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School of Law, Washington and Lee University




Everyone seems concerned about government surveillance, yet we have a hard time agreeing when and why it is a problem and what we should do about it. When is surveillance in public unjustified? Does metadata raise privacy concerns? Should encrypted devices have a backdoor for law enforcement officials? Despite increased attention, surveillance jurisprudence and theory still struggle for coherence. A common thread for modern surveillance problems has been difficult to find.

In this article we argue that the concept of ‘obscurity,’ which deals with the transaction costs involved in finding or understanding information, is the key to understanding and uniting modern debates about government surveillance. Obscurity can illuminate different areas where transactions costs for surveillance are operative and explain why making surveillance hard but possible is the central issue in the government-surveillance debates. Obscurity can also explain why the solutions to the government-surveillance problem should revolve around introducing friction and inefficiency into process, whether it be legally through procedural requirements like warrants or technologies like robust encryption.

Ultimately, obscurity can provide a clearer picture of why and when government surveillance is troubling. It provides a common thread for disparate surveillance theories and can be used to direct surveillance reform.

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