Abstract
This Article examines a question that has become increasingly important in the emerging surveillance society: Should the law treat information as private even though others know about it? This is the third-party privacy problem. Part II explores two competing conceptions of privacy — the binary and contextual conceptions. Part III describes two features of the emerging surveillance society that should change the way we address the third-party privacy problem. One feature, “surveillance on demand,” results from exponential increases in data collection and aggregation. The other feature, “uploaded lives,” reflects a revolution in the type and amount of information that we share digitally. Part IV argues that the binary conception cannot protect privacy in the surveillance society because it fails to account for the new realities of surveillance on demand and uploaded lives. Finally, Part V illustrates how courts and legislators can implement the contextual conception to deal with two emerging surveillance society problems — facial recognition technology and geolocation data.