Former NSA General Counsel Stewart Baker is known for his long time opposition to what he calls the "privacy lobby" - political groups who advocate for laws that protect consumer privacy from corporate and government intrusions. This month he has taken this opposition to a new level with the announcement of the "Privy Award" - a tongue in cheek award for "Dubious Achievements in Privacy Law." The Award is intended to be a sort of dunce cap that can be bestowed by Baker and his online followers on advocates of what he perceives to be bad privacy law.

In his blog post announcing the creation of this award, Baker argues that the intent is to illustrate that privacy laws are always bad, and that privacy just isn't the sort of thing that laws should protect. In making this argument, he descends into a morass of logical fallacies and bad metaphors.

First, Baker compares privacy laws to prohibition and to laws against rudeness:

We teach our kids to respect the privacy of others, just as we teach them good manners and restraint in drinking alcohol. At the same time, no one wants courts and legislators to punish us for rudeness or prohibit us from buying a drink.

Let's start by addressing his comparison to prohibition. He writes:

We've already tried mandating abstinence from alcohol once. It didn’t work out so well. And it’s unlikely that Prohibition would have worked better if we’d made it illegal to drink to excess.

Of course, there is a pretty important difference between alcohol prohibition and privacy laws. Alcohol abuse is something that you do to yourself. It is whats known as a "victimless crime," in that the primary victim of the behavior is the person who chooses to engage in it. Conversely, there is no such thing as a self inflicted privacy violation. Its impossible to violate your own privacy!

The comparison to rudeness is perhaps more silly. Baker writes:

We know rude behavior when we see it, but no one wants a Good Manners Protection Agency writing rudeness regulations -- or setting broad principles of good manners and then punishing a few really rude people every year. The detailed regulations would never capture the evolving nuances of manners, while selective prosecution of really rude people would soon become a tool for punishing the unpopular for their unpopularity.

The reason that we don't want a Good Manners Protection Agency isn't because rudeness is hard to define, its because you have a Constitutionally protected right to be rude! Its called the the Right to Freedom of Speech, and any law against rude behavior would almost certainly violate it. Conversely, you do not have a Constitutional right to violate other people's privacy!

Baker goes on to commit a popular logical f... [ Read More (0.7k in body) ]