Path: utzoo!utgpu!news-server.csri.toronto.edu!rpi!usc!bbn.com!cosell
From: cosell@bbn.com (Bernie Cosell)
Newsgroups: comp.org.eff.talk
Subject: Re: The end of privacy... and so what comes next?
Message-ID: <63600@bbn.BBN.COM>
Date: 8 Apr 91 16:49:22 GMT
References: <10777@exodus.Eng.Sun.COM> <1991Apr1.180311.5557@eff.org> <63565@bbn.BBN.COM> <1991Apr5.213419.1489@eff.org>
Sender: news@bbn.com
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mnemonic@eff.org (Mike Godwin) writes:

}In article <63565@bbn.BBN.COM> cosell@bbn.com (Bernie Cosell) writes:
}>
}>}.. John pointed out
}>}that we live in a society in which each of us breaks laws,
}>}knowingly or unknowingly, all the time....
}>
}>In what way is this a relevant observation [aside that it is true]?
}>Should we deny the police to enforce the burglary/rape/whatever laws
}>effectively because they might use those powers to enforce
}>parking-too-far-from-the-curb violations?

}Yes. The price of privacy is that it makes it harder for the police
}to do their job. We must be aware of this at the outset. It is always
}more convenient and more efficient for the police not to be limited
}in what they can know about you.

}But that's not the society I want to live in.

But that just begs the question.  To first order, it *is* the society
we are living in, and whereas the laws are all nicely written down, the
bounds of privacy are, for the most part, not.  Your statement reduces to
"the police shouldn't be allowed to enforce this law because to do
so requires that they violate <X>s privacy" [or, if you prefer, replace
"shouldn't be allowed to enforce" with "will have an extremely
difficult time enforcing".]

The question will arise, and it will KEEP intensifying [and so the
constant pressure against privacy I mentioned}, as to exactly what sort
of societal chaos we are willing to pay in exchange for the
preservation of which little bits of privacy.  Images of
armageddon-around-the-corner are disingenuous.  Closer to reality is
the CONSTANT pressure to relax the rules for warrants here, allow other
types of evidence there.  How does one *define* the line, much less
draw it.  And even if drawn, how does one explain to a grieving mother
that because the police are strictly-toeing the privacy line, the
person who killed her son will continue the roam the streets, perhaps
to kill again.  A situation of this type popped up last night on
"Separate But Equal": when the reverend's house was burning and the
fire truck came by, and then the driver just observed that the
reverend's house was _just_ over the line in the next county, and so
out of their jurisdiction, and they just drove on.

Well, let's replace taht with 'privacy' instead of a "county line": you
have people experiencing *real* harm.  *real* laws [laws we would both
agree are valid, useful and necessary] being pursued at less of a rate
than they could be, just because we require the police to honor some
almost-arbitrary line-in-the-sand, drawn mostly by philosophers and
"privacy sissies".  What level of real, tangible, here and now,
societal harm will we tolerate in the name of avoiding "just a little
bending" of some presumed "right" that isn't graven in stone ANYWAY.



}> Why shouldn't the response to John's observation be
}>"OK, so fix the laws, but what does this have to do with the police
}>going after the REAL criminals?"

}The response to the response is that, in a very real sense,
}you're a "real" criminal if the police say you are. Real privacy makes
}it harder for them to say you are.

I can't follow this.  I think we should draw a distinction between what
*police* says and what "the law" [i.e.,courts, trials, appeals, etc] says.

Are you worrying about the ability of a policeman to arrest you at
almost any time under almost any circumstances using trumped=up charges
[from the tried and true 'disorderly conduct' to 'interfering with an
officer' to the famous 'broken taillight'], or that policeman have the
ability to 'define' theft, assault, etc as they see fit on the fly?  As
for what the courts/legislatures can do, I agree: something becomes
illegal solely and precisely because it has been so-defined by the
legislature, and to first order they can make ANYTHING illegal.

Looking more closely at your statement about 'real privacy', what are
you saying?  If there are too many laws, or laws have made OK things
arbitrarily illegal, that, I contend, is a SEPARATE problem: you should
fix the laws.  If we agree that laws are generally making the right
things illegal, then we bring up the question of whether or not a
particular method of PROVING that a person committed a particular crime
is prudent or not [to protect against incriminating the wrong person,
say].  What _is_ this 'real privacy' that you would use as a roadblock
to the police trying to do good job and a court system trying to
ascertain guilt and get the criminals off of the streets?  Do drug
tests invade this 'real privacy'?  Do phone taps?  Does sifting through
your trash?  Does cross-correlating EVERY _external_ financial
transaction you do, from buying a house to paying the paper boy?  Does
following you around and noting everyone you come in contact with?

My question here is a bit complicated [and so I'm sorry that the above
is so disorganized].  Let me try it again: are you working from some
concrete notion of 'real privacy', and you put that first and then
require that the laws work around it, no matter the harm to society for
doing so?  If so, then you ought to be able to propose the 27th
Amendment making that right explicit, so we (through congress) could
debate the merits and drawbacks of such a 'wall'.  If not, then what is
the point about 'real privacy'?  WHY is it worthwhile to impede a
police officer from pursuing a REAL criminal for committing a REAL
crime?



}>}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.
}>
}>This is all very hypthetical.  Who gets to decide which are the bad crimes
}>and which are the good?

}You can do it, and have done it in this posting. When you juxtapose 
}mattress-tag-ripping and muggers for rhetorical purposes, you demonstrate
}that you have an intuitive sense of which crime is more serious. What's
}more, your rhetoric demonstrates that you think your audience shares
}this distinction. So, let's not pretend this is a difficult philosophical
}problem, shall we? Or at least be consistent in your own postings.

}In any case, this is not hypothetical at all. It's happening now.

Wait a minute here.  We might share the notion, but almost certainly
not the metric:  the debate over 'cracking' should make clear that we
share VASTLY different notions of what we, personally, would have be
legal and what not-so-legal if we were made dictator tomorrow.  Of
course I have a metric, and it is a real simple one: the laws that I
find a pain in the ass to comply with or think are stupid or worse are
ones I'd just as soon NOT have so that I'm not at risk when I indulge
myself; by contrast, to first order the laws that prevent OTHER People
from doing nasty thing to me [where 'nasty' is relative to my personal
ethic] are laws that I'd make MORE severe.

This is not just rhetoric: at an abstract level, the debate over gun
control, abortion, the WoD, the 55mph speed limit, etc are all just
disagreements on which crimes are good ones and which are bad ones.

How should we and the gov't handle the discretion?  I cannot see a
world in which the gov't would never have such discretion: there will
ALWAYS be lots of illegal things, ranging from the trivial to the
profound, and LEOs will always have to make a choice about who to
chase, as will DAs have to make choices about which cases to pursue,
and courts about which appeals to hear, etc.  Who should make all of those
discretionary distinctions, and how?  And how does privacy fit in anyway: if
foregoing some 'privacy' made it EASIER to go after felons, say [e.g., what
if the SC agreed to certain privacy-relaxations, but only for felonies], then
there'd be LESS need for discretion: wouldn't the world be a better place if:
  1) we ONLY had laws we really believed in, and
  2) we have reasonable assurance that transgressors would be promptly caught
  and punished.


}> This discretion exists ANYWAY, and crippling
}>the police from enforcing the laws, all of them and any of them, is
}>pretty arbitrary: if you don't want the police to enforce some
}>particular law, shouldn't you be making the law go away, rather than
}>trying to so-cripple the police that they _cannot_ enforce it?

}Dear Bernie: not all limits on police power "cripple" the police.
}It is the position of the civil libertarian that police can function
}with reasonable, although not perfect, efficiency in an environment
}in which their actions are limited by ordinary citizens' rights.

}Search warrants, the right to counsel, and the privilege against
}self-incrimination make it harder for police to do their work too,
}you know. Shall we eliminate those? Are they devalued because they're
}invoked so often by guilty people to obstruct police work? I think
}not.

I'm not questioning that.  The problem is that it is all gray.  What if
you made warrants a LITTLE bit easier to get [as the SC has already
done]?  What if they made the right-to-effective-counsel more
problematic [as they have done in the asset-seizure decisions]?  What
if they weakened the right to confront your accuser just a little bit
[as they've largely done in many motor vehicle cases]?  And what if, in
all of those cases, the arugment is that society would gain a BIG WIN
in exchange for the almost-trivial bending of the rules?


}Moreover, you've missed the import of Gilmore's remarks. The question
}is not whether one gets in trouble for "knowingly" flouting the laws,
}but for running afoul of the law without even trying. In today's
}crime-law-happy society, this is remarkably easy to do, and anyone who
}doesn't think so is probably also guilty of mopery.

But, again, what is the solution: if there are too many laws, are you
so sure that the "best" division of laws-to-keep versus laws-to-ignore
is simply those laws whose enforcement doesn't involve crossing some
hypothetical privacy line?  Maybe society would be better served by using
some OTHER criterion to divide the wheat from the chaff?


}> Should it be personal discretion as to which laws we use our
}>"cloak of secrecy" to hide?  What sort of society is that?

}Again, you go to rhetorical excess. Why do this? Some people whose
}privacy is invaded will be prosecuted and found innocent. But if their
}privacy had been protected in the first place, they wouldn't have
}had to defend themselves at all.

But that's just other side:  "Some criminals whose privacy is NOT
invaded will run free instead of being prosecuted and found guilty.
But if their privacy hadn't been _so_ protected in the first place,
they would be still running free to commit more crimes."  How should
the trade be made?

And worse: even in a perfectly private world, folks get dragged into
court wrongfully all the time.  Who is to say whether
better-evidence-gathering would make for fewer false-arrests [since the
standard of evidence could now go WAY up, and so random, second-hand,
circumstantial, etc, would grow to be just ignored] or for more?  We
should assume that none of this affects the courts, right?  If you are
innocent, can we agree that this _ought_ to imply that the state will
not be able to find enough evidence to gain conviction, and by
contrast, if you are guilty, what does it matter?

  /Bernie\