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| The Atlantic Affairs Security. Ideologies. Multiculturalism. |
Google v. US: When property goes, so does privacy
By Amy Peikoff
Posted: February 13, 2006
The nationwide panic engendered by the Justice Department's subpoena
to Google was, according to many lawyers and scholars, a mistake.
Timothy Wu, a law professor at Columbia, said that the only interesting
aspects of the case concern technical rules of legal procedure. "This
particular subpoena does not raise serious privacy issues," he said.
It is true that the subpoena demands only a week's worth of searches and
the addresses of a million randomly selected websites. Apparently, these
aggregations of data alone cannot link any individual to a particular search
or website viewing. Nonetheless, the panic was no mistake.
If the subpoena succeeds, it will establish an ominous precedent: that the
Justice Department can seize Google's (and anyone else's) time and
property, without warrant or particularized suspicion and, moreover, the
seized property need have only dubious relevance to the defense of a
proposed law of dubious merit. ACLU attorney Aden J. Fine was right in
identifying the subpoena as "another instance of government
overreaching." Google is to be applauded for its courage in resisting it.
Internet Law specialist Susan P. Crawford warns that, while this subpoena
does not seek data that most people would consider private e.g., searches
which can reveal a person's unpublicized goals, preferences and
problems, sexual, medical and otherwise nonetheless "the next subpoena
could ask for that kind of data."
The solution, however, is not to enact more privacy legislation. What we
need is a legal system that defends our right to property and contract.
Warren and Brandeis, in originating a "right" to privacy in 1890, extolled the
value of privacy to individuals, but stressed that their newly coined right
must often yield to the public interest. Thus arose the "balancing test"
approach that is now used whenever a right to privacy is invoked from
abortion law to search-and-seizure law to tort law. So, if the Bush
Administration decides that it is in the public interest to have legislation
preventing minors from viewing pornography on the Internet, then a man's
right to privacy in his Internet searches may be sacrificed in order to defend
such legislation, depending on the outcome of the balancing test.
A judge will weigh the individual's interest in keeping his searches private
against the public interest in the government's obtaining the data. How
does he decide which interest prevails? By his subjective preferences? By
public opinion poll? This is no standard. Thanks to the right to privacy, we
enjoy privacy not by right, but by permission.
Perhaps it is contempt for the right to property that sustains our legal
system's idea that the only property entitled to vigorous protection from
government seizure is that containing "private" information. But Americans
must realize that where property goes, privacy follows. One may choose to
keep his thoughts and interests within the confines of his own mind.
Otherwise, to prevent unwanted disclosure of information, one needs either
an exclusive right to a place in which to store it, or a contractual agreement
of confidentiality express or implied with others to whom he voluntarily
discloses it.
It is therefore only through objective laws protecting property and contract
against warrantless government search and seizure, that we can safeguard
our privacy.
The term, "private," when used to describe information, is no more
objectively definable for legal purposes than is "obscene" or "pornographic."
The referents of such terms change with the fashions; what was once
considered strictly private information is today eagerly shared all over the
media and the Internet.
The terms "property" and "contract," by contrast, have definite referents.
Whether someone owns property or has entered into a contract is a fact;
common law doctrines allow judges objectively and predictably to
determine whether such rights exist in a particular case. This takes the
decision about what information to disclose away from government and
puts it where it belongs: in the hands of the individual.
One essential feature of totalitarianism is a government's ability to punish
citizens, not only for what they do or say publicly, but also for what they think
and value in the privacy of their own minds.
As one privacy advocate has said, a record of one's Internet searches is "a
kind of shadow of the thoughts within your head your interests, your desires,
your hobbies, your fears." If our government thus begins to have access to
the content of our minds whenever it decides that this might serve the public
interest, nothing can follow but a future of thought control.
_____________________
Amy Peikoff, Assistant Professor of Philosophy, United States Air Force
Academy.
By Amy Peikoff
Posted: February 13, 2006
The nationwide panic engendered by the Justice Department's subpoena
to Google was, according to many lawyers and scholars, a mistake.
Timothy Wu, a law professor at Columbia, said that the only interesting
aspects of the case concern technical rules of legal procedure. "This
particular subpoena does not raise serious privacy issues," he said.
It is true that the subpoena demands only a week's worth of searches and
the addresses of a million randomly selected websites. Apparently, these
aggregations of data alone cannot link any individual to a particular search
or website viewing. Nonetheless, the panic was no mistake.
If the subpoena succeeds, it will establish an ominous precedent: that the
Justice Department can seize Google's (and anyone else's) time and
property, without warrant or particularized suspicion and, moreover, the
seized property need have only dubious relevance to the defense of a
proposed law of dubious merit. ACLU attorney Aden J. Fine was right in
identifying the subpoena as "another instance of government
overreaching." Google is to be applauded for its courage in resisting it.
Internet Law specialist Susan P. Crawford warns that, while this subpoena
does not seek data that most people would consider private e.g., searches
which can reveal a person's unpublicized goals, preferences and
problems, sexual, medical and otherwise nonetheless "the next subpoena
could ask for that kind of data."
The solution, however, is not to enact more privacy legislation. What we
need is a legal system that defends our right to property and contract.
Warren and Brandeis, in originating a "right" to privacy in 1890, extolled the
value of privacy to individuals, but stressed that their newly coined right
must often yield to the public interest. Thus arose the "balancing test"
approach that is now used whenever a right to privacy is invoked from
abortion law to search-and-seizure law to tort law. So, if the Bush
Administration decides that it is in the public interest to have legislation
preventing minors from viewing pornography on the Internet, then a man's
right to privacy in his Internet searches may be sacrificed in order to defend
such legislation, depending on the outcome of the balancing test.
A judge will weigh the individual's interest in keeping his searches private
against the public interest in the government's obtaining the data. How
does he decide which interest prevails? By his subjective preferences? By
public opinion poll? This is no standard. Thanks to the right to privacy, we
enjoy privacy not by right, but by permission.
Perhaps it is contempt for the right to property that sustains our legal
system's idea that the only property entitled to vigorous protection from
government seizure is that containing "private" information. But Americans
must realize that where property goes, privacy follows. One may choose to
keep his thoughts and interests within the confines of his own mind.
Otherwise, to prevent unwanted disclosure of information, one needs either
an exclusive right to a place in which to store it, or a contractual agreement
of confidentiality express or implied with others to whom he voluntarily
discloses it.
It is therefore only through objective laws protecting property and contract
against warrantless government search and seizure, that we can safeguard
our privacy.
The term, "private," when used to describe information, is no more
objectively definable for legal purposes than is "obscene" or "pornographic."
The referents of such terms change with the fashions; what was once
considered strictly private information is today eagerly shared all over the
media and the Internet.
The terms "property" and "contract," by contrast, have definite referents.
Whether someone owns property or has entered into a contract is a fact;
common law doctrines allow judges objectively and predictably to
determine whether such rights exist in a particular case. This takes the
decision about what information to disclose away from government and
puts it where it belongs: in the hands of the individual.
One essential feature of totalitarianism is a government's ability to punish
citizens, not only for what they do or say publicly, but also for what they think
and value in the privacy of their own minds.
As one privacy advocate has said, a record of one's Internet searches is "a
kind of shadow of the thoughts within your head your interests, your desires,
your hobbies, your fears." If our government thus begins to have access to
the content of our minds whenever it decides that this might serve the public
interest, nothing can follow but a future of thought control.
_____________________
Amy Peikoff, Assistant Professor of Philosophy, United States Air Force
Academy.
| (c) 2006 The Atlantic Affairs |