From: Declan McCullagh <declan@well.com>
Date: Fri, 13 Jun 1997 23:46:27 +0800
To: cypherpunks@toad.com
Subject: Responses to "there's no general right to privacy"
Message-ID: <Pine.GSO.3.95.970613075729.27747F-100000@well.com>
MIME-Version: 1.0
Content-Type: text/plain




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Date: Thu, 12 Jun 1997 19:27:45 -0400
From: Barney Wolff <barney@databus.com>

> Date: Thu, 12 Jun 1997 18:58:25 -0400
> From: Declan McCullagh <declan@pathfinder.com>
> 
> ... But in truth, privacy is not a
> right but a preference: Some people want more of it
> than others.

Free speech is not a right but a preference.  Some people want more of it
than others.

Because your job would be easier if there were less privacy, we
all should suffer?  Consider yourself flamed.

Barney Wolff  <barney@databus.com>

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Date: Thu, 12 Jun 1997 22:43:59 -0400
From: Mike Godwin <mnemonic@well.com>
To: declan@well.com, fight-censorship-announce@vorlon.mit.edu

At 6:58 PM -0400 6/12/97, Declan McCullagh wrote:
>**************
>
>http://pathfinder.com/netly/editorial/0,1012,1050,00.html
>
>The Netly News
>June 12, 1997
>
>Privacy? What Privacy?
>by Declan McCullagh (declan@well.com)
>
>     I have a confession to make: Unlike many of my
>civil libertarian colleagues, I believe you have no
>general right to privacy online.

I endorse Declan's comments here, and most of what he says about privacy --
in particular that there is no general (read "universally applicable")
right to privacy.

There are, however, some particular rights to privacy in the United States
that are worth maintaining and protecting into the next century.

As against the government, these include (but are not limited to) one's
4th, 5th, and 6th Amendment rights that limit what the government can do to
violate your privacy.

As against other individuals and private entities, these include (but are
not limited to) the rights protected under the invasion-of-privacy torts,
and the restrictions on private companies' secondary use of transactional
data.

These carveouts from the general presumption articulated by Declan are
generally supported by the American public, and have been reasonably well
harmonized with First Amendment law. And they've stood the test of time.

Most privacy advocates I know, when they're talking about privacy, are
talking about these carveouts -- both as they exist now and as they will
need to evolve in the decades to come.

It should be noted that efforts like the EFF-originated ETrust program (now
called Trust-E thanks to a trademark dispute) are not based on "rights,"
but on the creation of incentives to inform the public about the use of
their personal information. As such, they sidestep the "right to privacy"
discussion altogether.

Which is probably just as well, given the quasi-theological taste such
legal discussions tend to have.


--Mike




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'Indeed, the Government's asserted "failure" of the Internet rests on the
implicit premise that too much speech occurs in that medium, and that
speech there is too available to the participants.  This is exactly the
benefit of Internet communication, however.  The Government, therefore,
implicitly asks this court to limit both the amount of speech on the
Internet and the availability of that speech.  This argument is profoundly
repugnant to First Amendment principles.'
   --Judge Stewart Dalzell, ACLU v. Reno.

      Mike Godwin, EFF Staff Counsel, can be reached at mnemonic@eff.org
                   or at his office, 510-548-3290.
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