09-11-2006
More “Privacy Rights” bullshit
If you had asked me prior to this week, “are you an advocate for privacy rights?” I would have answered “of course.” Little did I know I would be lumping myself in with a bunch of privacy wackos who have really, really misguided ideas about what “rights” one has to ensure the privacy of some and , more importantly who is responsible for that ensuring of that privacy.
In connection to the earlier, facebook debacle, TimChris sent me a link to a post about a social experment on Craiglist . My initial reaction was as follows: So you mean if some facts are disclosed to me in a personal email, without any contract guaranteeing the privacy of those facts, and I disclose them to the public, that’s legally actionable? I’d say that’s the most ridiculous thing I’ve ever heard, but sadly it’s not even the most ridiculous thing I’ve heard this week. Still, it’s pretty ridiculous. Why should I, absent contract, incur a legal obligation to maintain the privacy of facts that were freely disclosed to me. This has some seriously chilling free speech implications.
Let’s be clear, I’m only talking about facts, the truth of which no one disputes, so libel/slander considerations. Consider for a moment a simplified version of the craiglist case(I’ll defend the actual case in a moment) where the post was actually a sub looking for a dom. If said sub were to then publicly disclose the responses, is that actionable? I don’t think so. Why? The respondents had no contract preventing such disclosure. That’s right folks, privacy rights are granted, not automatically built into all communications, shocking I know.
So what privacy rights do/ought we in fact have? We have those rights granted by the 4th amendment as well as reasonable expectations of privacy from the government which I think are implied by the 9th. That’s it.
That’s it?, you say. Fear not, privacy nuts, direct guarantees of privacy rights are the only places privacy comes from. See we have this great thing called “contract law” and “trespassing laws” and more generally, private property rights. Why do people insist on creating superfluous legal principles when we can build them up from the one’s we’ve already got.
Say for example that you want to prevent a company you do business with from disclosing your information to 3rd parties, you’d damn well better have a contract saying so. Now, we COULD pass a law requiring such contracts accompany all transactions, but really realistically the market will KILL any company that fails to provide such a contract and any “company” that doesn’t care about the market doesn’t care about the law.
Remember, I’m only arguing for the lack of any such rights when the information was voluntary disclosed, not obtained by nefarious means. But in that case it’s the nefarious actions which are actionable , not the disclosure per se. Now I would support the idea that the disclosure exacerbates the nefarious action. For instance, some I break into your house to steal private information and then disseminate said information. The actionable offense is my breaking into your house, but it is reasonable then I should incur additional liability for damages caused by said disclosure.
Now was the action in the craiglist case nefarious because the post author misrepresented himself? I don’t think so. Here’s my standard: Had the post author been who he said he(a total stranger( was, the respondents would not have had any more of a reasonable expectation of privacy. Now he misrepresented himself as someone with whom they had a practical expectation (e.g. a close friend) or legal expectation (e.g. a representative of a company with whom they had a privacy contract).
Does that mean privacy is lost? Of course not, it just shifts the burden for privacy from the government to the individual. To wit, you are responsible for the information you disclose. The government should not and can not protect people from themselves. However, there are a few things the government can do. First and foremost, it can educate people as to the consequences of disclosures and how they can protect themselves. To that end, the can legalize and continue to keep legal Really Good Cypto to give people the means of protecting their own data and their communications.
As a final note, I’m not saying anything about the moral or ethical obligations one should have regarding the disclosure of private facts, just about what disclosures should be prevented by force of law. If you don’t understand the difference, being here will likely just upset you.
