Computers, Privacy & the Constitution

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What's Left of Privacy v.2


RickSchwartzFirstPaper 9 - 27 Apr 2009 - Main.RickSchwartz
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What's Left of Privacy

 
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-- By RickSchwartz - 07 Mar 2009
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What's Left of Privacy v.2

 
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This paper is a very loose adaptation of the beginning of Warren and Brandeis' "The Right of Privacy."
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Introduction

 
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Discarding the style to save the substance seems entirely warranted. Though I myself am not sure what my "usual project" entails, a sober assessment of what remains within the right to privacy was my aim, in light of the fact that "privacy" is a term used by legal scholars without much understanding of its actual present contours. The right to privacy was originally "found" by Warren and Brandeis within the torts of appropriating the individual's identity for the private benefit, placing the individual in a false light in the public eye, publicly disclosing private facts about the individual, and unreasonably intruding upon the seclusion of solitude of the individual. Regardless of legal academia's approach to privacy, real world conditions have altered the landscape of privacy more than doctrine could possibly reflect.
 
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Living in a Material World

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Where We Are

 
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That the individual shall have full protection of privacy is a principle as old as Griswold, but it has been found expedient from time to time to circumscribe the exact nature and extent of such protection. Political, social, and technological changes entail the recognition of new interests, and the Constitution, in its eternal death, has contracted to meet the new demands of government and industry. In early times, the law was fit to give protection against interference with property and communications, with places and pamphlets. The Fourth Amendment served only to secure the subject from unreasonable physical searches and seizures; privacy meant freedom from actual coercion and public exposure; the right of publicity secured to the individual the commercial exploitation of his name, image and likeness; and the right to speak secured to the individual the the right to speak anonymously only when there is no accusation of fraud. Later, there came recognition of the state's authoritarian nature, of its need to know. Gradually, the scope of these rights contracted, and now the right to privacy has come to protect physical autonomy and seclusion only insofar as required by specific constitutional guarantees,(1) and only insofar as the government is culpable in its violation.

Notes

1 : Consistent with Bork's critique of Griswold v. Connecticut, courts have denied protection for digital privacy absent some "constitutionally-grounded" "reasonable expectation of privacy."


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Talk of "reasonableness," "state action," or "penumbrae" seem like futile limitations on the exchange of information between the state and private parties that have been invited to scrutinize one's identity. Ever since the qualified "reasonable expectation of privacy," was balanced against the state's "legitimate needs of law enforcement," the right of privacy was doomed to be whittled away by active private interests. Indeed, the Supreme Court chose to "authorize the carefully limited use of electronic surveillance," while prohibiting only physical intrusions into places where intimacy might be injured, without concern for intrusion into intimacy itself. After all, the Fourth Amendment was "to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens."
 
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Intrusion Upon Seclusion

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To the state, the public interests included assuring that the right of contract allowed the people to exchange their "unused" privacy rights for minimal monetary gains in the form of free (as in beer) services. Whether oblivious or indolent to increasing surveillance by private entities that subtly came with network usage (perhaps not detecting the deferred disruption of seclusion), individuals welcomed wholesale intrusions into privacy on the belief that it was required to get the stuff they wanted. On a policy level, observed thoughts, queries, and activity demanded economic exploitation, which presented an interest the judges could not deny in the face of "voluntary waiver" by the public.(2)

Notes

2 : See, e.g., Nat'l Cable & Telecomms. Ass'n v. FCC, 2009 U.S. App. LEXIS 2828, at *14 (D.C. Cir. 2009) (noting that "It is widely accepted that privacy deals with determining for oneself when, how and to whom personal information will be disclosed to others," while upholding the FCC's opt-in scheme of customer information collection required under 47 U.S.C. 222). Though an opt-in system may enable some protection against disclosure of private information, this scheme will not result in significantly greater privacy protection than the pre-existing scheme. See 22 F.C.C.R. 6927, *65 n.117 (2007) (relying on the mistaken assertion that "this minor change to our rules will [not] have a major effect on carriers because many carriers already do not disclose CPNI to third parties"). Furthermore, even if rights against misappropriation of identity and public disclosure of private facts are voluntarily waived, data collection often occurs outside the context of such an agreement or may result in the surveillance of parties who do not so waive these rights by process of elimination or inference.


 
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With the recognition of the legal value of seclusion, the protection against the invasion of the home was extended to prohibit intrusion into a physical place but still limited by the notion of "placiness." From the action of intrusion upon seclusion grew the right of privacy,(3) which barred the government's use of evidence obtained intrusively at trial.(4) Not much later, the "trespass" doctrine was replaced with the qualified "reasonable expectation of privacy." Regard for the state's "legitimate needs of law enforcement" soon extended the exception beyond the application of the rule. The reasonableness analysis, upon the assurance that the courts would "authorize the carefully limited use of electronic surveillance," prohibited physical intrusions into places where intimacy might be injured, but did not find a problem with intrusion into the intimacy itself. Occasionally the law halted, as in its refusal to exempt thermal-imaging devices from treatment as intrusions on the "curtilage" of the home. But even here, law enforcement needs were met with a mean fiction that privacy could no longer be expected once the tools of surveillance were in public use.

Notes

3 : Prosser refined Warren and Brandeis' thesis and argued that "the right to privacy" could be found from the recognition of four separate torts (appropriation of identity, casting a false light in the public eye, public disclosure of private facts, and intrusion upon solicitude), all unified by the underlying "right to be left alone."

4 : Frustrated by this limitation, a federalist subversion of the exclusionary rule (the silver-platter rule) allowed the federal government to search by proxy until 1960.


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Try as the free world might to undercut these exchanges by providing substitutes, privacy is ceded in the non-digital world as well. Cell phones and state-sanctioned ISP oligopolists create personal wiretaps that need not intrude upon physical seclusion thanks to the protocols and network tools used by the data-hungrycell phone manufacturers and spectrum licensees. Not only is data used for private exploitation, but prosecutors and the CIA alike avoid the Fourth Amendment entirely by simply demanding the data already being collected by private parties.
 
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Watching What the Watchmen Watch

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The Law in a Digital Age

 
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This development of the law was inevitable. The intensely interactive and scrutinized life, and the heightening of surveillance by private entities that came with the advance of networks, made it clear to men that only a part of one's identity lay within physical seclusion. Observed thoughts, queries, and activity demanded economic exploitation, and the capacity for deference in the common law allowed judges to uphold schemes of waived privacy, enabled by the interposition of the legislature.(5)

Recent technologies and business methods call attention to the last step that has been taken toward the unraveling of privacy. The subpoena of corporate data miners became part of the state's strategy of surveillance and evidence-gathering. For the state, private surveillance was necessary and anonymity was unacceptable. Reacting to technologies of anonymity, surveillance has been inserted into the architecture of the network itself, much like illegal wiretaps that would be unconstitutional if performed by the state, and should be illegal but for questionable legislative intervention.

Notes

5 : See, e.g., Nat'l Cable & Telecomms. Ass'n v. FCC, 2009 U.S. App. LEXIS 2828, at *14 (D.C. Cir. 2009) (noting that "It is widely accepted that privacy deals with determining for oneself when, how and to whom personal information will be disclosed to others," while upholding the FCC's opt-in scheme of customer information collection required under 47 U.S.C. 222). Though an opt-in system may enable some protection against disclosure of private information, this scheme will not result in significantly greater privacy protection than the pre-existing scheme. See 22 F.C.C.R. 6927, *65 n.117 (2007) ("We do not believe that this minor change to our rules will have a major effect on carriers because many carriers already do not disclose CPNI to third parties."). Furthermore, even if rights against misappropriation of identity and public exposure of private facts are voluntarily waived, data collection often occurs outside the context of such an agreement or may result in the surveillance of parties who do not so waive these rights by process of elimination or inference (e.g., information about the person called is also collected through the caller).


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Analogizing the interception of digital communications to those requiring physical intrusion, courts seem willing to protect the content of digital communications, where individuals could claim some "reasonable expectation of privacy," though "pen register" surveillance of data used to route the communication and recipient phone numbers have been upheld in courts. Perhaps extending the analogy too far, courts have also found that no "reasonable expectation of privacy" can exist in online fora "open to the public." This result is problematic because, unlike speaking in a building open to the public, what is said in an online forum is probably immortal after the End of Forgetting. If the "reasonable expectation of privacy" analysis persists after the End of Forgetting, the reasonableness of expecting data protection or limitation will diminish, given how easy it is to store data. Unlike Kyllo, hard drives are widely used by consumers, which would not create any grounds for protection. If not for the state action doctrine, and the lack of a corresponding silver platter rule, preventing the Fourth Amendment from applying directly to data miners, one might try to attack such searches using Kyllo's logic on the grounds that the cookies and algorithms collecting such data are not in general public use, but that is not the world we live in.
 

Redress?

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Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the chilling of free communication by virtue of the state's access. However, the injury is so ill-perceived or ignored that a constitutional challenge would surely fail. A legislative solution might be met with more constitutional approval, but the state's interest is to ensure that such surveillance remains available. Thus, the prosecution of ISPs' user-surveillance under the wiretapping prohibitions and comprehensive "net neutrality" seem unlikely.

Perhaps speaking in Navajo is the last vestige of self-help available to free people against the state? At least, as long as speaking in Navajo does not create a presumption of trafficking child pornography or terrorism.

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The invasion of privacy in the digital age bears a superficial resemblance to the chilling of free communication by virtue of the state's access. However, the injury is so ill-perceived or ignored that a constitutional challenge would surely fail. A legislative solution might be met with more constitutional approval, but, as stated, the state's interest is to ensure that such surveillance remains available. Thus, the prosecution of ISPs' user-surveillance under the wiretapping prohibitions and comprehensive "net neutrality" seem unlikely.
 
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Perhaps speaking in Navajo is the last vestige of self-help available to free people against the state? At least, as long as speaking in Navajo does not create a presumption of trafficking child pornography or terrorism. Privacy will remain lost as long as people continue to give it away.
 
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  • What adaptation got you was a context and a structure. What it cost you was thematic clarity. It isn't clear to me in the end whether the primary available conclusion (which seems to be "there's nothing you can do") was the intended destination, or was forced on you by the structure you borrowed. It seems somehow at odds with both the intention of the Warren & Brandeis effort, and the nature of your usual project. Maybe the scaffolding, respectable and famous as it is, does you in the end more harm than good? Without it, you could speak more freely, it seems to me.
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-- RickSchwartz 27 Apr 2009

RickSchwartzFirstPaper 8 - 18 Apr 2009 - Main.EbenMoglen
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What's Left of Privacy

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  • What adaptation got you was a context and a structure. What it cost you was thematic clarity. It isn't clear to me in the end whether the primary available conclusion (which seems to be "there's nothing you can do") was the intended destination, or was forced on you by the structure you borrowed. It seems somehow at odds with both the intention of the Warren & Brandeis effort, and the nature of your usual project. Maybe the scaffolding, respectable and famous as it is, does you in the end more harm than good? Without it, you could speak more freely, it seems to me.
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RickSchwartzFirstPaper 7 - 09 Mar 2009 - Main.RickSchwartz
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What's Left of Privacy

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Redress?

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Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the chilling of free communication by virtue of the state's access. However, the injury is so ill-perceived or ignored that a constitutional challenge would surely fail. A legislative solution might be met with more constitutional approval, but the state's interest is to ensure that such surveillance remains available. Thus, the prosecution of ISPs' user-surveillance under the wiretapping prohibitions and comprehensive "net neutrality" seem unlikely.
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Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the chilling of free communication by virtue of the state's access. However, the injury is so ill-perceived or ignored that a constitutional challenge would surely fail. A legislative solution might be met with more constitutional approval, but the state's interest is to ensure that such surveillance remains available. Thus, the prosecution of ISPs' user-surveillance under the wiretapping prohibitions and comprehensive "net neutrality" seem unlikely.
 Perhaps speaking in Navajo is the last vestige of self-help available to free people against the state? At least, as long as speaking in Navajo does not create a presumption of trafficking child pornography or terrorism.

RickSchwartzFirstPaper 6 - 09 Mar 2009 - Main.RickSchwartz
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What's Left of Privacy

-- By RickSchwartz - 07 Mar 2009

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This paper is very loose update/adaptation of the beginning of Warren and Brandeis' "The Right of Privacy," but with a more satirical approach to the development of privacy in history, given that I take the right's adoption as my starting point.
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This paper is a very loose adaptation of the beginning of Warren and Brandeis' "The Right of Privacy."
 

Living in a Material World

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That the individual shall have full protection in privacy and personality is a principle as old as Griswold, but it has been found expedient from time to time to circumscribe the exact nature and extent of such protection. Political, social, and technological changes entail the recognition of new interests, and the Constitution, in its eternal death, has contracted to meet the new demands of government and industry. In early times, the law was fit to give protection against interference with property and communications, with places and pamphlets. The Fourth Amendment served only to secure the subject from unreasonable physical searches and seizures; privacy meant freedom from actual coercion and public exposure; the right of publicity secured to the individual the commercial exploitation of his name, image and likeness; and the right to speak secured to the individual the the right to speak anonymously only when there is no accusation of fraud. Later, there came recognition of the state's authoritarian nature, of its desire to prosecute with the most evidence available. Gradually, the scope of these rights contracted, and now the right to privacy has come to protect only physical autonomy and seclusion only insofar as required by specific constitutional guarantees,(6) and only insofar as the government is culpable in its violation.

Notes

6 : Consistent with Robert Bork's critique of Griswold v. Connecticut, courts have begun withdrawing the extent of privacy protections absent a "reasonable expectation of privacy" which usually requires the independent invocation of some specifically enumerated constitutional right, such as the First, Third, Fourth, Fifth, or Ninth Amendment, upon which the "zone of privacy" was premised.


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That the individual shall have full protection of privacy is a principle as old as Griswold, but it has been found expedient from time to time to circumscribe the exact nature and extent of such protection. Political, social, and technological changes entail the recognition of new interests, and the Constitution, in its eternal death, has contracted to meet the new demands of government and industry. In early times, the law was fit to give protection against interference with property and communications, with places and pamphlets. The Fourth Amendment served only to secure the subject from unreasonable physical searches and seizures; privacy meant freedom from actual coercion and public exposure; the right of publicity secured to the individual the commercial exploitation of his name, image and likeness; and the right to speak secured to the individual the the right to speak anonymously only when there is no accusation of fraud. Later, there came recognition of the state's authoritarian nature, of its need to know. Gradually, the scope of these rights contracted, and now the right to privacy has come to protect physical autonomy and seclusion only insofar as required by specific constitutional guarantees,(7) and only insofar as the government is culpable in its violation.
 

Intrusion Upon Seclusion

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With the recognition of the legal value of seclusion, the protection against the invasion of the home was extended to prohibit intrusion into a physical place but still limited by the notion of "placiness". From the action of intrusion upon seclusion grew the right of privacy,(8) which barred the government's use of evidence obtained intrusively at trial.(9) Not much later, the "trespass" doctrine was replaced with the qualified "reasonable expectation of privacy." So regard for the state's "legitimate needs of law enforcement" soon extended the exception beyond the application of the rule. The reasonableness analysis, upon the assurance that the courts would "authorize the carefully limited use of electronic surveillance," prohibited physical intrusions into places where intimacy might be injured, but did not find a problem with intrusion into the intimacy itself. Occasionally the law halted, as in its refusal to exempt thermal-imaging devices from treatment as intrusions on the "curtilage" of the home. But even here, law enforcement needs were met with a mean fiction that privacy could no longer be expected once the tools of surveillance were in public use.

Notes

9 : Frustrated by this limitation, a federalist subversion of the exclusionary rule known as the silver-platter rule allowed the federal government to use the fruits of forbidden intrusions by state actors until 1960.


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With the recognition of the legal value of seclusion, the protection against the invasion of the home was extended to prohibit intrusion into a physical place but still limited by the notion of "placiness." From the action of intrusion upon seclusion grew the right of privacy,(10) which barred the government's use of evidence obtained intrusively at trial.(11) Not much later, the "trespass" doctrine was replaced with the qualified "reasonable expectation of privacy." Regard for the state's "legitimate needs of law enforcement" soon extended the exception beyond the application of the rule. The reasonableness analysis, upon the assurance that the courts would "authorize the carefully limited use of electronic surveillance," prohibited physical intrusions into places where intimacy might be injured, but did not find a problem with intrusion into the intimacy itself. Occasionally the law halted, as in its refusal to exempt thermal-imaging devices from treatment as intrusions on the "curtilage" of the home. But even here, law enforcement needs were met with a mean fiction that privacy could no longer be expected once the tools of surveillance were in public use.
 
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What the Watchmen Watch

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Watching What the Watchmen Watch

 
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This development of the law was inevitable. The intensely interactive and scrutinized life, and the heightening of surveillance by private entities that came with the advance of networks, made it clear to men that only a part of a person's identity lay within physical seclusion. Observed thoughts, queries, and activity demanded economic exploitation, and the capacity for deference in the common law required judges to uphold a scheme requiring only a simple waiver of the protections against misappropriation of identity and disclosure of private facts enabled by the interposition of the legislature.(12)

Notes

12 : See, e.g., Nat'l Cable & Telecomms. Ass'n v. FCC, 2009 U.S. App. LEXIS 2828, at *14 (D.C. Cir. 2009) (noting that "It is widely accepted that privacy deals with determining for oneself when, how and to whom personal information will be disclosed to others," while upholding the FCC's opt-in scheme of customer information collection enacted under the authority 47 U.S.C. 222). Though the opt-in system may enable some subscribers to protect the disclosure of their private information to third parties, it seems likely that this scheme will not result in significantly greater privacy protection than the pre-existing scheme. See 22 F.C.C.R. 6927, *65 n.117 (2007) ("We do not believe that this minor change to our rules will have a major effect on carriers because many carriers already do not disclose CPNI to third parties."). Furthermore, assuming such rights against misappropriation of identity and public exposure of private facts may be voluntarily sold or waived, data collection often occurs outside the context of such an agreement or may result in the [[surveillance of parties who do not so waive these rights by process of elimination or inference (e.g., information about the person called is also collected by virtue of the caller).


>
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This development of the law was inevitable. The intensely interactive and scrutinized life, and the heightening of surveillance by private entities that came with the advance of networks, made it clear to men that only a part of one's identity lay within physical seclusion. Observed thoughts, queries, and activity demanded economic exploitation, and the capacity for deference in the common law allowed judges to uphold schemes of waived privacy, enabled by the interposition of the legislature.(13)
 
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These technologies and business methods call attention to the last step that has been taken toward the unraveling of privacy. The subpoena of corporate data miners became a part of the state's strategy of surveillance and evidence-gathering. For the state, allowing private surveillance was necessary and anonymity was unacceptable.
>
>
Recent technologies and business methods call attention to the last step that has been taken toward the unraveling of privacy. The subpoena of corporate data miners became part of the state's strategy of surveillance and evidence-gathering. For the state, private surveillance was necessary and anonymity was unacceptable. Reacting to technologies of anonymity, surveillance has been inserted into the architecture of the network itself, much like illegal wiretaps that would be unconstitutional if performed by the state, and should be illegal but for questionable legislative intervention.

Redress?

Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the chilling of free communication by virtue of the state's access. However, the injury is so ill-perceived or ignored that a constitutional challenge would surely fail. A legislative solution might be met with more constitutional approval, but the state's interest is to ensure that such surveillance remains available. Thus, the prosecution of ISPs' user-surveillance under the wiretapping prohibitions and comprehensive "net neutrality" seem unlikely.

Perhaps speaking in Navajo is the last vestige of self-help available to free people against the state? At least, as long as speaking in Navajo does not create a presumption of trafficking child pornography or terrorism.

 


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RickSchwartzFirstPaper 5 - 08 Mar 2009 - Main.RickSchwartz
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META TOPICPARENT name="FirstPaper%25"

What's Left of Privacy

-- By RickSchwartz - 07 Mar 2009

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This paper is very loose update/adaptation of part of Warren and Brandeis' "The Right of Privacy," but with a more satirical approach to the development of privacy in history, given that I take the right's adoption as my starting point.
>
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This paper is very loose update/adaptation of the beginning of Warren and Brandeis' "The Right of Privacy," but with a more satirical approach to the development of privacy in history, given that I take the right's adoption as my starting point.
 

Living in a Material World

Changed:
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That the individual shall have full protection in privacy and personality is a principle as old as Griswold, but it has been found expedient from time to time to circumscribe the exact nature and extent of such protection. Political, social, and technological changes entail the recognition of new interests, and the Constitution, in its eternal death, has contracted to meet the new demands of government and industry. In early times, the law was fit to give protection against interference with property and communications, with places and pamphlets. The Fourth Amendment served only to secure the subject from unreasonable physical searches and seizures; privacy meant freedom from actual coercion and public exposure; the right of publicity secured to the individual the commercial exploitation of his name, image and likeness; and the right to speech only secured to the individual the the right to speak anonymously when there is no accusation of fraud. Later, there came recognition of the state's authoritarian nature, of its desire to prosecute with the most evidence available. Gradually, the scope of these rights contracted, and now the right to privacy has come to insufficiently protect only physical autonomy and seclusion only insofar as required by specific constitutional guarantees,(14) and only insofar as the government is culpable in its violation.
>
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That the individual shall have full protection in privacy and personality is a principle as old as Griswold, but it has been found expedient from time to time to circumscribe the exact nature and extent of such protection. Political, social, and technological changes entail the recognition of new interests, and the Constitution, in its eternal death, has contracted to meet the new demands of government and industry. In early times, the law was fit to give protection against interference with property and communications, with places and pamphlets. The Fourth Amendment served only to secure the subject from unreasonable physical searches and seizures; privacy meant freedom from actual coercion and public exposure; the right of publicity secured to the individual the commercial exploitation of his name, image and likeness; and the right to speak secured to the individual the the right to speak anonymously only when there is no accusation of fraud. Later, there came recognition of the state's authoritarian nature, of its desire to prosecute with the most evidence available. Gradually, the scope of these rights contracted, and now the right to privacy has come to protect only physical autonomy and seclusion only insofar as required by specific constitutional guarantees,(15) and only insofar as the government is culpable in its violation.

Intrusion Upon Seclusion

 With the recognition of the legal value of seclusion, the protection against the invasion of the home was extended to prohibit intrusion into a physical place but still limited by the notion of "placiness". From the action of intrusion upon seclusion grew the right of privacy,(16) which barred the government's use of evidence obtained intrusively at trial.(17) Not much later, the "trespass" doctrine was replaced with the qualified "reasonable expectation of privacy." So regard for the state's "legitimate needs of law enforcement" soon extended the exception beyond the application of the rule. The reasonableness analysis, upon the assurance that the courts would "authorize the carefully limited use of electronic surveillance," prohibited physical intrusions into places where intimacy might be injured, but did not find a problem with intrusion into the intimacy itself. Occasionally the law halted, as in its refusal to exempt thermal-imaging devices from treatment as intrusions on the "curtilage" of the home. But even here, law enforcement needs were met with a mean fiction that privacy could no longer be expected once the tools of surveillance were in public use.
Changed:
<
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This development of the law was inevitable. The intensely interactive and scrutinized life, and the heightening of surveillance by private entities that came with the advance of networks, made it clear to men that only a part of a person's identity lay within physical seclusion. Observed thoughts, queries, and activity demanded economic exploitation, and the capacity for deference in the common law required judges to uphold a scheme requiring only a simple waiver of the protections against misappropriation of identity and disclosure of private facts enabled by the interposition of the legislature.(18)

Notes

18 : See, e.g., Nat'l Cable & Telecomms. Ass'n v. FCC, 2009 U.S. App. LEXIS 2828, at *14 (D.C. Cir. 2009) (noting that "It is widely accepted that privacy deals with determining for oneself when, how and to whom personal information will be disclosed to others," while upholding the FCC's opt-in scheme of customer information collection enacted under the authority 47 U.S.C. 222). Though the opt-in system may enable some subscribers to protect the disclosure of their private information to third parties, it seems likely that this scheme will not result in significantly greater privacy protection than the pre-existing scheme. See 22 F.C.C.R. 6927, *65 n.117 (2007) ("We do not believe that this minor change to our rules will have a major effect on carriers because many carriers already do not disclose CPNI to third parties."). Furthermore, assuming such rights against misappropriation of identity and public exposure of private facts may be voluntarily sold or waived by such a procedure, data collection often results in the violation of the rights belonging to parties who do not so waive these rights by process of elimination or inference (e.g., information about the person called is also collected by virtue of the caller).


>
>

What the Watchmen Watch

This development of the law was inevitable. The intensely interactive and scrutinized life, and the heightening of surveillance by private entities that came with the advance of networks, made it clear to men that only a part of a person's identity lay within physical seclusion. Observed thoughts, queries, and activity demanded economic exploitation, and the capacity for deference in the common law required judges to uphold a scheme requiring only a simple waiver of the protections against misappropriation of identity and disclosure of private facts enabled by the interposition of the legislature.(19)

 
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Such technologies and business methods call attention to the last step that has been taken toward the unraveling of privacy. The private subpoena strategy of circumvention was developed, and corporate data miners became a part of the state’s legal strategy of surveillance and obtaining admissible evidence.
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These technologies and business methods call attention to the last step that has been taken toward the unraveling of privacy. The subpoena of corporate data miners became a part of the state's strategy of surveillance and evidence-gathering. For the state, allowing private surveillance was necessary and anonymity was unacceptable.
 



RickSchwartzFirstPaper 4 - 08 Mar 2009 - Main.RickSchwartz
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What's Left of Privacy

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 That the individual shall have full protection in privacy and personality is a principle as old as Griswold, but it has been found expedient from time to time to circumscribe the exact nature and extent of such protection. Political, social, and technological changes entail the recognition of new interests, and the Constitution, in its eternal death, has contracted to meet the new demands of government and industry. In early times, the law was fit to give protection against interference with property and communications, with places and pamphlets. The Fourth Amendment served only to secure the subject from unreasonable physical searches and seizures; privacy meant freedom from actual coercion and public exposure; the right of publicity secured to the individual the commercial exploitation of his name, image and likeness; and the right to speech only secured to the individual the the right to speak anonymously when there is no accusation of fraud. Later, there came recognition of the state's authoritarian nature, of its desire to prosecute with the most evidence available. Gradually, the scope of these rights contracted, and now the right to privacy has come to insufficiently protect only physical autonomy and seclusion only insofar as required by specific constitutional guarantees,(20) and only insofar as the government is culpable in its violation.
Changed:
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With the recognition of the legal value of seclusion, the protection against the invasion of the home was extended to prohibit intrusion into a physical place but still limited by the notion of "placiness". From the action of intrusion upon seclusion grew the right of privacy,(21) which barred the government's use of evidence obtained intrusively at trial.(22) Not much later, the "trespass" doctrine was replaced with the qualified "reasonable expectation of privacy." So regard for the state's "legitimate needs of law enforcement" soon extended the exception beyond the application of the rule. The reasonableness analysis, upon the assurance that the courts would "authorize the carefully limited use of electronic surveillance," prohibited physical intrusions into places where intimacy might be injured, but did not find a problem with intrusion into the intimacy itself. Occasionally the law halted, as in its refusal to exempt thermal-imaging devices from treatment as intrusions on the "curtilage" of the home. But even here, law enforcement needs were met with a mean fiction that privacy could no longer be expected once the tools of surveillance were in public use.

Notes

22 : Frustrated by this limitation, a federalist exemption to privacy, known as the silver-platter rule, was forged to allow the federal government to use the fruits of forbidden intrusions by state actors until 1960.


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With the recognition of the legal value of seclusion, the protection against the invasion of the home was extended to prohibit intrusion into a physical place but still limited by the notion of "placiness". From the action of intrusion upon seclusion grew the right of privacy,(23) which barred the government's use of evidence obtained intrusively at trial.(24) Not much later, the "trespass" doctrine was replaced with the qualified "reasonable expectation of privacy." So regard for the state's "legitimate needs of law enforcement" soon extended the exception beyond the application of the rule. The reasonableness analysis, upon the assurance that the courts would "authorize the carefully limited use of electronic surveillance," prohibited physical intrusions into places where intimacy might be injured, but did not find a problem with intrusion into the intimacy itself. Occasionally the law halted, as in its refusal to exempt thermal-imaging devices from treatment as intrusions on the "curtilage" of the home. But even here, law enforcement needs were met with a mean fiction that privacy could no longer be expected once the tools of surveillance were in public use.
 This development of the law was inevitable. The intensely interactive and scrutinized life, and the heightening of surveillance by private entities that came with the advance of networks, made it clear to men that only a part of a person's identity lay within physical seclusion. Observed thoughts, queries, and activity demanded economic exploitation, and the capacity for deference in the common law required judges to uphold a scheme requiring only a simple waiver of the protections against misappropriation of identity and disclosure of private facts enabled by the interposition of the legislature.(25)
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The Updated Right of Privacy

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What's Left of Privacy

 -- By RickSchwartz - 07 Mar 2009
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This paper is very loose update/adaptation of Warren and Brandeis' "The Right of Privacy," but with a more satirical approach to the development of privacy in history, given that I take the right's adoption as my starting point. In terms of the language parodied, I diverge liberally given my narrower range of history and word limit.
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This paper is very loose update/adaptation of part of Warren and Brandeis' "The Right of Privacy," but with a more satirical approach to the development of privacy in history, given that I take the right's adoption as my starting point.
 

Living in a Material World

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That the individual shall have full protection in privacy and personality is a principle as old as Griswold, but it has been found expedient from time to time to circumscribe the exact nature and extent of such protection. Political, social, and technological changes entail the recognition of new interests, and the Constitution, in its eternal death, has contracted to meet the new demands of government and industry. In early times, the law was fit to give protection against interference with property and communications, with places and pamphlets. The Fourth Amendment served only to secure the subject from unreasonable physical searches and seizures; privacy meant freedom from actual coercion and public exposure; the right of publicity secured to the individual the commercial exploitation of his name, image and likeness; and the right to speech only secured to the individual the the right to speak anonymously when there is no accusation of fraud. Later, there came recognition of the state's authoritarian nature, of its desire to prosecute with the most evidence available. Gradually, the scope of these rights contracted, and now the right to privacy has come to mean the protection of physical autonomy and seclusion only insofar as required by specific constitutional guarantees,(26) and only insofar as the government is culpable in its violation.
>
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That the individual shall have full protection in privacy and personality is a principle as old as Griswold, but it has been found expedient from time to time to circumscribe the exact nature and extent of such protection. Political, social, and technological changes entail the recognition of new interests, and the Constitution, in its eternal death, has contracted to meet the new demands of government and industry. In early times, the law was fit to give protection against interference with property and communications, with places and pamphlets. The Fourth Amendment served only to secure the subject from unreasonable physical searches and seizures; privacy meant freedom from actual coercion and public exposure; the right of publicity secured to the individual the commercial exploitation of his name, image and likeness; and the right to speech only secured to the individual the the right to speak anonymously when there is no accusation of fraud. Later, there came recognition of the state's authoritarian nature, of its desire to prosecute with the most evidence available. Gradually, the scope of these rights contracted, and now the right to privacy has come to insufficiently protect only physical autonomy and seclusion only insofar as required by specific constitutional guarantees,(27) and only insofar as the government is culpable in its violation.
 
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With the recognition of the legal value of seclusion, the protection against the invasion of the home was extended to prohibit intrusion into a physical place but still limited by the notion of place. From the action of intrusion upon seclusion grew the right of privacy.(28) Much later, the "trespass" doctrine was replaced with the qualified "reasonable expectation of privacy." So regard for the state's "legitimate needs of law enforcement" soon extended the exception beyond the application of the rule. The reasonableness analysis, upon the assurance that the courts would "authorize the carefully limited use of electronic surveillance," prohibited physical intrusions into places where intimacy might be injured, but did not find a problem with intrusion into the intimacy itself. Occasionally the law halted, as in its refusal to exempt thermal-imaging devices from treatment as intrusions on the "curtilage" of the home. But even here, law enforcement needs were met with a mean fiction that seclusion could no longer be expected once the tools of surveillance were in public use.
>
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With the recognition of the legal value of seclusion, the protection against the invasion of the home was extended to prohibit intrusion into a physical place but still limited by the notion of "placiness". From the action of intrusion upon seclusion grew the right of privacy,(29) which barred the government's use of evidence obtained intrusively at trial.(30) Not much later, the "trespass" doctrine was replaced with the qualified "reasonable expectation of privacy." So regard for the state's "legitimate needs of law enforcement" soon extended the exception beyond the application of the rule. The reasonableness analysis, upon the assurance that the courts would "authorize the carefully limited use of electronic surveillance," prohibited physical intrusions into places where intimacy might be injured, but did not find a problem with intrusion into the intimacy itself. Occasionally the law halted, as in its refusal to exempt thermal-imaging devices from treatment as intrusions on the "curtilage" of the home. But even here, law enforcement needs were met with a mean fiction that privacy could no longer be expected once the tools of surveillance were in public use.
 
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This development of the law was inevitable. The intensely interactive and scrutinized life, and the heightening of surveillance by private entities that came with the advance of networks, made it clear to men that only a part of a person's identity lay within physical seclusion. Observed thoughts, queries, and desires demanded economic exploitation, and the capacity for deference in the common law required judges to uphold a scheme requiring only a simple waiver of the protections against misappropriation of identity and disclosure of private facts enabled by the interposition of the legislature.(31)
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This development of the law was inevitable. The intensely interactive and scrutinized life, and the heightening of surveillance by private entities that came with the advance of networks, made it clear to men that only a part of a person's identity lay within physical seclusion. Observed thoughts, queries, and activity demanded economic exploitation, and the capacity for deference in the common law required judges to uphold a scheme requiring only a simple waiver of the protections against misappropriation of identity and disclosure of private facts enabled by the interposition of the legislature.(32)

Such technologies and business methods call attention to the last step that has been taken toward the unraveling of privacy. The private subpoena strategy of circumvention was developed, and corporate data miners became a part of the state’s legal strategy of surveillance and obtaining admissible evidence.


 
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The Updated Right of Privacy

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 That the individual shall have full protection in privacy and personality is a principle as old as Griswold, but it has been found expedient from time to time to circumscribe the exact nature and extent of such protection. Political, social, and technological changes entail the recognition of new interests, and the Constitution, in its eternal death, has contracted to meet the new demands of government and industry. In early times, the law was fit to give protection against interference with property and communications, with places and pamphlets. The Fourth Amendment served only to secure the subject from unreasonable physical searches and seizures; privacy meant freedom from actual coercion and public exposure; the right of publicity secured to the individual the commercial exploitation of his name, image and likeness; and the right to speech only secured to the individual the the right to speak anonymously when there is no accusation of fraud. Later, there came recognition of the state's authoritarian nature, of its desire to prosecute with the most evidence available. Gradually, the scope of these rights contracted, and now the right to privacy has come to mean the protection of physical autonomy and seclusion only insofar as required by specific constitutional guarantees,(33) and only insofar as the government is culpable in its violation.
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With the recognition of the legal value of seclusion, the protection against the invasion of the home was extended to prohibit intrusion into a physical place but still limited by the notion of place. From the action of intrusion upon seclusion grew the right of privacy.(34) Much later, the "trespass" doctrine was replaced with the qualified "reasonable expectation of privacy." So regard for the state's "legitimate needs of law enforcement" soon extended the exception beyond the application of the rule. The reasonableness analysis, upon the assurance that the courts would "authorize the carefully limited use of electronic surveillance," prohibited physical intrusions into places where intimacy might be injured, but did not find a problem with intrusion into the intimacy itself. Occasionally the law halted, as in its refusal to exempt thermal-imaging devices from treatment as intrusions on the "intimate details" of the home. But even here, law enforcement needs were met, as the reasonable expectation could no longer be expected once the tools of surveillance were in public use.

Notes

34 : Prosser refined Warren and Brandeis' thesis and argued that "the right to privacy" could be found from the recognition of four separate torts (appropriation of identity, casting a false light in the public eye, public disclosure of private facts, and intrusion upon seclusion), all unified by the underlying "right to be left alone."


>
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With the recognition of the legal value of seclusion, the protection against the invasion of the home was extended to prohibit intrusion into a physical place but still limited by the notion of place. From the action of intrusion upon seclusion grew the right of privacy.(35) Much later, the "trespass" doctrine was replaced with the qualified "reasonable expectation of privacy." So regard for the state's "legitimate needs of law enforcement" soon extended the exception beyond the application of the rule. The reasonableness analysis, upon the assurance that the courts would "authorize the carefully limited use of electronic surveillance," prohibited physical intrusions into places where intimacy might be injured, but did not find a problem with intrusion into the intimacy itself. Occasionally the law halted, as in its refusal to exempt thermal-imaging devices from treatment as intrusions on the "curtilage" of the home. But even here, law enforcement needs were met with a mean fiction that seclusion could no longer be expected once the tools of surveillance were in public use.

This development of the law was inevitable. The intensely interactive and scrutinized life, and the heightening of surveillance by private entities that came with the advance of networks, made it clear to men that only a part of a person's identity lay within physical seclusion. Observed thoughts, queries, and desires demanded economic exploitation, and the capacity for deference in the common law required judges to uphold a scheme requiring only a simple waiver of the protections against misappropriation of identity and disclosure of private facts enabled by the interposition of the legislature.(36)

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META TOPICPARENT name="FirstPaper%25"

The Updated Right of Privacy

-- By RickSchwartz - 07 Mar 2009

This paper is very loose update/adaptation of Warren and Brandeis' "The Right of Privacy," but with a more satirical approach to the development of privacy in history, given that I take the right's adoption as my starting point. In terms of the language parodied, I diverge liberally given my narrower range of history and word limit.


Living in a Material World

That the individual shall have full protection in privacy and personality is a principle as old as Griswold, but it has been found expedient from time to time to circumscribe the exact nature and extent of such protection. Political, social, and technological changes entail the recognition of new interests, and the Constitution, in its eternal death, has contracted to meet the new demands of government and industry. In early times, the law was fit to give protection against interference with property and communications, with places and pamphlets. The Fourth Amendment served only to secure the subject from unreasonable physical searches and seizures; privacy meant freedom from actual coercion and public exposure; the right of publicity secured to the individual the commercial exploitation of his name, image and likeness; and the right to speech only secured to the individual the the right to speak anonymously when there is no accusation of fraud. Later, there came recognition of the state's authoritarian nature, of its desire to prosecute with the most evidence available. Gradually, the scope of these rights contracted, and now the right to privacy has come to mean the protection of physical autonomy and seclusion only insofar as required by specific constitutional guarantees,(37) and only insofar as the government is culpable in its violation.

With the recognition of the legal value of seclusion, the protection against the invasion of the home was extended to prohibit intrusion into a physical place but still limited by the notion of place. From the action of intrusion upon seclusion grew the right of privacy.(38) Much later, the "trespass" doctrine was replaced with the qualified "reasonable expectation of privacy." So regard for the state's "legitimate needs of law enforcement" soon extended the exception beyond the application of the rule. The reasonableness analysis, upon the assurance that the courts would "authorize the carefully limited use of electronic surveillance," prohibited physical intrusions into places where intimacy might be injured, but did not find a problem with intrusion into the intimacy itself. Occasionally the law halted, as in its refusal to exempt thermal-imaging devices from treatment as intrusions on the "intimate details" of the home. But even here, law enforcement needs were met, as the reasonable expectation could no longer be expected once the tools of surveillance were in public use.


Revision 10r10 - 05 Jan 2010 - 22:31:09 - IanSullivan
Revision 9r9 - 27 Apr 2009 - 20:33:27 - RickSchwartz
Revision 8r8 - 18 Apr 2009 - 00:32:31 - EbenMoglen
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