Privacy Rights – To Enumerate or Not to Enumerate, That is the Question

Submitted by Gene Howington, Guest Blogger

Reasonable people tend to agree there is both a right to privacy and that it is necessary.  But what exactly is the right to privacy? Justice Brandeis famously said in Olmstead v. U.S., 277 U.S. 438, 479 (1928), “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.” Plainly put, at its heart a right to privacy is simply a right to be let alone.

However, do we need to specifically protect it or generally protect it? Is that right absolute? Laws, by definition and the nature of entering a social compact, are restrictions on absolute liberty found in the state of nature. One of the larger disagreements at the Constitutional Convention was about whether enumerated rights would serve to unjustly limit those rights versus a failure to enumerate rights would result in rights not being properly protected. This is a valid question surrounding this issue, especially since some would advocate enumerating the right to privacy by Constitutional amendment. There are advantages and disadvantages to both approaches. While specifically defining/enumerating a right creates a foundation for arguments surrounding said right, leaving a right’s definition nebulous allows jurisprudence greater leeway to evolve around fact specific instance and questions that in the long run can result in a more nuanced understanding and application of the right without the constraints a foundational definition might impose. In this light, consider the right to privacy.

There is no denying the intimate interrelation between technology and privacy. This relationship has been long recognized by jurists. As Justice Brandies along with his law partner Samuel Warren noted in an 1890 Harvard Law Review article discussing the technology/privacy nexus, “Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right ‘to be let alone.’ Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.'” [cites omitted] All questions of applied technology and law can be a double-edged sword; one side honed by often valid public policy concerns and legitimate purpose, the other honed by the caprice of unintended consequences.  If the proposed solution to bolstering the right to privacy lay in Constitutional amendment, the wording of such an amendment would need to be very carefully made. A recently proposed EU law on its face seems to be an attempt to bolster the right “to be let alone”. Dubbed the “right to be forgotten” on the Internet and set to go into effect in 2014, this law illustrates some of these unintended and potentially dangerous  consequences of either being too specific or in lacking enough specificity in defining rights.    Let’s examine the scope of the issue by first looking at the EU law and its potential consequences followed by examining the contrast provided by American jurisprudence surrounding the right to privacy.

The dangers presented by the proposed EU law stem largely from the definition of privacy being overly broad.  Jeffery Rosen’s excellent article,  “The Right to be Forgotten” by Jeffery Rosen, 64 Stan. L. Rev. Online 88 (2012), served as introduction to the proposed legislation. Rosen clearly points out the hazards presented.  “Although [. . . ] depicted [. . .] as a modest expansion of existing data privacy rights, in fact it represents the biggest threat to free speech on the Internet in the coming decade. The right to be forgotten could make Facebook and Google, for example, liable for up to two percent of their global income if they fail to remove photos that people post about themselves and later regret, even if the photos have been widely distributed already. Unless the right is defined more precisely when it is promulgated over the next year or so, it could precipitate a dramatic clash between European and American conceptions of the proper balance between privacy and free speech, leading to a far less open Internet.

In theory, the right to be forgotten addresses an urgent problem in the digital age: it is very hard to escape your past on the Internet now that every photo, status update, and tweet lives forever in the cloud. But Europeans and Americans have diametrically opposed approaches to the problem. In Europe, the intellectual roots of the right to be forgotten can be found in French law, which recognizesle droit à l’oubli—or the ‘right of oblivion’—a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration. In America, by contrast, publication of someone’s criminal history is protected by the First Amendment, leading Wikipedia to resist the efforts by two Germans convicted of murdering a famous actor to remove their criminal history from the actor’s Wikipedia page.

European regulators believe that all citizens face the difficulty of escaping their past now that the Internet records everything and forgets nothing—a difficulty that used to be limited to convicted criminals. When Commissioner Reding announced the new right to be forgotten on January 22, she noted the particular risk to teenagers who might reveal compromising information that they would later come to regret. She then articulated the core provision of the ‘right to be forgotten': ‘If an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system.’

In endorsing the new right, Reding downplayed its effect on free speech. “It is clear that the right to be forgotten cannot amount to a right of the total erasure of history,” she said. And relying on Reding’s speeches, press accounts of the newly proposed right to be forgotten have been similarly reassuring about its effect on free speech. In a post at the Atlantic.com, Why Journalists Shouldn’t Fear Europe’s ‘Right to be Forgotten, John Hendel writes that although the original proposals a year ago ‘would have potentially given people the ability to cull any digital reference—from the public record, journalism, or social networks—they deemed irrelevant and unflattering,’ Reding had proposed a narrower definition of data that people have the right to remove: namely ‘personal data [people] have given out themselves.”According to Hendel ‘[t]his provision is key. The overhaul insists that Internet users control the data they put online, not the references in media or anywhere else.'”  This is a fine distinction, but unfortunately not reflected by the final form of the legislation.

Rosen goes on to note “Hendel seems not to have parsed the regulations that were actually proposed three days later on January 25. They are not limited to personal data that people ‘have given out themselves'; instead, they create a new right to delete personal data, defined broadly as ‘any information relating to a data subject.’ For this reason, they arguably create a legally enforceable right to demand the deletion of any photos or data that I post myself, even after they’ve gone viral, not to mention unflattering photos that include me or information about me that others post, whether or not it is true.”

Citing a blog post made by Peter Fleischer, chief privacy counsel of Google, Rosen goes on to discuss the EU law in light of the three categories of take down notice Fleischer notes the legislation would effectively create.  The “right to be forgotten” as discussed in Europe and proposed at the end of January arguably covers all three of Fleischer’s categories.  He goes on to illustrate how each of these categories and applications pose progressively greater threats to free speech.

“The first category is the least controversial: ‘If I post something online, do I have the right to delete it again?’ This involves cases where I post a photo on Facebook and later think better of it and want to take it down. Since Facebook and other social networking sites already allow me to do this, creating a legally enforceable right here is mostly symbolic and entirely unobjectionable. As proposed, the European right to be forgotten would also usefully put pressure on Facebook to abide by its own stated privacy policies by allowing users to confirm that photos and other data have been deleted from its archives after they are removed from public display.

But the right to delete data becomes far more controversial when it involves Fleischer’s second category: ‘If I post something, and someone else copies it and re-posts it on their own site, do I have the right to delete it?’ Imagine a teenager regrets posting a picture of herself with a bottle of beer on her own site and after deleting it, later discovers that several of her friends have copied and reposted the picture on their own sites. If she asks them to take down the pictures, and her friends refuse or cannot be found, should Facebook be forced to delete the picture from her friends’ albums without the owners’ consent based solely on the teenager’s objection?

According to the proposed European Right to Forget, the default answer is almost certainly yes. [. . .] For a preview of just how chilling that effect might be, consider the fact that the right to be forgotten can be asserted not only against the publisher of content (such as Facebook or a newspaper) but against search engines like Google and Yahoo that link to the content. The Spanish Data Protection authority, for example, has sued Google to force it to delete links to embarrassing newspaper articles that are legal under Spanish law. And suits against third party intermediaries are also threatening freedom of speech in Argentina, as the case of Virginia Da Cunha shows. The Argentine pop star had posed for racy pictures when she was young, but recently sued Google and Yahoo to take them down, arguing that they violated the Argentine version of the ‘right to be forgotten.’ Google replied that it could not comply technologically with a broad legal injunction demanding the removal of the pictures, and Yahoo said that the only way to comply would be to block all sites referring to Da Cunha for its Yahoo search engines. Nevertheless, an Argentine judge sided with Da Cunha and after fining Google and Yahoo, ordered them to remove all sites containing sexual images that contained her name. The decision was overturned on appeal, on the grounds that Google and Yahoo could only be held liable if they knew content was defamatory and negligently failed to remove it. But there are at least one hundred and thirty similar cases pending in Argentine courts demanding removal of photos and user-generated content, mostly brought by entertainers and models. The plaintiffs include the Sports Illustrated swimsuit model Yesica Toscanini; when a user of Yahoo Argentina plugs her name into the Yahoo search engine, the result is a blank page.

Finally, there is Fleischer’s third category of takedown requests: ‘If someone else posts something about me, do I have a right to delete it?’ This, of course, raises the most serious concerns about free expression. The U.S. Supreme Court has held that states cannot pass laws restricting the media from disseminating truthful but embarrassing information—such as the name of a rape victim—as long as the information was legally acquired.

The proposed European regulation, however, treats takedown requests for truthful information posted by others identically to takedown requests for photos I’ve posted myself that have then been copied by others: both are included in the definition of personal data as “any information relating” to me, regardless of its source. [. . . ]

It’s possible, of course, that although the European regulation defines the right to be forgotten very broadly, it will be applied more narrowly. Europeans have a long tradition of declaring abstract privacy rights in theory that they fail to enforce in practice. And the regulation may be further refined over the next year or so, as the European Parliament and the Council of Ministers hammer out the details. But in announcing the regulation, Reding said she wanted it to be ambiguous so that it could accommodate new technologies in the future. ‘This regulation needs to stand for 30 years—it needs to be very clear but imprecise enough that changes in the markets or public opinion can be maneuvered in the regulation,’ she declared ominously. Once the regulation is promulgated, moreover, it will instantly become law throughout the European Union, and if the E.U. withdraws from the safe harbor agreement that is currently in place, the European framework could be imposed on U.S. companies doing business in Europe as well. It’s hard to imagine that the Internet that results will be as free and open as it is now.” [cites omitted]

Meanwhile, back in the United States, there is no right to privacy proper recognized in the Constitution, i.e. privacy is not an enumerated right.  For this reason, many Originalists argue that there is no right to privacy protected by the Constitution. However, that is not only a reflection of the precise concern some of the Framers had about creating enumerated rights, it is also not borne out by the document itself. There are other rights specifically protected that include privacy components.

The 1st Amendment’s Free Exercise and Establishment Clauses protect the private choice of religious practice.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The 3rd Amendment protects the privacy of your home.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

The 4th Amendment protects the privacy of your property (including your home) from unwarranted search and seizure.

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.”

The 5th Amendment recognizes that your private thoughts cannot be compelled as evidence against you in criminal court.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The 9th Amendment arguably recognizes a general right to privacy.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The 14th Amendment, Cl. 1, recognizes a liberty interest (the Liberty Clause) similar to the 9th Amendment and applies that interest to the states via the Equal Protection Clause.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Some 10thers (i.e. people who don’t recognize/understand the precedent that has evolved around the 1oth Amendment and State’s Rights) would argue that the 10th Amendment creates a specific right to privacy because it’s not enumerated and “[t]he 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.” This is specious reasoning because there is a clearly a Federal interest in privacy created by the 1st, 3rd, 4th, 5th, 9th and 14th Amendments. Many if not most 1others have an expressed interest in circumventing Federal anti-discrimination laws which are largely based upon the 14th Amendment by improperly invoking the issue of State’s Rights. For the purposes of this discussion, the use of the 10th Amendment for invoking privacy is not only improper, but unnecessary. While there may be valid State’s Rights issues out there, privacy isn’t one of them. It’s a right the Founders clearly considered (and considered important) even if they were not specific in addressing it.

In addition, there is considerable precedent developed in the jurisprudence surrounding the right to privacy defining both the right and the valid Federal interest in it.  For the sake of brevity, general cites to all cases referred to in the following paragraph are provided at the end of the article.  Meyer v. Nebraska held that there is a privacy interest in allowing schools to teach foreign languages to children earlier than the 8th grade. The reasoning in Meyer was based largely upon a failure by the state to show a compelling interest, but it recognized a common law liberty interest in “acquiring useful knowledge” and equated that interest to free exercise interests which are protected by the 1st Amendment.  Meyer and the 14th Amendment were later the basis for the ruling in finding a privacy interest Pierce v Society of Sisters in making private and/or parochial schools available and overturning a state law that would have effectively banned them. Griswold v. Connecticut held there is a privacy interest in the possession, sale, and distribution of contraceptives to married couples based largely upon the 9th and 14th Amendments.  Based on the 1st and 4th Amendment, in Stanley v. Georgia, the Court unanimously held there is a privacy interest in possessing and viewing pornography even if that pornography was otherwise actionable against a manufacturer or distributor. Famously in Roe v. Wade, the Court expounded upon the 9th and 14th Amendment privacy rights found in Griswold to recognize women have a privacy right to have an abortion. Some courts have expanded the right to privacy and others have imposed limits.  Using the rationales of both Griswold and Stanley in addition to protections found in the Alaska State Constitution, the Supreme Court of Alaska in Ravin v. State found constitutional protection for the right of a citizen to possess and use small quantities of marijuana in his own home.  In contrast, the 14th Amendment reasoning for privacy was limited by SCOTUS in Kelly v. Johnson, where a local regulation defining proper grooming for police officers didn’t violate the officer’s 14th Amendment rights, but noted that a regulation defining proper grooming for the public probably would (baggy pants attackers take note!). Cruzan v. Missouri Dep’t. of Health found a protected privacy interest in the decision to withdraw from life prolonging medical treatments while recognizing the state had a valid interest in imposing certain conditions on the exercise of rights in such decisions.  SCOTUS also reaffirmed a broad interpretation of privacy based on the 14th Amendment’s Liberty and Due Process Clauses in Lawrence v. Texas where they found Texas guilty of unconstitutionally infringing upon the rights of two gay men to their private lives and determine the nature of their private sexual lives by prosecuting them for a state law prohibiting sodomy.

Although it may seem unwieldy to prefer a case by case analysis of a nebulously defined right, it is clear that doing so does indeed allow for a more nuanced understanding of a right and allows better for unidentified challenges of that right to arise and filter through the courts where a more specific definition might prematurely terminate causes of action that could have merit and benefit greater justice for all.  Consider this flexibility in light such events as the advent of HIPPA and the repeated issues that appear around the privacy and opt out policies of electronic social networks like Facebook, Google and Twitter. Clearly there is a right to privacy and that right needs to be protected as does free speech and freedom of the press.  However, it seems to be just as easy to create conditions ripe for infringing upon free speech, freedom of the press and create an environment of historical revisionism as the EU law might in pursuit of privacy. Just so, it easy to not go far enough as many in the U.S. think is their current situation concerning privacy.

Would a right to privacy be better served by Constitutional amendment?  Or by relying upon precedent and regulation as technology evolves? Should those protections be specific or as general as possible? Can you foresee other potentially negative consequences of specifically defining and protecting privacy? Of generally defining and protecting privacy? How should America better protect the privacy rights of citizens?

What do you think?

Source(s): “The Right to be Forgotten” by Jeffery Rosen, 64 Stan. L. Rev. Online 88 (2012)Commission Proposal for a Regulation of the European Parliament and of the Council, art. 4(2), COM (2012) 11 final (Jan. 25, 2012) (.pdf), U.S. Constitution, The Atlantic.comMeyer v. Nebraska, 262 U.S. 390 (1923), Pierce vSociety of Sisters, 268 U.S. 510 (1925)Olmstead v. U.S., 277 U.S. 438 (1928),  Griswold v. Connecticut, 381 U.S. 479 (1965)Stanley v. Georgia, 394 U.S. 557 (1969)Roe vWade, 410 U.S. 113 (1973)Ravin v. State, 537 P.2d 494 (Alaska 1975)Kelley v. Johnson, 425 U.S. 238 (1976)Cruzan v. Missouri Dep’t. of Health, 497 U.S. 261 (1990)Lawrence v. Texas, 539 U.S. 558 (2003), “The Right To Privacy” by Samuel Warren and Louis D. Brandeis, 4 Harvard L. Rev. 193 (1890) (reprinted by University of Louisville)

UPDATE: Shortly after I posted this story, MSNBC ran a related story about privacy and Facebook, Google and Twitter. Can legislation and precedent help address this issue or is amendment needed?  General protection for privacy or specific protections?

~Submitted by Gene Howington, Guest Blogger

131 thoughts on “Privacy Rights – To Enumerate or Not to Enumerate, That is the Question

  1. There are no federal regulations or codes that regulate the internet….. There are some states individually that make certain action or revelation of certain information on the internet, cyber space a state criminal or civil offense….. Texas is one of them….

  2. “There are no federal regulations or codes that regulate the internet…”

    Actually there are, but they mostly relate to wire fraud and data theft, not privacy of personal information.

  3. The right to be left alone? really? Had humans the right to be left alone nudity would not be indecent, jails would not exist, a furry could put what
    his yiffing heart wanted on his furry suit, and what he- she did not want on his furry suit. Nudity would be a common sight even as the nude leaves of a tree. Humans would leave them alone, and not persecute them.
    All furry art cpould be freely seen by ball too. .What we see in realliity is the paradigm shit of humans being left alone.

  4. The right to be left alone? really? Had humans the right to be left alone nudity would not be indecent, jails would not exist, a furry could put what
    his yiffing heart wanted on his furry suit, and what he- she did not want on his furry suit. Nudity would be a common sight even as the nude leaves of a tree. Humans would leave them alone, and not persecute them.
    All furry art cpould be freely seen by all too. What we see in realliity is the paradigm shit of humans being left alone.

  5. Having been introduced today to natural law vs positive law; means vs intent; it would seem that identity theft etc is independent of means.
    Identity or personal information is always at risk, even for hermits.
    This is a discussion over my kin. Watching appreciatively.

  6. Add a right?

    The rights we used to have are being taken away by this Fascistic government.

    Sorry, but I have little hope …

    “An additional effect of corporate dominance in government is the spending of trillions of dollars in foreign military bases and wars, a signature product of the military-industrial complex. This octopus of secret power has been in operation since America nuked Japan in August 1945. The military-industrial complex or national security state is behind every policy. But, curiously, not many politicians, journalists and academics question the black hole of the Pentagon in swallowing most of the budget of the country, leaving trinkets only for environmental and social programs.”

    — E. Vallianatos

  7. It appears that special interest groups with there special lobbyist always get special attention and treatment from the rest of the people that make up the 99 percent.

    Would you please post the appropriate link to the laws that differentiate the monied from the ones that have to work for a living.

  8. Donald L. Anderson,

    The question isn’t whether we have a right to privacy – we do. The topic is rather how to best protect the right of privacy moving forward, be that from fascist corporate intrusion or simply misadventure. It’s a discussion that is relevant to shining light on the issue of protecting our eroding rights in general.

    ***********

    Ing Law,

    The subject of corporatism and the corruption it engenders is an entirely separate discussion. I’d suggest searching this blog and the Internet for “Citizens United v. FEC”, “campaign finance reform”, “FECA” (the partially repealed Federal Election Campaign Act), and “Buckley v. Valeo” to get a grip on the complex of laws you are concerned with.

    *************

    Thanks, CEJ!

  9. “Then the posts of others is correct on this topic. The corporate laws do not apply to the right of personal privacy.”

    Argument by non-sequitur and fallacy of simple cause. Corporate influenced laws may indeed negatively impact your rights (and not just to privacy). It’s a separate (but related) discussion to the idea of protecting a right by specific legislation and/or amendment (with varying degrees of specificity) versus allowing precedent and piecemeal regulation define a nebulously held but recognized right on a case by case basis.

  10. I wonder if the recently signed legislation vastly expanding the “right” to fly drones — public or private — over our land figures in here. Or, via high resolution satellites, DEA overflights, etc., whether that “right” to privacy in our backyards, from an aerial perspective, was lost a long time ago?

    Somehow it seems that the word “drone” would have set off a firestorm of protest. Or maybe it is that we have become inured to the idea and naturally trust (snark alert) that only bad guys could have any concern. They sure slipped this one in quietly.

    Appreciate the thoroughly presentation, Gene. Great research. (Better you than me ; )

  11. The question of whether to enumerate or not enumerate WAS the question. That is why the Bill of Rights were added. The Ninth and Tenth were the catch-alls–the Ninth articulates that rights not enumerated as belonging to the people are nevertheless retained; the Tenth says the same thing vis a vis the Fed government vs the states. The 14th Amdt goes a lot further and did not get enough mention in the article. The 14th makes everyone a citizen–not just the Freedman but also the yeoman poor white guy. The Southern Strategy of the Republican Party has been the blueprint since Nixon and Reagan. The tactic is to use code words instead of overt racial denigrations to rally the poor white trash against the African American and fool the white bigot to rally with the likes of big business. Rick Perry was good at it. A guy like Santo Rum wants to rail about Obamacare and forget that he and his brood are thriving off of Congresscare (free health care for life if you were in Congress).

    There is some reference in this article to the notion or doctrine of States Rights. The States Rights wordage is employed often by bigots who wish to discriminate and then complain about something like a federal interference in their bigotry. As in the form of the Justice Department forcing Governor Faubus to integrate the school. In the federtal Constitution the federal government and the state governments have Powers. Individual people have Rights. It is not as attractive for Billy Bob to cite States Powers when complaining about the Justice Department infringing on the Klans lynchings. Governor Perry was off on this States Rights harangue in his recent campaign.

    The notion that we could create a right to our anonymity by forcing U Tube to erase a video we sent out when we were ten is novel. Lets let the Europeans experiment.

    We dogs dont like Dog of the Week. Often photos dont flatter dogs.

  12. Gene,

    That’s one of the most interesting articles I’ve read on this blog for a long time.

    I’ll try and comment more later but for now I’ll just say this:

    You said: “The 9th Amendment arguably creates a general right to privacy.”

    I spent my entire third year of law school proving the opposite; i.e. that Goldberg’s conclusion in Griswold was correct but his reasoning was wrong. Also Griswold was not a Ninth Amendment case, the plurality signed on to the penumbra reasoning of Douglas.

    As you know, the constitution does not create or confer any rights whatsoever; rights confer power, not vice versa. This was the whole (obvious) point Hamilton spelled out in Fed 84.

    Why do we distinguish between alienable rights and inalienable rights? Because failure to do so renders the social contract illusory; paving the way to tyranny.

    Thus the distinction goes “AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”

    While exercising power over an alienable right may be usurpation, the exercise of power over an inalienable right is tyranny per se. Thus distinction is made and thereby making the social contract valid.

    The right of privacy can be extracted analytically through an examination of the social contract; viz rights that cannot be alienated must be retained.

    Thus inalienable rights are retained by the individual, by definition, during the formation of the social compact.

    And what is the first and foremost inalienable right in natural law? What’s that one inalienable right that is the foundation for all property law?

    “Though the earth, and all inferior creatures, be common to all…, yet every [one] has a property in his own person: this no body has any right to but himself.”

    And in a nut shell, that’s where you find the right of privacy; existing as a “stick in the bundle” of rights known as self ownership. (see Kaiser v. Aetna for the metaphor).

    Per the ‘right to be forgotten’ — honestly, at first blush the second and third circumstances you described seem completely ridiculous.

    If you toss a pebble in a pond then you invite all the ripples it creates.

    And that’s my two cents for now.

  13. Bob,

    I will stipulate I should have used the word “recognizes” (as I did in the rest of the article) instead of “creates” for indeed, as you point out, I do know the difference. I’ll make the change.

  14. “Thus inalienable rights are retained by the individual, by definition, during the formation of the social compact. … And in a nut shell, that’s where you find the right of privacy; existing as a ‘stick in the bundle’ of rights known as self ownership. (see Kaiser v. Aetna for the metaphor).” (Bob)

    Could I stretch that point to suggest that, outside the boundaries of criminal indictment, public records such as birth, death, marriage certificates etc. I own my content? That no matter what the delivery system involved (news mongers, healthcare systems, government records, internet, tape recorders, neighborhood gossip, etc.) the right to my privacy is based on the fact that I, and I alone, own the content of my life and thus can permit or deny its use?

  15. The right to privacy is not absolute….. it is expanded and contracted as the government sees fit. I believe Scalia has stated this summary….

    Gene….in the spirit and realm of this thread that is a factual statement….there is no federal right to privacy enumerated in the declaration of independence, the bill of rights or anything codified by federal statues….the only protections that anyone has is based upon the common law and court decisions binding on a state or the states as a whole if a decision is rendered by the us sct…..

    As you have pointed out the only ones having any degree of protection are the bankers and other special interest people or corporation…..

  16. Have you ever considered pointing out and doing what is right rather than living with and doing nothing what is wrong?

  17. AY,

    That’s not exactly what I pointed out, but based on your response in toto, I’ll mark you down in the “Amendment needed” column.

  18. Gene,
    Got home late. Great work, but requires more in depth rather than cursory reading. We do need a new amendment that defines privacy and I like Blouise’s sense that we own our content. So using our info without our consent is akin to copyright infringement. Problem is how in hell you put that genie back into the lamp?

  19. Mike S.,

    Owning content comes from my experience in the music world and is something akin to copyright I suppose.

    My product, that which I produced for public consumption and remuneration, was the music I performed as a soloist. (Performing in a group was a different matter and required a different contract.) My lawyer always kept a firm grip on my content ownership through contracts he wrote for me. The venue in which I performed was the delivery system owned and operated by others but the content of my performance was owned by me and contractually given to the public through the delivery system. I was never permitted to perform solo anywhere that wanted me to sign a contract giving them even temporary ownership of my content. Thus, if I was soloing and the venue wished to record or allow recording, part of my contract guaranteed remuneration percentages as I owned my content.

    I own the content of my life and as Bob stated above “And in a nut shell, that’s where you find the right of privacy; existing as a ‘stick in the bundle’ of rights known as self ownership. ” Thus it would seem to me as I owned the content of my performance, I also own the content of my life and from that stems my right to own my privacy.

    I have no idea how to legally state all this, after all I needed a very good lawyer to handle all my contracts, only that common sense dictates it.

  20. Owning your lifes content……….sounds good.
    But I wondered if it is to be construed as preventing the neighbors from gossiping when you do unusual things in the front yard? Is denigration a protected activity?

  21. Ha … nothing prevents people from gossiping but, if they tell reporters I was doing the chicken dance when in all actuality I was fighting off an army of red ants ….

  22. Speaking of fences and neighbors, and some folks love of backyard privacy; there is a zoning ordinance here that prevents anything being built higher than 1.80 meter. That’s about what an average man (gender question?)
    can peek over. Now whose side of the fence is being favored: the watcher or the exposer?

  23. I gotta say, with all the pissing and moaning about the Catholic church free exercise argument I find it amazing that the comment section for Gene’s article here on the foundational issue regarding any right to contraception could remain so quiet.

    Yet another example of people grunting and groaning about what rights they feel they have without making any effort whatsoever to understand where those rights come from. Here’s hoping they didn’t raise their kids to be as intellectually lazy.

  24. Blouise,

    I’d have to dig up my entertainment law textbook to quote you actual cites, but I seem to recall that the issue you bring up regards intellectual property rights v. free speech rights.

    Do you own the contents of the body of your works? Sure, Locke would say the reason you own them is inextricably connected to your inalienable right of self ownership creating them as with all property. But can you permit or deny its use after you’ve released it into the public; I’d say yes for some exceptions. For example, when you sell a copy of one of your performances on your record label, you are not granting license to another company to copy it and sell it for profit. Similarly, if you’re a public figure whose mere likeness is salable, you have the right to stop some coffee mug/t-shirt manufacturer from profiting off a picture of you.

    Again, that’s not so much a right of privacy and more an intellectual property right.

  25. Bob,Esq

    Criticizing is easy, as you both note and demonstrate.
    Be solidarical, even with those less industrious, contribute to the general welfare by adding knowledge.
    Or are you tired and slept poorly last night?

    Mamma klappar dig, så, så; det blir bättre snart.
    Hajar du svenskar?

    The last Swedish contribution was as useful here as your snark.
    Many can play at being policemen. Few are inclined to help unknown persons.
    That’s maybe better, although easily produced also.

  26. Bob,

    Yes … I knew I was stretching things a bit and that the contracts my lawyer prepared were basically “filthy lucre” driven to make certain I received fair compensation (the man positively hated record labels/recording companies) but I was jumping off your phrase “stick in the bundle” of rights known as self ownership.”

    As I owned the content of my performance and could thus set limits on how that content was distributed, do I not also own self and through the right of privacy determine how my life’s living can be used by others? Does not my right to privacy involve such issues?

    For instance and as a different example … HIPPA laws … from what I understand even an employer has to be very careful in discussing any health issues of an employee … a privacy issue as the employee owns his own health status …. and there I am wondering about any Church’s right to set guidelines on matters of contraception … an invasion of privacy?

    I wish I had a better grasp of legal terminology so as to use the correct “buzz” words thus communicating with clarity. ;)

  27. Bob,Esq:

    “I gotta say, with all the pissing and moaning about the Catholic church free exercise argument I find it amazing that the comment section for Gene’s article here on the foundational issue regarding any right to contraception could remain so quiet.”

    *************************************

    Of course, you’re right Bob, but it’s also true that while gravity is the foundational issue, stories about plane crashes always get the headlines. Human nature, I suppose.

  28. Blouise,

    The reason I brought up Kaiser Aetna was to highlight that “one of the most essential sticks in the bundle of rights that are commonly characterized as property [is] the right to exclude others.”

    Thus within that bundle of sticks making up the inalienable right of self-ownership, the right to ‘exclude others’ a.k.a. ‘privacy’ is at the core as being the most essential.

    What you’re excluding the government and the public from brings us down the road of distinguishing the ‘inalienable sticks’ known as duties of virtue from the ‘alienable sticks’ known as duties of right. Duties of virtue are those duties you owe yourself while duties of right are the duties you owe society.

    “All duties are either duties of right, that is, juridical duties (officia juris), or duties of virtue, that is, ethical duties (officia virtutis s. ethica). Juridical duties are such as may be promulgated by external legislation; ethical duties are those for which such legislation is not possible. The reason why the latter cannot be properly made the subject of external legislation is because they relate to an end or final purpose, which is itself, at the same time, embraced in these duties, and which it is a duty for the individual to have as such. But no external legislation can cause any one to adopt a particular intention, or to propose to himself a certain purpose; for this depends upon an internal condition or act of the mind itself. However, external actions conducive to such a mental condition may be commanded, without its being implied that the individual will of necessity make them an end to himself.”

    http://www.constitution.org/kant/ntrometa.htm

    When the government exercises power over an individual’s duty of virtue and promulgates it as if it were a duty of right, it would not be hyperbole to term it tyranny.

    The fortuitous accident of Roe v. Wade is the first trimester line. Without that line, laws prohibiting abortion would be tyrannical because they necessitate the state exercising a property interest over the individual. The line is also in agreement with Originalism in that it corresponds with Blackstone’s comment:

    “LIFE is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.”

    And if you are the greatest legal mind of the 18th century, i.e. Lord Scalia, that moment happens at the end of the first trimester.

    Basically, without the first trimester rule, the entire social compact becomes illusory.

  29. Bob,Esq.

    I thought you might comment on my classic interpretation of Natural Law on the “Phony Theology” thread and contrast it with your contracual approach a la’ Locke and Kant.

  30. idealist707,

    Gene practically spoon fed the argument for everyone. There’s a truism that goes ‘you only have those rights which you can defend.’

    If people don’t take the time to learn and understand the rights they have, how the hell can they expect to defend them?

    What I found particularly annoying in the Catholic church contraception debate was confusing disdain for Catholicism and religion with some alleged claim to a right of privacy. Seriously, the extent of the arguments boiled down to “the Catholic church is bad because of this, so therefore I have a right to privacy that trumps their claim to free exercise.”

    Do you know why the phrase “a woman’s right to choose” is a load of ignorant tripe? Because rights exist a priori and are a-sexual. To say that women have a right to choose what to do with their bodies says, by negative implication, that it is contrasted with an alleged man’s right to do the same.

    Try viewing the ‘snark’ as a wake-up call.

  31. Mespo,

    I cannot believe that you just made me feel guilty. Why? Well, I have to confess I haven’t read your article yet for one reason; I try to preserve my mental health by avoiding anything Santorum related. I suppose I should pay more attention to what he says and does; especially if he beats Romney in Michigan. But that same ruling principle that tells you not to feed the trolls tells me not to upset myself with his ramblings.

    Sounds thin?

    Consider this website:

    http://savelennox.co.uk/

    Is there anything I can do to save that poor little dog in Ireland? No. But I guess I can raise awareness, like you did with your article. So I guess I’m obliged to read it.

    Thanks for making me feel like a shmuck.

  32. Bob,Esq.,

    The church has a claim to free exercise. I happen to think that women who work for Catholic institutions should have a right to the same kind of health coverage as other women. That’s how I look at the issue. Maybe some of us have disdain for the church because of its sexist attitude and its lack of understanding of women’s gynecological issues/problems and its position on birth control.

    I think you have misread some of the arguments. But…you’re a man–so what should one expect.

    There’s some female “snark” for you!

    ;)

    *****

    Commentary: Dust-up over contraceptive rule ignores rights of employees (The Kansas City Star)
    http://www.kansascity.com/2012/02/19/3428825/commentary-dust-up-over-contraceptive.html

    Excerpt:
    If I were Methodist and an X-ray technician at a Catholic hospital, I would hope to get the same health care coverage as I would if I worked at a Baptist hospital. Why is it fair for the Catholic hospital to impose its beliefs on me, when I’m not Catholic?

    And what if that hospital is the only one within 50 miles of where I live? Should I be forced to move to get affordable health care?
    I was speaking with my friend Cara Richards, a retired anthropology professor at Transylvania University, about this. She wasn’t at all pleased with the political spin on this issue.

    She said the U.S. Constitution doesn’t allow the government to support any particular religion, but it actually does just that when religious-based hospitals take federal funding. “We shouldn’t be giving government money to the hospitals that insist we have to abide by their religious views,” Richards said. “We are helping to enforce Roman Catholicism on those who are not Catholic.”

    *****

    Catholic Death Panels Coming to a Hospital Near You (Ms. Magazine)
    http://msmagazine.com/blog/blog/2011/04/29/catholic-death-panels-coming-to-a-hospital-near-you/

    Excerpt:
    When you have a medical emergency, you want to get to the nearest hospital–fast. But if you’re a pregnant woman with a medical emergency, the nearest hospital may refuse to treat you if it’s Catholic-run. The medical personnel may have to let you die, because the U.S. Conference of Catholic Bishops–or as I’ve begun to think of them, the Catholic Death Panel–has ordered Catholic hospitals to deny women care they deem immoral.

    Really.

    It’s hard to believe, but administrators, physicians and nurses who work in Catholic health-care facilities have abdicated responsibility for their female patients to the 258 men who make up the U.S. Conference of Bishops. That group has decided that pregnant women aren’t patients–they’re merely incubators.

    And if you’re not Catholic, you’re still subject to the restrictions placed on those hospitals. You will not be able to have an abortion, even if your life is at risk. You can’t receive emergency contraception if you’ve been raped. There will be no treatment for an ectopic pregnancy or an incomplete miscarriage. Contraception and sterilization will be out of the question.

  33. Medical Emergency: Catholic Hospitals Usurp Patients’ Rights (The Humanist) March/April 2011
    http://thehumanist.org/march-april-2011/medical-emergency-catholic-hospitals-usurp-patients-rights/

    Excerpt:
    YOU CAN’T EXPECT THAT every hospital will provide all of the medical services you’ll need. Some procedures are so specialized that you might have to travel to get them done. Conversely, some procedures are so basic that any hospital should be able to perform them. And if you’re in danger of dying, it’s to be expected that any hospital would do all it could to save your life.

    Sounds pretty simple, right? It should be, but thanks to the hierarchy of the Catholic Church, it’s getting awfully complex.

    Last year, a nun who worked as an administrator at St. Joseph’s Hospital in Phoenix, Arizona, was demoted after she signed off on an abortion for a woman who was eleven weeks pregnant and suffering from life-threatening pulmonary hypertension. With the patient’s heart and lungs in jeopardy, doctors determined that ending the pregnancy was the only way to save her life.

    Phoenix Bishop Thomas J. Olmsted was furious. Not only did he demote Sister Margaret McBride, he announced that she had automatically excommunicated herself from the Catholic Church by her actions. McBride, an Irish Catholic deeply involved in her church, is no longer eligible to receive sacraments or participate in other forms of church life.

  34. Bob,Esq.,

    “To say that women have a right to choose what to do with their bodies says, by negative implication, that it is contrasted with an alleged man’s right to do the same.”

    Is anyone trying to legislate what a man does with his body? Can a man get pregnant after being raped? Can a man’s health be jeopardized by a pregnancy or a series of pregnancies?

  35. Bob, Esq.
    Thanks for giving better than I gave, but you deserved it, soooo irascible!
    I still don’t know who “you” are, whom you were talking to. Certainly not the average citizen or lawyer—-possibly ones facing off in a courtroom.

    Yeah, I plead to the people I know that they should inform themselves.
    Nothing irritates me more than the attitude “I’ll wait until they come after me.”
    How then can you vote?

    I’ve just followed it all, as my early comment declared I would.

    As for “womens right to choose” or whatever slogan works.
    It may be inappropriate here, still looking for signs posted here.
    But they sure are hell necessry when drumming up popular support.
    Anyway, we see that the Repubs only support bishops, so where does that leave us? In your capable hands. Rights on!

  36. “Do you know why the phrase “a woman’s right to choose” is a load of ignorant tripe? Because rights exist a priori and are a-sexual. To say that women have a right to choose what to do with their bodies says, by negative implication, that it is contrasted with an alleged man’s right to do the same.”

    Bob,

    No doubt your are brilliant and I’ve conceded in the past that obviously your legal and your philosophical knowledge far exceeds my own limited knowledge of both. Please understand that I mean that statement with no irony intended. However, in that great knowledge sometimes is lodged a problematic tendency to over think a issue. I think your statement above illustrates this.

    The success of the Anti-Abortion movement can be traced to the meme created by the phrase “right to life”. Adding this phrase to depictions of cute babies and ultra-sound pictures of fetuses caused many to reassess their support of abortion rights. Those favoring abortion rights, such as me, needed a meme of our own to convey the other side of the issue. “A woman’s right to choose” was just such a meme.

    On both sides of the abortion coin there exists arguments and issues far more complex than the two representative memes. While I’m unreservedly pro-choice, I do recognize that the other side does preset some valid issues.
    However, in political matters no issues are won or lost based on intellectual arguments, for while we humans, in our hubris, discuss issues at higher levels, we make decisions with our guts.

    My gut tells me that men do not have any business deciding what happens with a women’s pregnancy. Except for medical reasons, abortions are undertaken because a woman has had an unwanted pregnancy and understands the effect carrying to term will have on her life. Should she have been smart enough to have prevented this pregnancy is not to me an issue. I don’t take a punitive view towards people’s foibles. However, my feeling and intellect tells me that she should have the right alone to choose whether to carry this fetus to term. Given this, I think using “a women’s right to choose” is a very appropriate way to frame the issue.

    Gene’s article provides an intellectual framework for discussing the issue of the increased invasion of personal privacy that is occurring today. Within but a few years, if this trend continues, we will find ourselves bombarded as we walk outside of our homes by subliminal ads targeted towards what corporations know about us from our time on the internet. We will have entered the worlds of “1984” and “Brave New World” and thereby reached a point of no return. I, however, have no intellectual pretensions and so I seek some way to prevent this from occurring. If it be by amendment, so be it. My only qualifications is that it be viable.

  37. idealist707, I still have not had time to read Gene’s post and am getting ready to leave again. I just read Bob’s statement about “intellectually lazy children”. That is not the case in my family.

  38. rafflaw,

    Tussling Over Jesus
    By NICHOLAS D. KRISTOF
    Published: January 26, 2011
    http://www.nytimes.com/2011/01/27/opinion/27kristof.html?_r=1

    Excerpt:
    The National Catholic Reporter newspaper put it best: “Just days before Christians celebrated Christmas, Jesus got evicted.”

    Yet the person giving Jesus the heave-ho in this case was not a Bethlehem innkeeper. Nor was it an overzealous mayor angering conservatives by pulling down Christmas decorations. Rather, it was a prominent bishop, Thomas Olmsted, stripping St. Joseph’s Hospital and Medical Center in Phoenix of its affiliation with the Roman Catholic diocese.

    The hospital’s offense? It had terminated a pregnancy to save the life of the mother. The hospital says the 27-year-old woman, a mother of four children, would almost certainly have died otherwise.

    Bishop Olmsted initially excommunicated a nun, Sister Margaret McBride, who had been on the hospital’s ethics committee and had approved of the decision. That seems to have been a failed attempt to bully the hospital into submission, but it refused to cave and continues to employ Sister Margaret. Now the bishop, in effect, is excommunicating the entire hospital — all because it saved a woman’s life.

    Make no mistake: This clash of values is a bellwether of a profound disagreement that is playing out at many Catholic hospitals around the country. These hospitals are part of the backbone of American health care, amounting to 15 percent of hospital beds.

    Already in Bend, Ore., last year, a bishop ended the church’s official relationship with St. Charles Medical Center for making tubal ligation sterilizations available to women who requested them. And two Catholic hospitals in Texas halted tubal ligations at the insistence of the local bishop in Tyler.

    The National Women’s Law Center has just issued a report quoting doctors at Catholic-affiliated hospitals as saying that sometimes they are forced by church doctrine to provide substandard care to women with miscarriages or ectopic pregnancies in ways that can leave the women infertile or even endanger their lives. More clashes are likely as the church hierarchy grows more conservative, and as hospitals and laity grow more impatient with bishops who seem increasingly out of touch.

    **********

    Women’s Health and Lives at Risk Due to Religious Restrictions at Hospitals, New Center Study Shows
    National Women’s Law Center Files Complaint with Department of Health and Human Services
    January 20, 2011
    http://www.nwlc.org/press-release/womens-health-and-lives-risk-due-religious-restrictions-hospitals-new-center-study-sho

  39. Bob, (I know you are now having a grand ol’ time! ;) )

    The point I am trying to make is this … if property rights are about control and privacy rights are also, then could it be that looking at privacy rights as a special form of property rights is a fruitful viewpoint when discussing the explosion of technology and its intrusions.

    (I’ll address the Catholic thing in my next post [since you went all Limehouse on me ;] ] but I want you to pay attention to what I just wrote above and tell me what you think. [Thanks for the Kant … I revisited him to order my mind which he always manages to do.] )

  40. Gene,

    What do you think about this … ” if property rights are about control and privacy rights are also, then could it be that looking at privacy rights as a special form of property rights is a fruitful viewpoint when discussing the explosion of technology and its intrusions.”

  41. Blouise et al,

    Why address me Blouise. I just hopped in when Bob went over the top. Seemed like the others were used to it. All the previous was legalese and over my head so have abstained. Gene’s post may be spoonfeeding as some accused, but many of us need that. Nobody has to produce a JD to come in here.
    Mike S. repeated the point that memes are politically useful, and should not be derided. Take a look at Gene’s blog. That’s my rough take.

    BobEsq, you listening I hope.
    I find your method of convincing folk comparable to mine when I got mad at the stupes who brought hot silicon ICs out of the oven into a room-temperature. They said their yield was poor so far. Well,, I told them why they were idiots. Was it appreciated? Nope. Better luck using your superior knowledge. In Sweden, people just look at you like you are crazy if you show irritation. It still happens to me. You can get intensive training here as a tourist.
    So as a therapist would ask: What really pissed you off today?
    Don’t tell me, just think about it . It’s your skin you have to enjoy, as someone recently said.

  42. Bob,

    Privacy seems to have many meanings. Even if taken as “freedom from interference by others” it can be used negatively to disguise domination, degradation, perversion, and ignominy which is how I see the Catholic Church using it.

    An unintended consequence?

  43. Mike S.,

    While I agree with almost everything you said, I think you’re underestimating the position I’m advancing.

    The difference between identifying and defending the inalienable right of self-ownership and the right to privacy contained therein and ‘a woman’s right to choose’ is much like the difference between a duck and a drake. Before we get to the predicates describing a drake we must first lay the groundwork and establish that we do in fact have a duck first and foremost; male or female. There’s a virtue in reducing your arguments down to the lowest common denominator.

    Think about it Mike. Why do you suppose I would say that the best way to defend ‘a woman’s right to choose’ is to clarify and defend the a-sexual right to privacy? I invite you to think like a therapist here. Who are you up against in the contraceptive/abortion rights debate? What audience do you think you’re mainly attempting to persuade? Women or misogynists?

    If you said misogynists, do you see the problem yet with labeling the issue ‘a woman’s right to choose’? So why would it be not only logically concise but advantageous to frame the issue in an a priori/a-sexual manner? As the misogynist holds the gun to the female’s head and says ‘I will determine what you will and won’t do with your body’ what better way to disarm him than by informing him that he actually has the gun pointed at his own crotch–i.e. that he’d be, how shall we say, castrating himself by denying himself the same right he’s denying the woman.

    Moreover Mike, this isn’t so much strategy; it’s merely incidental to adhering to the strongest argument– the abstract.

    You only have those rights which you can defend.

    Thus you’ll find me defending a woman’s right to choose as incidental to my defending the individual’s inalienable right of self-ownership and the right of privacy contained therein.

    So you could say it’s not so much about defending drakes as it is about defending all ducks first.

  44. Just had my husband who studied Con Law at Northwestern University read it since I am not an attorney. He said it was too broad and tried to cover too many issues. Now I am headed out for an appointment.

  45. id707,

    “Why address me Blouise. I just hopped in when Bob went over the top” … I’m not sure what you mean. I responded to you with my ant infested chicken dance.

    As to the subject matter of Gene’s article … I have no fear of appearing stupid … I consider it one of my most endearing traits. ;)

    Do you really live in Sweden?

  46. Bob,
    Just loved your reductio ad nauseam point about drakes and hens vs ducks.
    Do you think the misogynists would not pull the trigger anyway, just because you poínted it out with such reasoning.

    Give us a meme. Not a judicial reading. We’re fighting on the streets now.

  47. Blouise,
    You may address me, even cuss me—am so glad to hear you say my name.
    I blush so adoringly when you do. (A bit true too).
    I asked as I could not admit my ignorance as to the point of you’re not having lazy children. So lacking other choices I dithered and rambled.

    As to Gene’s article, see my post (#4?). I bowed out early, admitting it was over my head. However BobEsq got me to throwing rocks. I always insist on perservering in spite of ignorance, although have tried to temper it here so as not to be boring.

    Stockholm since 1968. Two years army officer service ’60-62, so not a deserter. Just rootless. But you didn’t ask

  48. id707,

    ” ’60-62, so not a deserter” … message received

    Have a good friend who did the same except he was stationed in Italy … ’62-’64 and liked it so much, he never came home … except to visit. He was here last summer.

  49. Blouise and SwM,

    I got mixed up on who I was answering.
    Respect both of you ladies highly. So if I go over some line, just chalk it up to that.

    Here’s one which will stand you well if you are at a better party in Stockholm.
    Those von-oben kiss on one cheek to acknowledge that you are so fine that you are invited to the party, on two cheeks if you’re friends, and three if you’re closely related and on good terms. I learned the hard way.

    Doesn’t such esoterica fascinate you?
    And in your circles?

  50. “I always insist on perservering in spite of ignorance”

    While I try to refrain from such activities as pissing up a rope.

  51. Blouise: “Privacy seems to have many meanings. Even if taken as “freedom from interference by others” it can be used negatively to disguise domination, degradation, perversion, and ignominy which is how I see the Catholic Church using it.”

    Blouise,

    I don’t see how that’s possible since the inalienable right of self-ownership necessitates the retention and preservation of individual autonomy and integrity.

  52. Blouise,

    If anything the church is acting as a second government; insisting it has a property interest in the people.

  53. Bob,
    How dúmb, give you enough rope and you’ll hang me.
    Don’t you know their just using you as a juridicial encyclopedia.
    As for genuflecting when Kant’s name is mentioned, I don’t.
    As I wrote earlier, his take that duty is qualified as number 2 in the list of 3 “categorical imperatives”, which I say made it easy for the Nazis

    A real question. Does the government regard us a property?

    I have no tattoos in my ear, but might have a nanochip in my butt.

  54. Blouise,

    ”if property rights are about control and privacy rights are also, then could it be that looking at privacy rights as a special form of property rights is a fruitful viewpoint when discussing the explosion of technology and its intrusions.”

    I think the idea is/could be a useful construct. In dealing with real property, the quality of the title is just as important as the nature of the property, and just so I think the same can be said of all rights. They have different intrinsic qualities (nature of the property) and can have different relational qualities as well (quality of title).

  55. Bob,Esq.,

    Women are often an afterthought for some men.

    P.S. Drakes don’t lay no stinkin’ eggs…even if they are ducks.

    P.P.S.
    “As the misogynist holds the gun to the female’s head and says ‘I will determine what you will and won’t do with your body’ what better way to disarm him than by informing him that he actually has the gun pointed at his own crotch–i.e. that he’d be, how shall we say, castrating himself by denying himself the same right he’s denying the woman.”

    Not sure what you mean. A man can’t be denied the right to have an abortion because men can’t get pregnant. I think you’re comparing apples and oranges. Women and men are both human–but not anatomically the same. And because women are not anatomically the same as men, we were denied the right to vote for many years.

    Care to expound on your logic?

  56. Blouise,

    And here comes Elaine (almost as if on cue) with perfect example of how the intrinsic/relational quality framework could be useful.

  57. Gene H.
    She does have uncanny timing. Is it a female quality, Elaine? Something to do with producing eggs. No snark intended. Just hiding seriousness behind attempted humor.

  58. idealist,

    I’m long past my egg-producing years. My timing had nothing to do with my female anatomy, its workings–or any kind of “feminine” intuition. My granddaughter was here for a visit. Once she left, I thought I’d check to see if Bob had responded to my comments. Not hiding any seriousness…just attempting a soupçon of humor.

  59. You have no right to other people’s opinions of yourself. Blackmail should be legal. Intellectual property is a fraud. You should not be able to sue facebook because you got drunk and posted pictures you later regretted.

    I dont think we need an amendment to sort this out. Even sillier is the notion that if an amendment was passed that our elected officials and law enforcement agencies would give two shits about it anyway.

  60. Bob,
    I get where you are coming from and understand the discussion twixt you and Gene. My nature as a therapist of the Gestalt kind is to operate on a visceral level. I’m quite aware therefore that while it’s inherently important for people like JT, Gene and you to intellectually and legally define the argumenttategs, I am more interested in the meewmes and strategy.

    As far as framing the argument for the misogynist to have them get it in their terms, I don’t see that as possible. They hate and fear women on a gut level and are irredeemable. The argument has to reach those that can view it with a relatively open mind and I see memes as that method rather than
    rational argument. What can you expect though from a guy who cries at romantic comedies?

  61. And I was trying to con you (not really) with the female mystique legend.
    As for cycles, who says they disappear if the effectuating organs are finished. The signal still initiates from the brain, producing estrogen and testerone. But then i’m rambling again.

  62. Elaine: “Not sure what you mean. A man can’t be denied the right to have an abortion because men can’t get pregnant. I think you’re comparing apples and oranges. Women and men are both human–but not anatomically the same. And because women are not anatomically the same as men, we were denied the right to vote for many years.

    Care to expound on your logic?”

    =====

    Elaine,

    First comes the principle, then comes its application. When it comes to the inalienable right of self-ownership and the privacy rights contained therein gender is irrelevant; else we could never say that all mankind are equal.

    “Everyone must admit that if a law is to be morally valid as a ground of obligation, then it must carry with it absolute necessity. [One] must concede that the ground of obligation here must therefore be sought not in the nature of man, nor in the circumstances of the world in which man is placed, but must be sought a priori solely in the concepts of pure reason; he must grant that every other precept which is founded on principles of mere experience-even a precept that may in certain respects be universal-in so far as it rests in the least on empirical grounds-perhaps only in its motive–can indeed be called a practical rule, but never a moral law.”

    My apologies to Mike S. who is all to aware how many times I’ve posted that quote.

  63. Mike S.,

    I too am a sucker for a good romantic comedy. Although, as I’ve confessed before, Anne Bancroft in Prisoner of Second Avenue is what I think about when someone says picture the ideal woman.

    “Robbed. What does robbed mean? The come in and take things out; they used to be yours now they’re theirs. We were robbed!”

  64. “A real question. Does the government regard us a property?”

    You only have those rights which you can defend.

    Keep sleeping on your rights and sure enough the government will eventually regard you as property.

  65. Bob,Esq.,

    All of mankind has not been treated equally. All of mankind is not being treated equally. Women have often been/ are often treated as second class citizens. What politicians are trying to pass laws that will tell men what they can or cannot do with their own bodies…or that would require men’s doctors to perform certain kinds of procedures on them without their consent? No legislator is trying to come between a man and his doctor. No legislator is trying to intrude on a man’s private life.

    Gender may be irrelevant to you because you are a man–but it isn’t to women who have been discriminated against over the centuries…and continue to be to this day.

  66. SwM,
    No, they don’t, Because they’ve never been there or had a wife or mother who has suffered the indignities and practical effects of discrimination.

    Bob,
    Thank for the superficial answer to a legal question.
    Still can’t buy your pursuing a priori solely in the concepts of…..etc quote.
    Who does the reasoning? Man. What is man surrounded by? Nature and empirical experiences. Are we defining laws for ideal states or a real world containing us and societies? Smell of kant vs empiricism, but there am guessing. Kant dancing with Plato.

    I share Richard Feyman’s disdain for philosophy. He did so because of its not producing any useful knowledge, saying so in spite of his son having chosen it as a profession

    Bedtime. Goodnight all. CUL.

  67. Elaine,

    In all fairness, I think you and Bob are driving past each other. I think his point was not that gender inequality wasn’t a real issue or didn’t exist, but rather that the principle of equality – the egalitarian idea that Jefferson expressed as “all men are created equal” – is rooted in a principle that is gender neutral because of its innately universal application (which from an epistemiological standpoint based on the categorical imperative to define what makes a principle is true).

  68. Gene H.,

    “In all fairness, I think you and Bob are driving past each other. I think his point was not that gender inequality wasn’t a real issue or didn’t exist, but rather that the principle of equality – the egalitarian idea that Jefferson expressed as “all men are created equal” – is rooted in a principle that is gender neutral because of its innately universal application.”

    That principle of equality–how did it work back in the day of Jefferson, a white man who was a slave owner? Were black men treated the same as white men? How about Native Americans? How about women? It’s great to have principles–but when you only give them lip service what good are they? Back in Jefferson’s day, I think that principle meant that “all white men are created equal.”

  69. Gene,

    Got it.

    Not certain if amendment is needed … if pushed, I would say no, but … as civilization advances, the protection against the invasion of privacy also expands … and the need thereof

  70. Elaine: “All of mankind has not been treated equally. All of mankind is not being treated equally. Women have often been/ are often treated as second class citizens.”

    If you’re going to deny the moral principle then you really have no right to complain do you?

    Elaine: “That principle of equality–how did it work back in the day of Jefferson, a white man who was a slave owner?”

    Tu quoque much?

  71. Idealist: “Thank for the superficial answer to a legal question.”

    Idealist: “Give us a meme. Not a judicial reading. We’re fighting on the streets now.”

    Make up your f’n mind.

  72. Elaine,

    I’m not going to argue history or the flaws of Jefferson the man nor am I going to lured into arguing whether or not women have historically gotten the shit end of the stick. You should know me well enough by now to realize that I don’t think Jefferson was perfect and that I don’t think women get a fair shake by society in general. The point I was making was epistemiological; the definition of principles and the categorical imperative as applied to equality and self-ownership. That and that you were taking Bob’s statement as an attack on women when it wasn’t.

    Do you know why guys who have really thought it through tend to be for women’s equality? When it’s not out of an innate sense of fairness, it’s very often because they realize that equality is a pan-human issue. Just like police brutality in black neighborhoods isn’t just a black problem, but a pan-social systemic justice problem that affects and should be important to everyone because justice is or should be important to everyone. Women’s rights should be important to everyone because equality as a principle is important to everyone no matter their gender. The principle of equality is gender neutral just like the principle of justice is gender neutral not because one gender is more important than another, but precisely because both genders are equally important. Just like justice is important no matter your skin color.

    I understand, sympathize with and support you in bringing up issues of gender inequality and discrimination, but Bob’s statement was not a disparagement of that very real problem. It was an epistemiological statement about the universality of true principles as defined by the categorical imperative.

  73. Gene & Bob,

    I live in the real world…a place where women are discriminated against. Sniff what you will in the “stench” of my argument. I have lived an experience that neither of you have lived. Maybe I don’t use big words or terms written in a foreign language to express my opinions or to put forth my argument. I am not a lawyer. I prefer to use simple language–something that I learned from author William Zinsser when I read his book “On Writng Well.”

    Gene: “Women’s rights should be important to everyone because equality as a principle is important to everyone no matter their gender.”

    Women’s rights SHOULD be important to everyone–but, sad to say, they aren’t. And both genders are not equally important to some people–including many of our elected legislators.

    P.S. to Bob: I have a right to complain about anything anytime I want.

  74. Elaine,

    There is no “stench” to your argument. It’s from a perfectly valid basis and well written and presented like all of your arguments. My point was that you and Bob were arguing at cross purposes. Yours summed up as “Women’s rights SHOULD be important to everyone–but, sad to say, they aren’t. And both genders are not equally important to some people–including many of our elected legislators” and Bob’s assertion that (paraphrased) “equality as a principle is gender neutral because it is universal in application as an expression of self-ownership under the categorical imperative” are not contradictory or even conflicting statements. In addition, they are both true statements. Since they aren’t contradictory, conflicting or false?

    What’s the problem?

  75. Could I stretch that point to suggest that, outside the boundaries of criminal indictment, public records such as birth, death, marriage certificates etc. I own my content? That no matter what the delivery system involved (news mongers, healthcare systems, government records, internet, tape recorders, neighborhood gossip, etc.) the right to my privacy is based on the fact that I, and I alone, own the content of my life and thus can permit or deny its use?
    Blouise
    ————————————————————————-
    Enforcement enforcement enforcement.

    And every time my name is sold to someother spamster I know that the above is a pipedream.
    Also, anyone who has been in the job marke recently knows that you can’t get a job unless you sign all those rights to ‘privacy’ away. The bank knows what the insurance company knows what the car dealer knows what the realtor knows…about you and it’s more than you know and they get the info free.

  76. Elaine,

    Since the purpose of this article was to stimulate a discussion about the origin of rights and how to best protect them (up front with varied degrees of specificity or from behind with general definitions refined by precedent) using privacy as an example, I have a question for you.

    How would you address the issue of reproductive rights? Either as privacy based or some other right asserted? The ERA or similar amendment? The (often) long (but usually nuanced) path of letting precedent sort it out? A combined approach?

    Having seen the examples of unintended consequences in the privacy example, I’m just curious as what you would do.

  77. Thanks for the relay, anon nurse. Another excellent article by Rosen. I would suggest reading it for any/everyone interested in pursuing the privacy rights angle in the discussion of how to best protect rights.

  78. Gene,

    I had stayed out of this discussion early on for a reason. I hadn’t come to a decision as to how protecting our privacy rights would best be addressed. I still haven’t. I entered the discussion after reading one of Bob’s comments–one that I felt a need to respond to.

    *****

    Bob’s comment:
    “What I found particularly annoying in the Catholic church contraception debate was confusing disdain for Catholicism and religion with some alleged claim to a right of privacy. Seriously, the extent of the arguments boiled down to ‘the Catholic church is bad because of this, so therefore I have a right to privacy that trumps their claim to free exercise.'”

    “Do you know why the phrase ‘a woman’s right to choose’ is a load of ignorant tripe? Because rights exist a priori and are a-sexual. To say that women have a right to choose what to do with their bodies says, by negative implication, that it is contrasted with an alleged man’s right to do the same.”

    *****

    I do believe the issue that we had discussed on earlier threads about the HHS contraception coverage mandate and the Catholic Church’s position on it is a serious one. The mandate doesn’t just cover the types of contraceptives prescribed by doctors but also medical procedures like tubal ligations. One has to take into consideration how many Catholic institutions there are in this country that employ women. (I have read that Catholic hospitals treat one in six people in this country.) I am concerned about the health and welfare of women. I think a woman should have the right to decide what happens to her own body. I don’t view the subject the same way that Bob does. What Bob views as ignorant tripe, most women do not. We have had to fight for equal rights for centuries.

    Should the women who work for Catholic institutions be covered by the same contraception mandate as all other women? Should the church have a right to deny women certain types of coverage? What if the women who work for Catholic institutions need birth control pills to treat medical conditions that threaten their health? Should a woman’s right to privacy trump the church’s claim to free exercise? Should women who work for Catholic institutions expect to be treated the same under the law as other women?

    I doubt a reproductive rights amendment would ever be passed–especially in this day and age.

  79. BobEsq,
    You didn’t even get that it was a complaint (snart) of your two word answer to a reasonable question. You flipped me off, which is your privilege, but I expected more reasoning.
    You love to pose together with Kant and the boys.
    But give an answer to me? No.

    And then I attacked you on another tack. The inappropriateness of your weapons to the the enemy we face. “Make up your mind, you say.

    It’s two different questions.-

  80. Gene H., BobEsq, Elaine M, Blouise, SwM, none forgotten but not all named.

    It’s nice of Gene H. to pal with BobEsq to explain Kant to us, but like Elaine I won’t buy Kant. I think his categorical imperative is BS, elite BS for the elite; and no more a basis to found a moral ethos on than other philosophies.

    “He opened the door, etc…..” Well most philosphies do need the door opened for them when they’ve been in there too long. So he helped get away from empiricism. Great. But does that make him the father of all “rights” thinking (double entendre)? No. Not faulting that which has been built on his reasoning—-as it can be sound, I mean who cares which turtle it is resting on. As for bases, I’d just as soon go back to Plato and his cave.

    Let us return to realities, with a telling example.
    Women, in medicine, have been neglected as study objects. This had enormous impact. The list is very long, and is getting longer. It is slowly being remedied, it takes time to create new study apparati, new specialties, new department, etc.
    Women ARE different medically. Shan’t take the time to explain more.

    But this does not give women medical equality research wise, or clinically.
    It still is met with resistance; similar to the misogynists who want be convinced by your reasoning, as Mike S. pointed out.

    This is bad not only from an equality standpoint, it is bad medicine.
    Study of women’s heart problems have revealed many answers to men’s problems. To the gain of the neutral problem you so well explain; but it still as bad science avoids pursuing the gender differences, the need for a completely different diagnostic workup, anemes, expression, treatment, post-acute handling, etc.

    Sorry to depart so far into reality, but it is there we are fighting.

    And I will embrace MLKjr’s words, expressed about the people in Vietnam, in paraphrase: “So long as some poor devil is suppressed there, then I am also suppressed.” And that goes for women too.

    Among all too many, they are still regarded as chattel, baby producers, diaper changers, and service providers, etc. A recipient of the spermal homunculi whose function is of lesser importance, only nurture, not generation.
    .
    I will add no more; it’s been covered very well by others here, And notably by an excellent article which gave a very good review of the religious and cultural aspects over time.

    Reactionaries waken like Sleeping Beauty’s ugly brother. Eager to restore the world as he saw it last. But as Thomas Wolfe and others have said:
    “You can’t go home again”.

    And like new-swarming locusts, they find each other, mate, but in this case do NOT fall dead.

  81. id707,

    One thing I can guarantee you about the discussion of philosophy and Kant: some people Kan and some people Kant. Almost no one will ever be offended by a rejection of Kant because he was the kind of philosopher that makes philosophy majors and other philosophers pull their own hair out.

  82. Good videos, Elaine. And they raise the point of why I’m not strictly Kantian too; he was an absolutist. The CI is a useful framework for analyzing many problems, but the fact of the matter is that the universe often presents us problems that the solution does not fit either an absolute or requires an exception to provide a just outcome (something permissible under Weak Rule Utilitarianism). I try not to be dogmatic in my pursuit of philosophies. No one tool is better than the other because just as every problem is in some way unique, every tool has its own function and utility. To get the best solution requires using the right tools. Sometimes a deontological tool is the right one, sometimes a consequentialst tool is the right one. I prefer a synthetic approach.

  83. I somehow missed this a few days ago. Perhaps others missed it, too:

    http://www.aclu.org/blog/national-security/obama-administration-asks-supreme-court-dismiss-aclu-challenge-warrantless

    Obama Administration Asks Supreme Court to Dismiss ACLU Challenge to Warrantless Wiretapping Law

    2/17/12

    Posted by Ateqah Khaki, ACLU at 6:47pm

    “Today, the government asked the Supreme Court to overturn an appeals court ruling that allowed our lawsuit challenging the constitutionality of the 2008 FISA Amendments Act to go forward. That law gives the government unprecedented authority to monitor Americans’ international emails and phone calls.”

    “The FISA Amendments Act is the most sweeping surveillance statute ever enacted by Congress. It allows dragnet surveillance of Americans’ international communications with none of the safeguards that the Constitution requires. Little is known about how the Act has been used. In response to a Freedom of Information Act lawsuit filed by the ACLU, the government revealed that every six-month review of the Act had identified “compliance incidents,” suggesting either an inability or an unwillingness to properly safeguard Americans’ privacy rights. The government has withheld the details of those “compliance incidents,” however, including statistics relating to abuses of the Act.

    The Act is scheduled to sunset in December 2012, and we’re calling for amendments that would prohibit dragnet surveillance, require the government to be more transparent about how the law is being used and place stronger restrictions on the retention and dissemination of information that is collected.”

  84. Bob,

    No, it wasn’t, but it did hinge upon the definition of principle the CI creates in operation. The CI is a useful tool. It’s not always the right tool, but it does have surprisingly high and broad utility. As I said, I found both statements to be neither false nor incompatible.

    I really do think you two are driving past each other.

  85. http://epic.org/2012/02/2013-federal-budget-limits-bod.html

    2013 Federal Budget Limits Body Scanners, But Expands Domestic Surveillance

    “According to White House budget documents and the Congressional Testimony of Secretary Napolitano, DHS will not purchase any new airport body scanners in 2013. However, the agency will expand a wide range of programs for monitoring and tracking individuals within the United States. This includes the development of biometric identification techniques for programs such as Secure Communities. DHS will also seek funding for “Einstein 3,” a network intrusion detection program that enables surveillance of private networks. EPIC has urged the DHS to comply with the requirements of the federal Privacy Act, and is currently pursuing several Freedom of Information Act lawsuits against the agency.”

    ———————-

    https://www.eff.org/deeplinks/2012/02/spy-tech-companies-their-authoritarian-customers-part-ii-trovicor-and-area-spa

    [Trovicor’s] toolbox allows more than the interception of phone calls, e-mails, text messages and Voice Over Internet Protocol calls such as those made using Skype. Some products can also secretly activate laptop webcams or microphones on mobile devices. They can change the contents of written communications in mid-transmission, use voice recognition to scan phone networks, and pinpoint people’s locations through their mobile phones. The monitoring systems can scan communications for key words or recognize voices and then feed the data and recordings to operators at government agencies.

    Dutch member of the EU parliament Marietje Schaake has called on the EU Commission to investigate Trovicor and other companies that have sold surveillance equipment to Bahrain, along with Tunisia, Egypt, Syria, and Iran. EFF echoes MEP Schaake’s call for an investigation, as transparency about who these companies are selling to and what the technology is being used for is the first step towards solving the problem.

    In addition, EFF has recommended the EU and US push companies to adopt “know your customer” standards that would prevent them from selling surveillance technology to governments known for violating human rights. The EU and US can easily induce companies to adopt such policy by tying it to government contracts. This could help prevent these types of sales from happening again, as many companies, including Area SpA and Trovicor, also sell equipment to the Western government for legitimate lawful purposes.

    As long as these companies believe that it is okay to sell this technology to dictators, democracy activists, human rights activists, bloggers, and journalists around the world will continue to suffer.

  86. “Some 10thers (i.e. people who don’t recognize/understand the precedent that has evolved around the 1oth Amendment and State’s Rights) would argue that the 10th Amendment creates a specific right to privacy because it’s not enumerated and “[t]he 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.” This is specious reasoning because there is a clearly a Federal interest in privacy created by the 1st, 3rd, 4th, 5th, 9th and 14th Amendments.”

    Actually, since rights confer power, and the right of self ownership is inalienable, the Ninth amendment protects the right of privacy analytically; i.e. that which cannot be alienated must be retained.

    The constitution does not confer upon us a right to privacy through penumbras or otherwise; we simply never conferred it in the first place.

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