Privacy and Slippery Slopes

by Brian on June 6, 2007

Ever since Google’s street view service was debuted there have been “many discussions over its privacy implications”:http://www.google.com/search?q=%22Google+Street+View%22+privacy&hl=en&client=firefox-a&rls=org.mozilla:en-US:official&hs=G0c&pwst=1&start=90&sa=N. I’ve found most of these fairly overblown, but this morning I started to get a better sense of what some of the concerns might be about. Writing on the SMH’s news blog, Matthew Moore “writes”:http://blogs.smh.com.au/newsblog/archives/freedom_of_information/013696.html approvingly,

bq. Mr McKinnon reckons you can hardly have a reasonable expectation of privacy on a public street when every second person has a video camera or mobile phone and when Google is now using street-level maps with images of real people who have no idea they have been photographed.

I suspect we’ll see FOI campaigners (who are often attorneys for sensationalist media outlets) running this kind of argument more frequently. If that’s right, it suggests there is potentially a deeper problem with street view than just what it immediately does. It isn’t that street view arguably involves borderline privacy violations. It is rather that the existence of street view diminishes our expectations of privacy and hence, given the way privacy law works, turns what would have been clear cases of privacy violation into borderline (or non) cases.

I don’t have any clear thoughts about what the policy consequences of this might be. What I suspect we’ll have to see in the future is a move away from the ‘reasonable expectations of privacy’ standard to a more explicit list of the cases where privacy is legally protected, even though (given modern technology) people don’t expect this legal right to be upheld in practice. That would be a shame in some respects; standards like the reasonable expectations standard that are flexible and sensitive to real-world conditions generally make for better law than lists handed down from on high.

(I should add that I think the FOI campaigners are in the right over the case Moore is discussing. The person claiming to have their privacy rights violated was either involved in or standing around a fight that broke out at a taxi rank outside a nightclub. There’s neither a reasonable expectation of privacy there, nor a public policy that is served by granting privacy rights.)

{ 33 comments }

1

Shelby 06.06.07 at 11:18 pm

This argument’s been around for a long time in connection with, eg, security and red-light cameras: de facto recording –> less expectation of privacy –> less right to privacy. Google’s accelerated the process, but any large-scale project photographing unsuspecting people in public would do the same.

2

Dan Simon 06.07.07 at 12:34 am

In the US, at least, the notion of a “reasonable expectation of privacy” only comes up, as far as I know, in the context of the Fourth Amendment, and hence has nothing whatsoever to do with sensationalist media outlets’–or, for that matter, any private individual’s, group’s or corporation’s gathering, use or distribution of any kind of information about anybody.

Mostly, it’s used to invalidate democratically enacted “moral legislation” (drug laws, child pornography laws, and so on) by forbidding government officials from gathering evidence on offenders. For example, infrared scans of neighborhoods (to detect indoor marijuana farms) were declared unconstitutional under the “reasonable expectation of privacy” standard. Given the anti-democratic arbitrariness of that ruling, it’s hard to see why even a “Google infrared street view” would necessarily provoke a reversal.

3

notsneaky 06.07.07 at 12:47 am

it’s used to invalidate democratically enacted “moral legislation

Given the anti-democratic arbitrariness of that ruling,

As opposed to invalidating undemocratically enacted legislation? And yo, Dan, the whole point of having a Bill of Rights and a Supreme Court is to slap some checks on that democratic process!

4

Dan Simon 06.07.07 at 2:52 am

the whole point of having a Bill of Rights and a Supreme Court is to slap some checks on that democratic process!

That’s a common view in America, where democracy is generally distrusted on all sides. Personally, I believe the Bill of Rights is best read as a set of constraints on the government’s power to undermine the democratic process. But I understand that most Americans think of it rather as a handy mechanism whereby, if they can only get “their guys” onto the Supreme Court, they can save society from itself by dictatorially regimenting it according to their own particular preferences.

This is a bit of a digression from the original topic, though. My point was simply that Fourth Amendment jurisprudence has little to do with the particular notions of “privacy” that those who consider ubiquitous monitoring a threat hold dear. As Eugene Volokh pointed out (in defense of Kyllo, mind you), the Court’s prohibition of infrared scans had more to do with their assessment of the importance of finding marijuana farms than with the dangers to privacy of ubiquitous monitoring technologies.

5

John Quiggin 06.07.07 at 3:14 am

I disagree on the FOI issue. Effectively, the claim is that public surveillance implies an obligation to make the results of that surveillance available to the mass media, or, presumably to anyone else (say, private detective agencies) who wants it. I don’t see how this case has been made out at all.

6

bi 06.07.07 at 3:22 am

The Supreme Court is part of the US Constitution too. But maybe Dan Simon “believes” that Article III of the Constitution “is best read” as saying that there’s this thing called the Supreme Court which is merely a rubber stamp of the fickle will of the masses? (Which, mind you, is merely what Dan Simon “believes”.)

= = =

But the fact that “every second person has a video camera” doesn’t mean that every second person _should_ be allowed to use his video camera at any time and place, and to release the footage to whomever and wherever he likes.

7

Dan Simon 06.07.07 at 4:36 am

The Supreme Court is part of the US Constitution too. But maybe Dan Simon “believes” that Article III of the Constitution “is best read” as saying that there’s this thing called the Supreme Court which is merely a rubber stamp of the fickle will of the masses? (Which, mind you, is merely what Dan Simon “believes”.)

…And what Americans in general believed, pre-Marbury.

But the fact that “every second person has a video camera” doesn’t mean that every second person should be allowed to use his video camera at any time and place, and to release the footage to whomever and wherever he likes.

The First Amendment is part of the US Constitution too. But maybe BI “believes” that the First Amendment “is best read” as saying that there’s this thing called “freedom of speech” which is merely a rubber stamp of the fickle will of BI?

(Don’t worry, though–if you can only get “your guys” onto the Supreme Court, you can save society from itself by dictatorially regimenting it according to your own particular preferences, in this respect as in every other.)

8

Robin Green 06.07.07 at 12:03 pm

Well, Dan, let’s take your proposed interpretation of the constitution seriously.

How do you propose to write this into the constitution? I mean, obviously you do propose that, right – clearly it’s not being understood, so it should be written in there explicitly?

How do you propose to word an amendment whose effect is precisely: all attempts by Congress to “subvert the democratic process” are unconstitutional, but all attempts to “uphold the democratic process” are constitutional?

Does this mean that intrusive government search and seizure would become only be unconstitutional when it had the effect of interfering with the business of politicians and political activists, and not when it had the effect of merely being unjust?

And what do you think, realistically, are the chances of such an amendment achieving the necessary majority to be passed under the US’s democratic process for passing such an amendment?

I put it to you, also, that some congressional representatives in fact vote for laws knowing that they are unconstitutional (under our present understanding of that term), knowing that they will be struck down in whole or in part, or that they will fail to become law, in order to “have their cake and eat it”. They want to look good in front of some of their constituents, but they don’t actually want to deal with the issue seriously and constitutionally, so they pass some joke which is not going to pass constitutional muster (For example: the Communications Decency Act). And then they get to rail at the “activist judges” later on!

Upsetting this fine balance would derail one of the American political system’s most time-honoured traditions. I’m only half-joking.

9

Jackmormon 06.07.07 at 2:54 pm

I found my bedroom window on Google street view. The resolution and the angle aren’t quite invasions of privacy—yet.

10

Dan Simon 06.07.07 at 3:33 pm

I mean, obviously you do propose that, right – clearly it’s not being understood, so it should be written in there explicitly?

It’s been proven innumerable times over the years that being written into the Constitution is neither necessary nor sufficient for an idea’s being understood as governing the Constitution’s application. Far more important is that the legal and political culture embrace the idea that the Constitution’s purpose is to support and defend democracy, not undermine it.

I realize that that’s pretty much a fringe view these days, and that the opposite view–that democracy is dangerous, and needs to be limited by the benign dictatorship of a judicial junta–is so widely held in the US as to be simply assumed as obvious by most Americans. But that doesn’t mean I can’t complain about it.

Does this mean that intrusive government search and seizure would become only be unconstitutional when it had the effect of interfering with the business of politicians and political activists, and not when it had the effect of merely being unjust?

As I understand the history of the Fourth Amendment, it was originally intended for exactly this purpose–to prevent governments from using their police powers of search and seizure to disrupt the activities of political opponents.

This doesn’t mean, of course, that other types of search and seizure are automatically just. But it does mean that the boundaries between just and unjust searches that don’t affect the democratic process one way or another can safely be set through the democratic process itself.

I put it to you, also, that some congressional representatives in fact vote for laws knowing that they are unconstitutional (under our present understanding of that term), knowing that they will be struck down in whole or in part, or that they will fail to become law, in order to “have their cake and eat it”…Upsetting this fine balance would derail one of the American political system’s most time-honoured traditions. I’m only half-joking.

It’s hardly surprising that legislators shorn of all power except the power of symbolism occasionally resort to that power. That doesn’t mean they wouldn’t behave at least as responsibly as any panel of unaccountable lawyers in black bathrobes, if actually given the power to govern.

11

mpowell 06.07.07 at 7:11 pm

Actually Dan, the whole point of the life tenure on the Supreme Court is that on certain issues not having to answer to a public vote may make a person more committed to responsibility and principle. But don’t let me interrupt you’re ranting about black bathrobes.

12

mpowell 06.07.07 at 7:11 pm

that should be your

13

anne 06.07.07 at 7:45 pm

It can’t be many years away that we get online streaming from CCTVs on public streets, or even from cameraphones. Add to that a search capability (match this face) and – hey, people, there’s nothing to worry about if you have nothing to hide. Au contraire, if you are trying to hide, shouldn’t we all be asking you questions?

14

Dan Simon 06.07.07 at 8:00 pm

the whole point of the life tenure on the Supreme Court is that on certain issues not having to answer to a public vote may make a person more committed to responsibility and principle.

….Or not. Would you advocate it for the presidency, for example?

15

bi 06.07.07 at 8:15 pm

“I realize that that’s pretty much a fringe view these days, and that the opposite view — that democracy is dangerous, and needs to be limited by the benign dictatorship of a judicial junta — is so widely held in the US as to be simply assumed as obvious by most Americans.”

Well, if the “democratic” view of the “democratic” majority of the people is that absolute democracy with no checks on it is dangerous, then _what the hell is Dan Simon trying to do?_

Is he really trying to uphold the “democractic process”? But wait: he self-admits that the democratic majority disagrees with him. Which means he’s _not_ really trying to uphold the democratic process; he’s just trying to impose _his_ will on How Things Should Be Run (while accusing others of precisely that).

Dan Simon is clearly trying to undermine the democratic process — in the name of democracy. What a load of bollocks, Dan Simon.

16

bi 06.07.07 at 8:20 pm

(But should we be surprised that Dan Simon spews bollocks? That’s what he does, after all.)

17

Dan Simon 06.07.07 at 8:45 pm

Relax, BI–I’m not advocating imposing democracy by coup d’etat. (History has in fact shown repeatedly that it’s impossible to impose democracy on a populace that doesn’t want it. But that’s another debate entirely…) I’m merely trying to persuade Americans, in the best democratic spirit, that their system is insufficiently democratic, and that they’d be better off if they fixed it. It’s a Quixotic quest, to be sure, but one has to start somewhere…

(Thanks for the ad hominem, though–I always know my arguments are standing up well when those who disagree with me are reduced to angry spluttering.)

18

bi 06.07.07 at 9:05 pm

Dan Simon:

“I always know my arguments are standing up well when those who disagree with me are reduced to angry spluttering.”

Oh, that’s such a devastating line, you know. Your arguments hold no water that they can be so easily (and vehemently) refuted, ergo your arguments hold water.

And why not, you know, actually _listen_ to the democratic majority? Is it an “ad hominem”, is it “angry spluttering”, to point out that you’re not listening to the democratic majority whom you claim to represent in the first place? That’s not an “ad hominem”, that’s a basic flaw in your whole understanding of democracy. “Collective will” just means, well, collective will, not “one person who’s absolutely right tries to convince every one to follow his will”.

(Speaking of which, I’m amazed how some right-wingers like to argue that votes are everything when the votes agree with them (and Bush), but votes are not everything when the votes disagree with them.)

19

DILBERT DOGBERT 06.07.07 at 10:02 pm

My house on Google looks rather nice. However now more than ever we will be careful to keep doors closed and window blinds drawn. The garage door will be open only for the time required to get the car out. Just think when they have low flying aircraft views! Got to keep the junk cleaned up in the backyard and no sunbathing!
Enjoy your new Google overlords.

20

Dan Simon 06.07.07 at 10:14 pm

First of all, I’m not a “right-winger”, and I’m happy to criticize anti-democratic positions of all political stripes, including conservative ones. (Do keep those ad hominems coming, though.)

Secondly, I’m arguing that democracy is superior to its alternatives, in no small part because a democratic electorate is generally more receptive to minority arguments than is an insular, unaccountable ruling clique. It is therefore not the slightest bit inconsistent for me to attempt to persuade the American majority to listen to my arguments in favor of further democratizing their system. (I also recognize that a democracy is highly unlikely to adopt my every political proposal–but that a non-democracy is even less likely to do so. Again, my position is completely consistent.)

As for “listening to the democratic majority”, I daresay I pay much more attention to what they say than they have to me. So far, neither has convinced the other–but the disagreement of others doesn’t have the same hysterical effect on me that it seemingly does on you.

21

notsneaky 06.07.07 at 10:21 pm

….Or not. Would you advocate it for the presidency, for example?

Seperation and balance of power, dude.

Obviously you’ve never seen these:
http://www.youtube.com/watch?v=VV0b4bqnjfo&mode=related&search=
http://www.youtube.com/watch?v=ktuw7adBB40&mode=related&search=

22

Dan Simon 06.08.07 at 2:17 am

Seperation and balance of power, dude.

My question was directed at MPowell’s dubious claim that “on certain issues not having to answer to a public vote may make a person more committed to responsibility and principle”–not at the full panoply of standard arguments for a powerful judiciary. But I’ll grant that if I’d taken your advice and drawn all my understanding of political theory from children’s cartoon segments on American civics, my thoughts about democracy would probably be more simplistic and conventional.

23

bi 06.08.07 at 4:35 am

“So far, neither has convinced the other — but the disagreement of others doesn’t have the same hysterical effect on me that it seemingly does on you.”

That’s so _very_ not an “ad hominem”, Mr. Simon.

“…a democratic electorate is generally more receptive to minority arguments than is an insular, unaccountable ruling clique.”

_And the “accountable” “democratic electorate” has decided that it prefers the judiciary as is. So why do you still keep arguing against it?_ A democratic electorate is right, except when it’s wrong?

“But I’ll grant that if I’d taken your advice and drawn all my understanding of political theory from children’s cartoon segments on American civics, my thoughts about democracy would probably be more simplistic and conventional.”

“As for ‘listening to the democratic majority’, I daresay I pay much more attention to what they say than they have to me.”

I can see that very clearly from the above. You pay much attention to what the democratic majority _ought_ to say, which is to agree with you. The fact that the democratic majority doesn’t agree with you is just an inconvenient fact, and why should we let facts get in the way?

And, why should 300 million people listen to one dude who just happens to comment on a blog? Give me a reason, Dan. Give me a reason. And it had better be a darn good reason.

24

Dan Simon 06.08.07 at 5:51 am

So why do you still keep arguing against it? A democratic electorate is right, except when it’s wrong?

Precisely. I don’t believe, and my steadfast devotion to democracy doesn’t in the least require me to believe, that a democratic electorate is “always right”. Rather, I believe that the democratic process is the best available process for determining the laws of the land, even though it will sometimes–indeed, likely often–make serious errors.

One possible error, for example, is the rejection of democracy itself, typically through the election of leaders who dismantle, with the public’s necessary cooperation, the machinery of democratic accountability. (I certainly hope I don’t need to cite the obvious historical examples.) There is not much a defender of democracy can do in such circumstances, apart from reminding the public of the value of democracy, and exhorting the public not to abandon it. That’s really all I’m trying to do here, and I don’t see why it should trigger so much outrage.

And, why should 300 million people listen to one dude who just happens to comment on a blog?

Well, if you’re going to bring up the futility of commenting on blogs, then I’m afraid we’re both going to be a little embarrassed, aren’t we?

Look–we argue for what we think is right, because we think it’s right, and because we dare not despair that the world will forever be wrong. We’re–both of us–lone voices in the wilderness. Let’s not make fun of each other for that.

25

bi 06.08.07 at 6:37 am

Dan Simon:

“Well, if you’re going to bring up the futility of commenting on blogs, then I’m afraid we’re both going to be a little embarrassed, aren’t we?”

I’m not talking about utility or futility here. Give me _one good reason_ why 300 million people should believe that this one person (Dan Simon) is right.

“typically through the election of leaders who dismantle, with the public’s necessary cooperation, the machinery of democratic accountability. (I certainly hope I don’t need to cite the obvious historical examples.)”

George Washington, for example — he came up with this “Supreme Court” thing instead of putting all court cases to a popular vote.

“I believe that the democratic process is the best available process for determining the laws of the land…”

…where the Axiomatically Correct laws are, of course, determined by none other than Dan Simon himself. If you think the democratic process is good, then why can’t you just let the process work itself out?

But no. The only reason why infrared neighbourhoods should be legal, you say, is that it’s a “democratically enacted” law — a law is good _merely_ because it’s democratically enacted. That doesn’t sound like an admission that the democratic process is imperfect!

“We’re — both of us — lone voices in the wilderness.”

No. You are a troll. And agreeing with the majority obviously doesn’t make me a “lone voice in the wilderness”.

“I don’t see why it should trigger so much outrage.”

Because you keep spouting outright nonsense like your statement above? Nonsense doesn’t become sense just because you give that “Help! Help! I’m being repressed!” look.

26

richard 06.08.07 at 8:01 am

bi: you’re being pretty trollish here yourself. At the very least you’re troll-baiting. Is this argument worthwhile? What do you hope to achieve by it?

27

bi 06.08.07 at 8:38 am

“What do you hope to achieve by it?”

I can never get why people even ask such a question (after all, blog discussions are usually quite ludicrous in the first place). But how about, say, showing that saying “infrared scans of neighborhoods” should be legal _merely_ because it’s a “democratically enacted” law doesn’t exactly hold water? And I believe I’ve successfully shown this.

28

bi 06.08.07 at 8:48 am

And, I apologize for the accidental troll-baiting.

29

Dan Simon 06.08.07 at 3:21 pm

Give me one good reason why 300 million people should believe that this one person (Dan Simon) is right.

The arguments for “judicial minimalism” are well-known–numerous books have been written about it. (Learned Hand was a famous exponent, for example.) I won’t rehash the arguments here–we’ve digressed quite a bit already. But we’re not talking about a 1-vs.-300-million thing, although I grant that judicial minimalists are a small minority in America.

George Washington, for example—he came up with this “Supreme Court” thing instead of putting all court cases to a popular vote.

There’s a difference between the courts applying democratically enacted laws to specific cases, and the courts invoking the Constitution to invalidate said laws based on what amount to public policy judgments.

…where the Axiomatically Correct laws are, of course, determined by none other than Dan Simon himself.

I’ve already explained that I don’t expect a democracy to come to the correct conclusions all the time, and I certainly don’t expect it to agree with me all the time. I do, however, expect it to work democratically.

The only reason why infrared neighbourhoods should be legal, you say, is that it’s a “democratically enacted” law—a law is good merely because it’s democratically enacted.

“Good” is the wrong word–I’d use the word, “legitimate”. Perhaps you’ll understand better by reading this argument, where I explain why racial preferences, which I consider to be a terrible thing, nevertheless should not be abolished by the Supreme Court.

30

abb1 06.10.07 at 9:00 am

I’m arguing that democracy is superior to its alternatives, in no small part because a democratic electorate is generally more receptive to minority arguments than is an insular, unaccountable ruling clique.

The word ‘democracy’ here is being used, of course, as a short for ‘liberal democracy‘.

‘Liberal democracy’, of course, has the rule of law, separation of powers, unconditional guarantee of certain freedoms, etc. right there in its definition.

So, the logic here seems to be that because liberal democracy is superior to everything else (let’s assume for the sake of argument that it’s true), it needs to be destroyed.

Not very convincing, sorry.

31

Dan Turner 06.11.07 at 6:27 am

“But how about, say, showing that saying “infrared scans of neighborhoods” should be legal merely because it’s a “democratically enacted” law doesn’t exactly hold water? And I believe I’ve successfully shown this.”

Your argument was that some laws will be “unjust,” and that this is a method by which to determine if a law is good. Your argument is, as I understand it, there is some system of justice in the world, and it is a better guide for what laws are legitimate than whether those laws are reached by democratic means or not.

A shorter version, to highlight the blindness of this view: “Laws which are just are good, and good laws are just.” The mechanism for determining justice is either democratic or you’re a horse’s ass for banging on the drums of “who are you to disagree with 300 million people.”

I know I’m late to the party, but bi’s nastiness compelled me. My own tone is beyond reproach, because it’s just. And if that sounds silly, well. . .

In response to abb1, Dan Simon states explicitly that what he’s interested in protecting is the democratic process, and all other parts of the state are pretty much up for constant change by democratic means. So, in that rule of law is necessary for democracy to not be subverted, I imagine he’s for it. Same deal with any guarantee of rights. Those rights which are necessary for economic or social equality can be altered, those which are necessary for ensuring equal access to political voice can not. Separation of powers, not so much. That you aren’t convinced by these arguments is indeterminate, because I can’t tell what you are unconvinced by; his arguments, or your interpretations.

I wouldn’t like to live under the government of Dan Simons, though, because I think that people, recognizing they are imperfect, have sought to limit the impact of that imperfection on their lives. So they set up all kinds of constitutional devices which delay their future attempts at political gratification. That doesn’t mean I don’t respect democracy as the best mechanism for determining values of justice, it means that I want that process to be less volatile. And more likely to err on the side of government non-intervention, because autonomy is crucial for happiness. I see this balance as less likely to result in a democracy which isn’t happy with its government.

32

abb1 06.11.07 at 9:56 am

I’m not convinced by the argument because it sounds confused or demagogical.

The much admired ‘democracy’ – that according to a widely accepted doctrine is the best form of government – is a concept that presupposes certain characteristics.

Now, Dan Simon is trying (paradoxically) to use ‘democracy’s excellent reputation (“democracy is superior to its alternatives”) to strip it of its many essential characteristics. The idea that Dan’s version of ‘democracy’ (‘liberal democracy’ deprived of its essential characteristics) would still be “superior to its alternatives” is not at all obvious and would require some serious defense.

See, what about this one, for example:
1. Owning a house is a good thing.
2. We want more people to own houses.
3. We need to make houses less expensive so that more people can own houses.
4. Therefore let’s start build houses without roofs.

Well, but a house without a roof isn’t much of a house, is it? So now I have to go back to item 1 and perhaps reconsider the whole thing.

33

Dan Turner 06.11.07 at 6:07 pm

abb1 – Well put. In defense of this idea that democracy without the reputation is still a Good Thing ™, I think the claim made is that the only justifiable part of a liberal democracy is that it defines the values of government democratically. All the other things which you want to see in your democracy, like a form of social equality or privacy rights, are things which are either agreed upon by vote, or by congressional vote (democracy, representative democracy) and then pursued by government. If they aren’t democratically chosen, then you’ve reached the whole point of Dan Simon’s argument, which is that these rights are part of the government under which we all live, but we the people are too irresponsible to be trusted with governing ourselves. So the value of Dan Simon’s form of democracy is that he can justify it, versus some argument for government in which the people do not control their government, and proposing such a government makes one look a bit snobbish.

Basically, democracy in its purest form is good, because all other forms substitute what’s best for the people for the will of the people.

As I said in my last post, though, I think democratic governments can operate with less volatility and with more safeguards and still be democratic because we want the government to be less able to do harm strip us of our autonomy. And we want the government to protect values of liberty which aren’t necessary to democracy, and which without constitutional safeguards we are likely to throw out more quickly than will ultimately make us happy.

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