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Re: Court Orders Gov't To Disclose GPS Tracking Data

From: Bjoern Hoehrmann <derhoermi@gmx.net>
Date: Thu, 08 Sep 2011 23:05:07 +0200
To: David Singer <singer@apple.com>
Cc: public-privacy@w3.org
Message-ID: <lv1i67lpdv4lepksilj788gqp8s3669dr0@hive.bjoern.hoehrmann.de>
* David Singer wrote:
>There was a comment on slashdot pointing out a seeming contradiction.
>
>A.  We can place gps devices on people's cars and track them without a
>warrant because their cars are in public places and they have no
>expectation of privacy.
>
>B.  We cannot release the records because that would violate their
>privacy.
>
>Can they both be true?

Your question is based on the idea that while you are driving a car your
privacy cannot be affected in any way, everybody could for instance pub-
lish everything they know about you in the national press and you could
do nothing about that as your privacy cannot be violated while you drive
a car. That's obviously nonsense, you would rather have to consider more
carefully how privacy is affected by information about your car's where-
abouts being collected and possibly disclosed, versus how it is affected
by disclosure of law enforcement's interest in your car's movements. It
seems obvious that these are qualitatively different cases, so it's not
entirely implausible to make arguments along these lines.

Whether the two notions are actually incompatible depends on a number of
factors. Cultures differ for instance in whether criminal suspects are
personally identified in the press alongside details of the cases. Where
it is the societal norm, disclosure of this kind of information affects
individuals less than in places where this practise is largely outlawed.
If such information can be used by lenders, insurers, or employers, then
individuals are affected more than if laws against that are enforced. So
the argument would be that public disclosure of the records has greater
privacy implications than creating them and keeping them confidential.
Whether that is so and justifies treating the two cases differently can
only be answered within a larger context.

(It is worth noting that untrustworthy justice systems will be worked
around with typically detrimental effects, which is why we try to keep
them fair and just. But we can't have every individual involved worry
about the full implications of everything they do all the time, so we
allow some bias and install checks and balances so those biases cancel
each other out. A police officer should be slightly biased towards, say,
searching someone's house for evidence, while a judge should be slight-
ly biased towards protecting this intimate space, in order to highlight
grey areas where extra effort is required to ensure decisions stand up
to later scrutiny.

If it was just up to the police officer, it would be easy to later ask
whether he considered all the points a prosecutor or judge or lawyer or
the public at large would, and we would likey say no, that's unlikely.
Mostly if he decided to conduct the search, because as it is, we largely
assume this bias to be present, so if he decides against searching, we
are biased towards assuming that the case for searching was outside the
grey area. But as this becomes the norm, the expectations would shift,
it would become the police officer's sole responsiblity to ensure the
systems stays just and fair, even though we do not consider him able to
all by himself, not in a manner that stands up to scrutiny.

Removing judges from justice related decision making processes removes
skills we attribute to judges, and only judges, from them, which would
render decisions less skillful, meaning "worse", if you buy into this
whole "enlightenment" thing and believe this kind of forced discourse
actually improves and solidifies relevant decisions. This can be worse
than whatever one might positively gain from it. As such I would look,
with the issue here, first at the dynamics behind the distribution of
power and responsibility before I would consider the privacy aspects.)
-- 
Björn Höhrmann · mailto:bjoern@hoehrmann.de · http://bjoern.hoehrmann.de
Am Badedeich 7 · Telefon: +49(0)160/4415681 · http://www.bjoernsworld.de
25899 Dagebüll · PGP Pub. KeyID: 0xA4357E78 · http://www.websitedev.de/ 
Received on Thursday, 8 September 2011 21:05:34 UTC

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