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Nobody's Business but Yours

One common theme among proponents of unlimited strong encryption is that encryption allows citizens to actively and vigilantly enjoy their right to privacy. The notion of privacy in that case includes the ability to suppress release of information in your possession that you do not want others to have. Believers in strong cryptography will necessarily see the right to privacy in terms of something cryptography can protect. Therefore, this view of privacy is a natural consequence of the belief of many of those who hold it. This ability to suppress other's use of what you possess would be a property right. However, the right to privacy, at least in the US, constitutionally rests upon a different basis.

Before December of 1890 when justices Warren and Brandice[4, Right to Privacy] published in the Harvard Law Review an analysis of the basis for the right to privacy, a person's privacy was mainly protected through the use of property law, contract law, as well as libel and slander laws. Property law gave people the ability to exclude others from using private information contained within a piece of property. For instance, a diary may contain sensitive information. Anyone who then steals the diary and learns about that private information has committed a crime in doing so. Contract law can be used to show trust relationships through written or implicit contracts; and those trusts can protect private information from being improperly used. For instance, a person visiting a bathhouse might reasonably expect the business not to take clandestine photos while the patrons are bathing. The business contract comes with implied trust relationships like these. If the bathhouse were to engage in such unethical acts that violate a trust relationship, they could be held liable for contract violation. And lastly, libel and slander laws allow legal redress for publication of untrue "facts". While arguably, such falsehoods are not a direct violation of one's privacy, they may put public scrutiny on the individual. The result of such public scrutiny is a net loss of privacy, because it may violate their desire to be left alone.

Warren and Brandice pointed out that the right to privacy, if it exists, should cover situations that property law, contract law, and libel/slander laws do not protect. For instance, noting the spread of gossip, Warren and Brandice posited that a person's reputation could be irreparably harmed by gossip. The recent (for the time) developments in cameras allowed compromising information to be compiled without the active participation of the person. For instance, a passive observer could photograph someone's daily life. This form of intrusion rules out property and contract law protection, and further, the damage is irrespective of the truth of the gossip, ruling out libel and slander as viable protection. Warren and Brandice make the prescient conclusion that any such privacy right has to be broader than the established laws, and essentially innate to the person: ``the right to one's personality'' [16].

What Warren and Brandice refer to as ``the right to one's personality'' is a liberal concept whereby people have the right to be reasonably free from coercion by others. That is to say, other people should not forcibly influence their personality and sense of who they are. Without privacy, people would need to consider how their otherwise private actions would reflect publicly upon them, allowing external forces to dictate personality through all aspects of life. Warren and Brandice saw this as wrong.

Since publication of ``Right to Privacy'' in the Harvard Law Review, the principles of privacy have been slowly worked out and ossified. It is now a well-known concept framed in the Universal Declaration of Human Rights:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. (Article 12)
However, the meaning of privacy and honor, as understood in Article 12, has taken new forms since the 1890s. Everyone has a right to privacy, but it seems that some people have more right to privacy than others. In the US and many other countries, people deemed to have celebrity status do not have as much protection from gossip as the average person. For example, a movie star may be considered to be in the public light, and benefits from such publicity, and thus does not enjoy privacy protection as comprehensive as the average citizen's protection. Reporters regularly follow the public and probe into the private life of these highly visible individuals. Indeed in these times, gossip is not seen as the evil that Warren and Brandice painted it as. Moreover, the attitude toward a right to privacy is different in the US and European nations: the US tends to favor freedom of speech over the right to privacy, and European nations take the opposite stance. For example, newspapers in the US regularly publish names of arrested individuals and suspects because the US values the freedom of the press over the privacy of those individuals. On the other hand, newspapers in England do not identify suspects because European countries tend to value the privacy of those suspects over the freedom of the press.

So while a right to privacy is now understood to be broader than a property right, it does not necessarily function as a property right. While encryption can protect privacy and property, its protection extends beyond what the legal idea of privacy entails. This is because it protects your property against the government, even in instances where they do not legally consider your property to be private from them, such as when they have a search warrant. It acts as an absolute guard of unpublished intellectual property. This protects your ``right to one's personality" because the privacy of your intellectual efforts cannot be breached by even the state. This may help explain the Clinton administration's feelings on key escrow systems: it protects your privacy under their definition of what privacy entails. It also explains why other people were adamantly opposed to such a proposal: their ideas of privacy are much broader and more absolute than the government's.

next up previous contents
Next: Liberalism and You Up: The Rights of Liberty Previous: The Rights of Liberty   Contents
Paul Ingemi 2004-10-25