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 ‘
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:
0) Privacy is the natural right to exclude others from a private domain.
- 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.
- It is a natural right because individual human beings have a natural need for it and an innate ability to achieve it.
- 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.
- 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.
- 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.
- *A policy that neutralises, or covenants not to exploit, privileges that abridge privacy can restore privacy from their affect.
3) If I am a human being you confide in:
- I am a mortal and have natural rights (life, privacy, truth, liberty).
- Your privacy delimits my liberty, and so I am not at liberty to invade your privacy, nor you, mine.
- Your wish to constrain dissemination cannot derogate from my liberty, nor my freedom of speech.
- Your disclosure does not enthrall me, i.e. bringing me into your confidence does not bind me to silence.
- If you confide any information (to which you are privy) to me, it is no longer private from me.
- 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.
- 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.
- 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:
- I am a legislatively created entity, unnatural/immortal, and can have no natural rights.
- Laws and regulations could constrain me without limit, but are typically lax and expensive to enforce.
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.
- 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).
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:
- prevents an individual from communicating
- impairs an individual recipient’s apprehension of the truth (is fraudulent)
- violates an individual’s privacy (discloses information obtained through invasion/burglary)
- 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’.
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.