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From: karn@epic.bellcore.com (Phil R. Karn)
Newsgroups: comp.org.eff.talk,alt.privacy
Subject: Re: The end of privacy... and so what comes next?
Message-ID: <1991Apr3.211526.17697@bellcore.bellcore.com>
Date: 3 Apr 91 21:15:26 GMT
References: <63473@bbn.BBN.COM> <10777@exodus.Eng.Sun.COM> <1991Apr1.180311.5557@eff.org>
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In article <1991Apr1.180311.5557@eff.org>, mnemonic@eff.org (Mike Godwin) writes:
|> [...] John [Gilmore] pointed out
|> that we live in a society in which each of us breaks laws,
|> knowingly or unknowingly, all the time. The easy accessibility
|> of personal data makes it easy for the government to exercise
|> its discretion to prosecute us or otherwise make our lives 
|> miserable.

I believe that it is always possible (though not necessarily easy) to
draft a law to address a truly legitimate compelling public interest
in a way that does not violate fundamental Constitutional guarantees.
True, a few unconstitutional laws do get overturned from time to time,
but the real problem is with the many more bad laws still on the
books.

In my opinion, the importance of the Fourth Amendment's implied
privacy guarantees comes from the fact that most of the bad laws
attempt to protect people from themselves, or involve consensual
private conduct with minimal externalities.  By making someone's home
and property off-limits to government "fishing expeditions" and
setting probable-cause requirements for search warrants, most of these
bad laws are rendered essentially unenforceable. This at least limits
the damage they can do until they can be overturned.

The classic example is the law in various states against sodomy and/or
fornication. As long as the parties involved are consenting adults and
keep their activities private, the government has no way of going
after them even though their activities may technically be illegal.
Gambling and prostitution are other possible examples.

Another (admittedly more controversial) example is the private use of
illegal drugs by adults. Although the people who use them may well be
guilty of extreme stupidity, I see no justification for making ANY
activity illegal unless it has a significant effect on unwilling or
legally incompetent parties (e.g., driving while intoxicated, giving
drugs to minors). Governments are supposed to protect people from each
other -- not from themselves, with the possible exception of minors.
Unfortunately, the latter role is significantly interfering with the
former.

Anyway, a big challenge to us computer privacy experts now is to find
ways of keeping the government from using computer technology to
collect information (e.g., videotape rental records, magazine
subscriptions, telephone call records, shopping receipts, etc) and
then digesting that information en masse to uncover private,
technically illegal activities. Although much of this information
could have been gathered and processed manually without computers, the
ease with which computers can do the job may result in a qualitative
change in the enforceability of a truly bad law.

Granted, it would be best to work for the abolition of the bad laws to
begin with. But as a technologist, I think the most effective
near-term solutions will be based on technology. And the most
effective strategy here will be to keep the information out of the
hands of the government to begin with, since it is clear that you
cannot control the information once they get it.

Phil