From: Stanton McCandlish <mech@eff.org>
Date: Tue, 16 Nov 93 19:40:59 PST
To: cypherpunks@toad.com
Subject: Privacy != right?
Message-ID: <199311170334.WAA04386@eff.org>
MIME-Version: 1.0
Content-Type: text/plain


> 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 has
been shown more than once that privacy can be a necessary condition for
freedom of expression.

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.

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.

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.

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. 

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.

I make no claim that this is a perfect analysis, but it is food for thought.

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 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. 

I'm not a proponent of natural rights, just pointing out a gaping hole or
2 in this line of reasoning.

> 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.

> 	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.

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.

> 	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.

> 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.  It is
in fact primarily the states, and especially the private sector, that 
misuse this tax number to violate privacy.

> The IRS has a RIGHT to poke around. 

This is vague.  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 (i.e. a priviledge 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.

> The FBI has a RIGHT to tap your phone 
> (with cause, [or not]).

Only under certain, very limited, circumstances, and again this is not a
right but an entitlement, since it by definition infringes a right.  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.  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).

> 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.

> 	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.  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.

> 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.
 
> Thank you for your time and attention.

You're welcome, and ditto.

-- 
Stanton  McCandlish  mech@eff.org  1:109/1103   EFF  Online  Activist & SysOp
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