Monthly Archives: February 2018

The Liberty Position…

…ON PRIVACY: Like me, my mother (female parental unit) is a writer. Unlike Heinlein’s rules for writers, she did not, when I was growing up, have a private room where she went to write. Her typewriter — an IBM Selectric (pre-golf-ball) — was on a desk in front of the back window of our dining room in the rental house in Oakley (Cincinnati) where we lived for the latter half of the Sixties and up to the Bicentennial. There was always a sheet of paper in the machine, and her progress on that page was readily visible to all passersby.

We were forbidden to read on pain of… (whatever. The punishment was never specified; never had to be.)

The notion was that Mom’s writing was personal and private — as sacred as her (or our own) innermost thoughts — UNTIL and UNLESS she chose to share it. I was allowed to read the novel she wrote (and would love to see it published, for all its 50s-era post apocalypse setting and tropes are outdated). But only on her conditions.

It was an early lesson in the nature of privacy. Even though a thing is in plain view, in public or private circumstances, it is not yours to dispose of. It belongs exclusively to its creator or owner and consuming — or even looking at it — is taboo. Including the so-called “plain view” principle enshrined in post-constitutional case law.

There is no exception in the Constitution for cases where a person’s “persons, papers, or effects” are in plain view or in “public”. The plain wording of the Fourth Amendment brooks no such exception and, in the very fact of the words, makes it clear that the “plain view” or “in public” exception carved out by agents of the state is or ought to be null and void. (Since when are agents of the state fit to define the limits of state authority under the Constitution? Yes, of course, the courts are nominated as judges of such in that document, but there must be limits set by the actual text of it. thus far and no farther.) If a thing is not properly yours, you have no right to dispose of it. And that goes double for agents of the state.

However, it should be recognized (and obeyed) that the language of most of the articles of the Bill of Rights does not limit its intent to the state or its agents. The language of the Fourth, for instance:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

…it should be noted, does not limit its scope to actions of the state, nor does it brook the notion of ANY exception. It is absolute in its scope. “Shall not” has a specific and clear meaning when used in law. And it is universal. Any and all actors must respect and guarantee this security. Including but not limited to the state and its agents.

The same may be said, by the way, of the language of the Second Amendment.

The clarity, universality, and absoluteness of the language of the Fourth makes it clear that, if an agent of the state is engaged in a lawful (warranted) search, and stumbles upon something not named in the warrant, that something is not admissible in court and may not be used as a pretext for a warrant or further investigation. The principle is not, “If it’s in plain view, it’s fair game.” It’s: “If it was not specifically named in the warrant authorizing the search, you didn’t see it. Could not have seen it, in fact. Since you did not get legal permission to look for it.”

Statists will argue that this is an unfair burden on agents of the state. But the notion of constitutional liberty is not founded on the convenience of the state, but on the comfort and freedom of the people. In the vernacular: “Sucks to be you, doesn’t it?”

The same principle applies for non-state actors. For example, the phone company (neither the manufacturer of your equipment nor the carrier of your signal) does not have the legitimate permission to share your data — any data — with any other player, state actor or non-, without a warrant issued by a judge of appropriate authority and under the limits set out in the Amendment as to specificity. This would — or should — eviscerate Google’s entire business model.

Further, I would argue that those entities whose business model or raison d’etre includes the possession and handling of personal information or meta-data should have and exercise a fiduciary responsibility to protect such data from assaults from all comers (including the state) and that the courts should be instructed to pay such duty the same respect afforded the confessional, and client-provider relationships in the law and medicine.

It should be clear that the courts have not read the clear text of the law thusly and should be reined in by legislation.

Let us call this an absolutist position on privacy — one favoring the people’s natural civil right of privacy. After all, if the notion of privacy can be extended to a license to kill unborn children, even up to an after birth, it certainly ought to cover a far more reasonable interpretation.