-----BEGIN PGP SIGNED MESSAGE----- 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.] -----BEGIN PGP SIGNATURE----- Version: 2.3 iQCVAgUBLOnz3BibHbaiMfO5AQHpsgQAnFnA5VyTbHA8WrNSHdredHC+1jouxbBY oqcV5P/sFRzvoQzGdAswVvtRUU+nFOL3ZBNCJt+nQVDtjGJIf6kfW29lCbivameS 8jhzXU1/ccOeWxH9F8nTeEPpwoKzhFwIruNyPvp2UD/TsfRUbpWTdQuIzn4rdgSH CEha3QbjqUI= =/rGU -----END PGP SIGNATURE-----