NY Times Sues Government

[Proverb]

Though it is sad that we need such laws as the 'freedom of information act' I think that it is a good tool to unearth some of the bad habits of the government.

The New York Times is suing the Pentagon for the documents and correspondence that detail the extent of the NSA's spying on America.

I'm very interested in discussing this issue so, to start:

Is government spying one more on the list of ways the government is overstepping its proper (ought to be) role?

also,

I haven't been clear on the concept of a 'right' to privacy. Is it a right? Obviously trespassing on property or intercepting physical correspondence is wrong but at what point (if any) do the radio signals emanating from our cell phones or other examples like that lose their confidentiality?

curious...

[Spano]

My take on the wiretapping is that it is basically a legitimate program. I think the argument given by the administration, or at least part of it, is the correct justification: we are at war, the enemy uses communications to further its goals, the government's job is to disrupt the enemy, therefore wiretapping enemy communications is a proper means to the end of prosecuting war. Certainly, listening to the communications between U.S. citizens and suspected terrorists is a good thing. I appreciate it.

The one thing that raises a minor issue for me is the issue of judicial oversight. If the executive wants to eavesdrop on communications of American citizens running through American property (networks), it ought to have some kind of oversight. The main obstacle with this, as I understand it, is that even getting a FISA warrant takes weeks of paperwork, and is thought to be too slow by the administration, which sounds reasonable to me. It seems like the whole controversy should have an easy fix - get Congress to make the necessary changes to the FISA bureaucracy such that it achieves the goal of speed and efficiency, while retaining judicial oversight. Of course, it is a good question whether Congress would actually do so.

On the "right to privacy", there have been a couple threads that have talked about this in the past. For my part, I don't think that any "right" to privacy exists apart from the basic rights to freedom and property. When it comes to information, one should have the right to refuse to divulge information and the right to make contracts about the use of information transferred to others. When it comes to communication services, your only legitimate claim to the right to privacy of the data transmitted must come from a contractual agreement by the service provider to keep your information secret. Absent a contract, I can't see any basis for claiming privacy (and hence control) of information after it leaves your hands, or mouth, or keyboard. So, if AT&T writes in their user agreement that they will comply with government requests to tap communications, you cannot claim a violation of privacy when that occurs.

As far as government snooping, I don't understand how the mere act of obtaining information constitutes a threat to anyone's rights. There seems to be a sentiment that the wiretapping, in and of itself, is a breach of rights. While some of this surely stems from a far inflated view of the alleged "right" to privacy, I also think it ignores the difference between having information and acting upon it. If the FBI knows something about me, my rights are intact. It's when they take action that my rights could potentially be violated. As long as the *action* of the government is monitored and constrained with checks and balances, I don't understand why its possession of information constitutes a threat at all.

Comments?

[The Wrath]

Few people debate that we should be spying on the enemy. What people are saying is that it should be done in a legal manner. In this case, time is not an issue, because they could have gone to the FISA courts after the spying was conducted and gotten a warrant, as per the FISA Act. The argument is that, since they did not, it was illegal.

I don't know enough about the situation to make the judgement of whether it was legal or illegal. However, this is a nation of law. If the law was broken, the administration should be punished, even if it was for a legitimate purpose.

[Spano]

For what it's worth: Why Bush Approved the Wiretaps

This doesn't go into the legal issue as much as the motivation behind the program.

[Proverb]

I agree that when using a particular communication service, the 'privacy' of the information is subject to whatever agreements or contracts between the company and users. I also understand your take on the issue of the 'right' to privacy as it stand in the media today.

However, what comes about when one considers the use of serendipitously acquired data?

For instance, say someone is covertly listening to a conversation between a friend and myself through a means which allows me to maintain that I am communicating securely. No matter the content of the information acquired, would that person be violating my rights if he were to broadcast the information on the internet thus leading to an undesirable result, whatever it may be?

In other words, where does the dissemination of 'spied' information become a violation of rights? Does it?

Even if the information simply disrupts the effectiveness of a surprise birthday party, is that not a violation of my rights?

[DavidOdden]

For instance, say someone is covertly listening to a conversation between a friend and myself through a means which allows me to maintain that I am communicating securely. No matter the content of the information acquired, would that person be violating my rights if he were to broadcast the information on the internet thus leading to an undesirable result, whatever it may be?

No, not at all, unless that information was legally protected (i.e. copyrighted), or constituted aiding and abetting theft (publishing credit card numbers).

Even if the information simply disrupts the effectiveness of a surprise birthday party, is that not a violation of my rights?

What right? The right to a perfect surprise birthday party? The right to have everything go the way you'd like? If you can explain what right you mean, without reference to this wonky notion of a "right to privacy", perhaps I could see your argument.

The basic principle is, if some piece of information is so vital that you could not live if it were revealed, then don't reveal it. To anyone.

[Proverb]

I think I've been scooped up to some degree by this right to privacy stuff. It's beginning to be a lot more clear to me.

[Spano]

For instance, say someone is covertly listening to a conversation between a friend and myself through a means which allows me to maintain that I am communicating securely. No matter the content of the information acquired, would that person be violating my rights if he were to broadcast the information on the internet thus leading to an undesirable result, whatever it may be?

I like to reduce information privacy to more tangible situations, because it is easier to see the principles involved. If you are in the birthday store, and whisper to your friend something about the party (you think, by whispering, the communication is secure), another customer hears and proceeds to ruin the party, have your rights been violated? I would say no - you risked leaking the info, even though you tried to be secure.

In keeping with the property grounding of privacy, I would go so far as to say whenever you leave your property, you forgo any claim to privacy absent legal agreements. When speaking, your words travel into "public space", open to anybody's ears. When you transmit over a wireless connection, you do a similar thing, only it takes more effort to eavesdrop. When it comes to a wire, unless you have a contractual claim on the use of that wire, you have no control over the information you put on it.

Note that the *use* of information, for whatever ends, constitutes an action which could be subject to the prinicple of the initiation of force or fraud. Hence, use of spied data to blackmail somebody would be covered as blackmail, not "privacy violation." Perhaps somebody can think of an example where this analogy doesn't hold?

[Proverb]

Yes, I think that is an important distinction.

I would venture to say now that, the acquisition of information that does not infringe on any basic rights of the individual is not subject to moral evaluation. The the fact that one was able to acquire this information in this way is akin to it being a fact of reality. It is only when someone acts on this information that the situation becomes open to moral evaluation.

[Unconquered]

No, not at all, unless that information was legally protected (i.e. copyrighted), or constituted aiding and abetting theft (publishing credit card numbers).What right?

If somebody snooped on what was intended to be private communications, even going so far as to hack encryption, it certainly should be illegal. There is certainly no "right" for anybody to get private information that was not publicly offered to them by the person creating the information, who has an implicit ownership of it until they choose to make it public, or it becomes public through their own outright negligence. Hacking encrypted private communications would most certainly be a criminal act of force, no less than breaking into somebody's house and taking pictures of the contents.

To quote from Howard Roark's courtroom speech: ""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."

[Proverb]

... Hacking encrypted private communications ...

Yes indeed, if you break into someone's home and splice into wires on someone's property to gain access to a private and closed network then yes it would be illegal.

until they choose to make it public...

Over the internet.

Breaking encryption on the internet to gain information is not a violation of rights. The internet is widely understood as mutually interconnected so there is no guarantee of the safety of anything traveling over it. It's like saying that it would be wrong to attempt to understand someones conversation in some obscure language that you overhear in a common area like a beach or something.

Again, the use of whatever information you acquire is up for moral scrutiny but the simple act of attaining it under non-violating means is not.

The word 'privacy' in your quote is used as a metaphor. Or at least not in a way that relates to the kind of 'privacy' that we are discussing here.

In terms of 'sensitive' information, there is always an inherent risk in actualizing it in any physical way.

My take on this issue has changed dramatically after some reflection and time in the chat room.

"Information" is not property. I cannot own the information about my shoe size for example, because it is simply a fact. When an individual actualizes, physically, verbally, digitally, or otherwise a piece of information it becomes an aspect of realty observable to anyone. Barring of course legal contract or a necessity of property ownership to view (in a house or safe or private network).

Does anyone think I'm totally off track here?

[Hal]

No, not at all, unless that information was legally protected (i.e. copyrighted), or constituted aiding and abetting theft (publishing credit card numbers).What right? The right to a perfect surprise birthday party? The right to have everything go the way you'd like? If you can explain what right you mean, without reference to this wonky notion of a "right to privacy", perhaps I could see your argument.

My words are my property and hes taking them without my permission and against my will, hence its theft (this is exactly the same argument that people here use to justify intellectual property legislation).

Edited March 1, 2006 by Hal

[DavidOdden]

If somebody snooped on what was intended to be private communications, even going so far as to hack encryption, it certainly should be illegal.

But then you've crossed a property line to gain access to the information. From the context of Proverb's question, I am assuming that we are only talking about information obtained without trespass. (In the context of computer communications, the utter lack of private property between my house and the recipient's location, when it comes to data transmission, is a major problem in rights, in the modern world. In a proper capitalist society, a property right to secure data transmission would exist. That is not the case with the Internet, unsurprisingly given that it was invented by that communist moron Al Gore. Since by law I can't have an actually secure internet connection out of my house, I don't oppose collective-legislative means of protecting what would be a contractual property right in a capitalist society).

There is certainly no "right" for anybody to get private information that was not publicly offered to them by the person creating the information, who has an implicit ownership of it until they choose to make it public, or it becomes public through their own outright negligence.

No, certainly that stranger has no claim on my conversation, so any use of force to obtain the information is clearly wrong and should be met with the full force of the law. Laws that force people to reveal information are utterly vile (unless, of course, we're speaking of a contractual obligation to provide information). A person has the right to publically or privately distribute information if they chose, and if they do so, then I have the right to use that information as I see fit (again, assuming that the use isn't itself a rights violation, such as theft).

[Spano]

Perhaps the common definition of privacy is useful here:

"The state of being free from unsanctioned intrusion: a person's right to privacy" - dictionary.com

I believe this is a good definition, so long as it recognizes its proper derivation in the rights to freedom and property. You have the right to be *free* from intrusion, and you have the right to prevent unsanctioned access to your *property*. I think the issue of property is a prerequistite for privacy, because otherwise the issue of sanction does not apply. I may not sanction intrusion into some space or object, but unless that is my property, I have no right to prevent such intrusion, and therefore no right to privacy.

When I read the quote from John Galt, "Civilization is the progress toward a society of privacy.", I read this as "Civilization is the progress toward a society that recognizes freedom of action and property rights." Unless there is another way to derive the notion of privacy, I think this is the proper way to look at it.

There is certainly no "right" for anybody to get private information that was not publicly offered to them by the person creating the information, who has an implicit ownership of it until they choose to make it public, or it becomes public through their own outright negligence.

This is true, but the question is whether or not there is any "right" to claim control over information once it is out of your hands. Nobody can break into your computer to steal information, but do you have the right to dictate the viewing and use of information once you transmit that across either a public space (radio waves, sound waves), or a third party's space (ISP)?

If somebody snooped on what was intended to be private communications, even going so far as to hack encryption, it certainly should be illegal.

By calling the communications "private", we again are faced with the question: what communications are legitimately considered "private"? I would say the only valid way is if the communications are secured as legal property through the entire channel, through contracts. If I have sent a letter with a shipper and they agree to keep my letter secret, then it is private. If I send data over an ISP's network with whom I have privacy agreement, then it is private. But I don't see how you can still claim privacy when this condition is not present.

That's why I question the idea that by the fact it is encrypted, data should automatically be considered private property. I would say this is only true when legal ownership is still established (contracts). If I find a piece of paper with an encrypted message has drifted onto my lawn, should would it be illegal to decipher it? Perhaps we can consider encrypted data like a letter inside an envelope, and classify decryption as equivalent to tearing open the envelope. This seems reasonable, but I still wonder whether tearing open an envelope found in a public space or no longer on the owner's property should be illegal.

This is a tough topic, I look forward to more insights.

[DavidOdden]

My words are my property and hes taking them without my permission and against my will, hence its theft (this is exactly the same argument that people here use to justify intellectual property legislation).

If you want to copyright your words, you may, and that gives you a limited, extinguishable legal right to control creation of further copies. Note however that copyright does not entail "a right to prohibit reading". Suppose you write a book and you've authorized one legal copy, which is made by Smith. You cannot prevent Smith from reading that copy, nor can you prevent me from reading it if I find his lost copy. As owner of the property, Smith may be able to prevent me from doing something with his property, but let's stay off the topic of lost property. Also bear in mind that with copyright, you can at best only protect a literal text and not the conceptual content. You cannot copyright the sentence "Let's have a party for Joe", and even if you could, my saying "They're planning a celebration for the janitor" is not a violation of your copyright.

[Unconquered]

Breaking encryption on the internet to gain information is not a violation of rights. The internet is widely understood as mutually interconnected so there is no guarantee of the safety of anything traveling over it.

"Breaking into your house to gain information is not a violation of rights. All houses are widely understood to be mutually interconnected by a network of public roads so there is no guarantee of the safety of anything traveling over it, including burglars who wish to break your locks and forcibly enter your home."

Another analogy would be: Most roads are public roads, therefore you have no expectation that a carjacker won't force you off the road, break in to your car, and steal it.

And yet another analogy: Virtually every phone in the world is interconnected. Therefore it's ok for anybody to tap your phone line and record and disseminate your phone conversations; you shouldn't expect otherwise, and it should be legal to do so.

Edited March 1, 2006 by Unconquered

[Proverb]

This issue relies heavily in deciding whether or not 'information' is property. All thought on that question has led me to think that 'information' (strictly) is not property.

"Breaking into your house to gain information is not a violation of rights. All houses are widely understood to be mutually interconnected by a network of public roads so there is no guarantee of the safety of anything traveling over it, including burglars who wish to break your locks and forcibly enter your home."

Another analogy would be: Most roads are public roads, therefore you have no expectation that a carjacker won't force you off the road, break in to your car, and steal it.

No one is questioning the right to one's property.

Whether or not these situations are analogous to my statement about internet encryption relies on 'information' being considered 'property.' If this is what you think, I would be very interested in learning why you do.

And yet another analogy: Virtually every phone in the world is interconnected. Therefore it's ok for anybody to tap your phone line and record and disseminate your phone conversations; you shouldn't expect otherwise, and it should be legal to do so.

This is a little different, but along the same lines. A David and myself have said, the only way to truly claim a 'right to privacy' in terms of phone conversations or the internet is to secure contracts that protect the information from point A to point B. Which actually subsumes the property that transmits this information being privately controlled.

Again I feel the major point here is understanding whether or not 'information' is property. I think I'm pretty clear on the idea that it is not, however I am (as I'm sure others are) gaining much insight by bringing up various situations.

[jrs]

"Breaking into your house to gain information is not a violation of rights. All houses are widely understood to be mutually interconnected by a network of public roads so there is no guarantee of the safety of anything traveling over it, including burglars who wish to break your locks and forcibly enter your home."

Your reductio ad absurdum by analogy is invalid. When you act on someone's physical property you are "breaking" it. This harms him since his physical property exists to serve his interests. By contrast, information can be duplicated and used by others without depriving the original holder of anything.

[Spano]

This issue relies heavily in deciding whether or not 'information' is property.

Exactly. I would say information can be considered property in some cases, and in other cases not. To decide, I think we need to better understand exactly what conditions are required before we can classify and object (or information) property. Here is one idea:

Independent ownership - Property implies the ability to gain, keep, use, and dispose of an object. To be a right, an action must not impinge on the rights of others, i.e. the right 'X' must not require limiting the legitimate freedom of action of another person in any way. Hence, property must be able to be owned, with all the actions that implies (use, dispose...), in such a way that this means no positive claim on the life of another. My car is legitimate property because I can exercise my right to use and dispose it without impeding the life of anybody else.

But does this apply to information? Some information, like my notes on my hard drive, are clearly in the same category. But other information, such as the address of my apartment or my full name, is not - these exist independent of my control, outside my rightful sphere of influence, such that to exercise control over that information would necessarily require me to limit others ("You must not remember my address, you must not tell other people my name, you must forget you overheard my conversation about the surprise party").

Certainly, you have the right to refuse to divulge such information when asked. But once it voluntarily leaves your independent sphere of influence, it is no longer property. Most of the hysteria over the alleged loss of "privacy" today ignores this distinction - for example, the "experts" complain that the listing of public records online (like your address) is a loss of privacy, when in fact this information is no longer private property. Along the same lines, I am hesitant to recognize other identifiers like social security numbers and drivers license numbers as within the rightful control of the individual they identify, especially after having become widely disseminated.

[Proverb]

There is no essential difference between information on your hard drive that you create or store and your address or other 'public' information. The only real difference there is the amount of control that one has the ability to exercise on said information. Consequently I don't think the 'level of control' has any bearing on wether or not it's property.

Copyright is an explicit example of how one may claim usage on creative types of 'information' and is a way to exercise control. I don't think there is a way to 'copyright' incidental data. Not that that would actually be copyrighting. hmmm...

I'm a bit confused here.

I want to ask: If I inadvertently release sensitive information, do I have any claim on its use? I think the answer is no, but then the issue of copyright makes me wonder.

[DavidOdden]

I want to ask: If I inadvertently release sensitive information, do I have any claim on its use? I think the answer is no, but then the issue of copyright makes me wonder.

What do you mean by "sensitive information"? If you mean, the secret formula for Coca Cola, the answer is "no", and this is why it's such a big secret (also why they make it impossible for anyone to inadvertently release the information). If you mean "suppose I accidentally reveal that we're making a job offer to Jones for $100,000 -- can I legally prevent a competing company from scooping our offer by offering him $125,000?", then the answer is again "no". If you inadvertently release your root password (and if you don't follow the standard option of suicide), you do still have the right to control its use specifically by prohibiting others from using it to enter your system. That's because the password is like a physical key to a lock -- it's an additional means of securing your property. So finding a password does not translate into having the right to use another person's property.

The proper way to retain exclusive control over information is to retain physical control over the information, that is, reduce it to ownership and control over a tangible object.

[Proverb]

So then 'information' as intangable is unownable. But the nature of its use is dependant upon who's property on which it lies or by the nature of a legal contract.

[DavidOdden]

So then 'information' as intangable is unownable. But the nature of its use is dependant upon who's property on which it lies or by the nature of a legal contract.

Or in the case of certain kinds of intangible mental creations, it can be protected from replication by patent and copyright law.