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The Dead Past: the Biggest Threat To Privacy Is Us 130

Posted by timothy
from the norm-isn't-just-that-guy-on-cheers dept.
An anonymous reader writes "Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals candidly discusses the future of privacy law in an essay published today in the Stanford Law Review Online. Referencing an Isaac Asimov short story, Kozinski acknowledges a serious threat to our privacy — but not from corporations, courts, or Congress: 'Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers.'" (Excerpt continues below.)
"In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people's bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don't consider our own privacy terribly valuable, we cannot count on government — with its many legitimate worries about law-breaking and security — to guard it for us.'"
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The Dead Past: the Biggest Threat To Privacy Is Us

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  • Wat? (Score:5, Insightful)

    by Anonymous Coward on Thursday April 12, 2012 @05:20PM (#39665421)
    Because I choose to disclose something about myself -one way-, I necessarily want to allow -every- method of accessing that information and every possible use of it? Hogwash.
  • by noahwh (1545231) on Thursday April 12, 2012 @05:21PM (#39665435)

    A judge should know better than to blame the victim.

  • by InvisibleClergy (1430277) on Thursday April 12, 2012 @05:24PM (#39665489)

    ...between haxing accounts and forcing ISPs to give up info, and me sharing a photo of myself at a party. If I share a photo of myself at a party, that goes out to friends, and friends-of-friends, and in general I trust that people aren't going to just post that everywhere. This isn't always the case, but when it does happen it's commonly accepted as a dick move.

  • by Jeng (926980) on Thursday April 12, 2012 @05:26PM (#39665537)

    This is just another "It's different because of the internet." bullshit justifications.

    People have always let those they are close to to know where they are.

    People have always talked about sex.

    People have always talked about their health issues.

  • by Jane Q. Public (1010737) on Thursday April 12, 2012 @05:40PM (#39665773)
    Judge Kozinski has missed the biggest part of this equation: the concept that WE get to choose when we want to be private.

    Certainly there are circumstances in which one does not get to choose, like walking around in public. But for the most part, the value of privacy is intimately attached to the fact that WE choose when we want to exercise it, and when not.
  • by tlhIngan (30335) <<slashdot> <at> <worf.net>> on Thursday April 12, 2012 @05:41PM (#39665815)

    This is just another "It's different because of the internet." bullshit justifications.

    People have always let those they are close to to know where they are.

    People have always talked about sex.

    People have always talked about their health issues.

    The internet IS different.

    For starters - here's two ways it's different from what people have traditionally expected.

    First, its reach is global. Second, it's memory is infinite, and it remembers everything.

    The first point is what gets a lot of people. If I talk about sex on say, a street corner with a few friends, the general expectation is that the only people who will hear it would be my friends, and the people in the immediate vicinity (and likewise my friends' friends and their local group). Either way, it generally won't spread too far (the worst is the whole town if it's small).

    With the Internet, that blog post or status update, becomes global as friends notice and re-post/re-tweet/congratuate etc. You may make it private, they, public. And now the whole world knows.

    The second gets people over and over again - the internet does not forget. You put something up, and others copy it and put it around. It works for software, and it works for everything else as well. Old newsgroup posts people thought were dead were resurrected. Old tales of misdeeds haunt them at the next job interview, that sort of thing.

    Thing is, most people don't realize it and they think telling everyone their FourSquare location is only going to be of interest to friends when a lot more people may stumble upon it.

  • by hidannik (1085061) on Thursday April 12, 2012 @05:43PM (#39665833) Homepage

    More like, "My neighbor would stop looking in my window if a person I don't know two thousand miles away would stop standing naked in front of her window."

    Hans

  • Re:Wat? (Score:5, Insightful)

    by Samantha Wright (1324923) on Thursday April 12, 2012 @05:43PM (#39665845) Homepage Journal
    I have a simpler way of phrasing it: "law enforcement cannot be held responsible for not respecting people."
  • by wildtech (119936) on Thursday April 12, 2012 @05:49PM (#39665949) Homepage Journal

    Just because my neighbor doesn't close his blinds and hides nothing doesn't mean I do the same.
    Why should my desire for privacy be limited by the little regard that my neighbor holds for his own.

  • Re:Wat? (Score:3, Insightful)

    by Jane Q. Public (1010737) on Thursday April 12, 2012 @05:51PM (#39665979)

    "Rights do not cease to be rights merely because the majority of people do not exercise them..."

    Absolutely. And for a circuit judge to argue otherwise should be astonishing -- and frightening -- to the American public.

    In my opinion, Kozinski has just publicly demonstrated that he is not qualified to be a judge at all, much less a circuit judge.

  • Re:Wat? (Score:4, Insightful)

    by Courageous (228506) on Thursday April 12, 2012 @05:55PM (#39666017)

    Well, I only read the summary. However, consider this excerpt:

    If we the people don't consider our own privacy terribly valuable, we cannot count on government...

    This sentence contains a false semantic distinction between people and government. I.e., it attempts to draw a distinction between 'we, the people' and government itself. That distinction isn't as true as you might hope.

    It could be easily rephrased as follows: "If we the people don't consider our own privacy terribly valuable, we cannot count those very same people when in government office to consider privacy terribly valuable."

    That's an excellent point.

    C//

  • Absolute Crap (Score:5, Insightful)

    by element-o.p. (939033) on Thursday April 12, 2012 @06:04PM (#39666161) Homepage

    "In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people's bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don't consider our own privacy terribly valuable, we cannot count on government — with its many legitimate worries about law-breaking and security — to guard it for us.'"

    Absolutely not. Just because individuals -- or even society at large -- choose to make their public lives private does not mean, suggest or imply that *I* have chosen to do so. Similarly, even if I do create posts on Facebook Places at times, tweet about (some of) my sexual exploits, or discuss selected health issues on the telephone in public places, that does not mean that I have agreed to disclose my whereabouts at all times , agreed to allow voyeurs to peek through my bedroom windows at all, nor agreed that all of my health and telephone records should be public (and just to be clear, I was not aware there even was a Facebook Places, nor have ever signed up for Twitter, much less Tweeted about my sex life -- although, I probably have discussed selected health issues in places where I could be overheard).

    To argue that, at times, we may knowingly and consciously choose to give up certain elements of our privacy means that we therefore have no value for privacy at all -- and that consequently, the government should be allowed to violate our privacy at their whim -- is absurd beyond belief. That a sitting judge would suggest such a thing is frightening beyond belief. I would expect a judge to have, well, better judgment than that.

    I do, however, agree completely with his last sentence in the quote above. Both individually and collectively, we had better start acting as if privacy is still important to us before we no longer have any privacy left, and we had better make sure our elected officials get that message loud and clear.

  • Re:Wat? (Score:5, Insightful)

    by S77IM (1371931) on Thursday April 12, 2012 @06:38PM (#39666683)

    Let me rephrase your rephrase:
    "Law enforcement will not respect people who do not respect themselves."

  • Re:Wat? (Score:5, Insightful)

    by ilsaloving (1534307) on Thursday April 12, 2012 @06:38PM (#39666687)

    Except he didn't argue otherwise. He argued that if people don't care about their privacy, then we should expect our elected officials to stop caring too. He's not excusing the government's actions. He's saying that the government's actions are inevitable because the populate don't give enough shits to call them on it.

  • by djl4570 (801529) on Thursday April 12, 2012 @06:39PM (#39666707) Journal
    Some years ago an ambitious prosecutor in Utah filed criminal charges against an adult entertainment store alleging obscenity in the adult videos that were rented or sold. The attorneys decided to establish community standards by demand a rental record of adult videos from all of the Salt Lake City hotels and video rental outlets. The charges were dropped when it became evident that the videos were within community standards. It worked out well for the accused in this example.
    What the judge is saying is that if our social and or community standards for privacy are low then the government will have a low standard for guarding privacy. If it becomes normal and acceptable to post lurid pictures of yourself all over the net then we have little complaint if the government looks at these photos. Consider the few cases where criminals have posted online boasts about criminal activity, and in some cases displaying the stolen goods. Law enforcement comes calling and those posts are evidence against them. The judge is giving us a fair warning about the possible direction of privacy case law.
  • Re:Wat? (Score:5, Insightful)

    by gamanimatron (1327245) on Thursday April 12, 2012 @06:59PM (#39666937) Journal
    More like: "Since some people don't respect themselves, law enforcement can't be bothered to respect anyone."

    Sounds like a crock to me.
  • Re:Dear Penthouse. (Score:5, Insightful)

    by cpu6502 (1960974) on Thursday April 12, 2012 @07:16PM (#39667147)

    >>>That judge is an idiot who is attempting to use "teh innerwebs" as justification for increased surveillance.

    ALMOST ALL THE PEOPLE COMMENTING HERE NEED TO READ THE FUCKING ARTICLE. THE JUDGE IS SAYING HE DOES not LIKE THE WORLD WE'VE CREATED.

  • by dissy (172727) on Thursday April 12, 2012 @07:51PM (#39667477)

    Judge Kozinski has missed the biggest part of this equation: the concept that WE get to choose when we want to be private.

    Exactly. The judges logic is akin to saying that since some people enjoy piercing their skin with hooks on ropes and hanging from the ceiling by them, that clearly it must be fine to force that on someone else.

    Or on the flip side, he is stating as fact that since most people speed while driving, that speeding must clearly be legal.
    Since most people do not get punished for speeding, then no one can ever be punished for speeding.

    Stupid logic either way you look at it. Further proof that judge, lawyers, and police do NOT live in the real world.

  • Re:Wat? (Score:3, Insightful)

    by Anonymous Coward on Thursday April 12, 2012 @08:39PM (#39667921)

    He's saying that the government's actions are inevitable because the populate don't give enough shits to call them on it.

    The government purposely makes it hard to exert your rights.

    Doing so puts you on the wrong side of the law, which means if you are lucky you will only be beaten and jailed for a few weeks, and if unlucky you will be permanently damaged, killed, or imprisoned for life.

    When the best you can hope for is permanent nerve and vascular damage by having plastic-edge sharp zip ties on your hands cutting into nerves and flesh, beaten by the police, thrown in jail to be beaten and raped by inmates, then have everything valuable taken from you...

    Most people don't want to pay that price for their rights.

    The government has put itself in a position where the only way we can exert our rights is to destroy the criminal wearing the badge who's trying to destroy your life. This can never end well.

    The police want the other 98% of us in prison or jail as slave labor, and the only way to get your rights is to kill police officers.
    That's fucked up either way you go.

    The only other option is exactly what we have now.

  • Re:I disagree. (Score:4, Insightful)

    by Courageous (228506) on Thursday April 12, 2012 @10:27PM (#39668765)

    Not having read TFA, I wouldn't have anything to say about any legal conclusions the judge was getting at. But he was right for sufficiently large numbers of "we, the people." Certainly if no one considered privacy terribly valuable, we could not count on those same people in government office to consider privacy terribly valuable. The converse is also true: if everyone considered privacy terribly valuable, then we could count on those same people in office to consider privacy terribly valuable, now couldn't we? What we have is something in the middle, and I would say that it's most likely getting worse, and not better.

    Anyway, there is a travesty in modern politics, where we the people blame our government for this and that, ever the while failing to acknowledge that we the people are the constituencies of the vary same government we blame. Our government's are reflections of ourselves. We, the people, need to grow up and recognize that.

    Consider the following: who's more valuable, a school teacher or a superstar athlete? Most everyone will try to make some sort of argument giving the teacher the nod. But of the two, who will fill up a stadium of people willing to pay $70 each? There is an uncomfortable truth here, and it's not so nice as to what it says about us.

    C//

  • Re:Wat? (Score:5, Insightful)

    by Anonymous Brave Guy (457657) on Thursday April 12, 2012 @11:02PM (#39669021)

    That is my problem with the argument as well.

    Personally, I don't have a Facebook account, post my life story on Twitter, or discuss my private medical conditions on a crowded train.

    When I worked for someone else, I accepted that the company could in theory monitor communications I sent from company systems. However, (a) they were company systems paid for by the company and provided for work, (b) I was clearly told that this was a possibility, and (c) the major reason for them spending the money on the people and equipment who might perform that monitoring was compliance with legal obligations in various countries. Any employer is likely to be in a catch-22 situation with modern laws in most western countries on this one, even if they have nothing but respect for their employees' privacy.

    In short, I do not voluntarily give up my privacy in the kinds of ways that this lawyer describes, and when it comes to another party invading my privacy, I don't consider the willingness of other people to give up their own privacy to be any sort of justification. It is more than a little ironic that in a discussion about privacy, of all things, someone should be making an argument that fundamentally assumes everyone thinks and acts the same way.

  • Re:Wat? (Score:4, Insightful)

    by Anonymous Brave Guy (457657) on Thursday April 12, 2012 @11:15PM (#39669121)

    His point is that society is collectively tweaking the norm of what is acceptable, and the police and politicians are exploiting this.

    Is society really "tweaking the norms" all that much? It seems quite likely that the kind of person who posts a lot of detailed updates on Facebook or Twitter doesn't value privacy as highly. It also seems quite likely that such people will be seen/read more often on-line than those more private individuals with dissenting views. Assuming that reduced privacy is the new social norm because the balance of on-line commentary says so is a classic case of confirmation bias.

    Privacy is a particularly dangerous area to make such assumptions anyway, partly because of the inherent Pandora's box effect, and partly because so many people don't actually understand how much of their privacy is being surrendered when they choose to use certain services. There have been plenty of cases where loads of people used a system, yet when presented with the facts about the privacy implications, their views then became quite hostile toward that system.

  • Re:Wat? (Score:4, Insightful)

    by UnderCoverPenguin (1001627) on Thursday April 12, 2012 @11:52PM (#39669343)

    Before Katz, the right to unreasonable search and seizure was categorical, and limited to a small list of places: e.g. inside your home..

    The 4th amendment says "... in their persons, houses, papers, and effects..."

    That's a rather expansive list despite being only 4 items long. Back then, the only files people had were on paper, so applying today's technology to their era's terminalogy, "papers" would include computer files, email messages and more. Back then, "effects" meant personal property. Even in recent years, the phrase "personal effects" is occasionally used. So, the term "effects" would include a person's mobil phone, iPod/iPad/tablet PC, laptop PC or even desk PC.

    Erosion of 4th admendment rights is mainly accomplished by finding ways to justify narrowing the interpretation these terms, and by justifying exclusion of things not explicitly mentioned.

    While we might not be able to do much about lawyers aguring over the meanings of each and every word in the constitution and the mariad of laws we have, the 9th amendment specifies "The enumeration in the Constitution of certain rights shall not be construed to deny or desparage others retained by the people." Back then, this was their main worry about privacy - beyond that, you could ensure your privacy by looking around you to see if anyone was near enough to spy on you. Just becaue they didn't imagine the technology to circumvent this once simple precaution does not mean they intended to exclude protection from such intrusions by whatever means.

Somebody ought to cross ball point pens with coat hangers so that the pens will multiply instead of disappear.

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