From: <kdb17@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Mon, 15 May 2006 02:08:32 -0400

Paper 2

Kevin Burdette
Computers, Privacy, and the Constitution
Paper 2

	When Professor Moglen asked whether and why privacy actually
matters, I had no reasoned response – only an ill-defined gut
reaction.  After spending a couple of months trying to develop my
that reaction, I have begun to wonder if defense of privacy doesn’t
defy logical explanation; my subsequent thoughts have smacked less
of logic than of gut reactions trying to parade as logic.
Nevertheless, what follows are my thoughts as they now stand.

I.  Why Americans think privacy doesn’t matter

	Americans’ inclination that privacy issues don’t affect them is
fed, in part, by Constitutional norms embedded in our societal
fabric.  Take, for instance, Article III’s “ripeness” and
“standing” doctrines.  Americans tend not to worry about
transgressions unless those transgressions actually come to
fruition and affect them personally.  Law-abiding citizens (or
those as close as possible to law-abiding, given the US’s sprawling
criminal code) feel that they have nothing to hide and, thus, assume
that the government has no reason to invade their privacy.  Until
the government actually effects a privacy invasion on them
personally, they’ll have no standing, and the privacy issue will
not be ripe (a similar inclination fed public discomfort with
American Express’s personalized telephone-answering.  When the
receptionist said our name before we announced it, the privacy
issue “ripened” and we had “standing” to be upset).

	The “mandatory exclusion” remedy for 4th amendment violations
causes similar biases.  As evidence-suppression is the single
remedy for 4th amendment violations, presumably only criminals –
people with suppressible evidence – are protected by the 4th
amendment.  Further, the exclusion remedy necessitates that the law
be elaborated solely through cases involving in-court defendants who
have evidence against them.  Thus, citizens who don’t have any
contraband assume that they don’t have any privacy concerns.

	II. Why it should matter

	James Whitman, a professor at Yale Law School, recently wrote an
article about competing Western views of privacy [fn 1].  While the
paper was likely outdated even before it was in print, Whitman’s
fundamental theory regarding Americans’ view of privacy (as an
outgrowth of liberty rather than dignity) was ompelling. “Where
American law perceives a threat to privacy, it is typically
precisely because the state has become involved in the transaction.
. . .  You can count on Americans to see privacy violations once the
state gets into the act.”  If Professor Whitman is correct, then
surely the government’s invasions of Americans’ collective privacy
should matter, regardless of Americans’ individual senses of
unaffectedness.  From the NSA wiretapping to the subpoenaing of
Internet searches, the feeling of “that’d scare me if it were the
government” is no longer au courant; it actually is the government.
Thus, according to Whitman, Americans should indeed be “see[ing]
privacy violations.”

	III. Why it is starting to matter

	The first magazine I received this May (Wired) had an article near
the end which decried the loss of privacy [fn 2].  Wired’s
inclusion of this article wasn’t particularly surprising; the folks
at Wired (as well as Wired's audience) should be relatively
up-to-date on digital privacy issues.  The next magazine I received
– Consumer Reports, with its less digitally knowledgeable
constituency – had its own article about the dangers of RFID chips.
 The cover story of my subsequent-weeks’ Newsweek  was entitled
“Spying on Your Calls:  Is it Legal?  What Else don’t We Know?” 
Clearly, privacy issues are being thrust upon the American public
at a rapid pace.  And it seems only inevitable that Americans will
realize that not only is their privacy being trampled; the
government is doing its fair share of the trampling.

	IV. Why its mattering to others matters to me

	When I was in college, I frequently drove 240 miles from my house
in Tennessee to my girlfriend’s house in Alabama.  Averaging 60
miles per hour would get me there in 4 hours.  At 80 miles per
hour, I would get there in 3.  I knew this not because I was good
at arithmetic; I knew it because, at 19 years old, there’s a whole
lot you can do with your girlfriend in an extra hour.

	Of course, driving 80 miles an hour was illegal.  My solution: 
figure out where the speed traps are, note their common
characteristics to aid in figuring out where other traps might be,
drive at a time of day when other cars’ passing of speed traps
might tip me off (e.g., when brake lights are most noticeable), and
rely on traffic going the opposite direction to flash their lights. 
By my third trip, I got driveway-to-driveway in a little over 3
hours.

	And I never got a speeding ticket.  Not until years later, when I
was driving from Cooperstown to Boston (to visit a different
girlfriend).  Wholly unconcerned about gaining extra time (fewer
ways to fill an hour at 30 years old, I suppose) and driving at a
reasonable speed on a four-lane highway (47 mph, I was informed), I
was jolted into reality by a patrolman in the Sharon Township.  It
seems that, unnoticed by me, the Sharon Township had decided that
its not-quite-one-mile stretch of Highway 20 merited a 35 mph speed
limit.

	If my experiences are indicative, then perhaps it's true that the
majority of crooks the government catches are the stupid ones (or
occasionally the ones not paying attention).  One wonders,
therefore, how much safer privacy invasions actually make us. 
Maybe knowledge and openness, together with the nakedness that
accompanies them, ought to be the goal; secret invasions of privacy
are not worth the modicum of extra safety we get for it.

	Ultimately, as the pace of communications and interactions
continues to increase, people will want to know where the speed
traps are.  And as more people gain that knowledge, more people
will start flashing their lights, and more nakedness will follow.
While this knowledge won’t necessarily balance the needle perfectly
between nakedness and privacy, it will push the needle in the right
direction.  Because, after all, as G.I.Joe – the real American hero
– always said: knowing is half the battle.

-Kevin Burdette

fn 1: “The Two Western Cultures of Privacy:  Dignity versus
Liberty,” 113 Yale L.J. 1151 (2003-2004)
fn 2: “The RFID Hacking Underground”

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