FORTUNE — Here’s a question, privacy hounds: Is the video-surveillance system that blankets Manhattan from Midtown to the Battery, river to river, really not so different from an earlier anti-crime innovation, street lights? That’s what Richard Daddario, deputy commissioner for counterterrorism under former New York City Police Commissioner Ray Kelly, once told me. Street lights mean criminals can’t operate with impunity under cover of darkness. Cameras, same principle, slightly extended.
“That comparison seems a bit disingenuous and silly,” according to Glenn Cohen, a professor at Harvard Law School, who spoke about privacy and technology recently at the Radcliffe Institute for Advanced Study in Cambridge, and corresponded with me afterward by e-mail. “Lights don’t have the potential for ‘function creep’ whereby they are introduced for one purpose but then used for something quite different in the future, like social security numbers. Lights are temporary in their effect and don’t record what we do for the indefinite future. Finally, there are few activities that people actually want to do in the dark in public, so losing darkness is not a loss to many people, if anyone. By contrast, there are many activities we want to undertake without being recorded and watched — a same-sex kiss, for example, for someone stepping out of the closet — that a world of total surveillance would chill.”
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In the post-Snowden era, alas, such concerns can seem almost quaint. A street-corner surveillance camera, easily evaded by ducking indoors, is one kind of intrusion. A smartphone that tracks our movements and hoards for future inspection by parties unknown our emails, blog posts, photos and tweets, is something else altogether.
Like it or not, we have entered the era of assumed ubiquitous snooping, and we have not begun to parse the implications. That was my takeaway from Cohen’s lecture, “The Ethicist’s and the Lawyer’s New Clothes: The Law and Ethics of Smart Clothes,” which will be available for free streaming by month’s end on the Institute’s website.
Cohen, himself dressed smartly for the occasion in red shoes and oversized red glasses, led us on a tour of the latest in wearable surveillance technology, including Google Glass, fully functional button cameras, and radio frequency identification (RFID) chips that can be woven into our clothing.
Cohen drew an analogy with Shakespeare’s The Merchant of Venice, where the action takes place in two locales: Venice itself, a hotbed of commerce and greed; and nearby Belmont, the refuge to which the protagonists escape for love and art. Smart clothes threaten to “disrupt the place of refuge,” even when we leave our phones behind. “At some point we squeeze out the space for living a life,” he warned. “Lots of people have things they want to do and try but wouldn’t if everything was archived.”
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Can the law protect us? We shouldn’t count on it, Cohen thinks, given that “most acts of private surveillance will never be detected, and therefore will likely never have a legal claim.” He’d rather see business take the lead and bake privacy protection right into the technology — so-called West Coast Code, devised and implemented in Silicon Valley, as opposed to East Coast Code, or laws made in Washington.
But then we have to trust the companies. Are we optimistic? “I’m not,” Cohen admitted.