Joho the Blog
An Entry from the Archives

People are mistaking indications of preferences for non-critical issues (as to how they'd like information provided to them) as sufficient to grant permission, or serve as evidence of agreement (a binding contract).

Firstly, the right to privacy is inalienable. One may well be able to sell private information (IP) to someone else (potentially making it public), or supply private information as part of a contract (that stipulates confidentiality), however, this does not grant any ability for a receving party to appropriate further private information.

One may go through the motions of having no privacy, but one cannot actually surrender one's right to privacy.

Secondly, the information pertaining to transactions between two parties is naturally private to both parties - independently. Both buyer and seller are aware of the facts concerning a sale, e.g. Fred Bloggs buys pile cream for $20 from DiscreetInc. There is no obligation upon either party to keep the fact of this transaction private/secret. It is entirely a matter of trust/reputation. Of course, if the seller indicated confidence would be maintained, and yet defaulted on that, then they should expect considerable loss of reputation (and trustworthiness).

Thirdly, some communication services are provided where the communications are not supposed to be privy to the service provider. If Facebook provides such a service then they have no right to inspect or disclose those communications (nor even the relationships). To contrive flaky mechanisms where people unwittingly privilege access to their communications and relationships to various parties is egregious.

If any organisation gets silly when it comes to pretending they have their own customers' permission to break their customers' trust concerning expectations of confidence and privacy, then they will deservedly come unstuck.

Of course privacy is valuable, and the ability to invade or violate it at will is bound to be highly coveted by nefarious organisations, but privacy being inalienable cannot legitimately be surrendered. Any private information obtained by deception or without specific, cognisant, and deliberate delivery by its owner should be subject to recovery at any time (and considerable damages if recovery is not possible).

Privacy (control over ones private materials) is over a thousand times more precious than copyright (control over ones published materials), so that should be a guide as to the seriousness of the issue to those thinking privacy is on the way out.

Au contraire, the less control there is to be had over what has willingly been made public, the far more important control over what is private becomes.

People may well choose to publish ever more personal information, but it doesn't follow that privacy has consequently become less important.

Crosbie, can you say more about why you think privacy is an inalienable right? That's a strong claim.

I'm especially interested because it seems to me that some degree of publicness is inevitable. The line between the public and private seems to me to be not only situational, but also hugely conventional. That's why I disagree with you when you say:

"If any organisation gets silly when it comes to pretending they have their own customers' permission to break their customers' trust concerning expectations of confidence and privacy, then they will deservedly come unstuck."

Some organizations won't come unstuck, I'm afraid. Rather, they will end up redrawing the line.

I suspect much of the problem comes down to the misbegotten notion that one can continue to own and control information even after one has voluntarily parted with it. We've lived with this received delusion for three centuries, but are only now realising how much of a fiction it is.

Privacy does not mean you have a right to control what people do with the information you give to them (whether it is of a personal nature or not), it means you have an inpenetrable barrier circumscribing your private domain and an absolute right of ownership and control over what happens to your information within that domain.

The private domain behaves like a bubble, but it does not remain attached to the information you voluntarily remove from it. If someone removes some private information without permission, then of course, it remains your private property in its own little bubble and should be restored.

The private domain is inalienable like one's shadow. One may show it to another, but it cannot be detached and sold. Information may be brought into it and removed from it like any material property into safe keeping, just as things may be illegitimately planted or stolen.

There are of course circumstances in which one person's privacy may conflict with another's, or circumstances in which life is at stake, that may necessitate invasion (inspection) or violation (exposure/removal).

So, if you provide a communications service then when I use it to convey private information (I connect my private domain with the private domain of another) I am not providing that information to the service provider (they have no right to it). On the other hand, if I was using a broadcast service to communicate to the public, then the service provider being a member of the public is a legitimate recipient/accessor.

This is the fundamental nature of privacy. It is not a tacit convention or norm open to adjustment for the purposes of commercial expediency.

Even so, I won't be surprised if the Facebooks of this world believe they can get legal privileges created to suit themselves, just as copyright was originally created to suit publishers.

However, eventually, the public reassert their natural rights. This means they will assert their natural right to communicate what is in their private domain or in the public domain whenever and to whomsoever they want, and jealously guard the secrecy of their private domain otherwise. Any organisation that contradicts this will suffer opproprium, irrespective of what the law says.

You can only redraw lines if you can patrol and enforce those lines. This applies to the state as much as any organisation.

You can kid people you provide a privacy preserving service and then renege in an asset stripping process, but people learn (eventually) and will adapt to require more agreeable contracts.

And there are far more individuals willing to draw and patrol lines delimiting their privacy than there are corporations or states who can redraw, erase, or blur them.

There are two inescapable facts concerning the information revolution that everyone is going to have to come to terms with:
1) Published information belongs to the public - its subsequent use and distribution by the public cannot be controlled by publishers or the state.
2) Private information belongs to private individuals - it cannot be appropriated and exploited (except by those sociopathic organisations about to go out of business).

And it doesn't matter what contrary privileges get slipped into the statute books. They cannot be enforced upon the public without consent by the public.

Ok, in extremis, fear may persuade a populace to stampede or be cowed into a police state, with privacy violating sanction for 'total information awareness', but such control over the masses doesn't last.

Crosbie, thanks for this. But I don't see why you claim that privacy is an inalienable or natural right. If I were to deny that -- and I think I do -- how would you support your claim?

Natural rights are constraints that all human beings are inclined and able to apply to each other in order to protect their interests.

The right to life is the first and primary. This encompasses equality and fraternity (against negligence).

The right to privacy is the second. This encompasses the right to private ownership and control over products or goods that one manufactures, discovers, or purchases whether of a material or informational nature. It also encompasses the right to exclusive occupation and control over one's private space (including access whether material or informational).

The right to truth is the third, with liberty the fourth.

One could conceive of a world without private property (communism), but this is at odds with human nature. One might even stretch further to a Big Brother dystopia where no private space existed, i.e. that the state's interest in its citizens overrode the citizen's natural interest in secrecy. No doubt the state would not reciprocate by allowing continuous inspection of its open processes by its citizens.

Privacy is fundamental to human nature. Human beings cannot help but pursue and guard it. If one respects this then one cannot permit people to divest themselves of their right to it. It must be considered inalienable. This doesn't prevent people reducing their privacy (permitting continued access to, and scrutiny of, what would otherwise be a private space), nor prevent people giving away all their private property, but it prevents anyone else claiming a greater right to another's privacy than the individual concerned.

This is why rights to life and liberty are also inalienable. One can place one's life in danger or give lifelong service as a servant, but no-one else can claim a greater right to another's life, privacy, or liberty.

Truth is also inalienable in that it is inviolate, one can keep facts secret, but one has no right to change the facts. Thus an author may have a right to anonymity (as part of their right to privacy), but they cannot surrender the truth of their authorship - though they are of course free to tolerate another's falsehood.

David, great post! I am thinking that Facebook has perhaps its own interests in mine and not just ours when it doesn't divulge personal information. That's because if it sold the personal information than the buyers might not come back, they might maintain their own lists. So its a way of protecting its assets.

Perhaps the right to privacy derives from our right to conscience which is arguably greater than our right to life. (In the Jewish and Christian traditions, you can be sentenced to death, but you can't have your conscience voided.) A certain degree of privacy (and of forgiveness) is essential so that people can be free enough of shame to have their own mind (even when they can't speak it). That makes privacy relative to each person's moral capacity - weaker people need more privacy. It also is compatible with the idea that it is wrong to shame people (applying social pressure to shut them down), but it is all right to help them feel guilty or simply question their behavior (applying personal position to open them up and ourselves as well).

Great post, and great comments too. I think Crosbie got it right that with the bubble analogy. There's very little one can do to control information once it's escaped.

On thing that's puzzling is why Facebook has aroused such controversy by doing the same tracking that DoubleClick and Google Adsense have been doing for years. Perhaps it is that Facebook is being more obvious about it or that, as David points out, the defaults are kind of creepy. I also think people are more concerned about information being shared with friends they know than they are about it being shared with faceless corporations. I am far more concerned about the latter, especially with insurance companies making underwriting decisions based on socioeconomic and lifestyle differences.