A few Basics about Privacy

by: Jaap van Till, draft version 1.1, February 7, 1999, with thanks for the writings of the late Dean Gengle [1].

1. Introduction

Internet makes borders, boundaries and walls transparent. Through the Net you can now trespass into boardrooms and cityhalls. But beware, IP packtets flow in both directions, so many eyes can peek into your home, what you are doing, or follow the digital traces you leave wherever you go. Should some rooms be left unopened? Some information kept private, not shared with others? Is there a case for Privacy, or what is left of it? What is it, anyway ?

The most simple description of Privacy is: "The right to be not bothered", as defined by Frank Kuitenbrouwer. In other words a Privatespace where the outside world has no business.
From all sides this possible Privatespace is under attack from probes and invading information- and communication systems. Most citizens do not even bother to uphold their right to defend it for themselves. On the contrary, some people volunteer to tell their most intimate feelings to dating agencies or even spill out their lives in TV shows to exhibit it unto others. So it seems difficult to defend the case for Privacy.
Public servants have asked me often, when I raised some privacy issues, to explain what I was talking about. The concept did not seem even to fit into their mental framework. The fact that I had to explain it and give examples, is alarming in itself to me. I hope it is to you too!

In many close-knit communities in the world the very notion of individual privacy is unknown. In other societies Privacy is such an obvious function that it goes without saying. Well, in that case it DOES go without saying. It evaporates without any resistance, because people have forgotten the struggle to obtain the right and how to defend it.
So, between boths extremes of the scale < unknown issue <---> obvious, non-issue > lies something that may be worthy to uphold, I hope. There is interest indeed.
A recent survey [2] of over 10,000 web users in the world stated that Privacy is the number one issue (30.49%) facing the Internet before censorship (24.18%) and navigation (16.65%). Most respondents agreed that there should be new laws to protect privacy on the Internet. So, this paper tries to compile some basic material about what Privacy is, a bit deeper and in a wider context than for the Internet community only.

2. The situation

A- Individual citizens

This paper (see below) states that a healthy Citizen of this world can not function without some form of "personal mental enclosure, free from unwanted intrusions" AND a number of good external communication channels. I suggest to use the model of an "object" in the sense of 'object orientated software programming', for Privacy. If we recognize the significance of it, it can be used to cope with the complexity of Reality. The internal functioning and -context (how it works) of an 'object' is made invisible from "what it does" or what you can ask it, externaly. The same applies to individuals. They will (or will not!) respond to calls or questions. It is not in the interest of society to know what goes on inside the Privatespace of its citizens. But, as stated above, the Private space is intruded into by other citizens, state officials and commercial interests, facilitated by electronic means and communication networks.

B- The State

In most nation-states the demand of public officials for information that citizens and companies have to answer to, like for example for taxation or in criminal investigations, is increasing daily in volume, content and detail. And in kind of info-relationships, like phone call records or email links between persons. Who-talked-to-whom seems te be more relevant than what they said! It seems to be a law of nature, that "the need to know in the interest of the community" can only grow, like entropy in closed thermodynamic systems. There are islands of exeption to this trend, like the Netherlands municipal council records which stopped to record religious beliefs or church membership of its citizens, because it was decided that that is of no concern to the state.

C- Commercial Enterprises

Companies exhibit a mixed message about Privacy. On the one side they usually are fierce champions of their right to keep their own internal corporate knowledge secret from their competitors. Examples are: production recipies, R&D findings and all kinds of information which is owned by the company and is used to gain an unique advantage in risky new ventures. Nevertheless by doing business together companies get to know a lot about eachother. In their legitimate wish for commercial confidentiality companies ally with citizens organisations to get privacy laws establised and maintained. On the other side marketing departments of companies gather information about their clients in a lot of ways that not always respect the privacy of their clients. Also commercials can invade the privacy of citizens when they are broadcasted or exhibited in such ways that it is impossible to avoid them: push media. Interesting parts of web pages tend to become smaller and smaller because adds fill more and more of your screen. Another intrusion into information flows is when advertisers influence the content of the broadcasted programs. A lot of TV programs are made so un-offensive and at the same time attractive to attention to ever lager numbers of viewers (for the commercial) that the content quality loses most of its meaning. Will Internet suffer the same fate: a zillion Web pages and nothing on?

3. Definitions

The following text is taken, with minor transnational modifications, from the excellent book [1] " The Netweaver's Sourcebook : A Guide to Micro Networking and Communication" by the late Dean Gengle, 1984. Since this title is out of print, I took the liberty to show an exerpt of it here.

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Privacy

At the individual level, we can talk about four states of Privacy:

• Solitude : Physical separation from the group.
• Intimacy : Participation in a dyad, triad, or larger group which itself achieves corporate solitude.
• Anonymity: Freedom from being identified and/or placed under surveillance while in a public environment.
• Reserve : The creation, through our individual communications systems, of a psychological barrier or boundary that serves to protect us from unwanted intrusions.

The functions and requirements served by privacy must be an integral part of any network design. This may include data protection, encryption, and system access regulation.

The "right to privacy" is essentially and fundamentally an individual right. It can only partially and incompletely be extended to groups, government bodies and corporations. This is because the requirements of accountability and the public "right to know" reduce, in absolute terms, the demands of privacy by multiperson institutions.

Along with a universal individual need for privacy, there is also seemingly a universal tendency on the part of individuals and groups to invade the privacy of others and to engage in Big Brother tactics to enforce norms, whatever those norms may be. Curiosity, gossip, the quest for "explanations", and the thrill of vicarious experience become, at higher systems levels, dossiers in data banks, credit reports, industrial espionage, and "law enforcement." Obtaining any information about people against their wishes constitutes an invasion of privacy. This includes "derived" and/or inferential information derived from legitimately collected data, such as psychological profiles created from an individual's buying patterns as reflected in economic transactions, say in a credit card data bank or in bank checking account records.
The protection of privacy on all levels requires, in the Information Age, that we employ both technological design solutions (embodied in hardware and software) and social/legal protections. Above all, we must become more sensitive to the potential uses as well as the stated, actual uses of collected data.

The ways in which privacy can be abused are legion. They include, but may not be limited to:

• "Ordinary" searches and seizures with or without a warrant
• Electronic monitoring: phone taps, remote microphones, recorders, etc.
• Coerced disclosure: information released under duress, threat of imprisonment or criminal charges, and governmental record keeping or registration (the census, the military draft)
• Spooks and spooking: secret agents, informers, disguise, ploys and trickery
• Observation of public events and the recording of transient information: photographing crowds at demonstrations and rallies, the piecing together of intelligence data to create "new" information
• Payment and/or an actual or promised reward or benefit: giving your name and address to a marketing company in return for the promise of winning a contest
• Disclosure of personal information to a third party by a legitimate agency without the consent of the subject of the information: bank records turned over to IRS agents ((US taxation)).

Libel and Slander

Of course you want to protect your own privacy. But what about your neighbors' privacy? For that matter, what responsibilities does a netweaver incur along with new communications abilities? U.S. laws covering defamation of one's neighbors go back to common law inherited from England.
Defamation includes slander, which is anything you say with your mouth channel, and libel, which is anything you say in print, on a broadcast medium, or on a ((personal))computer telecommunications system. Netweavers should arm themselves with a knowledge of what they can and cannot say in print or on videotext ((Internet)) media. A libel is any false statement about a person that tends to bring him into public hatred, contempt, or ridicule, or to injure the person in his business or occupation. Those who sponsor computer conferencing systems (system operators, network facilitators, ((ISP's)) ) can take steps to ensure that libel suits don't happen as a result of the use of their communications facilities.
 

• If a statement can be construed as injuring someone's reputation, it's potentially libelous. Get rid of it.
• Post policies on your system(s) stating what libel is and under what circumstances such statements will be deleted from your conference data base.
• If a statement is factual, but still potentially injurious, make sure that the facts are true. Truth is a defense against accusations of libel, but proving truth in front of a jury is difficult.
• Check and doublecheck the facts. Get second source confirmation, just the way a competent newspaper reporter does.
• Personal opinion based on fact allows greater leeway in one's utterances. Personal opinions clearly stated as such cannot, generally, be held to be libelous as long as the opinion is based on facts.
• Never, ever make use of names or pictures of people to promote anything, commercial or personal, without getting explicit permission to do so. Counterculture promoters are notorious for using highpower names in contexts that would appall the bearers of said names.
• If you do get into trouble, and someone accuses you or your network of libel, never publish a retraction without good legal advice. Don't say anything at all, in fact, until you can determine, with the help of an attorney, where you and your system stand and how vulnerable you are to the accusation.

That there are human rights is a contemporary form of the doctrine of natural rights, first clearly formulated by the philosopher John Locke and later expressed in terms of "The Rights of Man."
Natural or human rights are rights people have just because they are human and they are on the planet, not because of government fiat, law, or convention. Such rights have frequently been invoked in criticisms of laws and social arrangements.
In 1948, the General Assembly of the United Nations adopted a Universal Declaration of Human Rights. This declaration formulated in detail a number of rights: political, cultural, and economic. This became a standard by which nations are measured.
Of course, this was not a legally binding instrument, but it was followed by a number of international covenants and conventions, including the European Convention for the Protection of Freedoms, which have influenced national legislation and provided some machinery for international enforcement. The defense of human rights on a planetary scale must include defense of civil liberty and human liberty. Guaranteed rights would include the right to good nutrition and health, the right to know the truth about any given subject(s) or to seek the truth if it is unknown, sexual intimacy, leisure and relaxation, beauty and travel, the right to be unique. Human beings are not "civilized" in any sense of that word without the right to be whole. Above all, the right of each individual to control her own body and Central Nervous System, including the mature right to alter one's consciousness according to one's own needs and desires, must be paramount. All these rights can be further enhanced and protected by a right to be protected from ignorance, one's own or someone else's. Information systems and information exchange networks can help bring these rights to humankind. Neurological autonomy is the cornerstone of a Planetary Bill of Rights.

Transforming the ((USA)) Bill of Rights

Amendment I

((The US)) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

As more and more human transactions are mediated through ((personal)) computers and terminals connected to the phone lines, freedom of speech and freedom of the press begin to merge. The citizen's right to secure channels of communication, free from prior restraint, censorship, eavesdropping, or machine monitoring should be built into the various layers of the electronic systems involved. The ability to organize politically, via computer conferencing and networks, would be safeguarded thereby, in conformance with Article I of the Bill of Rights. Here, the right to assemble peaceably is broadened to include people "assembling" in electronic softspaces with others on the network. ((This is also stated in Art. 19 of the Universal Declaration of Human Rights for the free flow of information and the right to communicate between individuals))

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

Authorities should have to get a search warrant in order to enter private or public data bases for purposes of copying information that belongs to a citizen or is about that citizen. The specific kind of information sought, and the reason for the intrusion, should have to be spelled out under oath. Being "secure in one's effects" should include portions of memory maintained by someone else but being rented by an individual. It should also cover personal hardware, software, and peripheral support material, such as disks and tapes. "Effects," in other words, should be broadened to include information as well as physical artifacts.

Amendment V (partial)

No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

This should cover such things as banking records, personally generated encryption codes, records of transactions with data bases outside the home or office, and so on. The concept of "private property" should be expanded to include the contents of one's mainframe data files, ((local or elsewhere)). In addition, it should be applied to prevent "fishing expeditions" by agencies such as the IRS and NSA, who have computers large enough to "raid" and correlate information from many different computer sources on private citizens. Such unauthorized information raids and correlating activities should be hemmed severely by both technical and legal fences.

Amendment VI (partial)

In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him. . . .

Amendment VI has obvious implications in the credit data field. Where livelihoods and the ability to participate fully in a computerized society depend on accurate information, an individual should have the right to see any dossier or file created on or about him or her. Further, we should have the right to challenge the veracity or accuracy of such information, and to get it changed in court if need be. The ((USA))Freedom of Information Act and the ((USA))Privacy Act are steps in the direction of such safeguards.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

"Retained by the people" implies the use of computer technology by private individuals, and the creation and use of high-security encryption techniques by anyone who wishes. One should not require a license from the state for either.

Recommendations

Netweavers can help in the development and protection of ((a Planetary)) Bill of Rights for the information age by adopting the following ethical guidelines and practices:
 

1. Netweavers will encourage and support the widest possible public participation in decisionmaking concerning telecommunications development, uses, and policies.
2. Netweavers will encourage and support maximum public use and benefit of new and existing channels of information, data transmission, data bases, satellite transmission technologies, and hybrid PC/video/ telephonic technologies.
3. Netweavers will encourage and support the rights of private individuals and private groups to research and develop new data encryption technologies, including but not limited to both theoretical and applied cryptographic research, applied encryption techniques in hardware/firmware and software form, and the development of public-key cryptosystems.
4. Netweavers will uphold and maintain the rights, as supported by the U.S. Constitution and the United Nations' Universal Declaration of Human Rights, of private citizens and groups to secure channels of communication and information, free from any and all forms of monitoring, whether by governments, other private groups, or individuals.
5. Netweavers will encourage and support the development and spread of electronic communications systems that actually incorporate -in hardware and software-the privacy and security features implied by the Bill of Rights.
6. Netweavers will be aware of and communicate to others an awareness of actions and pending actions of government agencies, legislative bodies, private groups and individuals which might have an effect on the overall freedom and security of information channels, via present or future communications technologies, such that human rights guarantees are further secured in the emerging global information environment.
7. Netweavers will collect, process, and share information with one another relating to all the above, preferably on an international basis and with a view toward the development of a Planetary Electronic Bill of Rights.

My personal recommendation is that bureaucrats recognize and understand that to respect the Privacy of citizens and of corporations is in their OWN best interest too. The demand often expressed by them "that everything must be known (in realtime) about all of Reality, otherwise they can do nothing" is untrue, unjustified and leads to catastrophies of human suffering. Controlaholics is a harmful disease which must be restrained. The control theory law of Ross Ashby shows that :

" if one wants to control a process (a part of reality), the control system (the computerised administration) must at least have as many states (be as complex) as the process that is to be controlled ". [Asby's Law aka the Law of Requisite Variety]

The only possible direction to a solution of coping with complexity is in my opinion:

a. to be humble and low-ambitious towards the wish to control. Company directors know from experience that they have to be very selective about what they want to control (and in fact can) and that they have to think carefully in their requests for information about what they want to know and what not (!) to manage that segment;

b. to segment [3] the chosen part of Reality into components, each with their internal context and circumstances which should be of no concern to other components. What does cross the boundaries can be accompanied by information (example: EDI) which is stripped of all info which is irrelevant in time or context.

ADDENDUM

Feel free to forward this Draft to interested citizens.
Constructive suggestions for improvement of the text of the new human right or for its background ideas are most wellcome at jaap.vantill@stratix.nl  mentioning "privacy".

1. Reason

One of sources of intrusions to the Private sphere of individuals is the rising amount and ever more demanding nature of incoming Email messages. This threatens the privacy of citizens.
To preserve privacy each of us must be able to limit and protect our communications, as is further explained in my short tutorial on Privacy:
In other words, it is up to us if we choose to answer to calls, messages or questions. In my opinion this constitutes a natural human right, which can be asserted. Silence or in effect "No Reply" to a Email message should not mean we agree or disagree with the proposal or question stated in the message. To abstain should not have any effects on the receiver of the message in case of no reply.

2. Draft text for discussion

therefore I offer for discussion as a draft text to be added to the UN Declaration of Human Rights (1948) and to be added to the Constitutions of nation states (like the USA: Bill of Rights Amendment IV) (the UK has no written one).
The proposal is  not about restricting or filtering speech. It is about promoting choice by the end-user. The complement to "Free Speech" could be called "The right to Freedom of Reception", which may be worded by:
 

3. Background ideas

Article 19 of the Declaration is about "free flow of information" and the right to communicate, for instance to publish or be heard by others.
The Internet adds a number of possibilities to information dissemination, and especially to 'communication' between people. However, until now the compliment of sending: receiving messages, has not been given much attention.
Free speech in my opinion implies the right to hear, but then to choose freely whether or not to listen, respond/reply!
To be forced in any way to respond or react is an intrusion on our personal freedom.
Being forced to listen to, for instance, propaganda or advertisements is the mirror image of censorship. Therefore the 'right to remain silent to messages' is the mirror image to the right to obtain and discuss relevant information, equally worthy to uphold and defend.

Let me stress the point that I am not only suggesting rules about spam.
I propose that the citizen is not forced in any way to ANSWER, like for instance:

• no longer: automatically being made member of lists
• no longer being forced to fill in forms or questionaires from companies or gov. officials.
• no longer: automatically getting SPAM as long as you do not protest.

My suggestion resembles the ruling in Dutch Law (Burgerlijk Wetboek) that unwanted or unordered GOODS packages (which you must pay for or return) if not returned cause no obligation to pay by the receiver or RETURN the stuff; since a prior "wilsovereenstemming" (willful agreement/communication ??) is lacking.
Since then Dutch citizens are no longer bothered with unrequested products in their snailmailbox and can keep what is received.
In effect my proposal tries to give the citizens more power over their emailbox.
Unrequested incoming SERVICE offerings (ads!) can then be ignored (or consumed) without penalty for the receiver.

Jaap van Till
The Netherlands
Europe
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[1] Dean Gengle, "The Netweaver's Sourcebook : A Guide to Micro Networking and Communication"; Published by Addison-Wesley Pub. Co; Publication date: July 1984 ISBN: 0201052083 (Amazon.com states that it is 'out of print')

[2] The GVU (Graphics, Visualization, and Usability) Center. Its Eighth Survey is available from: http://www.gvu.gatech.edu/user_surveys/survey-1997-10/ and was published in December 1997. The GVU's Survey Team can be reached at www-survey@cc.gatech.edu.

[3] David Andrews, "The IRG Solution" (info routing groups), Souvenir Press Ltd., 1984.