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Privacy is not Subject to Policy · Monday December 20, 2010 by Crosbie Fitch

Just because a corporate website declares a ‘privacy policy’, that should not lead you to believe that your privacy is or can be at all affected by that policy, certainly not to believe that your privacy can be extended into their data-centre.

It should be recognised that your privacy ends at the boundary of your personal space, home and possessions. When you confide your personal data to another person or a corporation it’s governed by very little, certainly not you. Their misnamed ‘privacy policy’ (more properly termed a ‘discretion policy’) just lets you know how indiscreet to expect them to be as a matter of their policy, as opposed to their practice (very indiscreet).

Corporations could be regulated to be so discreet as to attempt to simulate an extension of your privacy, but as we have seen with Wikileaks even highly secretive and unscrupulous superpowers can fail to silence their staff, just as they fail to torture the truth from their suspects. Do not expect a corporation to achieve what a totalitarian state cannot, however steep the fines for regulatory non-compliance.

What the likes of Facebook should teach us is not that privacy has ended, but that they cannot not provide or extend it except as a con. You cannot outsource privacy. It doesn’t work like that. There is no power on earth that can constrain the further dissemination of information that has been disclosed. Sticking a magic symbol © on it doesn’t work either. That information is of a personal nature may increase your desire that your doctor does not disclose it, but it his discretion, not your right to privacy, that determines its non-disclosure (irrespective of professional repercussions). This is natural law. We can make unnatural laws and privileges to the contrary, but that is unethical and futile folly.

Human beings have freedom of speech. It is a fact of nature. You cannot recognise that and covet the power to silence others, those you’d rather not have that freedom.

Here it is in bullets:

The Right

0) Privacy is the natural right to exclude others from a private domain.
  1. A private domain is the physical region surrounding an individual’s or group’s bodies, possessions and spaces they necessarily occupy, inhabit or have secured.
  2. It is a natural right because individual human beings have a natural need for it and an innate ability to achieve it.
  3. Those within (included/privy) have the liberty to include (admit) or privacy to exclude (deny) those without (excluded/not privy)1
1) As a natural right, privacy is unalienable and to be protected by government for all individuals equally.
  1. As a right it is therefore not possible* for privacy to be affected by policy, nor agreement/contract (T&C, EULA, NDA, etc.).
2) A government may unethically enact laws that abridge natural rights such as privacy.
  1. A government may grant privileges such as copyright, and grant holders powers or additional privileges to invade a person’s privacy in order to detect potential infringement.
  2. *A policy that neutralises, or covenants not to exploit, privileges that abridge privacy can restore privacy from their affect.

The Confidence

3) If I am a human being you confide in:
  1. I am a mortal and have natural rights (life, privacy, truth, liberty).
  2. Your privacy delimits my liberty, and so I am not at liberty to invade your privacy, nor you, mine.
  3. Your wish to constrain dissemination cannot derogate from my liberty, nor my freedom of speech.
  4. Your disclosure does not enthrall me, i.e. bringing me into your confidence does not bind me to silence.
  5. If you confide any information (to which you are privy) to me, it is no longer private from me.
  6. I am thus privy to the information (to which you are privy) that you disclose to me. It is now private to both of us.
  7. You must rely entirely upon trust or confidence in my discretion, concerning any desire or plea of yours that your confidences not be further disclosed or disseminated.
  8. If there are no extenuating circumstances supporting it, my indiscretion or disclosure of confidences may have repercussions for my reputation as a trustworthy and discreet individual.
4) If I am a corporation you confide in:
  1. I am a legislatively created entity, unnatural/immortal, and can have no natural rights.
  2. Laws and regulations could constrain me without limit, but are typically lax and expensive to enforce.
  3. I have a fiduciary obligation to place profit above all other considerations and cannot be trusted as a mortal – you are best advised to treat me as an unscrupulous and mercenary psychopath.
  4. I lobby for, amass, and exploit as many state granted privileges (aka ‘legislatively created rights’) as I can – however much these derogate from your rights, such as privacy and liberty.
  5. I will not hesitate to pretend your private domain extends into my domain in order to beguile you into believing your personal data and other confidences that you have disclosed to me still remain private to you (can be treated as if not in my possession).
  6. In order to obtain your confidence it is likely that I will make some attempt to avoid the disclosure/exploitation of your confidences being easy for you to detect.
  7. There are few repercussions in the event you do discover how indiscreet I have been with your confidences – and what few exist are usually ineffective as deterrent or remedy.
  8. The only sense in which your confidences can be said to remain private to you is in the sense that it will not be obvious to you or your agents as to what extent they are processed, disclosed, disseminated, or otherwise exploited.
  9. I am staffed by human beings (some of whom will necessarily become privy to information you confide in me) that I am unable to constrain (see 3).

The Conclusion

5) You cannot both include a human being in your private affairs AND exclude them (or constrain them to exclude others). You must trust in their discretion.
6) Although a corporation is a legal entity, and having no rights can be legally bound to silence or non-disclosure, it cannot be trusted to observe such a binding constraint, especially given that its human staff cannot be so bound.
7) One cannot constrain an individual’s communication, nor hope to constrain a corporation’s.
8) One should only prohibit a communication, and have some expectation of achieving remedy, where it violates an individual’s rights, e.g. where it:
  1. prevents an individual from communicating
  2. impairs an individual recipient’s apprehension of the truth (is fraudulent)
  3. violates an individual’s privacy (discloses information obtained through invasion/burglary)
  4. jeopardises an individual’s life
9) So called ‘privacy policies’, except where they covenant not to compromise privacy through privilege, are generally redundant and misleading, if not dishonest. They’d be better termed ‘personal data processing and communications policies’ or ‘assurances of discretion’.
10) The suggestion by a ‘privacy policy’ that an individual’s private domain can be effectively extended into the purview of a corporation is an abhorrent con.

____________________

1 An author’s exclusive right to their writings derives from the right to privacy and is their right to exclude those not privy from access to, distribution, copying, or communication of them. Naturally, those made privy by the author have equal rights to liberty and privacy, and so, aside from authorship and ownership of any underlying material objects, the same exclusive right to the writings, and the same liberty to disseminate them. NB This shouldn’t be confused with copyright, which is a privilege derogating the right to copy from others’ liberty in order to benefit the holder with a means of enforcing a reproduction monopoly. When people say “Copyright is the right to exclude others from making copies” they are using ‘right’ as a contraction of ‘legislatively created right’ or ‘legal right’, i.e. a privilege – granted and established by Queen Anne in 1709.

Laurel L. Russwurm said 2471 days ago :

You state that “Human beings have freedom of speech. It is a fact of nature. You cannot recognise that and covet the power to silence others, those you’d rather not have that freedom.”

Actually human beings are quite capable of doing an awful lot of illogical things. In my experience most human beings are able to hold two mutually exclusive ideas in our heads (ambivalence), often without realizing it, and thinking that we believe both. Consecutively or concurrently. It’s part of why humanity is so confused.

Which is why it is important to examine and actually think about the views we’ve adopted, whether through training, life experience or osmosis.

Thank you for clarifying this important issue at a time of year so many of us are purchasing gifts like video games for our loved ones. It’s an excellent opportunity to remind our children the best way to safeguard their online privacy is to never give personal information to corporations.

This is the one place that lying becomes ethical as self defense against corporate incursion.

Crosbie Fitch said 2471 days ago :

Yes, Laurel, sadly doublethink is an endemic talent. I have come across a few who at the same time as recognising that copyright should not prohibit them from sharing music without the holder’s permission, fail to recognise that they don’t have a natural right against (and shouldn’t have legal means (NDA) to punish) those who betray their confidences.

I agree that falsehood is not unethical as a protection of one’s privacy, e.g. to respond “No” to “Are you gay?” or “Did you have sex with that woman?” does not necessarily constitute unwarranted deceit. Conversely, if someone’s life depends upon a truthful answer, falsehood may then be unwarranted irrespective of a consequent compromise of one’s privacy.

John Baker said 1905 days ago :

Very good point and another hyper common double speak dissected.

Discretion is a much more accurate way to describe what people mostly refer to as privacy online. Its a matter of “is a choice of trust here wise?”. When people worry about privacy online they are usually mostly concerned about “will my information be used for or against me?”.

Companies like to call it privacy but can always then go against you when convenient to do so because essentially you were on operating their private property!

Online, people are lulled by commercial services into disclosure by cool features they do want to use that require the data to function (i.e. location for convenient mapping app), but there are also ways to use that data if stored at a later date against the person.

Most corporations are in a race to gather data as much as possible in the hope they can find some use for it later and monetize it which obviously they cannot even declare in their “discretion policy”. Also, any subsequent sharing with a third party, they cannot declare what will actually happen with it because they cannot even know.

People call it their ‘privacy’ concerns, but really it is a ‘usage’ concern.

The hugely leaky world online is a problem mainly because its the way the data is used that is key, not the data itself.

 

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