jgd@Dixie.Com (John G. DeArmond) (01/12/91)
greg@hoss.unl.edu (Lig Lury Jr.) writes: >>>It is also futile, other than telling people to request deletion. You can't >>>make what Lotus is doing illegal. If the information is public (not gained >>>by breaking any confidences) and true, then they can publish it. Congress >>>shall make no law abridging the freedom of the press and all that rot, >>>remember? >Perhaps I should clarify this statement. What I mean is that currently >electronic text is not press. So if you take Lotus to court and lose, you >will gain a status of electronic text as speech/press, and if you win, >well you've prevented them from putting out the questionable CD ROM. >Either way, something is gained. Publishing personal data has absolutely nothing to do with the 1st Amendment. It is exactly the same situation as if your doctor published your personal medical records. Yes, he has rendered the data in a tangeable paper form or an electronic representation but what overrides and resemblance to the 1st amendment (or has in the past) is the much more basic right of personal privacy. parts of several amendments address this and the Supremes have (mostly) upheld the concept. What we need to do is force the issue toward personal privacy when electronic representations of personal information is involved. I'd hope the EFF would get involved with this issue as much as it is with losers like Rose. Far more of us are at risk from improper use of private information. John -- John De Armond, WD4OQC | "Purveyors of speed to the Trade" (tm) Rapid Deployment System, Inc. | Home of the Nidgets (tm) Marietta, Ga | "To be engaged in opposing wrong offers but {emory,uunet}!rsiatl!jgd | a slender guarantee of being right."
brad@looking.on.ca (Brad Templeton) (01/13/91)
If a doctor publishes your personal medical records, he has broken a confidence. In the case of the doctor, I think it's even a confidence that is explicitly defined by the law or the medical association. Folks, the right of privacy is important, but the courts have only stated that the U.S. constitution probably *implies* a right of privacy. On the other hand, it quite explicitly states, in the very first line of the bill of rights, that there is a right to freedom of the press. How on earth can one conclude from this that privacy as a right supersedes freedom of the press? You might wish it did, but the document says otherwise. If we let privacy supersede freedom of the press too much, soon the government will be claiming a right of privacy, I suspect. The answer lies not in privacy but in confidentiality. -- Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473
cyberoid@milton.u.washington.edu (Robert Jacobson) (01/13/91)
In many states, like California, the right of privacy is included in constitutional clauses in a position (usually in the preamble) that gives them supremacy over press rights. The right of privacy in CA, for example, is stated as an inalienable human right; the freedom of the press is included in a subordinate clause defining the relationship between the legislature and the press. Although this relation is not explicitly stated in the U.S. Constitution, the factors that have gone into the U.S. Supreme Court's findings for a "privacy" right are similarly in a preeminent position. The situation is slightly different Canada, which may explain your confusion, Brad. Canadian jurisprudence is more directly evolved from British common law, which is less explicit in this regard. Bob Jacobson
brad@looking.on.ca (Brad Templeton) (01/13/91)
I will also point out that the US constitution, as written, defines the limits of the government. Other laws, done under the constitution, define the limits of private citizens. The constitution of the USA does not assure privacy from other citizens, statute law does that. Statute law is clearly inferior to constitutional law. I don't know about the California constitution, I've never read it. The constitutions I have read have all limited governments, by and large. If the constitution defines a right of privacy (such as the right to be safe from unreasonable search and seizure, except when you have a 911 system manual) it only protects you from the government. You must rely on statute law to be safe from other citizens. Any right not to have other citizens blab your personal info comes also from statute law, and it is thus bound by the constitution. I have never heard of preambles superseding actual articles of a constitution, perhaps I haven't read enough? In Canada, sadly, our rights are not as protected, for they are "subject to such reasonable restrictions as can be demonstrably justified in a free and democratic society" or somesuch crap. This has given the courts great latitute to uphold laws that would never pass in the USA. Of course, while the Canadian constitution grants the courts this latitude explicitly, the US courts of often taken it upon themselves. So who knows what sort of laws you can have. I still say freedom of the press is a time-honoured and valuable principle which should not be discarded at the first sign of computerized trouble. There are many other routes, such as confidentiality law and defamation law, that we can use to protect our privacy. -- Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473
cyberoid@milton.u.washington.edu (Robert Jacobson) (01/14/91)
Sorry, Brad, your reading of the Constitution (U.S.) and state constitutions may be literally accurate (although I think not), but the interpretation by the courts has gone quite the other way. "Privacy" is recognized as a "penumbral" right caused by the conjunction of other, literally expressed rights. The CA Constitution does not, as you claim, merely limit government interaction with citizens -- it explicitly defines a privacy right separate and superior to both the search and seizure clauses of the CA Constitution and statutes. I appreciate that our opinions might differ, but please do study the law before making claims that are not so. I spent eight years doing that; it is a complex field. Thank you for the dialogue. Bob Jacobson
jgd@Dixie.Com (John G. DeArmond) (01/16/91)
brad@looking.on.ca (Brad Templeton) writes: >If a doctor publishes your personal medical records, he has broken a >confidence. In the case of the doctor, I think it's even a confidence that >is explicitly defined by the law or the medical association. >Folks, the right of privacy is important, but the courts have only >stated that the U.S. constitution probably *implies* a right of privacy. On >the other hand, it quite explicitly states, in the very first line of the >bill of rights, that there is a right to freedom of the press. >How on earth can one conclude from this that privacy as a right supersedes >freedom of the press? You might wish it did, but the document >says otherwise. But Brad, you've made my argument. If the absolute freedom of the press supersedes the right of personal privacy, then your doctor has the absolute right to publish your medical record wherever he wants and any laws to the contrary are unconstitutional. If on the other hand, the right to privacy (or as the Supreme court once called it, "the right to be left alone"), a right that, as I read American history, was considered so basic that its existance was implied in the bill of rights is supreme, then it is quite legitimate for the Supreme court to uphold reasonable restrictions on the 1st amendment. Some reasonable restrictions ARE the rights of professional confidentailty, the limitation on the press as applies to libel and slander and so on. With regard to personal information, I would exert as much control over other aspects of my personal life as I do (or would like to do) with my medical information. I suppose that a demagogue could say that one COULD exert this kind of control by simply forgoing things like credit, insurance, taxable income and other aspects of modern life. This is, of course, silly. What we as society have to do now is make sure that our basic rights of privacy are at least as well protected in the computer age as it was in the paper age. >If we let privacy supersede freedom of the press too much, soon the government >will be claiming a right of privacy, I suspect. Well, maybe the canadian government.... Wouldn't fly here. After all, restrictions on said government are a primary reason for the existance of the Constitution and the Bill of Rights. John -- John De Armond, WD4OQC | "Purveyors of speed to the Trade" (tm) Rapid Deployment System, Inc. | Home of the Nidgets (tm) Marietta, Ga | {emory,uunet}!rsiatl!jgd |"Politically InCorrect.. And damn proud of it
abrams@cs.columbia.edu (Steven Abrams) (01/17/91)
In article <5825@rsiatl.Dixie.Com> jgd@Dixie.Com (John G. DeArmond) writes: >brad@looking.on.ca (Brad Templeton) writes: >>If a doctor publishes your personal medical records, he has broken a >>confidence. In the case of the doctor, I think it's even a confidence that >>is explicitly defined by the law or the medical association. [Brad's stuff deleted] >But Brad, you've made my argument. If the absolute freedom of the press >supersedes the right of personal privacy, then your doctor has the >absolute right to publish your medical record wherever he wants and >any laws to the contrary are unconstitutional. First, let me point out a flaw in the analogy -- I think that, a doctor does have the right to publish medical records in, say, a journal, but can't use your name without permission. That's where the doctor/patient relationship comes into play. As always, this is not to be taken as a legal position since I'm not a lawyer, just a layman's interpretation. Mike Godwin or other net.lawyers can correct me if needed. But I don't think that this means that the right of personal privacy supersedes the absolute freedom of the press. I think this means that we have found an exception. The related exceptions are clergy/confessor and lawyer/client relationships. However, there is protection of privacy under the law -- harassment, invasion of privacy, are examples of violations. But to say that the Bill of Rights *implies* the "right to be left alone" is something I haven't heard. If my history is correct, when the Constitution was written, the only way the Framers were able to get it passed was to promise that there would be a Bill of Rights added to it to guarantee personal freedoms. Nothing was to be left implied. If the right of privacy was just expected to be there, I don't think that protection against unauthorized search would have had to be included. On a more EFF-like note, there was no way for the Framers to anticipate the ease with which information could be accessed in this day and age, and privacy issues have become more important. Perhaps it is time to discuss rules which would extend the responsibilities given to doctor/patient type of relationship. This goes back to that list of "confidentiality levels" that Brad posted a while back. In other words, Safeway supermarkets can't release information that says Person X shops here Mondays and Wednesdays and buys extra condoms on the 3rd Wednesday of the month. However, they can can compile and release information of the form: 62% of all people who buy brand X beer on a regular basis also purchase either condoms or whipped cream on Wednesdays. If they choose to compile and sell info like this to marketing people, the onus should be on them to guarantee the confidentiality of their customers. So while I don't think that "privacy" is an implied guaranteed right of the Bill of Rights, I think there is sufficient precedent to expand existing laws. And yes, personal privacy should be able, *in certain cases*, to supersede freedom of the press. There is also sufficient precedent differentiating the government from a person to prevent this right from being abused by the government. Although "national security" is sufficient cause for prior restraint in America, isn't it? This could be considered to be a similar issue. ~~~Steve -- /************************************************* * *Steven Abrams abrams@cs.columbia.edu * **************************************************/ #include <std/dumquote.h> #include <std/disclaimer.h>
wayner@cello.cs.cornell.edu (Peter Wayner) (01/17/91)
abrams@cs.columbia.edu (Steven Abrams) writes: >In article <5825@rsiatl.Dixie.Com> jgd@Dixie.Com (John G. DeArmond) writes: >>brad@looking.on.ca (Brad Templeton) writes: >>>If a doctor publishes your personal medical records, he has broken a >>>confidence. In the case of the doctor, I think it's even a confidence that >>>is explicitly defined by the law or the medical association. > [Brad's stuff deleted] >>But Brad, you've made my argument. If the absolute freedom of the press >>supersedes the right of personal privacy, then your doctor has the >>absolute right to publish your medical record wherever he wants and >>any laws to the contrary are unconstitutional. >First, let me point out a flaw in the analogy -- I think that, a doctor does >have the right to publish medical records in, say, a journal, but >can't use your name without permission. That's where the >doctor/patient relationship comes into play. As always, this is not >to be taken as a legal position since I'm not a lawyer, just a >layman's interpretation. Mike Godwin or other net.lawyers can correct >me if needed. But I don't think that this means that the right of >personal privacy supersedes the absolute freedom of the press. I >think this means that we have found an exception. The related >exceptions are clergy/confessor and lawyer/client relationships. Most of these exceptions are specifically made or implied contracts between individuals to maintain privacy. Some stores offer these by announcing that they "don't sell or give their mailing lists to anyone." The rest will not sell your name if you explicitly request it. It's a contract thing. People have the right to publish what they want as long as they haven't agreed to a contract that specifies that they don't. Many high-level executives who are fired will accept healthy and large severance packages that include clauses that prohibit them from commenting on the company in public. They've censored themselves, but this has nothing to do with the First Amendment. I wonder if anyone out there has any data on companies that have be so successful in targeting a market that they make more from selling the mailing list to others than actual commerce with the people on the list. >/************************************************* > * > *Steven Abrams abrams@cs.columbia.edu > * > **************************************************/ >#include <std/dumquote.h> >#include <std/disclaimer.h> -Peter Peter Wayner Department of Computer Science Cornell Univ. Ithaca, NY 14850 EMail:wayner@cs.cornell.edu Office: 607-255-9202 or 255-1008 Home: 116 Oak Ave, Ithaca, NY 14850 Phone: 607-277-6678
brad@looking.on.ca (Brad Templeton) (01/17/91)
In article <5825@rsiatl.Dixie.Com> jgd@Dixie.Com (John G. DeArmond) writes: >brad@looking.on.ca (Brad Templeton) writes: > >>If a doctor publishes your personal medical records, he has broken a >>confidence. In the case of the doctor, I think it's even a confidence that >>is explicitly defined by the law or the medical association. > > >>Folks, the right of privacy is important, but the courts have only >>stated that the U.S. constitution probably *implies* a right of privacy. On >>the other hand, it quite explicitly states, in the very first line of the >>bill of rights, that there is a right to freedom of the press. > >>How on earth can one conclude from this that privacy as a right supersedes >>freedom of the press? You might wish it did, but the document >>says otherwise. > >But Brad, you've made my argument. If the absolute freedom of the press >supersedes the right of personal privacy, then your doctor has the >absolute right to publish your medical record wherever he wants and >any laws to the contrary are unconstitutional. If on the other hand, >the right to privacy (or as the Supreme court once called it, "the >right to be left alone"), a right that, as I read American history, was >considered so basic that its existance was implied in the bill of >rights is supreme, then it is quite legitimate for the Supreme court >to uphold reasonable restrictions on the 1st amendment. Some reasonable >restrictions ARE the rights of professional confidentailty, the limitation >on the press as applies to libel and slander and so on. You confuse a requirement for responsibility that we place on publishers with a restriction on the press. All adults are responsible for the consequences of their free actions. Libel law, commonly brought up as a restriction of freedom of the press, is not such a restriction. The newspaper is still allowed to print libel. It simply has to pay for any damages. (There is one special exception. If you can convince a judge that the libel is so damaging it can't be repaired, *then* you can stop publication. This is a restriction of freedom of the press.) The doctor, or anybody else, can't publish your medical records because you have a contract with the doctor not to publish them! It has nothing to do with freedom of the press. The press are free to make contracts to publish and not publish things, and the other parties have every right to demand compliance with the contracts. The right to enter into a contract of confidentiality is not a restriction, it's a *freedom*. It is still a freedom even if we make that confidentiality implicit in almost all transactions, as long as people are free to waive it if desired. A law becomes a violation of freedom of the press if it makes it legal to say "John makes $100K" in private to a friend, but illegal to put it in the newspaper. Then you have defined something which can be said in other ways, but not in the press. -- Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473
cyberoid@milton.u.washington.edu (Robert Jacobson) (01/17/91)
Sorry, Steve, your opinion doesn't jive with the Supreme Court's, that's all. The Justices have found that the Preamble, First and Fourth Amendments, and other declarations, taken as a whole, give a presumed "privacy right." And in state constitutions where a privacy right explicitly is stated, it is in a superordinate position to the press remarks. You should note that there is no "press right" state in the Bill or Rights or anywhere else. The press does not have the right to publish anything it likes; the libel laws, for one thing, are evidence that this is not the case. The First Amendment to the U.S. Constitution merely prohibits government from interfering with publication by the press, not individuals who may be harmed by press coverage. It's a matter for juries and the courts whether the individual or the publisher prevails. In the California Constitution, at least, the press's "right" is balanced in the same section with description of those things that can trigger a libel suit. Bob Jacobson
peter@taronga.hackercorp.com (Peter da Silva) (01/18/91)
In article <50804@cornell.UUCP>, wayner@cello.cs.cornell.edu (Peter Wayner) writes: > I wonder if anyone out there has any data on companies that have > be so successful in targeting a market that they make more from > selling the mailing list to others than actual commerce with the > people on the list. The "Klipette" company has such a list, obtained from the sales of nose-hair clippers. A list of fastidious, well-to-do, easily embarassed people who buy from mail-order firms is *extremely* valuable. -- (peter@taronga.uucp.ferranti.com) `-_-' 'U`
zane@ddsw1.MCS.COM (Sameer Parekh) (01/19/91)
The constitution DOES protect privacy. . .It's called the 10th amendment. -- zane@ddsw1.MCS.COM
rowan@ima.isc.com (Rowan Hawthorne) (01/23/91)
In article <1991Jan18.191635.11803@ddsw1.MCS.COM>, zane@ddsw1.MCS.COM (Sameer Parekh) writes: > > The constitution DOES protect privacy. . .It's called the 10th > amendment. Perhaps you meant the 9th amendment? 9th Amendment The enumeration in tHe Constitution of certain rights shall not be construed to deny or disparage others retained by the people. The 10th amendment not only has nothing to due with privacy, but couldn't even be construed to convey that right: 10th Amendment The powers not delegated to the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign state. Am I missing something? (I confess to not understanding the 10th amendment fully). Rowan Email rowan@ima.isc.com Phone 617-661-7474 x206 Fax 617-661-2070 upstream from the last bend in the Charles River
pbrewer@urbana.mcd.mot.com (Philip Brewer) (01/25/91)
Warning: the following text is wrong! In <1991Jan22.134507@ima.isc.com> rowan@ima.isc.com (Rowan Hawthorne) writes: >The 10th amendment not only has nothing to due with privacy, but couldn't >even be construed to convey that right: > 10th Amendment > The powers not delegated to the United States shall not be > construed to extend to any suit in law or equity, commenced or > prosecuted against one of the United States by citizens of > another State or by citizens or subjects of any foreign state. >Am I missing something? (I confess to not understanding the 10th >amendment fully). This is not surprising, as your on-line copy of the constitution is flawed. This too is not surprising, as my on-line copy was similarly flawed. Both of ours probably come from a common source. I just looked up the Constitution in a handy almanac. The correct text of the 10th Amendment is: 10th Amendment The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The text in the flawed copy results from mixing in some of the 11th Amendment.
zane@ddsw1.MCS.COM (Sameer Parekh) (01/26/91)
In article <ABRAMS.91Jan16110945@division.cs.columbia.edu> abrams@cs.columbia.edu (Steven Abrams) writes: >However, there is protection of privacy under the law -- harassment, >invasion of privacy, are examples of violations. But to say that the >Bill of Rights *implies* the "right to be left alone" is something I >haven't heard. If my history is correct, when the Constitution was >written, the only way the Framers were able to get it passed was to >promise that there would be a Bill of Rights added to it to guarantee >personal freedoms. Nothing was to be left implied. If the right of >privacy was just expected to be there, I don't think that protection >against unauthorized search would have had to be included. But suppose the Framers have forgotten something. . . What then? These people were human, after all, and subject to error. They were not dummies, however. So that is why they included the 10th amendment. I think it says something to the affect that the rights stated here are not supposed to be ALL the rights someone has, and the other rights inherent in man are ALSO to be protected. -- zane@ddsw1.MCS.COM
mvp@hsv3.UUCP (Mike Van Pelt) (01/29/91)
>But suppose the Framers have forgotten something. . . What then? So >that is why they included the 10th amendment. I think it says >something to the affect that the rights stated here are not supposed to >be ALL the rights someone has, and the other rights inherent in man are >ALSO to be protected. Nope, that's the 9'th ammendment. The 10'th ammendment (quoted in my .sig file) says that the powers mentioned in the Constitution *are* an exhaustive list of the powers of the federal government. If the Constitution doesn't explicitly grant Congress the power, then Congress has no such power. It would be interesting to see how much of the federal government would remain if the Supreme Court suddenly started to take this ammendment seriously... -- The powers not delegated to the United States by the | Mike Van Pelt Constitution, nor prohibited by it to the States, are | Headland Technology reserved to the States respectively, or to the people.| (was: Video Seven) U. S. Constitution, Ammendment 10. (Bill of Rights) | ..ames!vsi1!v7fs1!mvp
glass@elaine50.stanford.edu (Brett Glass) (01/29/91)
In article <6846@hsv3.UUCP> mvp@hsv3.UUCP (Mike Van Pelt) writes: > It would be interesting to see how much of the > federal government would remain if the Supreme Court suddenly started > to take this ammendment seriously... >-- >The powers not delegated to the United States by the | Mike Van Pelt >Constitution, nor prohibited by it to the States, are | Headland Technology >reserved to the States respectively, or to the people.| (was: Video Seven) >U. S. Constitution, Ammendment 10. (Bill of Rights) | ..ames!vsi1!v7fs1!mvp Simple. They'd just invoke the good ol' fantastic elastic clause.... Which gives Congress the power to make any law they think proper. (When did you ever hear of any of those CongressCritters admitting that they did something IMproper, except after they've been subpoenaed?) <BG> -- "Beware when the great God lets loose a thinker on this planet. Then all things are at risk. It is as when a conflagration has broken out in a great city, and no man knows what is safe, or where it will end." -- Ralph Waldo Emerson
mvp@hsv3.UUCP (Mike Van Pelt) (01/30/91)
In article <1991Jan28.232855.29325@portia.Stanford.EDU> glass@elaine50.stanford.edu (Brett Glass) writes: >(When did you ever hear of any of those CongressCritters >admitting that they did something IMproper, except after >they've been subpoenaed?) I can't even remember a CongressCritter admitting they did anything improper after they've been convicted, sentenced, and incarcerated! :-) -- "A people who expect to be ignorant Mike Van Pelt and free expect what never will, Headland Technology and never can, be." (was: Video Seven) -- Thomas Jefferson ...ames!vsi1!v7fs1!mvp
david.kaye@f111.n125.z1.FIDONET.ORG (david kaye) (02/15/91)
There was a guy named Ralph Ginzberg (or spelling to that effect) who made a fortune in mailing lists. He once published a coffeetable skin magazine, EROS back in the 60s, and he always claimed he was in the mailing list business, not the publishing business. He's the guy who would sell something really cheap in price to as many people as possible. I wouldn't be surprised if "How to Pick Up Girls"
was one of his projects. Sounds like it.
--
david kaye - via FidoNet node 1:125/777
UUCP: ...!uunet!hoptoad!fidogate!111!david.kaye
INTERNET: david.kaye@f111.n125.z1.FIDONET.ORG