Ed Felten, in 2008:

One of the standard claims about privacy is that people say they value their privacy but behave as if they don’t value it. The standard example involves people trading away private information for something of relatively little value. This argument is often put forth to rebut the notion that privacy is an important policy value. Alternatively, it is posed as a “what could they be thinking” puzzle.

I used to be impressed by this argument, but lately I have come to doubt its power. Let me explain why.

... the price I charge you tells you at least as much about how well I think my privacy is protected, as it does about how badly I want to keep my location private. So the answer to “what could they be thinking” is “they could be thinking they have no privacy in the first place”.

It can be rational to sell your private information cheaply, even if you value privacy.

Warren and Brandeis, in 1890:

Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.

... The narrower doctrine may have satisfied the demands of society at a time when the abuse to be guarded against could rarely have arisen without violating a contract or a special confidence; but now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation.

The Right to Privacy

A federal appeals court in California is reviewing a lower court's definition of "interception" in the digital age.

The case, Bunnell v. Motion Picture Association of America, involves a hacker who in 2005 broke into a file-sharing company's server and obtained copies of company e-mails as they were being transmitted. He then e-mailed 34 pages of the documents to an MPAA executive, who paid the hacker $15,000 for the job, according to court documents.

The issue boils down to the judicial definition of an intercept in the electronic age, in which packets of data move from server to server, alighting for milliseconds before speeding onward. The ruling applies only to the 9th District, which includes California and other Western states, but could influence other courts around the country.

In August 2007, Judge Florence-Marie Cooper, in the Central District of California, ruled that the alleged hacker, Rob Anderson, had not intercepted the e-mails in violation of the 1968 Wiretap Act because they were technically in storage, if only for a few instants, instead of in transmission.

The redacted brief can be found here. Here is a story from CNET News on the appeal. See also, EFF's amicus brief in support of the plaintiffs-appellants.

"It could really gut the wiretapping laws," said Orin S. Kerr, a George Washington University law professor and expert on surveillance law. "The government could go to your Internet service provider and say, 'Copy all of your e-mail, but make the copy a millisecond after the email arrives,' and it would not be a wiretap."

E-Mail Hacking Case Could Redefine Online Privacy

Privacy is one of the most important concepts of our time, yet it is also one of the most elusive. As rapidly changing technology makes information increasingly available, scholars, activists, and policymakers have struggled to define privacy, with many conceding that the task is virtually impossible.

In this concise and lucid book, Daniel J. Solove offers a comprehensive overview of the difficulties involved in discussions of privacy and ultimately provides a provocative resolution. He argues that no single definition can be workable, but rather that there are multiple forms of privacy, related to one another by family resemblances. His theory bridges cultural differences and addresses historical changes in views on privacy. Drawing on a broad array of interdisciplinary sources, Solove sets forth a framework for understanding privacy that provides clear, practical guidance for engaging with relevant issues.

Understanding Privacy will be an essential introduction to long-standing debates and an invaluable resource for crafting laws and policies about surveillance, data mining, identity theft, state involvement in reproductive and marital decisions, and other pressing contemporary matters concerning privacy.

Adam Shostack had this to say:

If you work in privacy or data protection either from a technology or policy perspective, you need to read this book and understand Solove's approach.

There are three major elements to the book: the first is to take us past the definitional games of "what is privacy." The second is a serious attempt to address the "what do you have to hide" approach to privacy. The third is the taxonomy. Two of these would have been a pretty good book. Three are impressive, even as I disagree with parts of it. Again, this is an important book and worth reading if you work in or around privacy.

From the archive:

The Problems of Information Privacy Law

'I've Got Nothing to Hide' and Other Misunderstandings of Privacy

Online Data Gets Personal: Cell Phone Records for Sale

The Future of Reputation

The Future of Reputation: Gossip, Rumor, and Privacy on the Internet

Damn you Adam Shostack!!!

Understanding Privacy, by Daniel J. Solove

Samantha Power:

To paraphrase President Clinton's 2002 remark, American voters generally seem to prefer strong and wrong to smart and right.

The Republican party has been seen as "tougher," regardless of the effectiveness of its policies. This faith in Republican toughness has had profound electoral consequences.

Donald Rumsfeld may be remembered for his policy failures, but he should also be remembered for the question he posed in a leaked memo in 2003:

"Are we capturing, killing or deterring and dissuading more terrorists every day than the madrassas and the radical clerics are recruiting, training and deploying against us?"

Two terms of Republican rule have been disastrous for US national security. The question is: Have American voters noticed?

On January 21, 2000, a year before he would move into the White House, Bush said:

When I was coming up, it was a dangerous world.

And we knew exactly who the "they" were.

It was us versus them, and it was clear who "them" was.

Today we're not sure who the "they" are but we know they're there.

In his National Security Strategy for 2002, Bush used the words "liberty" eleven times, "freedom" forty-six times, and "dignity" nine times; yet people who live under oppression around the world have seen few benefits from President Bush's freedom doctrine. Richard Armitage, former deputy secretary of state under Bush, put it best when he said, "Since 9/11 our principal export to the world has been our fear."

From the archive:

"You can't talk sense to them," Bush said, referring to terrorists.

"Nooooo!" the audience roared.

"It's very hard to enter the rectum, but once you do things move much faster."

...

The lions awoke, panicked and scattered into the bushes. The buffalo then trotted victorious back to the pride. It was a perfect illustration of the adage that the best defense is a good offense.

According to one who was present, Churchill suddenly blurted out: "Are we animals? Are we taking this too far?"

The Democrats & National Security

The eXile, the Moscow-based alternative paper founded by Mark Ames and Matt Taibbi — and which has been home these past few years to occasional TAC contributor Gary Brecher, the War Nerd — has been shut down by Russian authorities.

The American Conservative -- Save the War Nerd

"The best test of truth is the power of the thought to get itself accepted in the competition of the market," wrote Justice Oliver Wendell Holmes in his 1919 dissent in Abrams v. United States, which eventually formed the basis for modern First Amendment law.

"Canadians do not have a cast-iron stomach for offensive speech," said Jason Gratl, a lawyer for the British Columbia Civil Liberties Association. "We don't subscribe to a marketplace of ideas."

"Western governments are becoming increasingly comfortable with the regulation of opinion. The First Amendment really does distinguish the U.S., not just from Canada but from the rest of the Western world."

What much of West bans is protected in US

10 years into the Berkman Center and 5 years into Creative Commons, former Berkman Center Faculty Director and current crusader against congressional corruption Lawrence Lessig is coming back to Cambridge.

Celebrate Professor Lessig's return to the Harvard campus on Friday April 4th, where he will speak about his new effort: Building the Change Congress Movement.

Building the Change Congress Movement | Berkman Center

I previously recommended this book in August and November. Now the full text is freely available from the author.

"A timely, vivid, and illuminating book that will change the way you think about privacy, reputation, and speech on the Internet."

The Future of Reputation

This decision is, like, awesome.

The defendants were college buddies who hatched a plan to steal rare books from the special collections library at Transylvania University in Lexington, Kentucky and sell them at auction in New York City. In July 2004, after months of idle discussion, these four men decided in earnest to carry out the robbery, which led to months of research (about rare books, auction houses, Swiss Bank accounts, etc.), brainstorming, and planning. Each of the four took on separate responsibilities: Warren Lipka created aliases ("Walter Beckman"), set up email accounts, and contacted the library and various auction houses. Spencer Reinhard created disguises, drew floor plans and maps, and created false documents. Eric Borsuk and Chaz Allen staked out the library, planned the getaway, and purchased snacks for the trip.

(Hat tip to Harper's for the title; I also recommend their edit of the decision, which is shorter and more dramatic, but alas, not (yet) freely available)

Dog-Eared Afternoon