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