Re: Rotenberg as the Uber Enemy

[Tim May <tcmay@got.net>]

At 10:58 AM -0700 5/31/97, Mac Norton wrote:

>Is one of the questions, whether we have right to take steps
>to protect our "transactional" privacy?  The Brandeis and Warren
>"right to be left alone" shares a connection with property rights
>and has more than a nodding acquaintance with Fourth and Fifth
>Amendment concepts--there's not much utility in a right to be
>left alone if you have no place to be alone or if others can
>enter your place/space at will.

Indeed. And the First and Fourth, amongst other provisions, says that
government may not interfere with efforts to produce secure and private
"zones" or "spaces."

The First, in that one can _whisper_ or speak in _strange languages_.

Or freely associate with persons of one's choosing. ("assemble peaceably")

The Fourth, in that these meetings, or homes, or whatever, are free from
unreasonable searches and seizures.

(And there's the one about quartering troops...another statement of the
"right to create a private zone." Not a generalized right of privacy, in
the sense the Rotenberg's and anti-spam legislators speak of, but a right
to bar the door, shut the curtains, turn off the phone, disconnect  the
computer, and refuse to exchange information with others.)

>Off your space ("in public") you can usually be observed; much
>of the complaining in the past couple of decades is about the
>increasingly sophisticated, even automated, means of observation
>and recording, not about the fact that if you enter a premise
>(say, a website:)) you can be seen and overheard by other people.

And while many of us don't always _like_ being observed when we are in
public, or having our words catalogged in Deja News data bases, or even
having friends remind of things we once did or said, the law should have
nothing to say about these "rememberances."

(The Founders would snort and gasp were they to hear that the government
would be legislating what people could remember, what things they could
write down, what gossip they could pass on, and so on. Seems to me that
gossip and diaries are pretty clearly protected First Amendment activities.
If gossip turns into libel or slander--not that I personally agree with
even libel and slander laws, but this is another topic--then the redress
should be in civil court for the specific acts of libel or slander, not any
kind of general restrictions or licensing on gossip and remembering. This
seems to be a slam dunk First Amendment issue. Sadly, the creep of laws has
never produced an adequate case to be overturned, I surmise.)


>It seems to me this is a question of degree, and not a threat
>to some pre-existing right to remain anonymous and "unseen"
>in public. In other words, is there a right to forbid others
>from trying to observe you in public, especially in places
>where those others have an equal (or greater) right to be?

There clearly cannot be laws which forbid such observations (or
"rememberances," as I have been calling them). To forbid such
rememberances, to forbid the keeping of diaries recording the activities
and words of others, to legislate whom such rememberances may be relayed
to....arghhh! Such laws are a gross violation of the First and other
Amendments.


>So the question may be not whether we can prohibit others from
>doing so, by right, but whether we have right to attempt
>peacefully to *prevent* them from doing so?  I.e., can the
>gov't forbid us from trying to protect our privacy by avaliable
>means, say, crypto?

I've always felt the strongest argument for complete and total freedom to
use any and all cryptography is the First Amendment freedom to speak as one
wishes without prior restraint. A cipher or code is just that, a _code_.
Like speaking in French amongst other people who don't understand French,
or using hand signals, or using a code book. Or whispering.

As Ken Dam has said, we have the freedom to whisper in the ear of another;
we have the same right to "whisper" over telephone or computer lines. (This
great metaphor is usually attributed to Phil Zimmermann, but he told me he
heard this from Ken Dam, the Washington area attorney.)

As Cypherpunks, we understand that these "rights to privacy" are really
about the ability to make private spaces, not some rights conferred by a
magnanimous government.

The anti-spam legislation now being proposed is profoundly unconstitutional.

We haven't been discussing this much, but one of the main provisions of
some of the proposed laws is the requirement that all e-mail have a clearly
defined return address. This would likely be thrown out by the Supremes,
pace the 1956 decision on anonymous political speech. Ditto for "spam" laws
in general. And "campaign reform" laws, too. Canada is trying to get Web
page political comments banned, and anonymous endorseements or critiques
banned. This is the fever swamp one gets into if the First Amendment is
finessed in any way.

Straight rejection of any laws restrictiing speech or freedom of assembly
or protection from search and seizure is the only way to go. Talk of
"compromise" is a mistake.

--Tim May




There's something wrong when I'm a felon under an increasing number of laws.
Only one response to the key grabbers is warranted: "Death to Tyrants!"
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."