Response to Time cover on privacy

[Declan McCullagh <declan@well.com>]

---------- Forwarded message ----------
Date: Thu, 21 Aug 1997 08:18:14 -0700 (PDT)
From: Declan McCullagh <declan@well.com>
To: fight-censorship-announce@vorlon.mit.edu
Subject: Response to Time cover on privacy

Attached below is my response to a message criticizing the Time story. As
always, I don't speak for Time Inc. These views are mine and mine alone.

More info:
  http://pathfinder.com/netly/editorial/0,1012,1050,00.html

-Declan

---------- Forwarded message ----------
Date: Tue, 19 Aug 1997 12:27:59 -0700 (PDT)
From: Declan McCullagh <declan@well.com>

[...]

My view is that many so-called "privacy" proposals are in fact
censorship in disguise. Society traditionally has allowed
people to share information about each other //without//
requiring that the speaker seek permission from a third party
first. This is a good thing: otherwise, journalists would go
out of business. Reporters -- as long as they don't violate
common law rights like copyright and defamation -- legally sell
personal information about individuals, for profit, all the
time. (I've written elsewhere how gossip plays a useful role in
every society and is not strictly regulated.)

We should extend these same principles and free speech
protections to the online world. Yet enemies of freedom argue
that as our society becomes more digital, we no longer deserve
some of the liberties we have enjoyed in more mundane times.
Such arguments led to the diluted free speech protections of
radio and TV broadcasting and the passage of the Communications
Decency Act.

Now we're hearing similar calls for abridged electronic
freedoms in the name of preserving them. Some have argued that
private firms sharing information about individuals, or
recording information your web browser supplies, are such a
threat to society that new laws are needed to restrict their
actions and muzzle their speech. And, of course, a new Federal
Privacy Commission!

This schizophrenic approach means trusting the federal
government to shield our privacy -- even though the same people
are engaged in an increasingly fierce attack on it. (It also
ignores the very real differences between government collection
and use of databases compared to private ones.) Bill Clinton is
the Clipper Chip president, the Digital Telephony guy. His
administration's bureaucrats fight harder to maintain crypto
export controls than any other. Then there's last year's
anti-terrorism bill, the push for roving and multipoint
wiretaps, and the FBI's itch to ban nonescrowed domestic
crypto. Let's not forget the administration's quest for
enormous voracious databanks that will be tied together --
airport security, travel records, national ID cards.

These bureaucrats are supposed to protect our privacy?

This is the same president whose policies ACLU legislative
counsel Don Haines decries as "the Clinton-Gore effort to
hardwire Big Brother into the information age." The ACLU even
boycotted the June FTC conference, calling it a sham that
wouldn't lead to any substantive "privacy protection" rules.

THESE bureaucrats are supposed to protect our privacy?

I have, I suppose, two more objections to a privacy agency.
First, it would be a likely beachhead for those who would
restrict free speech in the name of privacy. Second, who would
be on this commission? Prof. Westin, whose positions you
criticize? The DMA? Could we expect such an anti-privacy
president as Clinton to appoint anyone who would do a
reasonable job of reining in the Justice Department and other
police agencies? Such an office is far more likely to serve as
a front for anti-privacy forces inside the administration, much
as NIST may front for NSA. In fact, a privacy agency may well
//hurt// privacy, for if a co-opted privacy agency backs a
bad bill, that endorsement will make it more difficult for
others to criticize the measure.

As for governments with privacy agencies, you hold up the
example of some European countries. But these same countries
have unjust policies that restrict free speech in the name of
protecting privacy. That's hardly a tradeoff I can accept.

Our modern "right to privacy" is a relatively recent invention
in the U.S. Many privacy rights mostly date from an influential
1890 law review article co-authored by soon-to-be Justice
Brandeis. In it, Brandeis and Warren argued that newspapers
went too far and printed offensive information. But absent from
their analysis was any consideration of how creating new rights
to restrict the press would restrict free speech.

Brandeis and Warren wanted to create a new property right in
personal information. But this position is no more
philosophically coherent -- and consistent with the principles
of a free society -- than would be a rule establishing a
"property right" in information about your appearance. (Then,
presumably, if someone were to talk about you behind your back --
even if the gossipmongering were true! -- you could sue.) Not to
mention that it's directly opposed to traditional views of
property rights.

Don't get me wrong: the government has an important place in
society. The state should provide such vital functions as law,
police, and courts. Criticisms of a new federal agency are
hardly based on opposition to government in principle. You're
thinking about anarchism, which I don't support. (Locke had it
right: There can be no liberty without law.)

Sure, I'm not overjoyed by the databasification of American
society. I feel uneasy about Equifax and TRW-type databases. I
abhor Safeway's discount card program that links my identity
with my shopping habits. But just as I detest holocaust
deniers, NAMBLA supporters, and homophobes, I recognize they
have a right to speak. So, generally, does Safeway have a right
to enact anti-privacy policies.

Transactional privacy is not a right but a preference. For
example, free speech is a right that strictly limits the
government's ability to control what you say. We must demand a
similar right of privacy from the government. But I give up my
free speech "rights" when I voluntarily attend a college with a
wacky speech code or go to work at a company with strict
workplace speech policies. Similarly, I give up my privacy
"rights" when I voluntarily go to unknown web sites, apply to
rent an apartment where a credit check is required, or post to
Usenet, etc. I have no general "right" to bar others from
sharing informtion about me, even if it's behind my back. (To
invent such a "right" would violate their free speech rights.)

If consumers //want// privacy -- and I believe they do -- then
they'll turn to businesses that provide and protect it. Perhaps
I'll take my business from Safeway to Giant since I can get a
discount card without giving my true name. In this way privacy
becomes one of the many factors -- along with quality of
merchandise, reliability, and price -- that consumers consider
when they enter into a transaction. In other words: privacy can
be protected by contract and common law. Advocacy groups are
particularly well-poised to educate individuals and raise
consciousness. Privacy flareups like Lexis-Nexis, AOL, and UPS
have shown it's possible. Companies often will react to a
public outcry by changing policies.

If they don't, then privacy-sensitive customers will respond,
and the market will remedy its own problems -- without the
intervention of bureaucrats or federal privacy agencies.

-Declan