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Law in Contemporary Society
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Privacy and Transparency-- By KurtLyn - 09 Apr 2013How important are privacy rights?I often question how essential are Americans’ privacy rights and find it interesting that the Framers of the Constitution never explicitly wrote out a specific right to privacy.They were 18th century people solving 17th and 18th century problems. They had no foresight about our problems whatever. If you hadn't been subjected to the myth of the Founding Fucking Fathers, would you even for a moment wonder why an 18th-century person didn't understand the 21st century?We treasure our right to be safe from warrantless searches, the privacy of our home and all the other protections offered to us against impositions on things we consider private. In addition, we criticize programs like, Stop and Frisk, for imposing on a person’s privacy, racial profiling, and that many of the stops are unjustified. Yet we rarely, give second thoughts or attention to the adverse effects of criminal records and the lack of privacy there nor think about how much discretionary power exists in the criminal justice system. Why should we concern ourselves with the privacy of a public record?a Discretionary powerOf course, as law students, within a few days into Criminal Law, we are told of the immense discretionary power of the judge, prosecutor and the police department. But for the average citizen, there is a misguided notion on how the justice system operates, that all the bad guys are in jail and the good guys go free. In class, you posed the question do we really want to have a judge that was moved in their sentencing by seeing some sad children. I think that, in a sense, yes, a judge moved by the dire situation of the children involved, instead of choosing to adhere to supposedly objective minimum sentencing guidelines, is preferable. Because, if we allowed this, we would at least be acknowledging and accepting that the criminal justice system is anything but objective.No one doubts that. We use juries to find facts. The Objectivity is an IllusionThe common law system, building decisions and holdings off of prior cases in addition to statutes and sentencing guidelines, is suppose to, at least on its surface, keep the justice system fair.Why has "fairness" been made a synonym of "objectivity"? Surely that's not the way we use the terms in real life.Yet, what is fair about the discretionary power left to the officers, maybe necessary but not fair. The differences in societal treatment between being an ivy-league fraternity brother having been found to have done lines and lines of cocaine and an underprivileged minority smoking crack are immense. This societal treatment permeates the supposedly objective justice system on all levels, the judge, prosecutor and the police. From the start, the subjectivity of an officer enters a person’s case, whether or not the officer has been having a bad day, feels like being a dick, all are about to impact the accused. And its not so much that the officers often target innocent people, the problem lies in how many people they let go unreported. We as a society feel that the transparency with criminal records, background checks, and sex offender listings are necessary and beneficial. But what these processes actually do is cloud the actual reality with this supposed transparency and instead, give privacy rights to some and not to others. Those that fit our societal mold for what we consider a good citizen, maintain their privacy rights while those that rub our moral compass the wrong way don’t. Maybe, but why would we agree to make criminal justice records stand for the whole of the social system by which privacy is either accorded or denied? Criminal justice is merely one among legal processes, which are a few of the many forms of social action that affect the several distinct things we call "privacy." You're not explaining what you mean by privacy, what the social systems are that you are using the criminal justice process to illustrate, or what the issue of social inequalities in the use of police officer discretion to arrest have to do with any of the kinds of privacy you mean. As a society we are unbelievably hypocritical, the well-to do parents of children who run into trouble with the law, alcohol and drug related, are more than ready to do whatever is possible to influence the situation so that it affects their children in the least way possible.So are the less well to do parents of children. Parents try to protect their children as they can. What's hypocritical about that?They do so not because they believe that their child is innocent, but because they know of the reputation a tarnished arrest record carries, yet even so, they will still continue in their judgment of others, especially minorities, faced with similar charges. This system is fundamentally flawed; the statistics of minorities in jails support this. That's not a self-evident statement. What would constitute the statistics demonstrating a not flawed system?And I believe the problem in part originates from the imbalance of where we expect privacy and where we desire transparency, that manages to create a cycle that continues to disadvantage a specific group of the population. Those with the least privacy are those with money to spend but who spend it themselves under their own names. These we might refer to as "the middle class." Why is it that you believe the privacy of the poor is particularly at risk? In ConclusionFrom birth, the upper classes already have enhanced privacy rights, which only increase as they get older so long as they stay within the mold of a good citizen.No evidence has been shown. The only thing that has been asserted, not shown, is that such people have a lower chance of suffering criminal arrest or conviction than is proportional to their fraction of the population. (Not only haven't you shown this is true, I'm not sure you've even given a reason to believe it is true. You have said only, I think, that among the poor, some people are more likely to be subject to criminal process than others.)On the other hand for many disadvantaged minorities, the privacy rights are lowered and they have to continually attempt to prove society wrong. In our society, the things for which we allow transparency for, such as arrest records are largely of little consequence to the upper levels of society, yet substantially impact lower minority groups. Then we protect the privacy of income, spending and operational practices of many of those in the upper bracket, a thing of little consequence to those in the lower bracket. So, in my opinion our nation’s desire for privacy stems from a desire to limit the position of minorities while consistently protecting those that recognize the dangers and advantages of societal privacy and transparency. I think if you want to write about privacy, you should try to make your words more precise, and your sociology more general. Writing about privacy on the basis of a single social process producing one relatively granular kind of information about only one fragment of the population is not likely to lead to very informative results. You should explain what you mean by privacy, what social structures maintain it, and what social structures interfere with or destroy it. You should be careful, if you are talking about the "autonomy" component of privacy, to discuss the private, commercial forms of surveillance and data-mining that are anterior to the public forms. You should ask about the social distribution of commercial surveillance, and its relation to the uses made of public data. You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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