Privacy rights assaulted on Capitol Hill

The Constitution is no help

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A number of academicians argued that consumer expectations of on-line privacy are unrealistic, speaking before the 107th Congress Thursday during hearings by the House Committee on Energy and Commerce's Subcommittee on Commerce, Trade and Consumer Protection.

Indeed, the good professors were so pessimistic about privacy legislation that we have to wonder if the Direct Marketing Association isn't endowing chairs in law schools throughout the country.

For one thing, Congress needs to consider how on-line tracking and advert targeting actually benefit consumers by reducing unwanted pitches. If ads were not targeted based on identifiable personal information, then we would all be swimming in a ocean of more junk mail, more spam and more general come-ons, Indiana University School of Law Professor Fred Cate argued.

He added that necessary info mining which is highly beneficial to society, such as that done by law enforcement for fraud detection, is supported by commerce. The Feds would likely be unable to conduct these socially beneficial services if the necessary surveillance infrastructure and transaction databases weren't operated for profit, he observed.

This in itself may offer insight into why Congress has thus far been so eager to hold privacy hearings for the public's benefit, yet so reluctant to lift a finger towards enacting it.

Another sticky bit is the notion that if people had the right to control information about themselves, they could inconvenience the ad industry and even their neighbors, with all sorts of lawsuits for mundane, everyday violations like gossip or news reports and so hobble First Amendment rights of free speech, UCLA School of Law Professor Eugene Volokh warned.

"The First Amendment is our code of fair information practices," he declared. Thus "privacy restrictions are indeed speech restrictions."

This is the first time we witnessed a purported learned person arguing that the First Amendment actively restricts privacy. We thought about this possibility momentarily, and dismissed it as an academic delusion -- that is, an idea which makes sense only outside the context of actual human experience.

Further Constitutional justification for the wholesale violating of privacy came from the business sector.

"Unlike defamation, which lets you sue when someone disseminates false information, a right to own or control information about oneself gives you a veto power over truthful information. And, unlike intellectual property law, an expanded view of privacy is not sanctioned by the Constitution," Competitive Enterprise Institute (CEI) Senior Policy Analyst Solveig Singleton argued.

"The Fourth Amendment is not a basis for asserting privacy rights against commercial enterprises," she declared.

We can dismiss Singleton's testimony as the insane ranting of a politically rabid commerce cheerleader as we examine the CEI Web site, and observe its Sophomoric anti-tribute to Ralph Nader, and suggestion that he face imprisonment for advocating automobile airbags.

Constitutional Failure

A theme running through much of the testimony is that commercial entities enjoy greater rights under the US Constitution than actual human beings.

This regrettable impression has many causes; for one, commerce can more easily afford to sue for its own civil rights, with the result that there is in the real world of judicial action a preference for the interests of Big Business.

Another, and perhaps the core problem, is the Bill of Rights itself, which by enumerating certain rights implies to some that any not specified are up for grabs in the legislative and judicial realms, where those who can afford the greatest access to legislators by way of lobbyists and the finest teams of lawyers have a clear advantage.

Though this document is venerated superstitiously by nearly all Americans, it omits a number of what one might call natural rights, such as privacy, the human need for which is so self-evident that the authors probably never imagined a modern society so debauched that there would be a need to specify them.

The Declaration of Independence, while not a legal document like the Constitution, acknowledges these rights, specifies three examples, and makes it clear that the list is not exhaustive.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness," it states.

It is the very nature of human beings which makes these rights necessary. Indeed, so basic are they that no legitimate government has any business pretending even to grant them, much less restrict them, since they are ours in every aspect.

Thus, as the Declaration acknowledges, "to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

In other words, the only legitimate role a government may play in respect to such rights is to ensure that they remain protected.

And indeed, the Bill of Rights makes it clear that it is not, in itself, a full catalogue of rights and liberties. "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," the Ninth Amendment states.

However, while the Declaration assumes it to be impossible for the people to relinquish their essential, ('unalienable') natural rights under any circumstances, the wording of the Ninth Amendment puts this in some doubt.

It could in fact be read to imply that the people may lose natural rights which they fail to exercise, because there is an implication of voluntary action in the word 'retained'.

And the US judiciary has recognized the voluntary relinquishment of essential natural rights. The legality of capital punishment, for example, is based upon the premise that a convict has forfeited his 'unalienable' right to life by criminal acts.

Thus the natural right to privacy, which is essential to the psychological health and indeed the very nature of human beings, is very much in danger of being forfeited permanently unless the people, on a large scale, should get serious about exercising it.

Your move. ®

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