It's OK, Only Smart People Deserve Privacy

[major_clanger]

It's not often I read a post on BoingBoing that makes me so angry I want to punch someone, but then I saw this.

The post is bad enough. The comments are appalling.

I've refrained from commenting myself because until I calm down I don't think I could craft the sufficiently articulate dissection and rebuttal this calls for. But honestly, I haven't seen such a stream of knee-jerk excuses for invasion of privacy since, oh, the last time I read something from New Labour. And frankly, feeble and wrong though it is, 'invading your privacy is OK if it's good for society' is a better excuse than 'invading your privacy is OK if it's funny, huh huh'.

As for the person at comment #9 who apparently runs this site (and so, I infer, is also quoted in the main post), it is grossly dishonest to explain how these audio files were found through users being "careless" and now provide "voyeuristic" entertainment (his words) and then plead that it's OK to post them because they were shared, with the implications of intent and consent that goes with it.

I really wonder at times. What on earth is the point of me paying my No2ID subs, blogging on e-privacy or spending literally days of pro-bono time writing legal opinions for people like the ORG when even supposedly pro-privacy sites like BoingBoing think that this sort of thing is, in the words of the site owner who posted it, "awesome"?

Comments

[murphys-lawyer.livejournal.com]

I've commented there - haven't actually used profanity so it might pass the moderators.

BoingBoing has become noticeably less wonderful in the last year. It may just be the natural order of decay, but I suspect a major factor is Cory's moving to the UK

[cairmen.livejournal.com]

I'm starting to wish Cory would start a separate site. Between this and the coverage of serial killers posting videos of their kills (with linktrails to said videos), I'm finding that BB's net effect on my day isn't always positive.

It should be pretty easy to remix their RSS feed into seperate feeds for each author - would other people be interested in that?

[celestialweasel.livejournal.com]

What do you think the causal link is? There are many things about Britain he clearly does not grok.

[maviscruet.livejournal.com]

At a risk of getting punched the next time I see you....

In terms of analogy - is it not like finding a photo on the street?

And in terms of invading pricacy - since there not linked (and I'd guess impossible to link) to any indivdual person - is there privacy really being invaded?

And finally - if somebody recorded me doing silly/ammusing and then put that up without my permision - is that more or less invasion of priacy then what's happening here?

[major-clanger.livejournal.com]

But this isn't quite like finding a photo on the street. It's more as if you had a garage sale, but forgot that your filing cabinet was in the garage, and I had a rummage through it. Yes, you would have been careless about leaving it there, but it is not something that you would have deliberately put outside your control.

Also, if someone records you doing something silly or amusing, then presumably you are either (a) in private, but have given permission, or (b) are in public and so have no real expectation of privacy.

What has happened here is not even 'dumpster diving'. It's worse than that, because it relates to material that the original owners presumably thought was private, and didn't realise that was open to public sharing. Which brings me back to my main point: privacy is not something that you should lose just because you don't appreciate the technical details of how something like Napster works.

[akicif.livejournal.com]

Finding a photo in the street is one thing: putting it online for other folk to look at is quite another.

[bohemiancoast.livejournal.com]

You know, the people who were using Napster and leaving their entire hard drive open were, as you say, being stupid.

They were also being stupid in the context of already engaging in illegal activity. This is a bit like the burglar who falls through a glass roof; it's not the homeowner's responsibility to make his roof sturdy enough to take the weight of burglars.

I too was slightly squicked by the article, but overall, my concern is considerably abated by the fact that they were filesharing. Yes, there's a lesson to be learnt here; if you're going to do illegal stuff, you should take care to make sure that you're not inadvertently leaving yourself exposed.

[andrewducker]

I'd say it was more akin to burgling someone's house and leaving your wallet behind by accident.

Would it be ok for the homeowner to keep the contents of the burglars wallet?

[major-clanger.livejournal.com]

Technically it would be theft, but the chances of a prosecution would be tiny. The burglar would fail in any civil action to recover property for the reason I've explained in my answer to bohemiancoast's comment. And in practice the police would have seized it as evidence anyway! Mind you, if there was £15 in it, that's where the mandatory Victim Surcharge might well come from...

[andrewducker]

By "ok", I meant morally. Most of the time morality interests me more than legality :->

Thanks for the info though.

[cairmen.livejournal.com]

Here's another example. If I see an attempted mugging which goes wrong and leaves the mugger lying bleeding on the street, is it OK for me to go over and stamp on his/her face?

[andrewducker]

Now you're going too far in the other direction. bohemiancoast was equating filesharing to burglary, and I was therefore equating having your files shared to similar thieving. You seem to be equating it to thievery in one direction and assault in the other, which seems like an odd metaphor.

[cairmen.livejournal.com]

But the burglary example doesn't really work - there's very little similarity between invasion of privacy and unauthorised copying of publically available work. major_clanger will correct me on this, I'm sure, but I don't even think they come under the same body of law.

Hence, it seems to me that the argument is "I've seen them commit a crime, therefore it's OK for me to commit another crime against them."

[andrewducker]

I don't know if bohemiancoast was saying that copyright violation = burglary, but it was equating the level of the two offenses.

I'd view burglary and theft as vaguely equal in severity, but not burglary and assault.

[cairmen.livejournal.com]

Ah - I assumed "mugging" to include assault or threat of assault.

[major-clanger.livejournal.com]

This is English law, not Scottish, but FYI:

Burglary = theft whilst trespassing

Robbery = theft by use of violence

Both are regarded as more serious than theft alone, for a given value of item stolen.

In case you wondered, theft plus violence plus trespass = aggravated burglary, and well up the scale of seriousness.

[major-clanger.livejournal.com]

It's certainly the case that any legal claim for damages (which would be problematic anyway) would run into the 'clean hands' doctrine. But I was addressing this more as a moral issue, in respect of the strong implication that stupid (actually, more like 'not that smart') people have less right to privacy than the more savvy.

[The whole 'burglar who falls through your roof' question is quite complex, at least under English law. Strictly speaking there is a duty even to trespassers under the Occupiers' Liability Act 1984, but a burglar would indeed have great difficulty in making a claim for damages. The court would either reject the claim under the old principle of ex turpi causa non oritur actio ('no cause lies from an unlawful act') or would find 100% contributory negligence. But setting traps for burglars is right out, and you could be liable against someone who was merely trespassing, which is not of itself an offence under English law.]

[bohemiancoast.livejournal.com]

Morally, I think you have a point, and I certainly wasn't inclined to go off and look at the files.

I'm not sure how different it is from, say, searching on common photo names (like say DSCF_03) to find photos that people have put on the internet but not in any display sense, or searching on 'ipsum lorem' to find unfinished commercial webpages, say http://www.synergyrehabilitation.com/testimonials.html .

[major-clanger.livejournal.com]

Hmmmmm... that more applies where you are aware of and appreciate the risk, such as in the classic case of the chap who went for a flight in a private plane owned by a mate he'd just drunk about ten pints with. If our hypothetical burglar took a very obvious risk then yes, as well as being in the course of an illegal act he would arguably have consented to run the risk. But if the risk wasn't obvious, then volentia non fit injuria wouldn't apply.

(One of my fellow Bar students is a classics graduate. She complains that the worst thing about legal latin - which Lord Wolff tells us we ought not to use anyway - is that lawyers pronounce it All Wrong.)

[akicif.livejournal.com]

Responding to your parenthesis: have you seen AP Herbert's piece on the New Pronunciation?

[major-clanger.livejournal.com]

Yes! I want to find it again to show to E.

('Who was AP Herbert?', I hear other readers ask? Dave Langford explains all.)

[akicif.livejournal.com]

And here's an extract....

[cairmen.livejournal.com]

How do you know they were breaking the law? Filesharing isn't illegal.

Sure, the vast majority of people who were using Napster were using it to trade copyrighted material, but not all. This is an unwarranted assumption.

In addition, you seem to be claiming that what's happened is fair "punishment" for their crimes. Leaving aside the issue of whether people should be punished at all for non-commercial sharing (I'm taking it your answer is "yes"), I'm far from certain that having your intimate, personal thoughts or memories exposed to public ridicule is an appropriate or proportionate punishment.

Stupidity isn't a punishable offence.

[redbird]

It may be more like the person who lends a sweater to her cousin one cold evening, after which the cousin breaks into my house and leaves the sweater behind. I, the owner of the sweater, have done nothing illegal or immoral.

Not all the original/local files on a machine necessarily belong to the person doing the filesharing. It may be foolish for someone to put a recording of them singing filk while drunk, or naked pictures of themselves, on a machine that someone else has access to by walking into the living room, but that's closer to not locking the door than like a burglar falling through the glass roof. And perhaps closer to being robbed by the neighbor who you invited in for tea one afternoon, than either.

[legionseagle.livejournal.com]

And if they were using a shared computer on which their husband, wife, civil partner, partner, child, flatmate was using illegal stuff?

[bohemiancoast.livejournal.com]

I thought we were talking about the merely stupid here, not the ACTUALLY DUMBER THAN TOAST. Shared computers is right up there with joint accounts; you'd better not just love the person, but trust them too.

[mishalak.livejournal.com]

True, but if no one did it writers would be left without a perfectly good plot device. How else can I get someone to find something on a computer without deliberate snooping other than a shared computer?

[secretrebel.livejournal.com]

I was wondering what you thought about the I found your camera site.

Is an invasion of privacy mitigated by a good intent?

[major-clanger.livejournal.com]

In that instance, yes - it seems a genuine effort to take reasonable steps to find the previous owner.

What really upset me about the site in the BB story was the explicit claim that it was for voyeuristic pleasure.

[ms-cataclysm.livejournal.com]

I can't really imagine you getting angry enough to punch someone... FWIW I agree with you . it's like saying that a peeping tom is justified because your curtains were thinner than you thought ...

[fivemack.livejournal.com]

Ah, the Nac Mac Feegle philosophy; if ye hadn't meant us to take it, ye'd have nailed it down wi' stronger nails.

[despotliz.livejournal.com]

I think bohemiancoast has a point in that releasing your recordings onto the web because you were incomptent while doing something illegal, so I don't have as strong a reaction as you do. What I do think is that Caesar's wife must be beyond reproach; you can't be a crusading pro-privacy site and also post something which is an invasion of privacy just because it is funny.

[andrewducker]

Slashdot has had the same problem. "Information wants to be free! Unless it's my information!"

[perlmonger.livejournal.com]

Yes. Also "lulz" as a universal justification for any sort of abuse.

[cairmen.livejournal.com]

What's irritating me is the assumption that the site's OK because it's "anonymous".

It's recordings of people's VOICES, idiots!

Have made a comment to that effect.

[redbird]

It sounds as though someone is confusing "not searchable by name with current technology" and "anonymous." There's no way for me to go in there and search to see if they have my mother's answering machine message; if they did, and I heard it, I would recognize it.

[legionseagle.livejournal.com]

These people, frankly, are chocolate liberals - they bend out of shape any time the heat comes near them.