Super Lawyers
William C. Altreuter
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Friday, August 27, 2004

Judge Posner on privacy in the context of encryption: "[P]rivacy is an equivocal good. This statement will shock many people, for whom “privacy,” like “liberty” and “justice,” signifies an unallowed good. In fact all that “privacy” means, in the case of communications at any rate, is concealment, which obviously can serve bad as well as good purposes; few civil libertarians are so doctrinaire as to deny that there are some situations in which wiretapping of phone conversations is legitimate. So what if telephone or other electronic communications are so effectively encrypted that wiretapping (or wireless tapping) is impossible? It would be another example, analytically symmetrical with that of the use of encryption to protect (and extend) copyright protection, of technology upsetting a balance deliberately struck by the law, in this case between freedom and safety."

The problem, as I see it, is who sets the balance. Typically it would be Congress, a blunt instrument for such a delicate task, to say the least. In the context of the NSA's monitoring electronic communications what we are talking about is the Executive branch doing it, a subtler hand on the scalpel to be sure, but not necesessarily one I trust more.

Actually, who I trust is the judicial branch, but nobody is ever happy with that solution. Judges don't want to get involved with this sort of thing, and probably rightly so: as ham fisted as Congress is, the mind of man has conceived fewer clumsier tools than the lawsuit. When "activist judges" are criticized I suppress a sneer-- judges don't go out looking for cases to decide. Questions come to them, and they do what they can about providing answers.

In a funny way privacy rights are like electricity. High power lines are just bare wire, you know. Utilities depend on what is called "insulation by isolation" to protect against electrocution-- they suspend the wire away from where anyone can easily get at it, in effect depending on air and distance to provide insulation. In a similar way, the vast bulk of personal data that exists operates to protect the privacy rights of most people.

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