Yeah, right. Try wearing the wrong T-shirt in a courtroom sometime and watch what happens to you.

Jon

KStreet, help me out here. Are you saying that Wikipedia doesn't have the right to stifle dissent, or that BLP victims don't have the right to defend against libel in the form of a Wikipedia "biography"?

Both or neither or either... only to the extent that governmental action of some sort is involved, since the policies and actions of private entities aren't covered by the ruling in question.

The second motive for privacy, however--the desire to conceal discreditable facts--is more questionable from a social standpoint. In order to make advantageous transactions, both personal (such as dating or marriage or being named in a relative's will) and commercial, people try to "put their best foot forward." Often this involves concealing information that would cause potential transacting partners to refuse to transact with them or to demand better terms as a condition of doing so. Such concealment is a species of fraud. It is too prevalent and, on the whole, insufficiently harmful to require legal sanctions (other than in exceptional cases). In addition the potential, victims of such fraud can usually protect themselves (though not costlessly): for example, lengthy courtships are a way in which potential spouses verify the implicit and explicit representations of each other and thus unmask the frauds that are a common feature of romantic entanglements. Moreover, to require blanket disclosure of private facts, thus treating every individual as if he were the issuer of a securities prospectus regulated by the SEC, would drown society in trivial and distracting information.

It does not follow that the law should go out of its way, as it were, to enable, to protect, these (minor) frauds by granting expansive legally enforceable rights of information privacy. Medical records are a case in point. People conceal their medical conditions (sometimes as a means of concealing behaviors that have led to medical conditions), in order to obtain insurance at favorable rates, obtain and retain jobs, obtain spouses, becomes President (in the case of John F. Kennedy, who concealed his long array of serious illnesses), and so forth. These concealments can impose significant costs on the other parties to the transactions.

This is not to say that all such concealments are strategic. I believe that many people would be uncomfortable to learn that their medical history had been disclosed to people living in distant countries, people with whom the possessor of the medical history will never transact. This would be like the nudity taboo: concealment motivated by embarrassment rather than by transactional objectives.

I mentioned that in exceptional cases in which people try to keep information about themselves private the law does step in. No one wants privacy more than criminals! Yet searches, wiretapping, and other means of surveillance are authorized to invade the "privacy" of criminals, terrorists, and other antisocial persons. Because of its favorable connotations, the word "privacy" is rarely used in such contexts. It would be good if the word was either purged of those connotations, or, more realistically, was understood, in disputes over measures such as digitizing medical records that compromise "privacy," that was what stake was simply reducing somewhat the ability of people to manipulate other people's opinion of them by selective disclosure and concealment of information.

Even strategic secrecy, however, can have positive social value. An example is trade secrecy, which is a method of obtaining protection against copying that would prevent appropriating the benefits of an innovation. In addition, some, perhaps a high, degree of privacy of communications is socially beneficial (hence wiretapping and other forms of eavesdropping are lawful only when directed against criminal and other public enemies, actual or suspected), because people will not speak freely if they think they are being overheard by strangers, and there is value in frank communications, including being able to try out ideas without immediate exposure to criticism. The particular concern I have with defenders of privacy arises when they argue for legal rights to blanket concealment not of communications, and not of embarrassing facts, but of facts that would be material to the willingness of other persons to transact with the concealer on terms favorable to him.

KStreet, help me out here. Are you saying that Wikipedia doesn't have the right to stifle dissent, or that BLP victims don't have the right to defend against libel in the form of a Wikipedia "biography"?

Neither. As I said, see One's analysis above, which basically sums up what I'm getting at (what if Posner were in charge of Wikipedia, or at least it's future).

You don't have to prove you lost money to win a libel suit. Emotional damages, etc., is valid reasons to sue in some states.

Oh, and counter to the semi-party line here, I look forward to the day Congress or the US Senate has the balls to pass forward a privacy rights bill.

Oh, and counter to the semi-party line here, I look forward to the day Congress or the US Senate has the balls to pass forward a privacy rights bill.

Bullshit? Yes. But this is why you don't fuck with people outside the law.

Or who know the law, I think you mean, and have the means and moxie to tool with it.

I don't have access to legal journals online or otherwise, but I know I've seen them previously. Celebrities in the UK for example file them all the time against news media there, and sometimes in the US as well.

That too.

What does it mean to beware of "f-ing with people outside the law" if the main concern is a legal outcome? (confused)

I don't have access to legal journals online or otherwise, but I know I've seen them previously. Celebrities in the UK for example file them all the time against news media there, and sometimes in the US as well. But even if you can't prove them, if you want to get people to stop doing something, and can afford to, all you need to do is file suit. Frivilous, yes, but... if you're rich, or can do the legal proceedings yourself, so what?

Financial. Do you think the teens and 20-somethings that make up the bulk of Wikipedia can afford lawyers even to deal with a frivilous case, let alone a real one, sprung from their actions? Is Daniel wealthy? We don't know. Can Daniel afford to withstand if 1, 2, 5, or 10 people on Hivemind all sued him?

Not sure if you are a US Citizen ("K Street" makes me think of a certain IBRD, and so I assume you could be from anywhere, as such), or not, or have followed US law in this realm, but it differs vastly from Euro-law (upon which most developing country law is accordingly modeled).

US Privacy law, or legal remedies consist principally of the making of a private lawsuit. And in such cases, the burden of proof is on the victim, and the means of justification entails presentation of material damages. In short, if you can't prove it cost you money, you don't win. Which is hard to do. You may well have lost work due to the libel, but it is difficult to prove, as such. Only in cases where the libel is grossly obvious will you get a judgement in your favor (per my layperson's ad-hoc, knee-jerk analysis of some random cases).

In many non-US countries, the framework is completely different. You can't libel, without punishment, of one kind or another, because the libel is illegal. Totally different in the US, where libel is by definition protected by the concept of freedom of the press (hence the burden of proof being on the victim). On the internet, various laws enacted to create a very-free-internet (DCMA and Section 230) make that basic principle very, very strong. And Wikipedia has been inaccurately categorized, for legal purposes, and in one ruling I know of, as an ISP. Wikipedia is not an ISP, it is a publication. Jimbo has final say over content, so he's editor in chief. They are putting it in a book, for cripes sake. It's a publication.

Sorry to rant.

I am a US Citizen. I guess part of my point was that o.k., the law currently states one thing, but Posner is a judge, and at least as far as the 7th circuit is concerned, he's rewriting the law into his view of privacy and criticism on the internet.

All I'm saying is that I saw an interesting quote, and thought it was appropriate in light of one of the many criticisms of Wikipedia, and presented it here for discussion. I'm not knowledgeable for an indepth analysis of US Privacy laws.

Oh, but good guess on IBRD, I actually work about 3 blocks away from them.

Well, that's what judges do. They don't rewrite the law, they interpret the law.

Judicial rulings, in the US "common law" system become sources of law. Rulings and judicial opinion can be used in future court cases (under common law legal systems) and therefore, sure, they do rewrite the law, such as it might be applied in the future. That's the way it works.

In civil law countries (other than the US and UK), the law is specifically spelled out, such as you suggest, but here, much of the law is based on prior decisions.

Sure you're interested, and there's nothing wrong with that. It was an interesting article, to be sure. My reason for harping a bit on the differences between various country laws on the matter is cogent in that Wikipedia is truly a transnational content medium, in terms of sources, retention and dissemination, which makes for a really interesting animal, in legal terms. The end of that story isn't even close to being called. I honestly don't understand why they aren't more careful, but they are who they are, and - go figure.

Heh. I've always wondered about that, per your name. Some people in the IBRD have heavy "slave-like" workloads, (if they aren't already workaholics), so I figured that you were in that house.

I know the difference between civil and common law nations, part of why I find it so interesting is that Posner is a known critic of judicial activism, but this seems like an extremely activist decision.

As for IBRD, maybe you misunderstood, I don't work for IBRD, I work a couple blocks away, on K street @ Penn, although the World Bank does own my building, and about half the real estate between Farragut North and Foggy Bottom. Seriously, they own almost everything between 18th and 22nd on Penn, K, I, and H streets that's not owned by GWU. But yeah, your guess was just about dead on regarding the workload.

Sorry if I over-explained about the legal systems. I probably was doing it for my own benefit. I did "get" that you aren't IBRD. I was simply commenting as to my prior guesses about your name. Do they really own everything down there? How did that happen? They are only about 50 years old, and that property was always pretty pricey.

The white areas up by Foggy Bottom, especially around where Penn splits I St. is all owned by GWU and it's foundation on the south side of Penn, and private interests on the north side of Penn. But yeah, some of the "chain link" imagery that is supposedly leased by them I believe is actually owned now (or else it's a very favorable lease).

Judge Posner Opines on Privacy and Surveillance

t does not follow that the law should go out of its way, as it were, to enable, to protect, these (minor) frauds by granting expansive legally enforceable rights of information privacy. Medical records are a case in point. People conceal their medical conditions (sometimes as a means of concealing behaviors that have led to medical conditions), in order to obtain insurance at favorable rates, obtain and retain jobs, obtain spouses, becomes President (in the case of John F. Kennedy, who concealed his long array of serious illnesses), and so forth. These concealments can impose significant costs on the other parties to the transactions.

This is not to say that all such concealments are strategic. I believe that many people would be uncomfortable to learn that their medical history had been disclosed to people living in distant countries, people with whom the possessor of the medical history will never transact. This would be like the nudity taboo: concealment motivated by embarrassment rather than by transactional objectives.