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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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  • Dear Penthouse. (Score:2, Interesting)

    by khasim (1285) <brandioch.conner@gmail.com> on Thursday April 12, 2012 @05:47PM (#39665899)

    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.

    Dear Penthouse, I've read the letters that people sent into you for years but I never thought that I'd be sending one in. It all started ...

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

    People have been doing everything he's talking about for YEARS. It just did not have the immediacy that it has now. But that should not make an iota of difference.

  • by MobyDisk (75490) on Thursday April 12, 2012 @05:48PM (#39665937) Homepage

    Hey Editors:

    This story summary ends with "Excerpt continues below" but there is no link to click on to read it. I clicked on the "Read the 25 comments" link, but that doesn't make sense unless you are a Slashdot veteran. It would make more sense for the text "Excerpt continues below" itself to be a link, or do what other sites do like Engadget's "Read more -->" link.

  • Not so sure (Score:4, Interesting)

    by jd (1658) <imipak@noSPam.yahoo.com> on Thursday April 12, 2012 @06:14PM (#39666333) Homepage Journal

    Privacy is just a variant on the same theme as physical property, copyright or trademarks - our right to give someone something of ours is NOT the same as someone else's right to give someone something of ours. If something belongs to you, then since the days of Hammurabi it truly belongs to you and you have final say on what happens to it.

    Privacy is NOT, as this judge would have it, equatable to a trade secret - where, once it is known, it is no longer afforded the protection of being a secret. Well, ok, some people regard this as being the correct model but I (and most of Europe) dispute this and, frankly, I'd argue that Europe has had rather longer to debate the various models than the American judiciary.

    Once all data in your life is reduced to mere secrets (rather than personal property) you run into the obvious problem that everything in your life is ultimately reducible to data. That includes physical property, since ownership is not conveyed by possession but by certification and certification is data.

    I'm not saying loss of privacy necessarily means loss of any form of ownership, but since they stem from the same root principle and have the same ultimate objective (you control what you own) then damage to both ends of one chain must correspond to damage to both ends of both chains. The "slippery slope" argument is often abused, but here I think it is a very legitimate concern and should not be treated lightly.

  • Re:Wat? (Score:2, Interesting)

    by Anonymous Coward on Thursday April 12, 2012 @06:17PM (#39666369)

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

    You might have a point, except the "rights" we're talking about aren't categorical, but are qualified with "reasonable expectation."

    Before Katz, the right to unreasonable search and seizure was categorical, and limited to a small list of places: e.g. inside your home. Katz overturned a long-standing Supreme Court precedent that wiretaps did not require a warrant. In order to overturn that, they used so-called judicial activism to expand your privacy interests, but in order to do that in a way which was future proof (and not tied to enumerated lists of things), they defined it as those places and circumstances where you had a "reasonable expectation of privacy." In the law, 'reasonable' is not what any particular person thought at the time, but what an imaginary "average" person would have considered private or not private.

    Now, the old categorical limits still exist. No amount of Jerry Springer is going to allow cops to barge into your home with a warrant. But public attitude can grow or shrink the sphere of most of what we can consider to be protected by the 4th Amendment.

  • Re:Wat? (Score:5, Interesting)

    by Anonymous Coward on Thursday April 12, 2012 @06:33PM (#39666617)

    I think his point is that he clearly would object. His point is that society is collectively tweaking the norm of what is acceptable, and the police and politicians are exploiting this. Simply realizing and acknowledging this is the first part of fighting back: there is a difference between you selecting what to disclose and the police taking a single disclosure as tacit approval for taking everything they can.

  • by ilsaloving (1534307) on Thursday April 12, 2012 @06:49PM (#39666827)

    I know I shouldn't be surprised by all the people posting without actually having read the article, but c'mon...

    The judge is not justifying or apologizing for what the government is doing. He's pointing out that what is happening is an inevitable consequence to the path that we, as a population, are on and that we shouldn't be the slightest bit surprised.

    The vast majority of the population is happy to vomit the most lurid details of their lives onto a public forum. They are willing to give up their passwords for a chocolate bar. These are the same people who want public officials that they can identify with. That they can "have a beer" with. In other words, who are like them. So what happens? We get officials that think nothing of violating other people's privacy, cause the people want them to. Except these people can't be bothered to think far enough ahead to release that everyone is an "other person" to someone else, and ergo everyone's privacy is up for grabs.

    But everyone here would rather shoot the messenger, rather than take what he wrote as the warning it is.

    While not directly relevant, the intent is the same: http://xkcd.com/743/ [xkcd.com]

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

    by Curunir_wolf (588405) on Thursday April 12, 2012 @07:17PM (#39667151) Homepage Journal

    Check your premises. The Constitution is not a collectivist document. The framers were quite disparaging of Democracy, which they called the "tyranny of the majority". Therefore the Constitution was written to protect individual rights, not collectivist rights. That's why it's called a Republic, with power residing at the lowest level, and flowing up as required by agreement. So it is not sufficient for most people to give up their rights, as you describe, but requires that every last person give up their rights.

A penny saved is a penny to squander. -- Ambrose Bierce

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