Re: Rotenberg as the Uber Enemy

[Mac Norton <mnorton@cavern.uark.edu>]

On Sat, 31 May 1997, Declan McCullagh wrote:

> The initial question has to be not how you protect rights,
> but how you define them. For example, we have a right
> to speak freely; there should be strict limits on
> government controls on free expression or the press.
> The state has unique powers of coercion. Similarly,
> there should be strict limits on government collection
> of personal data about its citizens.
> 
> But transactional privacy is a different matter. Sure,
> we may generally agree that privacy is the famous
> "right to be left alone," but how does that extend to
> what happens when I make an affirmative choice to
> connect to a web site that might record some info
> about my visit -- as an alternative to charging me?
> Nobody's forcing me to visit that site. That's why
> I'm starting to come around to the idea that privacy
> is not a universal right but a preference. We need a
> market in privacy, not inflexible FTC rulemaking.

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.

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.
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?

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?
MacN