Bill's Big Stuff

I was unable to make a post yesterday. We had company last night, and too much preparation had to be done to make the time to blog. However, I was able to begin these comments on privacy.

The latest issue of “Reason” magazine had 40,000 custom-printed covers were created for the run of 60,000 issues. My cover had an aerial picture of my neighborhood, the inside had some statistics about my community, the inside back cover had a plea to write to my Congressman by name who had voted no on the medical marijuana bill, and the back cover had a bulldozer with the caption “condemned” with my address. The point was to make visible the amount of information that was available publicly about me. The theme was that the loss of privacy was good. I think there is an internal contradiction here, with libertarian philosophy, and I want to expand on the types of privacy and who should or should not have access to information.

First of all there are two types of information gatherers, commercial/private and government, and they must be treated separately. Much of the press condemns private information and then accepts government information when they should be doing the opposite. The crucial difference is that private information is gathered from voluntary submissions and generally is used only for the purpose gathered. On the other hand government information is gathered under law (ultimately this means at the point of a gun. A topic for another post sometime), and there is only the choices of providing it or going to jail. Oversight of private information is relatively easy, if it is misused, lawsuits result. Oversight of government information is next to impossible. Security concerns, bureaucratic delays, and the general acquiescence of Congress guarantee that government information will be used arbitrarily in addition to the proposed uses.

The information that produced my magazine cover was commercial/private information, and as internal articles pointed out, providing such information makes my life easier. Merchants will supply me credit. Advertisements can be focused to my potential needs instead of my having to wade through tons of inappropriate junk mail, or junk whatever. With the proper analysis, my wine merchant could target promotions for the type of wines I prefer, varietals and price range. My grocery store can provide me with a select pack of coupons to get me to cross-buy products from other suppliers. I see these things, not as intrusions, but attempts to create a win-win for me and the merchant. I am not paranoid about the information I give to a merchant. He only wants to use it to increase his sales, and to misuse it could cost him money.

The government on the other hand, is a different situation. Because of convenience and government edict, we have, in effect, a national identity number even though it is not a formal smart card. It is our social security number. Try doing anything without it. As soon as a child is born, it is assigned a number. This is no different in concept than the much decried National Identity Card. It is a relative of the tattooed serial number given to Jews in Nazi Germany. It is also the poster child for the failure of government promises. When first proposed, this number was criticized exactly for the risk of what it has become, a national ID. At the time, it was passed because the government “promised” that it would be used only for the dispersement of benefits. Once it was found that almost everyone had to have one, it was a natural move to use it as an unambiguous identifier for non-governmental transactions, with the blessing of the government.

Here is the loop-hole in our privacy. With the SSN as a key, the government can obtain any commercial information on us, if required by law. I will try to come back to this in either this or a later post. First we need to discuss government information.

Governments collect information as part of their functioning. The government has a detailed history of my life until the 1980’s and my fingerprints. This information exists at the FBI and probably the Dept of Energy. This is legitimate and is the result of my needing to have access to an atomic weapons facility to fulfill my job requirements. The government rightfully did its best to insure I was who I said I was and that I presented no threat to the United States.

The government has collections of fingerprints for a large number of its citizens. These are a result of military enlistments, criminal investigations, and security checks. We are now starting to demand these of foreign nationals that come to the United States. As such these would appear to pose no threat, and for the most part do not. Occasionally there are mis-identifications, mostly from partial prints and when less than best technology is used to obtain them. The latest case was the lawyer in Oregon who was confused with an Algerian. A fingerprint was found on materials related to the Spanish terrorist attack that was first ascribed to the American. Unless one is either in a witness protection program, or deliberately trying to be anonymous as possible, fingerprints are one of the least worrisome pieces of information the government has.

Census data is of more concern. The census has the Constitutional function of enumerating the population for purposes of apportioning the House of Representatives. In operational terms, this means going to every abode and simply counting the number of people living there that are US citizens. With the rise of the welfare-state and with other government programs based on head-count, the census has become a major data-gathering operation, trying to classify people with respect to government interests on income, race, occupation, number of children. The forms run four to ten pages depending on whether one is selected for the detailed samplings or not. With so many programs based on head count, it is no wonder the results of the census are hotly contested every time. Someone’s favorite constituency has a risk of being undercounted, and therefore under-granted. The irony is that the money doesn’t flow to the people being counted as potential recipients. It flows to the governing agency that might have jurisdiction over them.

Census data is of concern, because it contains information that in a less free country could be used against a person. Suppose we became so socialistic that everyone with an income of over $100,000 was to be penalized. Census data would provide a starting point for that. (So would IRS but they come next). Suppose we became so racist that all persons of a given race, say Caucasian were not to have full citizenship (just the inverse of the days of slavery). The census would provide a starting point here, also. The problem with census data is that in order to validate the data, all linkages to individuals have to be maintained. Individuality cannot be lost in the averaging process. It has been almost five years now, but try to remember some of the questions on the census form. How do they relate to apportioning our representatives?

The Income Tax is by definition Constitutional, because we passed an amendment to allow it. In the spirit of the Founding Fathers, I think it is most unconstitutional. With the administration of the Income Tax as currently done, we lay our innermost financial issues bare to a government employee or set of employees if we want to minimize our taxes. Not only that, we lose our right to not incriminate ourselves. No matter what we do, unless it is file every year and tell the truth, we will be subject to criminal sanctions by administrative rule. We can fight it in court, but that can be an expensive and chancy process. If we don’t file, we can be penalized. If we file and lie, because it would incriminate us, we can be penalized, if we file and tell the truth, and we have illicit income, we will be arrested. I am not advocating illegal means to obtain money, but I see the income tax as theoretically violating this right. In addition, if we are audited, generally there are no subpoenas issued to obtain our records. We are expected to turn them over voluntarily. Refusal to do so can be criminalized. The information in tax returns can be used in ways not even related to taxation. Currently the IRS is being requested to find 34,000 reservists that the military has lost track of. Obviously it is thought to be more worrisome to not file taxes than to keep ones military unit informed of whereabouts.

DNA records are proving to be useful to both prosecutors and defense. Though not the magic bullet that many had hoped for in either direction, a number of miscarriages of justice have been prevented or rectified by DNA analysis. However, there have been moves to try to make this a standard data item on any person arrested, and thereby build up a data bank of DNA analyses for future comparison. This violates three important principals, in my opinion, innocence until proven guilty, non-self-incrimination, and no warrantless searches. To proactively require a DNA sample for future use for any case besides the current charge is to automatically imply that the person will be guilty of something. It is either an assumption of guilt or a waste of resources – DNA analysis is not cheap. DNA is a part of the person and the supplying of a sample can be considered equivalent to going through personal papers. In the latter case, a warrant is required, and relevance to the current charges are necessary. The same should hold true for DNA samples. There are various subterfuges that have been used either in real life or on television, but a good defense attorney should be aware of them and fight them.

I see a potential scientific abuse of a DNA database. The temptation will be great to mine the database for relationships between the DNA of various criminals or criminal types and other characteristics that are inheritable. The problem is that it may be possible to make political hay from the results, which will be inconclusive at best, since there will be no specific controls. It is quite possible for DNA to appear to be different in some way compared to the normal population when measured in those arrested, that is due only to the fact that one is sampling those arrested. To me it would be a desperate scientist, indeed, that wanted to try to indicate that some DNA anomaly would lead to a propensity to be arrested. (Note that DNA comparisons are carried out not on the genetically active portions of DNA but on certain nonsense sequences.)

While composing this essay, I realized that there is a third type of personal information, medical information. This data is in the records of our insurance companies and health-care providers. This is most sensitive and personal. It can include such things as having been treated for an STD, or being HIV positive, or having been treated for a mental condition. It can include embarrassing information on congenital malformations.

The problem I have with the interchange of information is not so much within the various types of information as between them. The worst I can see coming from merchants exchanging information about me is a greater selectivity on what advertising I receive, or either restriction or relaxations on my credit opportunities. When health information is exchanged, I can experience increased costs if my insurer decides that I have a condition he doesn’t want to cover, and I need secondary coverage or else have to pay for it myself. That is the nature of insurance. I might mean that doctors may not take me if I am considered slow-pay, poor-pay or don’t have the right flavor of insurance. That is just good business judgment on their part. They do need to make a living, and despite the propaganda to contrary, we do not have a right to health care.

With the government there needs to be a bit of discrimination. I have no difficulty with law-enforcement agencies exchanging information on suspects. I do have difficulty with the Department of Defense trying to track down reservists through their income taxes. If we have ceased paying them for reserve time, then where is the contract? If it is a promissory note in concept, then use another means to track them, the same as one would for a bad debt.

The exchange of health information with commercial information has concerns. Suppose it were possible to obtain health information while signing a house mortgage. Would the loan company lend to someone with chronic heart disease? With a history of mental illness? With a family history of an inheritable disease that is fatal? (Huntington’s chorea comes to mind) With a positive HIV? Currently these risks are buried in the overall risk rate that determines the mortgage terms and conditions. Separating them out would greatly restrict opportunity for arbitrary classes of people. The problem becomes that if reduction of risk takes precedence over maximizing profit opportunity (and it can), then many people will be removed from the housing or other markets.

The sharing of information between the government and either commercial or health information sources is the most fraught with danger. We already see the attempts at this with the Patriot Acts. Here the government is both reducing the barriers to its gathering information via traditional means, as well as attempting to open up new sources of information – libraries, banking, and credit card purchases. It has become essentially a crime to conduct business in cash, any large amount of cash is taken as prima facie evidence of wrong-doing and the bank must report it. The beauty of cash is it is not traceable, and many people prefer to remain anonymous, and not for nefarious reasons.

Commercial information on purchases is also being desired for ostensibly security reasons. The theory is that certain purchasing patterns would reveal evil intent. The problem is that they could reveal evil intent or simply be innocent. What recourse will the innocent taken as guilty have to defend themselves? When the hounds are literally at their door who can they call? What will protect them? They will have their day in court and when the case is dismissed or the charges are dropped, will they be able to recover all the lost time and money of the false accusation?

Finally, think of the Third Reich and the Jews. Generalize the situation to anyone with a chronic medical problem and consider what government access to medical records could do. More currently realistically, consider Great Britain’s socialized medicine system that has now instituted a policy of futile life to speed up the demise of the terminally ill. It is only a short step from that to euthanasia for anyone considered unfit to contribute to society.

When we consider privacy issues, our first thought should be that the Constitution protects us from the government, and secondarily from force and fraud from each other. Our privacy priorities should be the same.