Assumed Privacy

I am full of great, geeky admiration for Larry Lessig, but a recent pair of blog posts (No. 1 and No. 2) on the “Judge Kozinsky Incident” show all the features of a strained attempt to reason backward from a desired outcome rather than Lessig’s normally acute analysis.

Let me start by acknowledging where Lessig is completely correct: the mainstream media representation of the video that was found is entirely distorted and the motivation of the person who found the video and other files clearly malicious. But malicious intent doesn’t define the boundaries of privacy.

Nor, strictly, does access. In this respect a number of commenters on Lessig’s site have it right: Lessig’s strained analogy of the open file server being akin to someone’s den with an ill-fitted lock ignores the reality that when you create a resource on the web you are creating, by definition, a public resource: unless you protect the material with a password. Lessig’s defense of security by obscurity rests on the notion that since the material wasn’t intended to be accessed directly it shouldn’t be considered public. But we aren’t talking about someone’s den with a faulty lock, we are talking about a chalk line around a square of public pavement. The lack of directory links might imply or even intend that the material was meant to be kept private, but it isn’t our responsibility to negotiate that implication or guess at that intention.

This is an important recognition for educators as well. Even if one is teaching behind some kind of protected interface or LMS, links to material that is not protected– even if not advertised as was the case with Kosinski’s files– are links to materials made public. And other content that is similarly unprotected can be discovered the same way Kosinski’s was.

The solution is simple and has nothing to do with trying to create some kind of assumed state of privacy based on obscurity: just protect the freakin’ material. It’s not that hard to do.


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