privacy and rights (long reply)

[Black Unicorn <unicorn@access.digex.net>]

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From: Stanton McCandlish <mech@eff.org>
Subject: Privacy != right?
Date: Tue, 16 Nov 1993 22:33:59 -0500 (EST)
 
** My comments in []'s **
 
> There is no right to privacy in this country.
>
>       The much touted "Right to privacy" is a common law
> conception and invention that, for the most part, has little
> foundation.  There are constitutional provisions that _suggest_
> privacy, but none that "assure" it.  To enforce a right to
> privacy in court, judges have to do a lot of reaching.
 
>From the 1st Amendment to the US Constitution:
 
"Congress shall make no law...abridging the freedom of speech..."
 
Mike or another with legal expertise can correct me, but I 
believe it hasbeen shown more than once that privacy can be a 
necessary condition for freedom of expression.
 
[I am "another with legal expertise,"
The instances you refer to are almost always in regard to 
pornography.  Common law conceptions.  These are as stable as the 
majority that sits on the court.  Today that means nothing.
I want more.]
 
>From the 4th Amendment:
 
"The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable seraches and seizures, 
shall not be violated..."
 
This does not spell out the word "privacy", but the implications 
would appear to be plain.
 
[Someone once said, "never fall back on common sense when reading 
the law."  There is no right to privacy here, just the right of 
the government to decide what privacy is.  This is a due process 
argument, and any legal scholar knows that the word 
"unreasonable" means whatever the jury or judge says it means.  
Hardly plain.]
 
>From the 8th Amendment:
 
"cruel and unusual punishment [shall not be] inflicted".
 
This MIGHT be grounds for the conclusion that privacy is a right, 
in such cases where violation of that privacy may be construed as 
cruel, or [more likely] unusual punishment.  Theoretically.  I 
make no pretense at being an attorney, or having a wide knowledge 
of caselaw, I'm just arguing from a philosophical and logical 
position.
 
[Might, should, would, could.  Hardly the firm RIGHT to privacy I 
was looking for.]
 
The 9th Amendment:
 
"The enumeration in the Constitution of certain rights shall not 
be construed to deny or disparage others retained by the people."
 
Looks pretty cut and dry right there.
 
[With regards to natural rights, sure.  (consider the time frame)
with regards to privacy?  I don't think so.]
 
The 10th Amendment:
 
"The powers not delegated to the Unites States by the 
Constitution, nor prohibited by it to the states are reserved to 
the states respectively or to *the people*" [emphasis added.]
 
Again, pretty cut and dry.
 
[Sure, but saying what?  "The people" today is really just the 
"elected" government.  This is a collective right, not an 
individual one, as privacy MUST always be.]
 
>From the 14th Amendment:
 
"No State shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United States;"
 
This takes care of the state level as well as federal it would 
appear.
 
[But what does it take care of?  Show me the words "citizens are
entitled to the unalienable right of privacy in their personal 
endeavors."  or even "reasonable right of privacy in their 
personal endeavors."]
 
 
I make no claim that this is a perfect analysis, but it is food 
for thought.
 
[This is the problem with interpreting law without having some 
legal
background.  Words that are clear cut before your first year of 
law school means entirely different things three months into the 
first year.  Not that you have to be a law school graduate to 
read the law, but it's easy to confuse the law and morality.  
They are simply not the same thing.]
 
It would appear to me that unless one takes privacy to be neither 
a right in any manner at all, ever, under any circumstance, nor 
to be:
a) a power not delegated to the federal govt. or
b) a power not forbidden to the states or specifically delegated 
to the states
then privacy must perforce be a right or power of the people.
 
[Your argument is a natural rights one.  You argue that because 
it is not restricted, it exists.  Holmes would sneer at you.  I 
personally wish it were so.  There is simply no philosophical 
basis for privacy in natural rights.  Scholars would love to find 
otherwise.]
 
>  Your natural rights approach to the rights of privacy is
> limited in that, unlike other rights founded in a Natural 
Rights
> / Victorian legal thought fashion, privacy has no logical
> precedent in the state of nature.
 
Tell that to the wolf who will happily kill you for invading it's 
territory. Tel that to the same wolf who drags your corpse back 
to it's private, and jealously defended, private burrow or other 
shelter.
 
[This is a might makes right argument.  It has no bearing on the 
social contract setting behind natural rights theories.  You 
might as well argue that murder is in the scope of natural 
rights, and that privacy is available only to those who have the 
power to ensure it for themselves.  In our case, those who have 
the technical means to use strong crypto.  (Consider Clipper in 
this light.]
 
I'm not a proponent of natural rights, just pointing out a gaping 
hole or 2 in this line of reasoning.
 
[Nor am I, but I think the reasoning stands.]
 
> Unfortunately the departure of the formalist approach takes 
with
> it the notion of the public and private spheres distinction.  
The
> progressive movement began to blend the spheres, and what
> distinction was left between them was gelded by the notion that
> the public sphere was the larger and more important of the two.
> Farewell individual rights, hello good of the collective.
 
This would appear to be a pretty good analysis.
 
[Thanks  :) ]
 
 
>       I think this is much of the reason that the appeal to the
> absolute right of privacy gets little attention today.  Instead
> we see privacy taking a back seat to public elements like the 
war
> on drugs and national security.
 
I think the reason is closer to propaganda.  If the media at 
large told people they should want privacy, the odds are they 
would want privacy. Right now shooting coke dealers is more 
"sexy", and I think it a fair assessment that most Americans take 
their social cues, and much of their ethics, priorities, and 
other important aspects of personality from tv and other media, 
for better or worse.
 
[The power in the media, I would argue, has a direct source in 
the amount of progressive legal thought present in the 20's-50's  
But I think you're right, media has plenty to do with it in 
setting the agenda.  It would be nice to have pro-crypto media 
out there, but shouln't we start with pro-individual rights 
media.  It just seems to me that pro-individual rights anything 
is considered politically extreme these days.]
 
This is the reason that getting pro-crypto media attention is 
essential.  Only when the people realize that drug dealers and 
largely imaginary terrorists are a far smaller threat than loss 
of privacy and other rights, will the pendulum swing back.
 
[No, it's only when people find a BASIS for the right to privacy  
that will withstand the arguments of whatever next evil (NAFTA, 
immigration, insert ideologically appropriate demon here) the 
[administration?] trumps up that the pendulum will swing back.  
This requires a departure from the collective premium put on 
rights of society today to an individual rights regime.  This is 
a proposition that lacks practical potential.  I just don't see 
it happening.  People are too happy to give up for the "common 
good" in the current scheme of things.]
 
>       Turn for a second to the nature of right and privilege.
> Privacy is really not a right to begin with but a privilege.
[...]
>       Privacy in the past has fit nicely into the privilege 
hole.
> It wasn't that you had a right to privacy, but rather that
> everyone else had no-right to pry.  Privacy was in a 
Hohfieldian
> manner, a privilege.
 
Please explain to me then the presence of laws against peeping 
tomism, trespassing, interception of wire communications, etc.  
It appears clear to me from these laws that privacy, of one sort 
or another, is considered to be a right, at least in certain 
applications and circumstances.
 
[These are statutes that throw handfuls of sand in potholes.  
They mostly exert a no-right / privilege relationship over 
peeping toms not a right / duty relationship in favor of 
showerers.  If privacy is so solidly a right in common law and 
statute, tell me why there is not a distinct action for tortuous 
invasion that doesn't lean on willful PUBLIC EXPOSURE of private 
information.]
 
> Today this changes.  Privacy, or more
> accurately LACK OF PRIVACY, is now a duty.  The social security
> administration has a RIGHT to assign you a number.
 
The law that created the SSN was not intended to violate privacy.
 
[Perhaps not, but what it has become is the issue here.]
 
It is in fact primarily the states, and especially the private 
sector, that misuse this tax number to violate privacy.
 
[True the states contribute, but to say that this absolves the 
federal system is silly.  Please explain the current requirement 
by the IRS (a federal entity) that dependent minors must submit a 
SSN number to be claimed on parental tax returns in this 
context.]
 
 
> The IRS has a RIGHT to poke around.
 
This is vague.
 
[So is the basis for IRS invasion, and the limitations of such 
invasion]
 
If you mean the IRS has a right to poke around in your
records to make sure you are not cheating on your taxes, this is 
not a right but an entitlement
 
[State sovereignty over citizens is a right in the deepest 
meaning of natural rights.  Taxes are some of the most jealously 
held of these rights.]
 
(i.e. a privilege that restricts a right.)
Similarly a court can demand that you show this document or that.  
This is indeed a violation of your right to privacy, but in it's 
position as an entitlement, it is no different that civil 
forfeiture, searches, emergency confiscation of a vehicle by 
police for use in a chase, or the forcing (at gunpoint if 
necessary) citizens from their own property in situations of 
impending disaster, subpoenas, etc. etc. etc.  This is not a new 
tale.
 
[No indeed not, quite an old one.  That's my point.  You never 
had a "right" to privacy to begin with.  Just a privilege which 
is slowly turning into a duty.]
 
> The FBI has a RIGHT to tap your phone
> (with cause, [or not]).
 
Only under certain, very limited, circumstances, 
 
[I question the use of the word "limited" here]
 
and again this is not a right but an entitlement, since it by 
definition infringes a right.
 
[You are making the mistake of proving that a right to privacy
exists by assuming it does in the process of your argument.  
Assuming that which is to be proved.]
 
If you don't "get" the distinction, try on this simple example: 
you have a right to swing your arm (and please note that it, like 
the right to privacy, is another of those rights not specifically 
enumerated, but covered by the 9th Amendment), but I have an 
entitlement to not be hit in the face by your swinging arm.
 
[Or a RIGHT to enjoy life, liberty property, pursuit of 
happiness, etc.]
 
My entitlement supercedes your right, but only under certain 
circumstances (e.g. when my face is in imminent danger of being 
struck by your arm, or has already been struck - assault, and 
battery respectively, if intentional - but I cannot use my 
entitlement to demand that you _never_ swing your arm).
 
[You're confusing right and duty.  You have a duty not to strike 
me with your arm.  I have a right not to be stricken.  Duty and 
right are judicial opposites (Hohfield)  Tort law deals with this 
in depth.]
 
> We have gone from a privilege to the
> opposite side of a right, a duty in effect.
 
The FBI's attempt to make their very limited entitlement to 
wiretapping into a duty of the populace and the market failed 
dismally, when their "Digital Telephony" proposal collapsed.
 
[Again, your definition of entitlement seems to hinge on the 
assumption that there is a right to privacy.]
 
>       Enter cryptography.  Now we have the means to protect our
> information.  Technology makes it easier to avoid the "duty" of
> disclosure.
 
There is no such duty, except under the limited circumstances 
where an entitlement of the govt. requires it.
 
[Like Social Security numbers, Tax disclosures, foreign holdings 
disclosure, import-export transactions, the list goes on....]
 
Cryptography is not likely to change this any.  Try encrypting 
all of your records, and refusing to decrypt them or surrender 
the key despite a court order to do so.  Unless you can make a 
convincing case that to do so would be self-incrimination (see 
the 5th Amendment), you'll likely find yourself slapped with a 
contempt of court charge.
 
[i.e. you cannot refuse disclosure.  You have a duty to the court 
to disclose.  The court has a right to demand such disclosure.  
Cryptography makes this an issue because it becomes so easy to 
conceal things.  It begins to become obvious that courts cannot 
prevent this without telling you what data you can and cannot 
have, what formulas you can and cannot use on your Mac.  This is 
what will bring the issue to the front.  No long is privacy easy 
to take away.  It means infringing on a right in a way that is 
OBVIOUS and plain.  This attracts attention.  (I hope)  ]
 
> One way or another, something will give.  Privacy is
> on the fence right now with a movement to a government
> entitlement against it.  Cryptography will either force the 
hand,
> or force a backdown.  Which one is a matter of conjecture.
>       Personally I would like to see the elements of privacy
> become guarded by right to privacy, with the typical bundle of
> property rights that follows such a designation.  Right to use,
> right to exclude, right to transfer the property of 
information,
> personal or proprietary.  This opens the door for more radical
> injunctive and money damage relief for the violation of these
> rights than is currently available.  It is with this goal in 
mind
> that I approach my support of cypherpunks and cryptography.
 
This is certainly reasonable.  I would like very much to see a 
new Amendment that specifically enumerates privacy as a right.
 
> Numbered bank accounts and even lines of credit
> exist and will continue to prosper.
 
One can hope so, but when the Swiss numbered bank account, the 
canonical example, vanishes, I begin to have doubts.
 
[Let's hope it doesn't get this far.  Besides, there's always
Liechtenstein  :)]
 
 
> Thank you for your time and attention.
 
You're welcome, and ditto.
 
- --
Stanton  McCandlish  mech@eff.org  1:109/1103   EFF  Online  
Activist & SysOp
[...]
 
I appreciate your argument, and share your frustration with the 
numerous hints at privacy in law.  Unfortunately they seem to be 
just hints, interpretable in any of a number of ways.  That was 
my point.  There is no RIGHT to privacy, just hints at it.  
Indeed there are more than hints that make it a duty today to 
forego privacy all together.]
 
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