Category Archives: Privacy

Big Brother Is Reading Your Test Results

Writing in today’s Washington Post, Philip Longman reports that New York City has begun requiring doctors and laboratories to reveal even more confidential medical information in the name of “public health.”

On Jan. 15, New York City began requiring local clinical laboratories to report to the city health department the results of blood sugar tests performed on citizens. The department plans to use the information to improve surveillance for diabetes, which afflicts an estimated one out of eight New Yorkers and to “target interventions.” Specifically, if you live in New York and have trouble resisting sweets, your doctor may soon receive a call from the health department suggesting that he or she needs to persuade you to change your lifestyle.

What makes this development so extraordinary in the annals of American public health is that diabetes is not a disease you can catch from, or give to, anyone else. U.S. governments have a long history of imposing quarantines and otherwise restricting the liberties of people suspected of carrying contagious disease. Early in the last century, for example, the very same New York City health department famously exiled Mary Mallon (aka “Typhoid Mary”), along with many other infectious patients, to a tiny island “colony” in the East River.

As Longman points out, however, diabetes is not the same as a communicable disease like typhoid or AIDS:

[D]iabetes, though now a fearsome epidemic, is not communicable; nor do the behaviors that lead to the disease (primarily lack of exercise and improper diet) put others at risk of illness. It cannot even be said of diabetics, as is often said of illegal drug users, that their habits foster a life of crime or fund crime syndicates and terrorist networks.

One would think that this would be the end of the debate. No real public health threat, no question that the government has no right to violate medical privacy. Right ? Not according to Longman.

Medical privacy is not free. Lack of free-flowing information in the health care system drives up the cost of health insurance and contributes to the problem of the uninsured. For the population as a whole, it impedes the safe and effective practice of medicine, retards development of medical protocols based on science, and in all these ways and more reduces productivity and life expectancy. Medical privacy is not simply a question of individual right, even for individuals whose medical problems might at first seem purely their own concern.

Nonsense. Pure and utter nonsense. Perhaps it is true that medical treatment would benefit from the free flow of information. This does not mean, however, that the government has the right to know what your blood sugar, cholesterol, or blood pressure test results are. Allowing a law like this to stand would mean, effectively, an end to the entire principle of doctor-patient confidentiality and yet another nail in the coffin of individual liberty.

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A funny thing happened on the way to the TV

So I’m getting ready to make dinner, and one of my favorite ’80s teen romps comes on, Summer School. It’s a pretty baaaad movie, but there were some great moments, mostly provided by the dialogue of one Francis “Chainsaw” Gremp, A.K.A. Dean Cameron.

Actually the movie has quite a lot of actors who actually had carreers, like Mark Harmon, Courtney Thorne Smith, Patrick Labyorteaux, and the aforementioned Cameron.

He’s also one of Sean Penns best friends; but I’ll try not to hold that against him too much; since he’s a hardcore libertarian, and has spoken at the last two national conventions (not a Big “L” libertarian here, but hey, it’s better than being a liberal).

So anyway, I do my normal thing and browse through the bios of the actors on IMDB, and I notice this: “Is the inventor of the Bill of Rights: Security Edition cards”

Huh… think I need to check these out… So I hit the website and see these:

What is the “Bill of Rights – Security Edition” ?

The Bill of Rights: The First Ten Amendments to the constitution of the United States printed on sturdy, pocket-sized, pieces of metal.

The next time you travel by air, take the Bill of Rights – Security Edition along with you. When asked to empty your pockets, proudly toss the Bill of Rights in the plastic bin.

You need to get used to offering up the bill of rights for inspection and government workers enforcing the USAPATRIOT ACT need to get used to deciding if you’ll be allowed to keep the Bill of Rights with you when you travel”

Flipping Brilliant!!!!

I bought the five pack, and I’m sending them to certain selected friends. Frequent travellers who can appreciate the sentiment, and dont mind pissing off the TSA.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Annoy, Abuse, Threaten or Harass

“Whoever…utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet… without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person…who receives the communications…shall be fined under title 18 or imprisoned not more than two years, or both.”

My god, how will usenet or blogs function when everyone is in prison?

Yes folks, congress has tried to make being anonymously annoying on the internet illegal.

In particular, Arlen Specter (who seems to truly hate the internet and electronic world in general given other bullshit he has sponsored before) re-wrote the language and included it in the “Violence Against Women and Department of Justice Reauthorization Act of 2005”, a must pass bill that provided funding for the justice department to continue operating.

Specter is also one of the senators (along with Fritz Hollings) who keeps trying to insert broadcast flag, and other DRM or copyright legislation into unrelated bills etc…; thus my saying he must really hate the internet.

The gist of it is simple. They took an existing anti-telephone harassment law, and re-wrote it to cover the internet directly, without changing the wording

Except there’s a problem with that, the internet and the telephone, while both networks; are entirely different in nature; and are not, and can not be subject to the same type of rules, regulations, or management paradigms.

Oh, and this is a problem in conception that business people have had for almost three decades now, so it’s only fitting that lawmakers will catch up.

The telephone is a unicast medium. It involves a point to point communication that must be acknowledged or significant damage to ones life or business will result. The internet is a broadcast medium (with regards to communication of ideas or speach anyway).

Effectively the internet AS A WHOLE is a public space (with private spaces connected to it, and a huge number of idiots who don’t seem to understand the difference); and annoying speach in public is generally allowed, so long as that speach is not disturgbing the peace.

Well, how is something disturbing the public peace if you have to open a door and walk into a room to hear it? No matter how load and annoying it is, the sound cant leave the room you have deliberately entered of your own choice.

Not only that, but ones own sites, whether they are publicly accessible or not, ARE EFFECTIVELY PRIVATE SPACES, and annoying speach is ALWAYS allowed in your private spaces; unless that annoyance becomes harrassment.

The fact is, you jsut can’t make annoying speach a crime. If I were forcing you to listen to it; yeah that’d be a crime; but just posting annoying speach, or even sending annoying emails (though that is a much grayer area, especialy as regards inboxes and other explicit infospaces, expectation of privacy, and ownership of virtual spaces, but that’s another discussion entirely) can never be a crime.

The good news is, there is no way this provision will stand. Case law is already against it, and the ACLU will do one of it’s rare good deeds and make sure this gets challenged and struck down right away.

The congresscritters just better hope they made the damn thing severable or the supremes will have to invalidate the entire bill.

Cross posted from The AnarchAngel

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Rights of the Government to Impose Air Security Measures

In response to my piece, Common Sense Offends ACLU, addressing the ACLU’s opposition towards the behavioral screening procedures imposed by the TSA in certain airports, commenter John Newman brought up some questions. John believes that federalizing aviation security matters is Unconstitutional. He advances two particular arguments.

His first argument discusses the Constitution’s “fundamental right to travel”. It mainly consists of picking quotes from Supreme Court cases upholding the fundamental right of travel. I will first mention that the fundamental right of travel is not once mentioned in the Constitution, but may be built from penumbras emanating from some such or the like. But that’s not the crux of the argument. See the following quotes from John’s own selections of court cases (emphasis added below in italics):

require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules or regulations which unreasonably burden or restrict this movement

‘any classification which serves to penalize the exercise of that right unless shown to be necessary to promote a compelling governmental interest, is unconstitutional’

The right to travel, to go from place to place as the means of transportation permit, is a natural right subject to the rights of others and to reasonable regulation under law

fundamental personal right that can be impinged only if to do so is necessary to promote a compelling governmental interest

a ‘fundamental’ one, requiring the showing of a ‘compelling state or local interest to warrant its limitation

At the minimum, governmental restrictions upon freedom to travel are to be weighed against the necessity advanced to justify them, and a restriction that burdens the right to travel ‘too broadly and indiscriminately’ cannot be sustained

is basically the right to travel unrestricted by unreasonable government interference or regulation

Note the words used, for they are important. “Compelling government interest.” “Unreasonable burden.” These are phrases which, in Constitutional jurisprudence, have very specific meanings. Another particular phrase that must be added is “strict scrutiny”. A Congressional Research Service paper on Constitutional objections to the showing of ID on airline flights (warning: pdf) covers the defense of the “right to travel” objection quite well:

The Court has declared that the constitutional right to travel consists of three different components: first, it protects the right of a citizen of one state to enter and to leave another state; second, it protects the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state; and third, for those travelers who elect to become permanent residents, it protects the right to be treated like other citizens of that state. In the context of transportation security, however, only the first prong of the right to travel appears to be relevant.

Consistent with its status as a fundamental right is the requirement that the government’s action satisfy the constitutional standard of review often referred to as strict scrutiny, or heightened scrutiny. Under strict scrutiny the government must provide a compelling state interest for the burden and show that the means utilized are narrowly tailored to the achievement of the goal or, phrased another way, the least restrictive means available.

Given that the airlines are seemingly authorized to refuse service to anyone who fails to present proper identification, it appears that a strong argument can be made that there is an additional burden imposed on citizens who wish to travel by airplane. Thus, the inquiry should focus on the standard of review that should be applied. It appears difficult to argue that passenger safety and transportation facility security are something other than compelling governmental interests. Thus, it seems that, regardless of which standard of review is applied, the government may be in a strong position to argue that not only are the current security restrictions justifiable, but also that their burden on the right to travel is minimal and given the present conditions entirely reasonable.

From the look of it, to claim that the requirement that one shows ID in order to engage in air travel is unconstitutional appears to be– at the least– unsupported by Constitutional precedent. According to the court cases cited, regulations can legitimately be placed upon travel if there is a compelling state interest to uphold. One would think that stopping passengers from blowing up planes or hijacking them and flying them into buildings would meet even the “strict scrutiny” test.

So we must move on to John’s second argument, which is much shorter and yet at the same time, more difficult to answer. He asks where it is enumerated that airline security is a federal matter to begin with?

If the airlines want to impose security practises and procedures, I have no problem with that. Where is it enumerated in the Constitution that it is a matter for the federal government?

There are a lot of ways to answer this question. The first answer, although some creativity can change it, is that it simply isn’t in there. Article I, Section 8 has no provisions for regulation of airline security, nor does it ever claim that police power is the realm of the federal government. But two particular provisions might at least be able to be shown to have relevance:

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

This is, of course, a stretch up there with those who might envision a “living Constitution”. But if we’re going to allow a “fundamental right to travel”, I’m asking for a little bit of leeway. As I said above, nothing in the Constitution gives the federal government police powers over the states. But here’s where you can find a bit of an AHA! moment. The bits in Article I, Section 8 regarding Piracies and Felonies on the High Seas are quite analogous to those of hijackings and bombings of commercial aircraft. Both involve non-government-owned vessels (i.e. the government did protect private merchant ships from piracy); and both involve territory separate from that of land under the jurisdiction of the several states.

Second, the whole bit about “repel invasions”. We are in a war against foreign and quite possibly partly domestic enemies who will use commercial airlines to attack our nation. I don’t like using the “national security” defense in most circumstances, but there is a certain point at which one might allow that protecting our buildings and populace from terrorists who will (and have) hijack aircraft with the purpose of using them as guided missiles to attack civilian targets is a reason for which we might want to take on government-ordained security procedures.

Last, John had suggested that perhaps if the airlines wanted to enact security procedures, that might be enough for him (although I don’t understand how he does not similarly support private hiring and firing practices). And if the airlines had secure cockpits and could not be hijacked, I might agree. But once the airplane becomes a guided missile filled with fuel aimed at a building, the equation changes. Just as states and municipalities have laws regarding drunk driving or speeding, which can turn an automobile into a 3,000 lb missile, the feds have airline security regulations to keep an airplane from doing the same thing. The only thing that gives the feds jurisdiction, though, is that the particular exigencies of airline travel require it.

Simply put, there are a lot of things about federal power that highly disturb me. This is one of the few that does not. I’m not one to suggest that we should federalize the airport screeners, following in Daschle’s footsteps; because I suspect the procurement of security is better handled by the private sector, while the requirements of security are best handled by the government.

Either way, John, I thank you for the good-natured and challenging debate. As always, when debating a formidable opponent such as yourself, I only learn more and improve my own understanding in the process. And, of course, I’m sure this won’t quite be the end of it :-)

(cross-posted at The Unrepentant Individual)

Public and Private Information

Fuz posits the following:

What if two vehicles are hustling along a rural road, doing low-80s in a 75-limit zone, and a Highway Patrol vehicle comes from the opposite direction, suddenly pulls over, reverses direction, and catches up?

The patrol car hovers behind the rear of the two vehicles for about 4 minutes, then passes, hovers behind the front-runner for a few minutes, then lights up and pulls the front-runner over?

Mama-san, passenger with me in the rear vehicle, asks “Why didn’t he just pull the guy over instead of waiting so long?”

I, driver of the rear vehicle, replied “He ran the plates.”

“Wouldn’t he do that after pulling him over?”

“No, he wants to make sure he’s not pulling over some psycho who’ll try to shoot him. He wants to know whether this will be a one-unit stop, or a two- or three-unit. Bench warrant, multiple traffic violations, expired registration, Al Qaeda, you name it. Run the plates first, know what you’re getting into.”

Then the wheels were turning. He surely ran our plates too. Hmmmm, the patrolman was probably thinking, serviceman and his wife and kiddies. Nothing interesting here . . . The guy in the front tripped the radar. What about him?

Which makes me wonder: how many times have my plates been run, either by obvious marked patrol vehicles or air units, or by unmarkeds just weaving through busy traffic? What about when optical-character recognition technology is mated with radar camera units and fast, fast realtime connection to the databases, allowing hundreds of plates to be “run” per minute? The potential there for loss of privacy would be staggering. The anonymity of the herd would be gone if it isn’t already. The consequences of minor errors, either in the tag records themselves or in the data pipeline between the camera and the DMV, would be enormous.

Johnny Law will assert that he has the power to use government-owned information and commerically-available technology to enhance the apprehension of lawbreakers. How can one object, unless one is caught redhanded and wriggling to escape? The syllogism: the innocent have nothing to fear, therefore the fearful are not innocent.

So how should the civil libertarian respond to this development?

As unfortunate as this is, there is no rational libertarian argument against the actions of the officer as laws currently stand.

License plates are the property of the state. By affixing them to your vehicle, and operating it on the public roads, you are implicitly giving the state the authority to view these plates, and to access the public records associated with them.

Now as to whether this data can be collected and indefinitely retained for criminal investigation, surveliance, or profiling purposes, that’s another question entirely.

Numerous times, in many courts, the argument has been presented that an officer could not arrest someone, because they had no probable cause to run the plates which resulted in a warrant hit and subsequent traffic stop. In all cases these arguments have been dismissed, because the plate number is indeed public information; as is your vehicle registration, and any number of other records that many individuals assume to be private.

I had a similar incident happen just the other day. I was driving home just above the speed limit, when a super trooper got up close enough to me to read my plate, then backed off for about 2 minutes, then accelerated and passed me by. My fiancee seated next to me wondered about his behavior and I said “He was running the plate”, to which she responded “Well, it’s not like we’ve got anything to worry about”.

That reminded me of something that happened to me a few years back. I was driving just at the limit when a local cop pulled in behind me for about five minutes, ran my plates, and then pulled me over. Unbeknownst to me, I had a bench warrant for an unpaid ticket. When I asked the officer why he ran my plate, he answered with refreshing honesty “Because I had nothing better to do”.

This is a basic principle of law, in that public information can be used for any purpose not specifically prohibited by law; and that includes vehicle registration, driving records, birth, death, and marriage records, certain tax and travel records… I could go on.

So what they are doing is in no way illegal, or unconstitutional. The question is, SHOULD IT BE specifically prohibited by law?

Honestly, with the current regulatory regime we live under in our society, this is a prefectly justifiable and correct use of information.

But there is no question that it makes us less free; and that, by it’s nature is evil.

The only way to rationally address this is to make these records non-public information. Either through the elimination of the records entirely (an unlikely, and in some ways unwise thing), or by the re-classification of many public records, as private.

I see no reason why my driving records, vehicle registrations, accident record, or any number of other records as I describe above SHOULD be public records; except as an instrument of governmental control. Perhaps all of these, and any other record the government keeps on us, whatever few those can be reduced to in a practical society (and that’s another issue altogether), should be treated as is our PHI/PCI (Private Healthcare Information/ Private and Confidential Information) wherein the use of the records must at all times require either a court order, or the consent of the subject or legal custodian of those records.

It would of course complicate matters greatly as regards law enforcement, but in the presence of a pervasive computing environment (which is not far off), it could certainly be technically possible.

It would be an easy re-write of the laws, and a massive policy and infrastructure undertaking; but no more so than the HIPAA and Sarbanes-Oxley requirements that have been recently promulgated on business.

I think that this is the most likely, and most reasonable compromise position; Al-Quaeda or no.

H/T: Jed at Freedomsight

Reposted from The Anarchangel

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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