Sunday, December 13, 2009

My Constitution, Section 12

Section 12 - Privacy

12(1) No individual who is party to a legally-binding agreement shall reveal any detail of that agreement without the consent of all parties, but this shall not be construed as to inherently bar the use of the content or consequence of agreement to guide action.
It is a common expectation that negotiations and affairs between two people are private, and that violations of that expectation are a source of outrage. As information can be the subject of property, the information about the negotiation of a binding agreement constitutes an item of property that is owned by all the parties to that negotiation and which agreement shall be taken to include a term to that effect. This is especially the case in the commercial context because a business wont want its activities revealed to a competitor, but applies equally as well to personal matters where a betrayal of privacy can cause immense grief. In either case, the disclosure of jointly owned information is a harm inflicted by one party on the other, and should be made illegal to the extent that is in violation of the property rights of that other.

Note, then, that the right to privacy does not extent outside the context of the legally binding agreement. There is no such thing as a right to privacy in regards to say having one’s photo taken at a public venue by a paparazzi or one’s presence noted by a journalist, or that a personal confidence is broken by gossiping, and so on. Only when there is legally recognisable ownership of the information as property does a right to privacy exist, and the mere existence of facts is not sufficient by itself to generate ownership of those facts and hence no right for them not to be passed on.

The second half of the clause regards using information that one comes into possession of, not directly from the agreement, but as a consequence of having that agreement. The chief example of this is the bogeyman of insider trading, but there are uses besides this.

In terms of content guiding action this would mean that an insider would not be prosecuted from doing something that is not the passing on of information but which still constitutes a use of information that doesn’t benefit the other party. For example, a research scientist would be barred from passing on information regarding product development projects or clinical trials in which she or her colleagues are involved, but would not be excluded from buying or selling her employer’s stock. The buying of stock is not the passing on of information about what the company is doing, it is only the passing on of information about what the buyer thinks. Insider trading is not a breach of privacy. It would only be a breach of contract if it were stated as an express term of contract that the employee wont trade in the employer’s stock.

In terms of consequence, ownership of information only extends to the content of the agreement and that directly bound up with the agreement and not to information obtained as an accident that goes along with the making of that agreement. Here it is ‘insider’ trading when properly speaking it’s an outsider (ie non-employee) who happens to gain information arising from other dealings. For example, if a truck driver notices an increase in deliveries of raw materials to some factory and, after chatting with the people at the factory loading dock sees that they’re happy, he may conclude that sales are up and so buy stock before the news gets around. This, too, is not a breach of privacy. The factory owner does not own the information about increased deliveries, and does not own information about employees’ increased morale, and has no agreement with the truck-driver regarding this information.

12(2) No individual who is upon or using the property another individual shall read, observe, tap into, record, copy or reveal the details or activities of any other individual upon or using that property without the consent of the property owner.
The use of an owner’s property may only be carried out with the permission of that owner. Anything else is force, and is right to punish that. Again, when putting personal information onto other’s property there is a legitimate expectation of privacy that people are right to have legally recognised as part of the contract, and that even without examination of that contract a third party ought know very well that perusal of that information would be a breach of the property owner’s rights because of unauthorised use of the property.

This also takes care of issues such as journalists pestering a celebrity in a nightclub – the wrong is not that the celebrity is being pestered but that the conditions of the use of the nightclub owner’s property that are being broken. As before, the presumption would be of privacy, and in the case of the nightclub it would generally be expected that patrons are just there to have fun and not to be pestered by others not there for the same purpose, and so unless the club is known to be a place to be seen by journalists etc it is fair to expect as a term of patronage that pests be ejected.

12(3) In the absence of express consent or non-consent on any privacy matter, individuals may make such presumptions either way as the Reasonable Person would make as per what is customarily consented to in any given circumstance, the default presumption in absence of custom being non-consent, but this shall not be construed to deny parties to agreement the right to specify otherwise as part of the terms or deny property owners the right to specify otherwise as a condition of full or partial public access, or deny property owners the right to change their specifications regarding public access.
The default is non-consent for the reasons I already stated, that it is the expected term of a contract and whose breach identifiable results in a harm. The reference to custom and the Reasonable Person is because that expectation is not always present, nor always reasonable. An example of that is another nightclub or a restaurant, which, instead of being a more private venue, is known to be a place to be seen in and for celebrities to be approached by privileged journalists. Here it would be unreasonable for someone to claim a breach of contract for the property owner to fail to eject a paparazzi or a journalist doing a doorstop interview of a politician.

The second part of the clause is recognition that the owner is still the owner and has the right to change conditions of entry onto his property as he judges fit. In a similar manner to similar provisions, this is to make sure that the exercise of one right (privacy as a term of contract) is not taken as an out-of-context absolute that overrides another right (property owner’s rights to set terms of property usage).

12(4) No individual shall be prior required by law to prove identity to any other individual; nor shall any individual be barred from creating multiple identities so long as there is no breach of rights; but no individual shall be barred from requiring proof of identity as a term of agreement or required within agreement for execution of an element thereof.
The final element of the right to privacy is that the government has no authority to keep tabs on anyone, nor to compel others to do the tab-keeping on the government’s behalf. This includes that individuals are entitled to keep different parts of their lives separate and are fully entitled to employ whatever means that do not involve a breach of rights so as to maintain that separation. For instance, someone who goes to religious services may have doubts about that religion but may not want that revealed, so uses a pseudonym as an identifier in a private discussion elsewhere so that another party wont make the connection and harass this someone with unwanted proselytisation. The flip side to the same argument is that it is not a breach of rights to require disclosure as a term of dealing with someone, and the other party is legitimately left with the three choices of accept, reject, or attempt to negotiate.


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