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The "Right to Privacy"

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For example, if Steve is John's lawyer and in connection with the attorney-client relation he learns this fact, then he does not have the right to disclose the fact.

That's exactly what I was discussing with my roommate yesterday. We were watching the Practice (or something like that), where after winning a case, the lawyer who defended his client finds out that his client is in fact guilty (although he was found innocent). My friend studies law, so we talked about it a little and he said that even if the lawyer did speak out about this new evidence he found (the murder weapon hidden in his client's - and friend's at the same time - stash), it would not be accepted in the court of law.

I suggested a what if scenario where the lawyer speaks to the police (we built a new context which was the lawyer finding the murder weapon prior to the verdict being spoken), and knowing the location of the murder weapon, the police would then build a new thread of evidence which would lead them to it. My friend said that it would still not be possible to use this in court, except if the fact that the lawyer had spoken to the police was omitted from the records.

Now I'm wondering what would have been the moral course of action for the lawyer. Would it be moral for him to speak to the police, or keep silent about this proof? Or would the only moral course of action be to state on record that he can no longer represent his client, AND still keep silent? It seems that whatever he chooses, he is being immoral.

If he speaks to the police, he is violating the attorney-client relation. But if he doesn't, he is concealing the truth from justice. So which is it?

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Now I'm wondering what would have been the moral course of action for the lawyer. Would it be moral for him to speak to the police, or keep silent about this proof? Or would the only moral course of action be to state on record that he can no longer represent his client, AND still keep silent? It seems that whatever he chooses, he is being immoral.
The moral thing is for rights violators to receive justice; if an attorney learns of a material fact, that fact should be made known. Suppressing the evidence is faking reality (which isn't moral). The issue as I see it is how to make this jibe with ethical rules, and obviously this is an area where ethical rules would need to be changed (as I interpret the Ohio rules, you would be bound to keep your yap shut if you learn from the client where he stashed the weapon), but this is structurally a simple matter. There are factors that allow you to tell on a client, basically a variety of things that count as your own interest (the client is trying to screw you out of your fee, to charge you with misconduct, you are ordered to reveal, it would be illegal to suppress the information) or the client in planning a crime. The limits on the attorney-client privilege are encoded in law, so if an attorney were legally obligated to make known any material facts, that would answer the betrayal issue.

There are good reasons why there are these ethical rules on what an attorney can reveal, so this isn't a change that should be instituted lightly. If the evidence is definitive proof, it should be considered; OTOH if the evidence were nonprobative and would merely increase the force of a dubious case (perhaps being the camel that broke the straw's back), it should not be considered. Guess who gets to decide... Actually, I would suggest that an independent professional panel should make that decision (i.e. three judges, or perhaps a judge, defense lawyer and prosecutor).

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That's exactly what I was discussing with my roommate yesterday. We were watching the Practice (or something like that), where after winning a case, the lawyer who defended his client finds out that his client is in fact guilty (although he was found innocent).

Attorney-Client privelage wouldn't matter in this case anyway (I believe), because since he has already been acquited he cannot be tried again for the same crime without violating the Fifth Amendment protection against Double Jeopardy.

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Someone earlier mentioned x-rays. For the Supreme Court's view on why the use of a thermal imaging device to detect heat inside someone's private home from a public street is a "search" under the Fourth Amendment, see Kyllo v. U.S., 533 U.S. 27 (2001).

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If there is no right to privacy in objectivism:

You are a local schoolteacher and a customer of your local supermarket. From your purchases, the supermarket builds a profile of you over several weeks. They sell this to a marketing company, which then does some more data mining on you and decides that based on available data, there is a 90% chance you are gay.

You then start receiving junk mail en-masse selling homosexual products/services. Your local postman now knows your gay, and starts gossiping in the local pub, where you can no longer go thanks to the attitudes of some of the punters there.

It soon gets out that your gay because the postman's son is a pupil at your school, your colleagues treat you differently and the pupils bully you and vandalise your car and home. You might not even be gay!

You cannot even move to another town, because your data records are kept indefinately and it only takes a matter of weeks before you are receiving the junk mail again.

This is where we are heading; the above scenario is increasingly a potential reality. It doesnt have to be homosexuality, but any aspect of private information about yourself that you do not want to be publically known, and have not told anyone about.

Just think, when everyone is going around with WIMax phones, that have adverts on them that change depending on your profile, and which WImax service you are on - this is another way to reveal information about a person without their consent.

Is this ethical?

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There are several points in your scenario that disqualify the thesis you seem to be defending: that the publication of information garnered about you through legal means can be unethical.

If you are gay and are trying to hide it, there lies your problem. If you are not gay and someone says you are, sue for diffamation (in the sense of spreading falsehood, not that being gay is bad). If you go to a bar and are assaulted, for whatever reason, that is also a crime.

If your purchasing habits lead to some information about you that you don't want to share, you can always enter a contract with your supplier that forbids him to share information (if he is willing to do business with you on those terms).

mrocktor

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Is this ethical?

If data-mining like this were a significant problem for a lot of people, then I'd imagine the 'privacy respecting' supermarkets which advertised that they did not process/sell customer information would receive a lot more business. Of course, those supermarkets which were collecting additional revenue from marketing companies would probably be able to sell their goods at lower prices, so it might end up coming down a choice between whether cheaper products or privacy was more important to you. But I'm not sure why this is necessarily a bad thing; its just consumer choice. If it were really that much of a problem, then you could use the supermarket for your normal grocery shopping and order your vaseline and cucumbers over the internet.

Anyway, that isnt how data-mining works. How do you think the supermarket would obtain your name and address without your permission?

Edited by Hal

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Is this ethical?
Mercy sakes, I don't think it's even plausible. What in the world are your buying habits that lead confidently to the conclusion "That guy is gay"? Randy, maybe. [Cucumbers and vaseline?! Ew!] Will this then lead to every gay porn place in the country mailing envelopes festooned with pictures of men in flagrante? No, that is what plain brown wrappers are for. Remember, these places are trying to make money, not piss you off. The postman (or his UPS counterpart) is subject to privacy rules -- if you're curious about that, next time you see the UPS man deliver a package to a neighbor, try asking him "Who sent Smith that package?". He will politely inform you that discussing the matter would be against company policy, and as his boss at UPS I would fire his ass instantly if he was found violating company confidentiality rules. Teachers get harassed constantly because of punk kids. A teacher can be assaulted because a kid is a punk, plain and simple -- it doesn't require thinking "Oh yeah, and he's gay too". Assault is a crime, which is where you should address the rights violation. Collecting observations about a person is not a crime, as long as there is no tresspass in the data-gathering.

You are not forced to sign up for grocery-store clubs: you agree to the terms (read the ageement). You are not required to accept cookies on your browser: it's not my problem if that blocks you from using web sites with cool stuff. If you are concerned about your privacy, you should ask (at the store, the garage, work, wherever someone might know something about you).

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Mercy sakes, I don't think it's even plausible. What in the world are your buying habits that lead confidently to the conclusion "That guy is gay"?

The aforementioned cucumber and vaseline, purchased along with a pack of condoms and some batteries, would probably suffice. The look on the face of the store assistant serving you would be amusing anyway.

But more seriously, he might be buying a gay lifestyle magazine or something.

Edited by Hal

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Anyway, that isnt how data-mining works. How do you think the supermarket would obtain your name and address without your permission?

Store card, home delivery.

I agree the position I put forward is rather untenable; but a similar point was put forward in my class last week and I am currently writing an essay on the Ethics of Data Mining. I agree its not particularly plausible, also I dont think that you can claim an action is immoral if it only allows a 'potential' violation of rights - a couple of days back my friend remarked that Macdonalds should be fined because its customers were dropping litter all over the local bus stop - I think that in principle this is the same argument - the company is not violating any rights - other people are.

thanks for your comments - can anyone define privacy?

Nick

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can anyone define privacy?
Something is public if anyone has the right to it, otherwise it is private. Privacy is the noun referring to that relationship, so when you speak of a right to privacy, that means you are claiming the right to exclude some people from some aspect of your life. Typically in contemporary society the concept is used only with reference to information, but you'll see it used to refer to a private club or private property), and it is at the heart of Roe v. Wade (which was not about access to information).

The foundation of a "right to privacy" is the concept of an agreement especially the contract, where one party agrees to provide certain information (and possibly other consideration) for goods or services, which the other party provides. The agreement will (or should) state any restrictions on the provider-party's use of the information, which can range from being treated as utter top secret to being sold many times.

Web pages (most prominently) pose the greatest conceptual quandry for most people. Any information you put out there online, regardless of your hidden wishes, is public, unless you put it behind a locked door. Many people think, though, that online content is somehow "private", which it is not, except of course if you password protect the data. Your failure to password-protect the data is an indication that you are making the data publically available. Posting a warning notice -- the equivalent of a "No Trespassing sign" -- does not protect that page since in order to see the notice you must read the page, but it could theoretically protect any pages linked therein. However, the Google-bots will eventually dig out the embedded content if there is an actual link in the higher-level document. And, at any rate, it's hard to see that such a "warning" has any legal status. The main point is that "private" means "not public", and says that you have the right to exclude someone from something.

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Ayn Rand on privacy, from Roark's speech in The Fountainhead:

"Now observe the results of a society built on the principle of individualism. This, our country. The noblest country in the history of men. The country of greatest achievement, greatest prosperity, greatest freedom. This country was not based on selfless service, sacrifice, renunciation or any precept of altruism. It was based on a man's right to the pursuit of happiness. His own happiness. Not anyone else's. A private, personal, selfish motive. Look at the results. Look into your own conscience.

"It is an ancient conflict. Men have come close to the truth, but it was destroyed each time and one civilization fell after another.
Civilization is the progress toward a society of privacy
. The savage's whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.

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While in most cases I should be allowed to pass on information that I know about from someone. There is some information I share with others under an implicit (rather than explicit contractual) understanding that I am doing so privately. For instance, information I share with my doctor.

Morally/ethically, if another person can reasonably expect me to keep certain information about him secret, then I ought not share it.

It seems reasonable for the law to say that certain categories of information, given under certain circumstances cannot be shared except for purposes related to that transaction, unless permission to share is explicit. Indeed, David's postman/UPS example is a great illustration where the law can state that privacy is a reasonable expectation, unless expressly given up.

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The aforementioned cucumber and vaseline, purchased along with a pack of condoms and some batteries, would probably suffice. The look on the face of the store assistant serving you would be amusing anyway.

Howdy all,

I know this may be a little off topic, but I was reading this thread and this quote made me chuckle.

Actually, I have a sort of an odd tradition. On Halloween, or "Beggar's Night" if it doesn't fall on the 31st of October, I will go to the store, buy a bag of apples, a caramel apple kit, and a box of safety razors. Most years no one notices, but on the odd year, I get some seriously odd looks. What can I say I like long term comedy?

Rob

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Web pages (most prominently) pose the greatest conceptual quandry for most people. Any information you put out there online, regardless of your hidden wishes, is public, unless you put it behind a locked door. Many people think, though, that online content is somehow "private", which it is not, except of course if you password protect the data. Your failure to password-protect the data is an indication that you are making the data publically available. Posting a warning notice -- the equivalent of a "No Trespassing sign" -- does not protect that page since in order to see the notice you must read the page, but it could theoretically protect any pages linked therein. However, the Google-bots will eventually dig out the embedded content if there is an actual link in the higher-level document. And, at any rate, it's hard to see that such a "warning" has any legal status. The main point is that "private" means "not public", and says that you have the right to exclude someone from something.

Howdy All,

I am in complete agreement with you on this one. If anyone wants proof, simply google your username for this forum. If you have posted, it will most likely pop up. Mine did at any rate, and I am far from a frequent poster. I am lazy, so I use the same username damn near everywhere on the net. What can I say? It is easily remembered and never taken as a nick. When I googled my username I was surpised, at what I found.

I think people are sort of lulled into believing that the net is private, in some ways so was I. I mean really most people are using the net from the comfort of their homes and unless instant messaging, communicating into the "ether". What one does in ones home is private right, even by the most wacked out view of the 4th amendment?

However many people forget that, at the moment essentially the internet is a big assed bulletin board, open to any who are willing to read it.

As for "Your failure to password-protect the data", which I read as "Your failure to encrypt the data".

There are two problems with encryption. One; Is it really feasible to obtain encryption software that the NSA, can't crack? Two; Having obtained that software, won't that just pique their curiosity?

Really, what with it being the 21st century, and not the 18th, we need a serious re-write of the 1st and 4th amendment. Honestly we are able to share information more freely than the Founders were.

I hope this does not happen in the current political climate, because the republixians, and the dipshitocrats will completely f*ck it up, but I futher hope that at some point the privacy of internet, will become a recognized right.

Rob

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This is funny... Really there should not be rights of privacy if what your doing doesn't affect other people badly. Logicly and only theoraticly that works. Human are volatile: some can care less who knows what thier doing and some will keep something secret just because they don't like people who they don't know and they dont' trust those people.ok ?

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