Thursday, May 18, 2017

The Importance of Privacy

The United States constitution is a very libertarian document and the Fourth Amendment is the most libertarian piece of it. As it's short and supremely important to American life, let's quote it in its entirety:
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 persons or things to be seized.
What this means for personal liberty is that the government can pass as intrusive laws as they would like, forbidding or mandating myriad behaviors, but unless those behaviors have impact outside your home the laws are unenforceable. The law may mandate that you sleep with an ostrich, eat broccoli for dinner, or keep your supply of toothpicks stocked to a multiple of five. But as these are private behaviors impacting only your private sphere, how are the police ever going to find evidence that you violated the law's mandates? Lacking evidence, they cannot get a warrant to enter your house, so your bed may remain ostrich-free.

Libertarians advocate that people should be free to do whatever they would like as long as their actions don't harm other people or their property. It turns out that harmless actions don't leak much evidence outside the sphere of private activity that is protected by the fourth amendment - your home, private property, and so fourth.

It is only because there exists a large sphere of private activity outside the law's reach that the law can evolve and change. There have always been moral busybodies that wanted to enshrine the social mores of the day into law. But the fourth amendment lets us violate silly intrusive laws. If violating the law isn't harmful, and is even beneficial, word will spread from person to person and more people will violate the law. Eventually culture changes, and the law catches up soon thereafter.

Widespread violation of law, shielded by the fourth amendment, has caused social change in a number of areas. It doubtlessly led to changing attitudes and laws concerning marijuana, and may change attitudes towards other recreational drugs with therapeutic benefits. Anti-sodomy law was largely unenforceable, as it regulates a behavior that mostly takes place in private bedrooms. Thus people pursued same sex romantic relationships illicitly in the privacy of their own homes, until culture and law changed to be more accommodating.

If law enforcement were perfect, we would live in a more static society. Our morals would more resemble the morals of the past because all the people who violated them would be in prison. The room for cultural experimentation would be small.

In a good society, law regulates the public sphere, and the private sphere remains a domain of individual freedom. It's important to keep these separate, to avoid the twin evils of anarchy (that is unruled which should be ruled) and tyranny (that is ruled which should be unruled).

Many historical court rulings have attacked the private sphere that the fourth amendment protects, allowing police to intrude into more places without warrants. The Cold War, war on drugs, and war on terrorism were used as excuse for the need for more intrusive police power, for example, ruling that infrared scans of your house or dog sniffs of your car in search of drugs are not "searches". But perhaps the biggest danger to privacy is the increasing digitization of life.

Law enforcement doesn't like the fourth amendment - it limits them. But in the amendment's defense it had the infeasible cost of surveilling the vast amount of private activity in the world. In the digital world, that is no longer the case. Surveillance is cheap, and automated systems can supplement the manpower needed to make sense of it.

As our life activity moves online, it enters an arena that is more exposed. The law is still evolving, and our intuitions are likely to guide us wrong. It might feel like your gmail folder is a private correspondence drawer, but the government may subpoena all messages older than 180 days without obtaining a warrant. It's easy to be lulled into thinking your phone is a private space, but it is not when you are traveling.

Courts and legislatures have not extended analogous rights to privacy to our digital lives that we enjoyed in our pre-digital lives. However, there still remain statutory limits to government surveillance in the digital world. Unfortunately, it is easy for branches of the government to violate those limits with impunity while remaining undetected and unpunished, as demonstrated by the NSA. If law enforcement were violating its limits as blatantly in the physical world, say by performing door-to-door warrantless searches, it would get noticed and would encounter stiff resistance.

As vitally important as the private sphere is to a good society, the momentum of history is all against it. That is why encryption is so important. Applications that use strong encryption, like the Signal messaging App, Tresorit's dropbox-like storage app, protonmailZCash, and others are a shield against the forces that would eliminate private space. Encryption is the door defining and guarding a private space in the modern world.

People working on privacy-preserving applications are doing the Lord's work, often under-compensated. To support them, consider becoming their paying customers. There is also room for political activism. I donate regularly to the EFF, the most prominent organization fighting for digital privacy rights.

The technology to create a true panopticon is getting closer, when all life will be public and none private. That sounds like a hell to me. Let's stop it in its tracks.

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