Jim Harper takes issue with need-new-laws views on building privacy [priv]

[Declan McCullagh <declan () well com>]

Previous Politech message:
http://politechbot.com/pipermail/politech/2003-September/000030.html

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From: "Jim Harper - Privacilla.org" <jim.harper () privacilla org>
To: "'Declan McCullagh'" <declan () well com>
Cc: <Frank.Trotter () EVERBANK com>, <BSteinhardt () aclu org>
Subject: RE: [Politech] ACLU's Barry Steinhardt on showing ID and "building 
privacy" [priv]
Date: Mon, 29 Sep 2003 13:58:05 -0400
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Advocating reflexively for privacy legislation, Barry Steinhardt has badly
misstated the law pertaining to ID checks for entry into private buildings.
There are hundreds of highly particularized laws that govern what is done
with the data.  What is missing, and rightfully so, is bureaucratic
regulation on the topic.

A great mass of federal and state statutory and common law boils down to one
thing: "No harmful use may be made of data."

The data may not be used in a conspiracy to rob Mr. Trotter's house.  It may
not be used for identity fraud.  It may not be used to stalk him.  It may
not be used to plan or commit any crime.  It may not be joined with highly
personal information to expose him to public ridicule.  It may not be used
in an advertisement.  It may not be used to cause him emotional distress.
The list goes on and on and on.

Here in the United States, our common law tradition focuses on prevention of
harms in an atmosphere of relative freedom.  The European civil law
tradition emphasizes the power of regulators to dictate in detail how
private life may be conducted.  Europe's a great place . . . to visit.

People are right to wonder whether the existence of laws will actually
prevent harms.  The ACLU was under a legal duty to protect the privacy of
people who shopped at their online store, and the result was:
http://www.oag.state.ny.us/press/2003/jan/jan14a_03.html  The NY AG's
enforcement was a bit of an over-reaction, pandering to privacy as a
political issue perhaps, but the ACLU has surely now cleaned up its act.

Likewise, building entry data may not get proper attention until some big
building-entry-data-breach occurs.  Sorry, but it strikes me as a little
far-fetched.  A lot of data is collected, or persists somewhere online, and
it just sits there, useless.  Not even a criminal could exploit it.

Turning to self-help and personal responsibility, I'm not sure what building
security is like in NY these days, but when I'm required to write my name,
affiliation, or contact info on a clipboard, I give them pretty much an
unreadable scribble.  Recommended: nunya () business com.  Get it?

I'd like to hear that Mr. Trotter has taken the time to ask building
occupants what the building's information policies are.  I'd like to hear
that Mr. Steinhardt has refused to enter a building because of intrusive
security practices.

You can tell that people actually care about privacy when they do something
about it.  I don't think privacy law should just be a sop for armchair
consumers.  That's what it is in Europe and the results speak for
themselves.

The more important focus, as always, is where consumers do not have choice.
Tomorrow is the last day to comment on CAPPS II!
http://www.aclu.org/Privacy/Privacy.cfm?ID=13453&c=130

Jim Harper
Editor
Privacilla.org

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