0:00:09.960,0:00:12.004
Hi everybody. My name is Brad

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and I'm here to talk to you about privacy.

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So just a quick caveat

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my views expressed are my own [br]not either of my employers,

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so impute the crazy only to me.

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So I wanna talk to you a little about how

0:00:23.933,0:00:26.268
privacy is changing and how the ways

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that we think about what is private

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has started to morph [br]and where I think it's going.

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And so my premise to you is we've gone

0:00:33.275,0:00:35.986
from the society of privacy[br]laws to privacy norms

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and that we can encapsulate this

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with a simple phrase of [br]"Not cool bro" or

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"bro act" or whatever [br]the proper term is

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as the case may be. [br]So, now, you gonna ask,

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What do I mean when I say

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"Not cool bro"? So, when I say,

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"Not cool bro",[br]I'll give you an example:

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You are on Facebook and

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you have a bad break-up or fight with

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one of your friends.[br]And you block

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that person and so they [br]can no longer see your wall.

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Someone else who still has access to your

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Facebook wall, goes in, and either

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copies and pastes the entire thing,

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or takes a screenshot every day

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and mails it to that person.

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OK, so our initial response is:

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That's not cool. Not cool bro! Not cool!

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We get the visceral feeling

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that that's somehow privacy violation.

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We get the feeling that that something

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unseemly is happening but we don't know

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how to quite talk about it.

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And that is what I am talking about by

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"Not cool bro" privacy, because the law

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doesn't recognize that as a real

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privacy interest.

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So it first makes a little sense

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to talk about what the law does recognize.

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And most of our privacy comes from

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the criminal context.

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All privacy was literally --[br]you had to sneak up to

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someones house and eavesdrop.

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So the eaves of the house where water falls.

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So you would stand outside

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and you would listen.

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You would climb over their fence,

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shimmy across their lawn,

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nozzle up to the side of the house,

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maybe like you know poke a hole

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on a window and then [br]you can eavesdrop.

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That's what you had to do

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to violate someone's privacy.

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So privacy was really about access

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to information.

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And we didn't need special rules

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regulating access to information because

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you couldn't violate someone's privacy

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in the 1700's, unless you showed up

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at their front gate.

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Right? There was no Facebook.

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The only wall that happened in 1700

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was literally the wall

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outside the carriage house.

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So we go from that to this modern era

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or pre-modern era in which we have

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ways of getting information

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that don't necessarily involve

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the traditional structures of space.

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So there is a very famous case

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involving a guy

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who walks into the phone booth

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and he closes the door behind him[br]and then he does some illegal activity

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and the police are listening[br]and they don't have a warrant.

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And by the way in the law[br]you need to get a warrant

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before you can listen to any of this stuff.

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And for those of you who've seen

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CSI or Law and Order -

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Big judges who give out warrants[br]are sometimes like Oprah:

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You get a warrant and You get a warrant

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and everybody gets a warrant.

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(Laughter)

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But at least we still have that

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nominal process, that the privacy

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is still being protected,

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right, there is a reasonableness here.

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Well, this guy and his name is Kats,

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so you can have all sorts of phonetics --[br]it's spelled with a K.

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He had a reasonable expectation

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of privacy here. Two types:

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It was subjected: meaning

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he personally believed that it was private

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because he closed the booth behind him.

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And then two: objective.

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Society as a whole is willing to say,

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You know what, yeah, if you are going

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into a telephone booth and close the door[br]that should be private.

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Now, what about if we apply this to Facebook?

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Right? This is the "not cool bro"[br]version of privacy.

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You just take it one more step.

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In the old version of privacy,

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it's all about control over

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the means of accessing information.

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In the new version of privacy,

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it's all about control over

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who can get the information[br]that you give it to?

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So in the old version of privacy,[br]if I tell someone,

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"Hey I got an F on a test."

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That person can tell anyone else

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and it's not really considered

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a violation of privacy.

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I didn't keep it private,

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because I allowed someone else access.

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In the new version of privacy,

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when you post something[br]to your Facebook wall,

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if you prevented the rest of the world[br]from seeing it,

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is there an implied understanding to[br]anyone else you've given access to

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that they shouldn't re-share it?

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Or another example:[br]If you are on Twitter

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and you've got a protected Twitter stream

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that no one can see

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unless they expressly follow you[br]and you allow them.

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And someone just sort of re-tweeting

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all of your protected tweets.

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You would say the exact same thing.

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But the understanding would've been:

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Wait a minute, I only let you see

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my Twitter stream, because

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I thought you weren't going to re-tweet it.

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You violated some sort of implied understanding[br]we had.

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So, now we have our modern eavesdropper,

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who is in your Facebook wall

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posting again. So this is

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our modern eavesdropper overhearing

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in conversation. So how do we get

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to a place in which the law

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can come up to where we are.

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Because we think of this,[br]new norm, this new idea

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you won't re-share something

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I only share with you.

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How do we get there?

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And there is actually an interesting way

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and I'll take it back a little bit[br]to give you an example.

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When Facebook started out

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you had to be a member of a network

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to just look at someone's profile.

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And I remember having a job,

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where someone in HR knew[br]that I went to Yale

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and sent me an e-mail[br]and said:

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Brad, we know you went to Yale,

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could you log into Facebook[br]and print out a copy

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of this applicant's Facebook page?

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We'd like to see it.

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So, by the way, for those of you

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who thought that didn't happen,[br]it was happening in 2004.

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So you better believe it's happening now.

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That said, I recoiled in like[br]shock and horror.

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I was like that would be a violation[br]of that person's privacy.

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It would be a betrayal of trust.

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But the idea was back then,[br]what happened in the Yale network,

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stayed in the Yale network.

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It's kind of like Vegas. [br](Laughter)

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And so, there was a knowledge[br]that was like,

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Hey, not cool, bro!

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You knew that you only had access to this.

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There was a reciprocal understanding.

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You won't tell other people[br]what goes on in the Yale network,

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and I won't tell other people[br]what goes on in the Yale network.

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And so, if you think about it

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there is an implied commitment

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when you join any of these social networks,

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that if you are not supposed

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to re-share information, you won't.

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And there is another area of the law

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that actually has really[br]had this transformation,

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where they went from a very formal --[br]you have to be explicit understandings --

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to just anything goes.

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And that's products liability.

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As crazy as this may sound

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there was a time where if you bought

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a can of coca-cola and it blew up[br]in your hand as you were drinking it.

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The only person you could sue

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was the bodega or bodegua,

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as the case may be, that you bought it from.

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And over time courts sort of didn't like this.

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They said, Well, there is an implied contract

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between the original manufacturer[br]and each step in the chain

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of distributions until to the ultimate consumer

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does not need to be[br]in contractual privity

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with the original manufacturer.

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Which is the fancy way of saying:

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We are going to say [br]that there is an implied contract

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that runs all the way[br]through all these steps in the middle.

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And when you finally buy[br]that can of coke,

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you get an implied contract from Coke.

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Finally a court in California said,[br]Enough, is enough.

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We are done pretending,[br]we are done making up

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these implied contracts.

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We are just gonna say[br]strict liability applies

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if you make a product[br]and you put it out in the universe.

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You have a reasonable understanding

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that if somebody gets hurt[br]by that product

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they are going to sue you.

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We can do the exact same thing[br]with privacy.

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If you join a social network,

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Facebook, Twitter, Google+

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and you join that network[br]knowing that there are privacy settings

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and knowing that other people[br]are sharing information with you,

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but at the same time[br]prohibiting other people

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from accessing that information.

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It's a violation of whatever[br]you wanna phrase it as.

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Wouldn't that person's[br]expressed understanding

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that they would only share[br]the information with you

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if you didn't re-share it.

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Now, we can get there without[br]waiting, for example,

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Facebook could put a little lock[br]or a hash icon on every post

0:08:01.909,0:08:05.060
on every element of Facebook[br]that's been shared with you

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that would let you know[br]whether or not it was public,

0:08:07.580,0:08:09.014
whether or not it was OK to re-share.

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Twitter already does this.

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You can not one click re-tweet[br]a protected tweet.

0:08:13.341,0:08:17.646
And Craigslist has code-matching that[br]will actually look at posts

0:08:17.656,0:08:20.392
you've previously made[br]and if you're re-posting

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similar content it will stop you.

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Facebook and Twitter[br]could do the exact same thing

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if they see you trying[br]to use copy and paste

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to get around these mechanisms.

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The other thing they could do is,

0:08:30.001,0:08:31.420
we could amend our terms of service,

0:08:31.420,0:08:33.213
we could make an expressed term of service

0:08:33.213,0:08:36.804
to re-share information[br]that is not supposed to be re-shared.

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Like on Google+,[br]where you can actually click

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"Disable re-sharing"[br]and then no one else can.

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So there is a sense[br]that we can get there.

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We also can maybe get there in law.

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It won't necessarily happen

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right away, but in a recent case

0:08:51.553,0:08:53.899
the Supreme Court is starting[br]to go there.

0:08:53.899,0:08:56.930
In the Jones case,[br]which dealt with GPS.

0:08:56.940,0:08:58.822
Justice Sotomayor said maybe it's time

0:08:58.822,0:09:02.767
that we start to rethink this notion

0:09:02.767,0:09:04.460
that if you share something

0:09:04.460,0:09:07.161
with one person it is no longer private.

0:09:07.161,0:09:10.567
Because our societal expectations[br]have changed.

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We've moved from law to norms.

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The norms of not-cool-bro-to-re-share[br]are how we now think about privacy.

0:09:19.134,0:09:21.850
And as a result our law[br]is lagging behind a little bit.

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And although we are not there yet[br]with our laws,

0:09:24.904,0:09:27.339
we have inter measures[br]we can use from code.

0:09:27.350,0:09:31.227
So the interesting thing[br]to see is where we head

0:09:31.227,0:09:33.529
now that we are a society of norms

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and when we think about privacy[br]as norm-based.

0:09:37.483,0:09:39.895
(Applause)