goals, and now we suddenly have to think, “What do we do when we don’t have those limits anymore?” The recent Supreme Court case of U.S. v. Jones is an example of this. It was a case about whether the police could put a GPS tracker on a suspect’s car without a warrant in order to track their movements over an extended period of time. In the end, the court said, “Well, actually sticking the tracking device on the car was a trespass,” and that meant a warrant was required. But in a way, that dodged the real un-
How do these privacy issues affect the average person? FW: A lot people say, “Well, this is an interesting problem in theory, but I’ve got nothing to hide. I don’t really care if the police follow me or not.” But it’s important to think about privacy not just from the perspective of each individual person, but society as a whole. Privacy is important because without it, we get a society in which people are a little bit more careful about what they do, what they read, what they talk about with each other. That has the potential to push society in a way that makes everything a little less sharp around the edges, a little more tending toward the mainstream, and I think that’s something we should strive against. CL:
You recently held a conference on this subject, and you looked at anonymity in online speech, government access to identifying information, and identifiability in databases. What are some of the ideas that came out of the conference? FW: Chief Judge Alex Kozinski came to give the keynote address for the conference, and in it he looked at all the ways in which anonymity can be used for such good things and for such bad things at the same time. Dissidents feel comfortable CL:
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airing their views, while on the other hand, anonymity makes it possible for criminals to engage in illegal activity without getting caught. There are many reasons to hide your identity, and it can be very difficult to sort out the good from the bad ones, very difficult to figure out how to set the rules in such a way that we somehow catch the bad folks while still allowing the good folks to use anonymity for what it is they want to do. This highlighted a theme recurring throughout the day. There are certainly some people who are very much convinced that the potential good uses far outweigh the potential bad ones—that the value of dissent is so strong that we ought to do whatever we can to make sure we preserve it, even if it means a few are able to get away with doing something wrong. Others are less convinced and see the need to try to create more space for maintaining a certain amount of order, a certain amount of transparency. Cardozo has one of the strongest intellectual property programs in the country. Why are Internet law and information law so integral to our program? FW: There’s a way in which they are becoming all law, at least in the sense that all law has a little bit of these aspects in it now. You might be studying civil procedure and the question arises, “What do we do when we get a discovery request, and one company has huge, huge volumes of electronic data, way more than had ever been collected in the past?” Now we have all these e-mails to sift through. How do we do it? Can we use a computer to predict which documents will be responsive to various discovery requests? Should we allow that or not? That’s a kind of civil procedure question. Here’s a criminal procedure one: What kind of information can the government get in order to track down criminals? Can they get access to your cell phone records, or the smartphone in your pockets? Or think about tax law. What do we do about collecting sales tax when so many transactions happen online? All these other areas of law are now informed by questions of information law and Internet law, and that’s part of what’s so important about having them in our program here. ? FA L L 2 013
NORMAN GOLDBERG
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