The Case for Online Obscurity

Publication Type: 
Academic Writing
Publication Date: 
May 3, 2010

On the Internet, obscure information has a minimal risk of being discovered or understood by unintended recipients. Empirical research demonstrates that Internet users rely on obscurity perhaps more than anything else to protect their privacy. Yet, online obscurity has been largely ignored by courts and lawmakers. In this article, we argue that obscurity is a critical component of online privacy, but it has not been embraced by courts and lawmakers because it has never been adequately defined or conceptualized. This lack of definition has resulted in the concept of online obscurity being too insubstantial to serve as a helpful guide in privacy disputes. In its place, courts and lawmakers have generally found that the unfettered ability of any hypothetical individual to find and access information on the Internet renders that information public, or ineligible for privacy protection. Drawing from multiple disciplines, this article develops a focused, clear, and workable definition of online obscurity: Information is obscure online if it exists in a context missing one or more key factors that are essential to discovery or comprehension. We have identified four of these factors: 1) search visibility, 2) unprotected access, 3) identification, and 4) clarity. This framework could be applied as an analytical tool or as part of an obligation. Obscurity could be relied upon as a continuum to help determine if information is eligible for privacy protections. Obscurity could be used as a protective remedy by courts and lawmakers; instead of forcing websites to remove sensitive information, a compromise could be some form of mandated obscurity. Finally, obscurity could serve as part of an agreement. Internet users bound to a “duty to maintain obscurity” would be allowed to further disclose information, so long as they kept the information generally as obscure as they received it.

Download paper from SSRN.