Toward Informational Privacy Rights

References (147)

1. Human well-being or flourishing is the sole standard of intrinsic value.
2. Human persons are rational project pursuers, and well-being or flourishing is attained through the setting, pursu- ing, and completion of life goals and projects. n50
3. The control of physical and intangible objects is valuable. At a specific time, each individual has a certain set of things she can freely use and other things she owns, but she also has certain opportunities to use and appropriate things. 44 San Diego L. Rev. 809, * Legal Topics: For related research and practice materials, see the following legal topics: Computer & Internet LawPrivacy & SecurityInvasion of PrivacyComputer & Internet LawPrivacy & SecuritySpy- wareEnergy & Utilities LawMining IndustryGeneral Overview FOOTNOTES: n1. See generally David Brin, The Transparent Society (1998) (discussing how technology diminishes privacy).
4. According to one estimate there are more than four million surveillance cameras in Britain. Jeffery Rosen, The Naked Crowd 36 (2004), citing Michael McCahill & Clive Norris, CCTV in London 20 (Urbaneye Working Paper No. 6, 2002), http://www.urbaneye.net/results/ue wp6.pdf. n3. See Judith Wagner DeCew, In Pursuit of Privacy: Law, Ethics, and the Rise of Technology 148-51 (1997); Randal Kemp & Adam D. Moore, Privacy, 25 Libr. Hi Tech 58, 67-72 (2007).
5. Council Directive 95/46/EC, 1995 O.J. (L 281) 31, available at http://ec.europa.eu/justice home/fsj/privacy/docs/95-46-ce/dir1995-46 part1 en.pdf and http://ec.europoa.eu/justice home/fsj/privacy/docs/95-46-ce/dir1995-46 part2 en.pdf. n5. Some of this part draws from Adam D. Moore, Privacy: Its Meaning and Value, 40 Am. Phil. Q. 215, 215-23 (2003).
6. Kemp & Moore, supra note 3, at 62-66. See generally Daniel Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477 (2006) (attempting to delineate privacy's bounds by discussing a "taxonomy" of activities that harm privacy).
7. See Thomas M. Cooley, A Treatise on the Law of Torts 29 (2d ed. 1888);
8. Samuel D. Warren & Louis D. Brandeis, The Right to Priva- cy, 4 Harv. L. Rev. 193, 195 (1890).
9. See Paul A. Freund, Privacy: One Concept or Many, in Nomos XIII: Privacy 182, 182-84 (J. Roland Pennock & John W. Chapman eds., 1971);
10. Roscoe Pound, Interests in Personality, 28 Harv. L. Rev. 343, 362-64 (1915).
11. William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 389 (1960).
12. Ellen Alderman & Caroline Kennedy, The Right to Privacy 155-56 (1995).
13. Adam D. Moore, Intellectual Property and Information Control 181-82 (2001);
14. Alan F. Westin, Privacy and Freedom 7 (1967); see also Anita L. Allen, Why Privacy Isn't Everything: Feminist Reflections on Personal Accountability 115-16 (2003). See generally Ruth Gavison, Information Control: Availability and Exclusion, in Public and Private in Social Life 113 (S.I. Benn & G.F. Gaus eds., 1983) (discussing the distinction between public and private information, conflicts over information controls, and possible resolutions for information-control con- flicts). 44
15. San Diego L. Rev. 809, *
16. See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); see also H. Tristram Engelhardt, Jr., Privacy and Limited Democracy: The Moral Centrality of Persons, Soc. Phil. & Pol'y, Summer 2000, at 120, 123-24;
17. Joel Feinberg, Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?, 58 Notre Dame L. Rev. 445, 446 (1983);
18. Louis Henkin, Privacy and Autonomy, 74 Colum. L. Rev. 1410, 1410-11 (1974);
19. Daniel R. Ortiz, Privacy, Autonomy, and Consent, 12 Harv. J.L. & Pub. Pol'y 91, 91-92 (1989).
20. W.A. Parent, Privacy, Morality, and the Law, 12 Phil. & Pub. Aff. 269, 269 (1983).
21. Julie C. Inness, Privacy, Intimacy, and Isolation 140 (1992).
22. DeCew, supra note 3, at 62.
23. Samuel Rickless offers a barrier theory of privacy: "For X to have a right to privacy against Y is for X to have a claim against Y that Y not learn or experience some personal fact about X by breaching a barrier used by X to keep others from learning or experiencing some per- sonal fact about X." Samuel C. Rickless, The Right to Privacy Unveiled, 44 San Diego L. Rev. 773, 787 (2007). One problem with this ac- count is that it is not at all clear what counts as breaching a barrier. A bad disguise might be a barrier to those with poor eyesight while walls, fences, and security systems may not be a barrier to someone with Superman ears.
24. See also Allen, supra note 11, at 1-2; Charles Fried, An Anatomy of Values: Problems of Personal and Social Choice 140-41 (1970);
25. Gavison, supra note 11, at 113-20, 129-32;
26. Hyman Gross, Privacy and Autonomy, in Nomos XIII: Privacy, supra note 8, at 169, 170; Rich- ard B. Parker, A Definition of Privacy, 27 Rutgers L. Rev. 275, 279-80 (1974);
27. Ernest Van Den Haag, On Privacy, in Nomos XIII: Privacy, supra, at 149, 149; Richard Wasserstrom, Privacy: Some Arguments and Assumptions, in Philosophical Law 148, 148 (Richard Bronaugh ed., 1978).
28. Parent, supra note 13, at 269-70 (citation omitted).
29. As with privacy, defining the term information is difficult. See, e.g., Michael K. Buckland, Information as Thing, 42 J. Am. Soc'y Info. Sci. 351 (1991);
30. C.E. Shannon, A Mathematical Theory of Communication, 27 Bell Sys. Tech. J. 379 (1948);
31. Andrzej Chmielecki, What is Information?, Twentieth World Congress of Philosophy, Aug. 1998, http://www.bu.edu/wcp/Papers/Cogn/CognChmi.htm.
32. On this view, just because some bit of information is publicly available does not mean that it is not personal information.
33. Parent, supra note 13, at 269 (emphasis added).
34. DeCew, supra note 3, at 57-58. Many counterexamples to control-based definitions of privacy illicitly move back and forth between non-normative and normative conceptions. For example, Rickless, following Parent's example, describes the Threatened Loss Counterexam- ple, which has no force if we are considering a right to control access. See Rickless, supra note 16, at 782-84.
35. For an analysis of the reductive versus nonreductive debate, see generally Amy Peikoff, No Corn on this Cobb: Why Reductionists Should Be All Ears for Pavesich, 42 Brandeis L.J. 751 (2004). See also Judith Jarvis Thomson, The Right to Privacy, 4 Phil. & Pub. Aff. 295, 304-05 n.4 (1975). For a critique of Thomson's view of privacy, see Thomas Scanlon, Thomson on Privacy, 4 Phil. & Pub. Aff. 315 (1975). 44
36. San Diego L. Rev. 809, *
37. Frederick Davis, What Do We Mean by "Right to Privacy"?, 4 S.D. L. Rev. 1, 20 (1959).
38. Scanlon, supra note 23, at 315-22.
39. Westin, supra note 11, at 8.
40. John J. Christian, Phenomena Associated with Population Density, 47 Proc. Nat'l Acad. Sci. 428, 444 (1961).
41. Id. at 443-46.
42. Edward T. Hall, Proxemics, 9 Current Anthropology 83, 87 (1968) (citing John B. Calhoun, The Study of Wild Animals Under Con- trolled Conditions, 51 Annals N.Y. Acad. Sci. 1113-15 (1950)).
43. Id.
44. Westin, supra note 11, at 10; see also W.C. Allee, The Social Life of Animals 91 (1938) (finding that overcrowding reduces growth in animal species);
45. Robert Ardrey, The Territorial Imperative 55-56 (1966) (discussing animal territoriality and its effect on reproductive suc- cess);
46. John B. Calhoun, A Behavorial Sink, in Roots of Behavior 295, 314-15 (Eugene L. Bliss ed., 1962) (discussing rat overcrowding ex- periment that led to atypical behavior and reproductive failure);
47. John B. Calhoun, Population Density and Social Pathology, 206 Sci. Am. 139, 139 (1962) (same);
48. Edward T. Hall, The Hidden Dimension 23 (Anchor Books 1982) (1966);
49. H. Elliot Howard, Territory in Bird Life 273-75 (reprint 1978) (1920) (describing territoriality among bird species).
50. See, e.g., Allee, supra note 31, at 91; V.C. Wynne-Edwards, Animal Dispersion in relation to Social Behaviour 188-89 (1962);
51. Edward S. Deevey, The Hare and the Haruspex: A Cautionary Tale, 49 Yale Rev. 161, 178 (1959), reprinted in 48 Am. Sci. 415 (1960);
52. E. Thomas Gilliard, On the Breeding Behavior of the Cock-of-the-Rock (Aves, Rupicola rupicola), 124
53. Bull. Am. Museum Nat'l Hist. 31, 61-63 (1963);
54. Robert L. Snyder, Evolution and Integration of Mechanisms that Regulate Population Growth, 47 Proc. Nat'l Acad. Sci. 449, 454 (1961).
55. See George P. Murdock, Universals of Culture, in Readings in Anthropology 4 (E. Adamson Hoebel et al. eds., 1955).
56. Westin, supra note 11, at 12-13. John Roberts and Thomas Gregor support this view of privacy: Privacy as a set of rules against intrusion and surveillance focused on the household occupied by a nuclear family is a conception which is not to be found universally in all societies. Societies stemming from quite different cultural traditions such as the Mehinacu and the Zuni do not lack rules and barriers restricting the flow of information within the community, but the management and the functions of privacy may be quite different.
57. John M. Roberts & Thomas Gregor, Privacy: A Cultural View, in Nomos XIII: Privacy, supra note 8, at 199, 225 (emphasis added).
58. Barry Schwartz, The Social Psychology of Privacy, 73 Am. J. Soc. 741, 741-52 (1968).
59. Id. 44 San Diego L. Rev. 809, *
60. See Herbert J. Spiro, Privacy in Comparative Perspective, in Nomos XIII: Privacy, supra note 8, at 121, 122-23.
61. Hall, supra note 29, at 87 (citation omitted).
62. Theodore D. Fuller et al., Chronic Stress and Psychological Well-Being: Evidence from Thailand on Household Crowding, 42 Soc. Sci. & Med. 265, 267 (1996) (citation omitted). This view is echoed by Desmond Morris, who writes, "Each kind of animal has evolved to exist in a certain amount of living space. In both the animal zoo and the human zoo [when] this space is severely curtailed ... the conse- quences can be serious." Desmond Morris, The Human Zoo 39 (1969).
63. See Andrew Baum & Stuart Koman, Differential Response to Anticipated Crowding: Psychological Effects of Social and Spatial Den- sity, 34 J. Personality & Soc. Psychol. 526, 535 (1976);
64. David P. Farrington & Christopher P. Nuttall, Prison Size, Overcrowding, Prison Violence, and Recidivism, 8 J. Crim. Just. 221, 230 (1980);
65. Fuller et al., supra note 39, at 277; Paul B. Paulus, Garvin McCain & Verne C. Cox, Death Rates, Psychiatric Commitments, Blood Pressure, and Perceived Crowding as a Function of Institutional Crowding, 3 Envtl. Psychol. & Nonverbal Behav. 107, 114 (1978);
66. R. Barry Ruback & Timothy S. Carr, Crowding in a Woman's Prison: Attitudinal and Behav- ioral Effects, 14 J. Applied Soc. Psychol. 57, 66 (1984); see also Jes Clauson-Kaas et al., Urban Health: Human Settlement Indicators of Crowding, 18 Third World Plan. Rev. 349, 353 (1996);
67. Griscom Morgan, Mental and Social Health and Population Density, 20 J. Hum. Rel. 196, 198 (1972). But see John N. Edwards & Alan Booth, Crowding and Human Sexual Behavior, 55 Soc. Forces 791, 805 (1977) (finding that human sexual behavior is not appreciably influenced by crowded conditions).
68. Edwin I. Megargee, The Association of Population Density, Reduced Space, and Uncomfortable Temperatures with Misconduct in a Prison Community, 5 Am. J. Community Psychol. 289, 294 (1977);
69. Frank J. Porporino & Kimberly Dudley, An Analysis of the Effects of Overcrowding in Canadian Penitentiaries 8-16 (Solicitor Gen. of Can., User Rep. No. 1984-06, 1984).
70. Garvin McCain, Verne C. Cox & Paul B. Paulus, U.S. Dep't of Just., The Effect of Prison Crowding on Inmate Behavior 113-15 (1980).
71. Paulus, McCain & Cox, supra note 40, at 112.
72. Farrington & Nuttall, supra note 40, at 229.
73. John Locke, The Second Treatise of Government 17 (Thomas Peardon ed., Bobbs-Merrill Co. 1952) (1690) (emphasis added).
74. The "Pareto" condition is named after Vilfredo Pareto (1848-1923), an Italian economist and sociologist. The Pareto condition is de- fined as: One state of the world, S<1>, is Pareto-superior to another, S<2>, if and only if no one is worse off in S<1> than in S<2>, and at least one person is better off in S<1> than in S<2>. S<1> is strongly Pareto-superior to S<2> if everyone is better off in S<1> than in S<2>, and weakly Pareto-superior if at least one person is better off and no one is worse off. State S<1> is Pareto-optimal if no state is Pareto- superior to S<1>: it is strongly Pareto-optimal if no state is weakly Pareto-superior to it, and weakly Pareto-optimal if no state is strongly Pa- reto-superior to it. Throughout this paper I will use "Pareto" as a "super-weak" condition, namely to mean that no one is worsened. See G.A. Cohen, The Pareto Argument for Inequality, 12 Soc. Phil. & Pol'y 160, 160-61 n.4 (1995).
75. San Diego L. Rev. 809, *
76. It has been argued that subjective preference satisfaction theories fail to give an adequate account of bettering and worsening. See Donald C. Hubin & Mark B. Lambeth, Providing for Rights, 27 Dialogue 489, 492 (1988);
77. Adam D. Moore, Values, Objectivity, and Rela- tionalism, 38 J. Value Inquiry 75, 76-80 (2004).
78. Someone could object and claim that being permitted to use and control personal information because one satisfies a nonworsening re- quirement is not a justification. I may not morally worsen anyone by standing on my head at the bus stop -such actions are permitted but not justified. First, little would be lost by just dropping talk of justification in favor of what is permitted. Second, given that such actions, how- ever silly, do not worsen and are within my rights, I would argue that they are justified -morality requires nothing more of me. See Immanu- el Kant, Fundamental Principles of the Metaphysic of Morals 33 (Thomas K. Abbott trans., Bobbs-Merrill Co. 1st ed. 1949) (1785).
79. For similar views see Aristotle, Nicomachean Ethics, bk. I, X (Martin Ostwald trans., Bobbs-Merrill Co. 1962) (350 B.C.E.);
80. Loren E. Lomasky, Persons, Rights, and the Moral Community 26-27, 38 (1987);
81. Ralph Barton Perry, General Theory of Value 181-82, 201-02 (Harvard Univ. Press 1950) (1926);
82. John Rawls, A Theory of Justice 408-09 (1971); Henry Sidgwick, The Methods of Ethics 46-49 (Hackett Publ'g Co. 1981) (1907).
83. The argument in support of the value of privacy offered earlier would support this view. See supra notes 26-45 and accompanying text.
84. For more about the difficulties in determining a baseline, see Shelly Kagan, The Limits of Morality 87-89 (1989);
85. Hubin & Lambeth, supra note 48, at 492-93.
86. To adopt a less stringent principle would permit individuals, in bettering themselves, to worsen others. Such provisos on acquisition are troubling because they may open the door to predatory activity. To require individuals, in bettering themselves, to better others is to require them to give others free rides. Both of these standards are open to rational complaint. See Robert Nozick, Anarchy, State, And Utopia 185- 86 (1974) (discussing claims of justice in a hypothetical "Robinson Crusoe" case where ten stranded individuals have varying degrees of success fending for themselves).
87. Although not my direct concern here, I believe the risk argument could be modified to apply to small unconnected or nonwired com- munities as well.
88. The following quote from a Chinese military newspaper applies a number of these issues to information war: After the Gulf War, when everyone was looking forward to eternal peace, a new military revolution emerged. This revolution is essentially a transformation from the mechanized warfare of the industrial age to the information warfare of the information age. Information warfare is a war of decisions and control, a war of knowledge, and a war of intellect. The aim of information warfare will be gradually changed from "preserving oneself and wiping out the enemy' to "preserving oneself and controlling the opponent.' Information warfare includes electronic warfare, tactical deception, strategic deterrence, propaganda warfare, psychological warfare, network warfare, and structural sabotage.
89. John Carlin, A Farewell to Arms, Wired, May 1997, at 51, 54 (quoting Jiefangjun Bao, Chinese Army newspaper).
90. Nicholas D. Kristof, Beijing Journal: Where Each Worker is Yoked to a Personal File, N.Y. Times, Mar. 16, 1992, at A4; see also Anne Wells Branscomb, Who Owns Information? 16 (1994).
91. Charles Platt, Evolution Revolution, Wired, Jan. 1997, at 158, 200.
92. Helen Nissenbaum, Protecting Privacy in an Information Age: The Problem of Privacy in Public, 17 Law & Phil. 584, 585 (1998). 44
93. San Diego L. Rev. 809, *
94. Paul Jacobs, Addresses at DMV Remain Accessible, L.A. Times, Aug. 19, 1991, at A3.
95. Assuming of course that Fred is not shielding immoral and criminal activity.
96. For numerous other ways to maximize one's control over personal information, see Deborah G. Johnson, Computers Ethics 134-35 (3d ed. 2001) (quoting Gary T. Marx, Privacy & Technology, Whole Earth Rev., Winter 1991, at 90, 94).
97. For more about how technology can protect privacy and security, see Ann Cavoukian, Security Technologies Enabling Privacy (STEPs): Time for a Paradigm Shift (Off. Info. & Privacy Commissioner Ont., Toronto, Ont.), June 1, 2002, at 7-9, available at http://www.ipc.on.ca/images/resources/steps.pdf.
98. Miller v. NBC, 232 Cal. Rptr. 668, 670 (Cal. Ct. App. 1986).
99. For a defense of "objectivity" in relation to value claims and an attack on "subjective" accounts of moral value, see Moore, supra note 48, at 80-82.
100. Letter from Lord Acton to Bishop Mandell Creighton (Apr. 3, 1887), in 1 Life and Letters of Mandell Creighton 372 (1904).
101. This argument runs parallel to the argument for information privacy already considered. The primary difference is that use of one's body, capacities, and powers is rivalrous -unlike the use of information about others. Using or attempting to use someone else's body will, in the vast majority of cases, worsen them relative to the appropriate base point.
102. At first glance, security is valuable and can be separated into three distinct yet interconnected domains. At the most basic level, securi- ty affords individuals control over their lives, projects, and property. To be secure at this level is to have sovereignty over a private domain - it is to be free from unjustified interference from other individuals, corporations, and governments. At this level, privacy and security come bundled together. At the second level, security protects groups, businesses, and corporations from unjustified interference with projects and property. Corporations need to be secure from industrial espionage, theft, and the like. Without this kind of control, businesses and corporations could not operate in a free market -not for long anyway. In any case, if we ask the question, "Why do we care about corporations and free mar- kets?," we are quickly led back to security at the individual level. We value security at the level of groups, businesses, and corporations be- cause these entities are intertwined with security at the personal level. It is through these groups that many of us pursue lifelong plans and projects and order our lives as we see fit. Few would maintain that these groups are valuable independent of their impact on individual lives. Privacy and security come bundled together at this level as well, although in a different way. Through the use of walls, guards, and fences, groups are able to secure a private domain that may be necessary for the continued existence of groups and group activities. There is also national security to consider. Here we are worried about the continued existence of a political union. Our institutions and markets need to be protected from foreign invasion, plagues, and terrorism. But again it seems that we value national security, not because some specific political union is valuable in itself, but because it is a necessary part of protecting individual liberty. Armed services, intelli- gence agencies, police departments, public health institutions, and legal systems provide security for groups, businesses, and at the most fun- damental level, individuals.
103. Jacob R. Lilly, National Security at What Price?: A Look into Liberty Concerns in the Information Age Under the USA PATRIOT Act of 2001 and a Proposed Constitutional Test for Future Legislation, 12 Cornell J.L. & Pub. Pol'y 447, 457 (2003).
104. 18 U.S.C. ß 2518(1) (2000); see also Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, 218. 44 San Diego L. Rev. 809, *
105. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783.
106. FISA essentially allows electronic surveillance and physical searches of foreigners and U.S. citizens when there is "probable cause to believe that ... the target ... is a foreign power or an agent of a foreign power." Still, standards for obtaining a warrant are much less rigorous than under Title III ... .
107. Laurie Thomas Lee, The USA PATRIOT Act and Telecommunications: Privacy Under Attack, 29 Rutgers Computer & Tech. L.J. 371, 374-75 (2003) (citing 50 U.S.C.ßß1804(a), 1805(a)(3)(A), 1823(a), 1824(a)(3)(A) (2000)).
108. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, ß 213, 115 Stat. 272, 285-86 [hereinafter USA PATRIOT Act].
109. Id. ß 503, 115 Stat. at 364.
110. Id. ß 217, 115 Stat. at 290-91.
111. Id. ß 215, 115 Stat. at 287.
112. Lee, supra note 75, at 379.
113. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005, at A1. 44 San Diego L. Rev. 809, * n84. 277 U.S. 438 (1928) (Brandeis, J., dissenting).
114. Lilly, supra note 68, at 450-51. Lilly notes that these civil rights violations were not the first in American history. "The Alien and Sedi- tion Acts, Andrew Jackson's unlawful detention of reporter Louis Louailler, and military actions during "Dorr's Rebellion' in 1842 all violat- ed personal civil liberties in the name of national security." Id. at 450 n.14. "Habeas corpus" is Latin for "that you have the body." Black's Law Dictionary 728 (8th ed. 2004). See also U.S. Const. amend. VI.
115. Hira- bayashi v. United States, 627 F. Supp. 1445, 1447 (W.D. Wash. 1986), aff'd in part and rev'd in part, 828 F.2d 591, 592-93 (9th Cir. 1987);
116. Lilly, supra note 68, at 453-54.
117. U.S. 1, 13-14 (1972) (holding that plaintiffs did not have standing to challenge the Army's surveillance of civilian political activi- ty).
118. See Laura W. Murphy, Director, ACLU Washington National Office, ACLU Looks at Domestic Surveillance and the Need to Watch the Watchers in Times of Crisis (Oct. 10, 2001), http://www.aclu.org/FreeSpeech/FreeSpeech.cfm?ID=9790&c=86.
119. S. Rep. No. 94-755, at 3-4 (1976).
120. P.J. O'Rourke, Parliament of Whores: A Lone Humorist Attempts to Explain the Entire U.S. Government 144-45 (1991) (emphasis added).
121. Consider how "terrorism" is now defined: A person engages in domestic terrorism if they do an act "dangerous to human life" that is a violation of the criminal laws of a state or the United States, if the act appears to be intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping. ACLU, How the USA PATRIOT Act Redefines "Domestic Terrorism" (Dec. 6, 2002), http://www.aclu.org/natsec/emergpowers/14444leg20021206.html (citing USA PATRIOT Act, supra note 78, ß 802). If establishing (i)-(iii) is a matter of determining intentions, then the current debate over the legitimacy of torture may be seen in a new light. Alas, one way to de- termine the intentional status of a suspect is to torture him.
122. The Department of Justice also used the material support provisions of the Patriot Act to prosecute Muslim student Sami al-Hussayen for engaging in First Amendment activities. Section 805 of the Patriot Act made it a crime to provide material support in the form of "expert advice and assistance" to a designated foreign terrorist organization. Al- Hussayen, a 34-year old doctoral candidate at the University of Idaho and a computer expert, was charged with providing "expert advice and assistance" because, among other things, he volunteered as a Webmaster for the Islamic Assembly of North America -an organization the government had not put on its list of foreign terrorist organizations. The government charged that this volunteer activity constituted expert advice and assistance.
123. San Diego L. Rev. 809, *
124. Al-Hussayen's web pages provided many links, including links to "fatwas" that advocated criminal activity and suicide operations, but that were not written by al-Hussayen. Essentially, he was reporting what others said -something journalists do every day. Al-Hussayen's lawyer also established that Reuven Paz, a prosecution witness, admitted that he had posted much of the same information on his own website and that the BBC did as well. The Justice Department did not stop this abuse of the Patriot Act, and detained al-Hussayen for one and one-half years on minor immigration charges. It was a jury that stopped this abuse by finding al-Hussayen not guilty of all terrorism charges leveled against him. He was later deported on immigration charges.
125. Anthony D. Romero, ACLU Letter to Senator Feinstein Addressing the Abuses of the Patriot Act by the Government (Apr. 4, 2005), http://www.aclu.org/safefree/general/17563leg20050404.html (citation omitted).
126. Dan Eggen & John Solomen, FBI Audit Prompts Calls for Reform; Some Lawmakers Suggest Limits on Patriot Act, Wash. Post, Mar. 10, 2007, at A1.
127. The eagerness of many in law enforcement to dispense with the requirements of the Fourth Amendment was revealed in August 2002 by the secret court that oversees domestic intelligence spying (the "FISA Court"). Making public one of its opinions for the first time in history, the court revealed that it had rejected an attempt by the Bush Administration to allow criminal prosecutors to use intelligence warrants to evade the Fourth Amendment entirely. The court also noted that agents applying for warrants had regularly filed false and misleading information. That opinion is now on appeal.
128. ACLU, Surveillance Under the USA PATRIOT Act (Apr. 3, 2003), http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=12263&c=206.
129. See Eggen & Solomen, supra note 94. One theory about why President Bush would sidestep FISA, which has never rejected a warrant application, is that the information used as the basis of the search was obtained by U.S. operatives torturing prisoners outside the United States.
130. " Every thing secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity." Lord Acton, letter 74, (Jan. 23, 1861), in Lord Acton and His Circle 165, 166 (Abbot Gasquet ed., Longmans, Green & Co. 1906).
131. Secret courts and search programs may also violate "equal protection" guarantees when specific groups are targeted.
132. For a more rigorous analysis of this argument see Daniel J. Solove, "I've Got Nothing to Hide" and Other Misunderstandings of Pri- vacy, 44 San Diego L. Rev. 745 (2007).
133. Id. at 769.
134. Id. at 766-67; see also supra notes 84-99 and accompanying text.
135. Locke, supra note 46, at 53.
136. San Diego L. Rev. 809, *
137. John Stuart Mill, Utilitarianism 41-63 (George Sher ed., Hackett Publ'g Co. 1979) (1861);
138. J.J.C. Smart, Extreme and Restricted Utili- tarianism, 6
139. Phil. Q. 344, 344-45 (1956). See generally David Lyons, Forms and Limits of Utilitarianism (1965) (comparing various utilitari- an theories).
140. Jeremy Waldron, Security and Liberty: The Image of Balance, 11 J. Pol. Phil. 191, 203-04 (2003).
141. Id. at 208-09.
142. Balancing arguments that seek to justify trading privacy for security are typically based on the assumption that privacy and security are measurable values that can be compared and traded like diamonds for gold. This view does not need to hold that we can trade six units of privacy for ten units of security. All we need to be able to do is justifiably claim that there is some amount of privacy that we would be will- ing to trade for some other amount of security. But it is not at all clear how these trade-offs should work or how these items should be measured. For example, we may agree that there is no amount of ice cream that we would trade for our arms and legs. This case is based on Laurence H. Tribe, Policy Science: Analysis or Ideology?, 2 Phil. & Pub. Aff. 66, 90 (1972). See also James Griffin, Are there Incommensurable Values?, 7 Phil. & Pub. Aff. 44 (1977). Ice cream may be tasty, but it is not on the same scale as arms and legs. Or suppose we were faced with the choice of living normally for a year and then dying or having a brain operation and living in a vegetative state for thirty years. See Griffin, supra, at 47. It is not at all clear that any amount of "vegetative" existence is worth one year of normal living. James Griffin is not so sure arguing that if dessert consumption was not subject to diminishing marginal utility (roughly meaning the more you have of something the less valuable it is), was worth something, and we could contemplate the large numbers involved, there may be a trade-off point. Id. at 44. In addition, living a long life in a vegetative state may have no value so the second case has no force -there are no values to trade-off in this case. I think that it is clear that most of us would trade privacy for a certain level of monetary compensation. Suppose someone offered you a cool million dollars to watch you for a day. Nevertheless, coming up with an ordinal, cardinal, or mere better than/less than ranking of some amount of privacy compared to some amount of security would be difficult, especially when such calculations are related to rules or legisla- tion. For a discussion of incommensurability, see generally Incommensurability, Incomparability, and Practical Reason (Ruth Chang ed., 1997).
143. Jonathan Wallace & Mark Mangan, Sex, Laws, and Cyberspace 51 (1997).
144. Christopher Jones, Averting an Electronic Waterloo, Wired, Dec. 16, 1998, http://www.wired.com/politics/law/news/1998/12/16875; see also Eric Talbot Jensen, Computer Attacks on Critical National Infrastructure: A Use of Force Invoking the Right of Self-Defense, 38
145. Stan. J. Int'l L. 207, 207-08 (2002).
146. In Olmstead v. United States, 277 U.S. 438, 466 (1928), the court ruled that the Fourth Amendment against unreasonable searches and seizures applied to physical things like houses, notebooks, and receipts, but not to electronic communications. Thirty-nine years later the Supreme Court, in Katz v. United States, 389 U.S. 347 (1967), overturned the Olmstead decision, holding that privacy interests may be found in personal communications as well as "persons, houses, papers, and effects." Id. at 353 (quoting U.S. Const. amend. IV). Olmstead and Katz represent the very issue we are considering -when do security interests justify invasions of private domains. See also Berger v. New York, 388 U.S. 41, 51 (1967).
147. Adapted from the analysis offered by Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C. L. Rev. 989, 1063-67, 1087-88 (1995).