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It’s time to recognize what so-called privacy rights really are

Posted by John Reed on

An article in the December 15, 1890 issue of the Harvard Law Review, written by attorney Samuel D. Warren and future U.S. Supreme Court Justice Louis Brandeis, entitled The Right To Privacy, is often cited as the first implicit declaration of a U.S. right to privacy.

There is no right of privacy in the Constitution

Exactly. It’s not in the Constitution in spite of abortion activists repeating that ritualistically.

But somehow, the “right of privacy” has become equal to rights like life, liberty and the pursuit of happiness and ideas like democracy and the rule of law.

No privacy for criminal behavior

Qui male agit odit lucem.

That’s Latin for “He who misbehaves hates the light.”

It’s from the Bible, John 3:20 Here’s a more complete version from the New International Version of the Bible.

Everyone who does evil hates the light, and will not come into the light for fear that their deeds will be exposed.

Probable-cause warrants issued by a judge are the light.

Privacy is the dark

So-called privacy advocates want the dark. They want to do what they do in the dark. They want to hide in the dark. They don’t want privacy. They want immunity from prosecution. They want an evidence-less and therefore lawless realm in which to do their sordid thing.

Used to be called secrecy, not privacy

We had a perfectly adequate word for all this before lawyers Warren and Brandeis invented privacy. The word was “secrecy.” Secrecy, appropriately had both positive and negative connotations. Military secrets. Trade secrets. Secret recipes. Secret agents. Secret knock to get into a speakeasy or illegal gambling den. Secret society.

“Privacy” is a spin. laundered, euphemism for secrecy.

Criminals are the biggest fans of ‘privacy’

So-called privacy rights greatly aid the following who want to use information common carriers like phones, Internet, TV and so on to hide their illegal or immoral activities so that they will not be brought to justice:



tax evaders

drug dealers



enemy agents

enemy countries

strip joint customers

human traffickers


illegal aliens

money launderers

Legitimate privacy

Are there any legitimate privacy interests. In common law, there is a phrase “expectancy of privacy.” You do not have privacy unless you do the activity in question where and when they have an expectancy of privacy. For example, if you are photographed in Times Square, or the parking lot of your local 7-11, you cannot sue a media outlet who uses the photo in an international media because you were outdoors and therefore had no expectation of privacy.

What is private are what non-crimes you do behind closed doors, phone calls, what you choose to watch on TV. Information that you have a right to privacy for include your social security number, credit card numbers, financial statements, medical records.

So don’t put stuff like that in your cell phone or on the Net

No problem. But there is also a requirement that owners of secrets take reasonable steps to keep their secrets secret. for example, in trade secret law, the owner of the secret failing to take care to keep the secret secret is a defense against an accusation of misuse of a trade secret.

So don’t tell me that every single thing in your cell phone is a private matter therefore the U.S government cannot see anything in your phone even if they have a legitimate search warrant issued by a judge. Keep your damned social security number, credit card number and health records out of your phone. Don’t tell me I can’t get a search warrant to search a known terrorist’s phone because you might put a credit card number in yours. Quit being so irresponsibly careless about your truly private information. Keep that stuff in your safe, not your phone.

Straw man

Warren and Brandeis wrote that privacy is the "right to be let alone." That’s a straw man. Who wants to not let Joe Schmoe be alone? No one. 

I am a libertarian. My idea of the role of government to to use their monopoly on the use of force as little as possible. Yes, force the Japanese to stop killing us at Pearl Harbor. Yes, put serial killers to death. Prevent others from hurting us or taking our stuff.

No spying on everyone without a warrant

Am I okay with the government spying on all of us? No. There is no need and it violates the Fourth Amendment which requires a probable cause warrant to do a search. Does national security require spying on everyone? No.

False choice

I see no tension between security and privacy. Everyone states the issue in that false-choice manner.

With regard to government violations of privacy, there is only one issue. Does the government have a warrant to search whatever part of your property that they seek to search? If, yes. End of discussion.

The warrant is only issued if there is probable cause to believe that a crime is being or has been committed. There is no clash between privacy and criminality. Criminals have no right to privacy with regard to their crimes.

No to the NSA

I oppose the NSA collecting the data they were intending to collect. I also oppose collecting so-called metadata like numbers called and duration of call. If you make calls to call girls and bookies, knowing the numbers and durations pretty much tells the government all they need to know about the content.

Give me a break. In the military, we call metadata sigint—signals intelligence. It refers sender, receiver, duration, time of message. If you understand how the military operates in general, and combine it with other intelligence, you get a great deal of information out of sigint or metadata—too much unless you have a warrant. 

If the NSA has a probable cause warrant specific to you, give up the information. I will support jailing your ass for contempt of court if you do not comply. On the other hand, if the NSA tries to get that information without a warrant specific to you, I will support the individuals in question being fired, prosecuted, and jailed if convicted.

Well-settled legal matter

The issue is not some de novo false-choice debate about privacy versus security. It is merely a very well settled matter of whether the government has a warrant. The Fourth Amendment limits on government searches is not some idea a couple of lawyers dreamed up for an 1890 law journal article. It is in the original Bill of Rights. It is extremely time tested—more so than the vast majority of U.S, laws and regulations.

No privacy rights for criminal activities

Law-abiding citizens have some limited rights of privacy regarding personal financial and health and expectation-of-privacy settings. But criminals have no privacy rights whatsoever with regard to their criminal activities.

The big problem in the discussion of privacy today, is its advocates are saying we have to bend over so far backward to protect the privacy of Joe Schmoe to place bets with his bookie that we let terrorist and other criminals have immunity from search. That’s illogical with regard to the 1890 concept of privacy. It’s also just stupid.

Mail is private, always has been, nothing new here

When I was a kid in the 1950s, mail was private, even though handled by the government, unless the government had a warrant, in which case, they could open it. No one cried the blues about privacy being violated by those occasional openings. Now, there is a nationwide outcry. Who do the privacy advocates think they are kidding?

The Internet and cell phones have led to far more data being transmitted. The application of the privacy concept to all that data is not a logical extension of the 1890 thought or any true need. It is nothing but people having more chances to misbehave, misbehaving, then trying to put some Sons-Of-Liberty spin on that misbehavior.

No trading my security for your recklessness

Don’t misbehave. It you insist on engaging in consenting-adult behavior that would be embarrassing, don’t create digital records of it. Stick to voice-only communications. That was good advice for such people before computers and the Net. It still is. Your insistence on doing stupid things like sending nude photos of yourself is not a valid reason to compromise my security against lawbreakers. 

Look at the actual data that is being protected by so-called privacy

I would like to see a pie chart of the actual information on the cell phones and computers that people regard as deserving of privacy. I predict we will eventually see at least partial versions of that. And it won’t be life, liberty, and pursuit of happiness stuff. It will be 99% sordid, illegal, immoral, or embarrassing stuff. For us to have a somber national debate about some abstract virtue or Johnny-come-lately right called “privacy” as if it were on the same plane as the core virtues in the Declaration of Independence and the Constitution is a farce and ought to be called such.

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