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

From: Declan McCullagh (declan@private)
Date: Mon Sep 29 2003 - 11:10:45 PDT

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    From: "Jim Harper - Privacilla.org" <jim.harper@private>
    To: "'Declan McCullagh'" <declan@private>
    Cc: <Frank.Trotter@private>, <BSteinhardt@private>
    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@private  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
    The more important focus, as always, is where consumers do not have choice.
    Tomorrow is the last day to comment on CAPPS II!
    Jim Harper
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