

The Right to Privacy (1890) - anabranch
http://www.law.louisville.edu/library/collections/brandeis/node/225

======
whoopdedo
A snag in the "be let alone" doctrine is citizens of a country have a duty to
interact with the government that doesn't allow a person to just be let alone
when he wants. When necessity demands that a person divulge personal
information, does all privacy then disappear? I think it should not. Privacy
can't be viewed as a binary option. It also has to be seen not only as a limit
on what can or cannot be seen, but an obligation on the part of the receiver
of information not to abuse the privilege they have been granted.

But traditional law hasn't led to this conclusion. It sees privacy as an
effect of location. Can a thing be seen, heard, or touched directly at the
time and place that it exists? I think this is an outdated concept that is
difficult to apply to an age of widespread communication and long-term
information storage. I think privacy should be seen as an inherent property of
a thing that doesn't change as it changes hands. My personal information is
still my personal information no matter who knows it. The difference between
what is private and what is public is the expectation I have when I share it
with someone else.

So if I volunteer information unasked, there should be little expectation of
privacy for what I say. However if I am compelled to give my name and address
in order to receive a service, the default assumption should be that I want
that service alone and no one not required to know it for that purpose should
be privy to the knowledge.

It becomes more critical when dealing with legal obligations. The right
against self-incrimination applies so if I am required to give personal
information by some law, it should not then be used as evidence in a criminal
investigation. But that's what happens in the current environment where
information you're required to give the government gets entered in the public
record with no expectation of privacy and is subject to be queried by law
enforcement at any time. It forces a situation where in order to fully
exercise your right to remain silent against self-incrimination, you have to
live as a hermit avoiding all contact with the government.

Actually, I think there is a bit of common law that applies: the idea of
trespass. An unlocked door is not an invitation to entry. Why should an
unencrypted message be treated as an invitation to read? Yes, I realize that
would reverse the geek-friendly precedent that anything broadcast on radio
waves is free to listen to. But that's the libertarian's dilemma: an
enforcement of one person's freedom may infringe upon another person's
freedom.

I think the benefits of increased security for communications can outweigh the
restrictions on radio scanners. We're already partly limited anyway because of
copyright and electronic eavesdropping laws. Though I'd feel less trepidatious
if our government didn't have a habit of outlawing tools that could be used to
commit a crime as an alternative to actually enforcing the crime.

~~~
anabranch
You're touching on this but the importance of tangible vs intangible property
cannot be understated. In Katz v United States: "Because the Fourth Amendment
protects people, rather than places, its reach cannot turn on the presence or
absence of a physical intrusion into any given enclosure. "
[https://supreme.justia.com/cases/federal/us/389/347/](https://supreme.justia.com/cases/federal/us/389/347/)

That sets a good precedent but gets destroyed in Smith v Maryland

"Petitioner in all probability entertained no actual expectation of privacy in
the phone numbers he dialed, and even if he did, his expectation was not
"legitimate." First, it is doubtful that telephone users in general have any
expectation of privacy regarding the numbers they dial, since they typically
know that they must convey phone numbers to the telephone company and that the
company has facilities for recording this information and does, in fact,
record it for various legitimate business purposes. And petitioner did not
demonstrate an expectation of privacy merely by using his home phone, rather
than some other phone, since his conduct, although perhaps calculated to keep
the contents of his conversation private, was not calculated to preserve the
privacy of the number he dialed. Second, even if petitioner did harbor some
subjective expectation of privacy, this expectation was not one that society
is prepared to recognize as "reasonable." When petitioner voluntarily conveyed
numerical information to the phone company and "exposed" that information to
its equipment in the normal course of business, he assumed the risk that the
company would reveal the information"
[https://supreme.justia.com/cases/federal/us/442/735/case.htm...](https://supreme.justia.com/cases/federal/us/442/735/case.html)

That's where things get fucked up.

Simply because you use a service means that you assume the risk that the
company would reveal that information. Privacy is not guaranteed as soon as
you use a service - setting the precedence for NSA mass surveillance.
Unfortunately, these laws were passed when the fact that everyone you know,
interact with, and communicate with is in your pocket all the time.

Different laws for different times...

~~~
whoopdedo
It's not quite the same as legitimizing the sharing of information by a third-
party. By saying it is a "risk" there is the implication that it is outside
the contract the customer has with the telephone company. So I think it
contradicts itself by first saying he should not have expected privacy then
saying the loss of privacy is a risk. If there's no expectation of privacy
then where is the risk? There is an expectation but there is also a risk and
if the information is divulged (against the customer's wishes) then any
further expectation of privacy disappears. This is what happened with those
leaked celebrity photos; the initial hacking was illegal, but publishing the
photos after the leak was not.

The salient issue the case demonstrates is that if the police read the numbers
from his phone directly, that would be an illegal search. But because it was
the telephone company that divulged the information, even if that was a breach
of privacy, it does not invalidate the use of the information as evidence
because although the police received the benefit from the information they
were not the ones who breached the privacy. So there was no loss of privacy as
far as the fourth amendment is concerned; that only applies to police and not
the telephone company. If he has a problem with the them giving the
information out he can sue. Except, of course, congress has also given
telephone companies immunity.

And as more government work gets outsourced to private contractors there are
more avenues by which law enforcement can do this privacy-two-step-tango and
collect admissible evidence without warrants. Or, at least, using much easier
to obtain warrants. Isn't that what one of the concerns with CISA is? That it
lets private company collect information that may be used in court? Do these
companies have to obey the fourth amendment?

------
anabranch
Recent inventions and business methods call attention to the next step which
must be taken for the protection of the person, and for securing to the
individual what Judge Cooley calls the right "to be let alone."

Instantaneous photographs and newspaper enterprise have invaded the sacred
precincts of private and domestic life; and numerous mechanical devices
threaten to make good the prediction that "what is whispered in the closet
shall be proclaimed from the house-tops."

124 years later, still relevant.

