From: Dark <unicorn@access.digex.net>
Date: Wed, 10 Nov 93 15:19:00 PST
To: cypherpunks@toad.com
Subject: Privacy, Property, Cryptography (long)
Message-ID: <199311102317.AA19232@access.digex.net>
MIME-Version: 1.0
Content-Type: text/plain



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I guess this is particularly political, but I thought it 
interesting enough to attach to cypherpunks.
 
 
Subject matter appropriateness flames by E-Mail please.
 
 
Questions of Privacy and Property:
How Encryption narrows the focus.
 
- ->
 
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.
 
	I can't recall who it was, but some cypherpunk mentioned 
that they had not consented to the "social contract" or 
"convention" that gave the government the right to "violate" 
their "privacy" or collect data on them.  I agree with you on 
principal (oh, unnamed privacy patron) but unfortunately 
logically I can't.
	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.
	When you see assertions of Natural Rights concepts, they 
tend to work down from grand principals.  In the past, these 
principals have their root in a concept of the "State of Nature" 
or the Creation myth.  e.g., Property exists and is enforceable 
because God created the Earth for common use, and what you take, 
and can reasonably put to use, becomes yours by means of the 
labor you put into it (Locke).
	How to find these precedents with regards to privacy is 
quite beyond me.  It seems almost ingrained in the culture of 
Natural Rights that the Divine was all knowing.  It leaves little 
basis to find a protection for privacy in Natural Rights theory.
	So move to the more progressive social convention theories.  
These are almost always more empowering to the judicial system, 
with a concept that the judge was not just a tool to enforce law, 
but to shape it as well.  In the 1920's-30's we begin to see more 
and more frequent legal applications of nebulous "balancing 
tests" to replace the bright line rules as a result.  
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.
	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.  Avoiding for a moment the basic 
conflict between security and liberty, so long as the 
"establishment" can assert that a particular action is for the 
good of the public, it will justify the removal of any right or 
privilege.
	Turn for a second to the nature of right and privilege.  
Privacy is really not a right to begin with but a privilege.  
Before you get up in arms, and make analogies to driver's 
licenses, consider the following, courtesy of Hohfield.  Every 
entitlement is either a right or a privilege.  All rights have 
corresponding duties, (by definition in Hohfield's explanation) 
privileges by contrast are met on the other side by the existence 
of a no-right.  For example:  If I verbally assault Tom on the 
street, he has no legal recourse.  I have the privilege of verbal 
assault, and Tom has a no-right relationship with my privilege.  
He has no right to redress.  If I burn down Tom's house, Tom has 
had his right (to use and enjoyment of land) violated, and as a 
result, I have a duty not to infringe on that right.
	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.  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 IRS has a 
RIGHT to poke around.  The FBI has a RIGHT to tap your phone 
(with cause, [or not]).  We have gone from a privilege to the 
opposite side of a right, a duty in effect.
	Enter cryptography.  Now we have the means to protect our 
information.  Technology makes it easier to avoid the "duty" of 
disclosure.  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.
	No one in my mind has a right to intrude and it is entirely 
counterintuitive to expect citizens to submit to a duty of 
disclosure as is the current practice and direction.  Even with 
respect to business and banking, the only reason identity has 
become important is with the rise of the credit transaction.  
There is simply no need for identity disclosure with cash 
transactions.  Numbered bank accounts and even lines of credit 
exist and will continue to prosper.
 
Thank you for your time and attention.
:)
 
- -uni- (Dark)
 
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