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A Right to Privacy Is No Promise of Privacy

December 12th, 2013 - 11:22 am

Interesting thinkpiece on privacy and metadata from PJM’s newest contributor, Amy Peikoff. Here’s the crux:

I have suggested that we return to the era of protecting privacy on the basis of our rights to property and contract, as was the case before a famous 1890 law review article written by Warren and Brandeis. In other words, I reject the so-called “right to privacy.” You don’t want someone to see or hear what you’re doing in your home? Lock your doors, close your windows and shut your blinds. You want to keep your financial information private? Well, before the government started compelling the bulk collection and reporting of financial data, something for which can thank the third-party doctrine, you could protect your financial privacy simply by having a confidentiality clause in your contract with your bank.

A distinct “right to privacy” is not only superfluous; it’s immoral, because it tends to displace and undermine our fundamental rights to property and contract. Ironically, because our rights to property and contract enable us to achieve states of privacy, the consequence of recognizing a distinct right to privacy is less privacy protection.

I like this thinking, because it performs an end-run around years of bad law and bad precedent. It also strikes me as much more practical than the Hollywood-type scenario where the hero lawyer argues the perfect case to the Supreme Court, which rises at once and in unison to verbally overturn all the bad precedents while the bad guy lawyer fumes and the orphans and the kittens get all their candy and healthcare just in time for Christmas.

But I digress.

Imagine the bank offering to “put your data in the same vault where we keep your money safe.” That might not play to a lot of people — witness how many willingly surrender their privacy to Google, who then gives up their data or has it lifted by NSA. But I bet other folks like you and me might be willing to pay slightly higher fees for the extra service.

The same, as Amy notes, could apply to your phone company or your ISP. Are their regulatory hurdles? I assume so, but as we’ve seen recently there’s bipartisan support for reining in NSA, and so there might be support for an initiative like this, too. An Underwriters Laboratory-type nonprofit group, unaffiliated with any level of government, could provide the ongoing safety checks. Their costs would be paid by the privacy fees we’d pay to the bank, ISP, search engine, etc.

I’ve rambled on enough now — go read Amy’s whole piece.

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All Comments   (3)
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"Imagine the bank offering to “put your data in the same vault where we keep your money safe." ... I bet other folks like you and me might be willing to pay slightly higher fees for the extra service."

Couple problems here. First, that money of yours in that vault? It ain't there. It's been lent out or invested in order to pay you your pittance of an interest rate and pay the bank's executives their non-pittance bonuses.

Second, that money of yours in that vault? It ain't yours. It belongs to the bank. Britain's Law Lords centuries ago determined that funds deposited in a bank constitute a loan to be repaid (remember that interest bit?) , and that the bank is obligated to return said funds upon demand IF it actually has the funds available to do so. If not, tough.

And if you're wondering why, other than the corruption of a Democrat-run DOJ, why Jon Corzine hasn't been criminally charged for the "loss" of $1.6B of MFGlobal clients' money, there's your answer - he hasn't actually committed a crime.

No, Mr Lion above is correct. If you want to keep your personal info relatively private, handle it properly.
17 weeks ago
17 weeks ago Link To Comment
Privacy is relative. You could argue that most people are hypocrites on the issue as they willingly spew all sorts of private information all over facebook, twitter, Gmail, and so forth, knowing full well it's going to get hoovered up and indexed somewhere, even if by something as relatively benign as a search engine.

If you care about privacy, it requires a learning curve and a set of best practices. To wit:

- What happens if someone physically takes my laptop, cell phone, etc right now? Are there any physical data protections in place?

- Who hosts my email, and is it worth spending a few bucks per month to have a random ISP do it, or making the investment in learning and resources to do it myself?

- Exactly what metadata am I spewing all over instagram, twitter, and facebook every time I post a photo of what I'm cooking for dinner?

And so on and so forth. It's called opsec, and you don't need to be a genius to keep MOST of your sensitive information out of the public eye, and out of the government eye, even if they show up and physically take it from you.

Total privacy is a myth. If you want that, burn your house down, steal a boat, and find a nice little uninhabited island somewhere. Otherwise, manage what matters and live with the rest.
17 weeks ago
17 weeks ago Link To Comment
Look at it this way, everyone posting here (excuse me, everyone with IP packets going to and from PJ Media) is already on a "probable terrorist/enemy of the state" list.

They don't need to physically take your laptop or cell phone right now. If you have an IP address and internet traffic without an identifiable available data cache correlated with it, you're tagged as suspicious. Laptop: your MS operating system will spill it's guts at a remote request from the NSA. It'll look like standard Microsoft Windows system update traffic.

Cell phone? For over 20 years, there's been a Sun box at all Telco's where all data in and outbound passes through, which the hosting phone company is unable to access. I don't know which three letter outfit places them, but it doesn't much matter anyway. The cell companies also give up tower signal strength info, so a track of your triangulated position and everyone you're calling, as well as data passing is all recorded.

And if, for some misguided reason, you trust the feds, local police outfits are huge buyers of StingRay systems. Here's a pricelist:
17 weeks ago
17 weeks ago Link To Comment
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