Daniel Solove has written a brilliant piece, URL above,  on why the debate on privacy has to move beyond apologist arguments for the porn-addict, the una-bomber and the evil thoughts that haunt me. His argument device is to show that George Orwell’s “1984” showed amply the pitfalls of surveillance. And Daniel builds on that by  adding Kafka’s “The Trial” showing the issues authority having too much data and not enough accountability. I think that at least one more piece needs to be added, perhaps more, but let me add the next piece to see if it helps.

To make the issue understandable the polar extremes of the issued  need to be explored  and explained, so the right temperature can be found.

By way of comparison, the debate around abortion is not about abortion, it is about two sides presenting a temperate view and trying to occupy the language of the middle.

So in privacy the extremes might be temperately described as pro-data and pro-individual.

The pro-data side is out there and has good handles for it arguments. The biggest and best Daniel describes well – if you have nothing to hide then you have nothing to fear. Some of the better known rebuttals are also presented in the Solove’s article.

The pro-individual side is harder to capture. Solove does a very good job but I hope to build on it.

The big challenge with privacy is it is amorphous; there is no single piece of it you can grab on to that it can be said that this is the part that must be protected. It must be protected in whole.

So the piece I would like to add, building on Soloves argument, and style, is to add Arthur Millar’s “The Crucible.” The fable of sanctimony and the grievous consequences of hubris in believing that you have the might of the almighty on your side.

Giles Corey is the poster child for privacy. Giles Corey did not have the burden of proof upon him. Giles knew that he could not prove himself in the court of those who believed the almighty was on their side. He chose instead to protect his family and his right not to explain himself, even though he had nothing to hide. I hope we can work out a better answer than “more weight” for the rest of us. If not, I will line up next.

There is an important set of legal concepts that needs to find common language in privacy. The first principal is to articulate the crime. The second is to show the accused has committed the crime in advance of the crime being a criminal act. Absent those two pieces, no explanation from the individual in necessary. In law, it is innocent until proven guilty. There needs to be a positive corollary. It also needs to be  scrunched up in to a sound bite. Help!

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