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Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Hello, I’m Dr Google and I’m here to look after you

John Harris is one of the Guardian‘s best journalists. He is a left winger who wanted to remain in the EU, but the series of video reports by him and John Domokos called “Anywhere but Westminster” showed their determination to literally and figuratively move outside their comfort zone on the issue of Brexit.

Now he has turned his attention to a new subject: health apps and Big Data in the age of the Internet of Things.

Will having longer, healthier lives be worth losing the most basic kinds of privacy?

The deal has yet to be approved by the relevant regulators, but Google has got most of the way to buying Fitbit – the maker of wearable devices that track people’s sleep, heart rates, activity levels and more. And all for a trifling $2.1bn (£1.6bn).The upshot is yet another step forward in Google’s quest to break into big tech’s next frontier: healthcare.

Last month, in a Financial Times feature about all this, came a remarkable quote from a partner at Health Advances, a Massachusetts-based tech consulting company. Wearables, he reckoned, would be only one small part of the ensuing story: just as important were – and no guffawing at the back, please – “bedside devices, under-mattress sensors, [and] sensors integrated into toilet seats”. Such inventions, it was explained, can “get even closer to you than your smartphone, and detect conditions such as depression or heart-rate variability”.

Most people here will probably think that the article and even more so the comments give too much weight to the creepiness of private corporations monitoring your every breath and too little to the creepiness of the NHS doing it. But even the biggest fans of capitalism can feel unease at anyone having this level of knowledge of the most intimate aspects of our lives. (Time was it was only little green men from flying saucers who had such a probing interest.) Nowadays both the private and the public sectors are amassing data, and whichever of them gets a comprehensive health surveillance system working first will promptly sell it to the other.

Then again, before you declare that you will never allow the Internet of Things anywhere near your body, read this comment from “ID20857”:

A few months ago my Mum had a stroke. She is now paralysed down half of her body and confined to a wheelchair. I’m sure if she had the option of an early warning which could have prevented her stroke she wouldn’t give a f**k about her privacy.

36 comments to Hello, I’m Dr Google and I’m here to look after you

  • Paul Marks

    Google should be able to buy what they like – and I do not mind them giving me health advice, as long as I am allowed to IGNORE their advice (unlike the Tinpot Tyrant Michael Bloomberg who wishes to control every aspect of the lives of ordinary people – via taxes and regulations).

    What is evil is the FRAUD that Google is – its whole business model is based upon a basic FRAUD.

    Google claims to be an objective, unbiased, Search Engine – and it is not. Google searches always tend to support the left – both in relation to candidates for election (see Dr Robert Epstein’s work on the 2018 midterm elections – where Google was wildly biased, even compared to Bing and Yahoo), and general political questions.

    If I offered you a drink and told you it was neutral, neither acid or alkaline, and it turned out that the drink I was offering you was not neutral, that it was wildly acidic and-that-I-knew-this, that would be fraud – and what Google does, the very basis of its business, is FRAUD.

  • The Sage

    “ID20857”’s comment assumes that the provider reaction would be to provide preventive healthcare in the event of an imminent crisis. If the reaction instead was likely to be “this one’s not economically viable to provide for”, as in many of the health-rationing (or euthanasia-related) horror stories one reads, then I’m sure that “ID20857” would feel rather differently.

  • Fraser Orr

    Paul Marks
    What is evil is the FRAUD that Google is – its whole business model is based upon a basic FRAUD.

    That word “fraud” seems to be getting tossed around here a lot. I don’t agree at all. CNN claims to be unbiased news, but it obviously isn’t, Burger King claims to be the best burger, but it obviously isn’t. Coke claims to be better than Pepsi, but it obviously isn’t. Elizabeth Warren claims to be a Cherokee but obviously isn’t.

    Private companies make exaggerated claims all the time about their prowess, and part of maturity is taking such claims with a pinch of salt. If you don’t like Google’s performance (and this is ESPECIALLY so of their search engine) you have a plethora of alternatives. In fact you can probably find one that suits your own biases perfectly.

    And FWIW, I’m not so sure its bias is as nefarious as you imagine. PageRank is based on the idea of the most referenced sites being the most reliable, which seems a perfectly good model. In a sense it is the model used in scientific literature too. Big news sites are obviously going to be dominant in that regards, and the journalism business is strongly biased to the left. So, insofar as google’s search are leftward tilted I think it is mostly a second order consequence of leftie journalism school rather than a Machiavellian plot at Mountain View. The comparisons with others are a reasonable approach to determine that, but they have different search models and methodologies.

    I’m not saying their isn’t a nefarious plot, I am just saying there are at least some other contributing factors.

  • bobby b

    “But even the biggest fans of capitalism can feel unease at anyone having this level of knowledge of the most intimate aspects of our lives.”

    The “most intimate” aspects of my life aren’t always the ones I care the most about keeping private. My heartrate, my glucose level, how heavy I breathe after stairs . . . “intimate”, sure, but unrevealing and/or nonthreatening.

    I’m more concerned that someone knows exactly where I am, or how I got here, or who I called while here and what I said on that call.

    And I’ve already given away the store as regards those issues, when I accepted my Personal Spying Device. This is like complaining that Google wants a kiss after having used me roughly.

  • MadRocketSci

    The real issue, in my opinion, is a generalization in the *type* of technology that is being built and pushed on people (not exactly sold – not many people are beaten enough to buy it of their own free will. Instead, this tech is used to threaten them.)

    Instead of building devices that are tools to accomplish the goals of their end users, that belong to the end user, and are under control of the end user, our wonderful tech corporations are building devices designed to monitor and control their nominal “users” on behalf of someone else.

    There would be absolutely nothing creepy about fitbit if it just dumped the data to your PC, communicated it to some repository under your control, and didn’t talk to unauthorized outsiders unless you got hacked. There would be nothing creepy about health-advisor applications if it just ran against a database of de-personalized donated information and advised you locally on your PC without dialing a mothership to tattle on you. There would be nothing creepy about camera-doorbells if they only reported to you, their owner. Or nest thermostats. Or display/camera-eyeglasses if they ran off of personal computers that ran the software you wanted, took the pictures you wanted, and didn’t promiscuously share things you never told them to share.

    The fundamental issue is about ownership and control. It seems Silicon Valley is trying to erase the legacy of the personal computer and the peer-internet that their fortune was built on and replace it by some surveillance hellscape. People should patronize companies that sell them products that are *theirs*. That respond only to the control of the owners. That treat them with respect, not as marks to be further monetized and manipulated.

    And people used to complain about pre-10 Windows!

  • MadRocketSci

    In my case, the answer is no, no, hell no, and get your malware out of my house.

  • staghounds

    What “ID20857” said, and then some. Getting sick really puts an end to privacy anyway.

    Also, watch this with a dry eye if you can-

    https://www.youtube.com/watch?v=6xSxXiHwMrg

  • Julie near Chicago

    “The fundamental issue is about ownership and control.”

    — –MadRocketSci, February 4, 2020 at 12:02 am

    Also the fundamental issue about politics, and perhaps the fundamental issue about living in society at all, even if there is only one other person in that society. Even a society of two hermits living more-or-less together.

    I do not think that our species is the only one that is exercised by this issue. It seems to me that animals fight regularly to hang onto and control their bones or bright shiny baubles or territory or whatever, even though they lack the mental equipment to form the complexity of our own concepts of “ownership” and “control.”

    There is another fundamental issue for us at least, which is, what if anything do we owe another person just because we both happen to have been born? Does a person in need therefore automatically have a moral claim on us: On our lives, or a part of our lives? Does some Maximum Leader, a ruler, an oligarchy, a government automatically have a moral claim on our lives or a part thereof?

    It’s still about ownership and control. Who has the right to co-opt your life or a part of it just because of his circumstances (as either a ruler or a person in deep need)?

    .

    Most of us more-or-less libertarians believe that our children are the only ones with such an automatic right. Even our parents don’t have such an automatic right to our care, direct or indirect, when they are in need.

    But I do thank the Great Frog that so many of us are instructed by our consciences (as well as by reason and “common sense”) to care to some extent about the well-being of others, and in particular that child and parent have between them the bond that motivates them to look after each other at need.

    Which is not a Given.

  • Julie near Chicago

    Google LIES. Rick Blaine is not “Herb” (IIRC his name), and Ilsa is not “Loretta”!

    I know because I saw the movie.

    Google LIES!!!

    NOTE: W/ reference to staghound’s link just above.

  • Julie near Chicago

    Speaking of search engines (Google) and positively, definitely, absolutely O/T, I offer this on how DuckDuckGo makes money. Although nearly everybody else here has probably seen it:

    https://spreadprivacy.com/duckduckgo-revenue-model/

  • Fraser Orr

    @MadRocketSci
    Instead of building devices that are tools to accomplish the goals of their end users, that belong to the end user, and are under control of the end user, our wonderful tech corporations are building devices designed to monitor and control their nominal “users” on behalf of someone else.

    But I am reminded of that seminal statement from Adam Smith:

    “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own self-interest. We address ourselves not to their humanity but to their self-love, and never talk to them of our own necessities, but of their advantages”

    Does Google (and let me use “Google” as a proxy for all similar companies) make products that are designed to benefit Google? Well yes of course. And in doing so they have created this massive ecosystem of extremely useful and powerful software that they give to you for free.

    Now to be clear they “give” it to you. They don’t pass a law requiring you to use it. And in fact every single Google product has a perfectly viable alternative, in fact some have many different alternatives. If you chose to use their various services for free in exchange for allowing them to track your data then you have judged that as a fair trade. If you didn’t, you have plenty of alternatives that you can use that have a different cost profile. Don’t like them reading your email? Get Protomail. Don’t like them checking your search? Use DuckDuckGo. Don’t like their creepy maps app? Get a Garmin.

    But here is the real irony of the whole thing — even if you crank up your privacy settings, turn off cookies, browse incognito, use Firefox and all the various other things you can do pretty easily, Google will STILL give you all its products for free.

    The most troubling thing about Google et al. is that they have such market dominance, so to me the solution to the google problem is to encourage people to de-google their lives, which they can largely do with surprising ease, though for sure there are some free google products that are hard to substitute. Competition is, as I said recently, the solution to most of life’s problems.

    So, if you are concerned about this it is perfectly possible to generate a groundswell of “#degoogle” and encourage people to stop selling their privacy and personal information at a price you consider too low. FWIW google will, for free, provide you with an excellent platform to start and run your campaign. And the irony of it all is that were you to be at all successful Google would be the first one to step back from the creepy line.

    The fundamental issue is about ownership and control. It seems Silicon Valley is trying to erase the legacy of the personal computer and the peer-internet that their fortune was built on and replace it by some surveillance hellscape.

    But that isn’t true at all. You are entirely in control, you own your data and your privacy. Now, as with all property you might well trade it for some other product or service, and that is perfectly fine. It is a free trade. My laptop still has a hard disk. I can still store my email and photos on there and back them up to an external hard disk, which I keep in the bank’s safe deposit box, like I always did before.

    There is a change in the culture where people have judged their privacy and personal information to be worth trading for a bunch of free software, but you and I are under exactly zero obligation to participate. We have alternatives online, we have alternatives offline. So if you don’t like it, don’t do it.

    You might say “but it is impossible to live in the modern world without these services.” And I’d reject that. You aspire to the computing era of the 1990s when you were more in control. It is still there. You can still have it, with all the shitty consequences. Rand McNally still sells road maps. Microsoft Word still works entirely offline. I bet you can go on eBay and buy an old copy of Encarta on a DVD (or, God forbid buy paper books, or order a newspaper delivered to your door.)

    But if you start that #degoogle campaign, LMK, I might just join you. Google was sending me emails every week telling me every place I had been over the past week, and that was WAY over the creepy line for me. (BTW, you can turn that feature off, and I did.)

  • Jacob

    “What is evil is the FRAUD that Google is”

    Google is not a fraud. It is a “private” (i.e. not government, not by force) enterprise, and it is run the best way its managers know how, like all enterprises. It is probably not perfect, like everything else.
    You are, of course, entitled to hate them.

    If you don’t like it don’t use it.

  • Jacob

    (BTW, you can turn that feature off, and I did.)

    You can turn off the sending the e-mail, you can’t turn off the tracking. You can delete your tracking info from Google’s data base – they tell you. But you can’t be sure they are not keeping it somewhere else. You don’t know what they are doing.

    The concern about privacy is overblown anyway. There is no privacy once you go on-line. That is a fact you should be aware of.

  • Jacob

    “The only thing that can balance these two sets of imperatives [improving health vs. privacy] is the state, and so far, most British politicians seem barely aware of this new set of issues, which demand new rules and laws.”

    This is from the article linked above.
    Now – privacy loss might be a problem. But… But – is government regulation the solution? Of course, for a Guardian journalist government regulation is always required, everywhere, the more the better.

    The question is – is government regulation not a bigger evil than privacy loss? It would probably hamper the development of useful health improving apps.

  • Sam Duncan

    I’m coming to the conclusion that privacy is at least as important as, if not more important than, liberty. And although it’s the recent attacks on it online which have started me thinking about it, I believe it always was. In private, you are free. In 1984, it was the telescreens watching the people 24 hours a day which gave Big Brother the power to curtail their liberty. It was privacy, as much as liberty, which Winston Smith sought. Eastern Bloc dissidents prized privacy too, that they might talk, teach, and learn freely. In many ways, liberty can be defined as privacy from the gaze and grasp of the state, or society at large.

    And it’s not enough to say, “There is no privacy online. Deal with it”. That is then a problem which must be solved. Because where there is no privacy, there will surely, at some point, be no liberty. What we say online can already have real-world consequences (far out of proportion to what is said), should our identities be discovered by either the mob or, increasingly, the authorities.

  • Jacob

    “What we say online can already have real-world consequences”

    Sure. That’s why we said it online in the first place – to communicate with other people – with the Public.
    If you fear the consequences stay off-line.

  • Fraser Orr

    @Jacob
    You can turn off the sending the e-mail, you can’t turn off the tracking. You can delete your tracking info from Google’s data base – they tell you. But you can’t be sure they are not keeping it somewhere else. You don’t know what they are doing.

    You can’t be sure they do what they promise, but it seems reasonable that if you give them an explicit instruction that fear of legal consequences will have them do so. For example, were their database hacked and it was discovered that they still tracked people who had turned off tracking the legal consequences could be immense. Of course they don’t need to worry. Freaks like you and I who care about privacy are rare indeed. They can turn it off just fine for us because we are tiny blips in their massive stochastic process.

    And ironically if you want to turn off tracking you can use google search to find out how to do it.

    https://www.wired.com/story/google-location-tracking-turn-off/

    It takes a small amount of effort, but you can hardly complain about that.

    The concern about privacy is overblown anyway. There is no privacy once you go on-line. That is a fact you should be aware of.

    I don’t agree with either of these statements. Concern about privacy is not overblown, and you do not have to give it up online.
    Privacy, like most things in life, is a spectrum. You can have privacy by living like a hermit in a box, or you can live your life completely in the open, or you can do anything in between. Maintaining privacy takes some effort, and you will not be 100% successful.

    But like I said above if you really care about this issue you can do things about it. Convince your friends to use more private alternatives (and of course start with yourself). Create tools to help people better manage their privacy (again Google will be happy to provide you with tools to do this for free). If you are a programmer, write an application that manages all your privacy settings centrally — or as many as is possible, in the same way that LastPass manages all your passwords.

    There are more effective options than throwing up your hands in surrender.

    Another thing to consider is that most people don’t care about privacy at all. I occasionally check in on Facebook to keep up with family back home. It never ceases to amaze me the extraordinarily personal information people toss out their without the slightest degree of concern.

  • Jacob

    By the way: concerning health data or medical data gathered or “revealed” – we can assume that most of it concerns deceased people. Once some hospitals have lots of data about you – it’s a sign that your life expectancy isn’t too great.

    I mean – AI programs need a lot of data to “learn”, and it needs not be data of people alive. Suppose the NHS or some hospital opens or sells it’s records of past cases to Google or so – no privacy violation in case of data of deceased people.
    Not every data has privacy problems…

  • Jacob

    “Another thing to consider is that most people don’t care about privacy at all.”
    And rightly so. For most people the advantages of being online far surpass the loss of privacy.
    But people who need to guard some confidential info and keep it private must assume that whatever reaches the net won’t stay private.

  • Fraser Orr

    @Jacob
    Once some hospitals have lots of data about you – it’s a sign that your life expectancy isn’t too great.

    But it seems to me that the purpose of the subject in the OP is to reverse this. Fitbit doesn’t gather data on dead people. Dead people don’t poop or pee. It is this very change that matters — gathering data on healthy people in a traceable way to make a dispassionate assessment of what the causes of morbidity and mortality are. And, on the flip side, to make a determination of what changes to make, and how well those changes are working to reduce your morbidity and mortality.

    You are right, when you get to the hospital it is often too late. So measuring systematically and regularly long before you get to the hospital is something with paradigm shifting possibilities.

    Suppose the NHS or some hospital opens or sells it’s records of past cases to Google or so – no privacy violation in case of data of deceased people.

    I don’t think that is true. Certainly here in the US health privacy does extend to dead people, probably up to some limit in terms of many years.

    Though it might be different in the UK. When I left Britain to go live in the USA I went to my GP and asked for a copy of my medical file to give to my new American doctor. He refused saying that it was the property of the state and I had no right to even look at it never mind copy it. How terrifying is that?

  • Julie near Chicago

    Sam Duncan nails it, in his entire comment at 1:33 pm. And I note this:

    “Eastern Bloc dissidents prized privacy too, that they might talk, teach, and learn freely. In many ways, liberty can be defined as privacy from the gaze and grasp of the state, or society at large.”

    I fail to see how the right to privacy is not one of the Unenumerated Rights which the Ninth Amendment is supposed to guarantee to us in the U.S. against the usurpation of the Federal Government.

    But the FedGov, generally speaking*, is not empowered to do anything aimed at guaranteeing some sort of privacy (non-sharing of information between private parties). And where fraud is at issue, I would think that generally speaking it is a matter for the (U.S.) States to decide what is or isn’t, and what if anything a State should do about it.

    *Tax evasion – not tax avoidance – is considered a crime against the State, the U.S.A., so any crimes aiding or abetting it would also be a matter for the Feds. And what about RICO statutes? Are they Constitutional? I dunno. When I was in school our class spent that day at medical school doing our surgery rotation, and the next day as Copernicus’s R.A. working on QM, so….

  • bobby b

    “I fail to see how the right to privacy is not one of the Unenumerated Rights which the Ninth Amendment is supposed to guarantee to us in the U.S. against the usurpation of the Federal Government.”

    It is. In Roe v. Wade, the Supreme Court found a fundamental right of privacy under the due process clause of the Fourteenth Amendment, as it is informed by several other Constitutional provisions and amendments.

    Here’s a good article on privacy and our Constitution.

  • staghounds

    Julie near Chicago:

    No person from biblical times left a pictorial record. The Sistine Chapel and the Uffizi Gallery are LIES and FRAUDS!!!!

    Don’t get me started on Bergman, Bogart, and Casablanca…

    😉

  • Paul Marks

    Fraser Orr – I take your advice, I do not use the Google Search Engine (other than to check just how biased it is).

    But that does not alter the fact that it is indeed a fraud.

    The whole basis of Google is that it is an objective mathematical model “Google is a verb” (“to Google”) – it is scientific (unbiased). And all of that is a LIE.

    Do you think the average person typing in the name of a candidate for Congress in their District knows that Google has a political agenda and that the Search Engine result are RIGGED?

    No they do not know – and it is not “like CNN”.

    CNN is a bunch of talking heads pushing the Democrat Party – but Google is impersonal.

    You type in some words and up pops the information – it is “mathematical”, it is “science”.

    Accept – it is RIGGED.

    That is moral fraud.

    Indeed it is the most important fraud in history – rigging elections (such as those of 2018) and the basic knowledge that people have on key subjects.

    This is very bad.

  • Fraser Orr

    @bobby b
    Here’s a good article on privacy and our Constitution.

    Thanks for the link Bobby, It was very interesting. I have always found the Roe decision, especially with regard to its basis in privacy to be a truly curious thing. Can a person separate between their view on abortion and the rightness of the Roe decision? I think it is rare for people to do so because the think that process is subordinate to consequence. You are a lawyer, so I am sure it comes naturally to you, but for us lay folk, I think it is rather harder. Irrespective of whether you think the court decided rightly (which I do not, even though I an in favor of the trimester based approach to regulation of abortion that Roe provided), what I think is interesting is how people apply it.

    When we demand with pitchforks and torches the enforcement of a right that is a “penumbra” of other rights and yet happily toss out the plain, unequivocating text of the second amendment or couch the first in all sorts of “you can say anything you like as long as I agree with it”. Or staying focused on the right to privacy or the “liberty” of the 14th, as the Meyer vs. NE case cited in your article states:

    “it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

    Yet nearly ALL of the activities listed here are ones that the left and the more oppressive elements of the right would absolutely deny any right to privacy in. Surely there are very few people who are “pro-choice” and “pro the right of the individual to contract”, unless they happen to agree with the contract? Whether on the left denying me the right to hire someone for whatever wage we both agree, or on the right denying me the right to pay someone to have sex with me. Perhaps they can wash away their hypocrisy with an appeal to a “due process of law” argument, but if you have privacy then you should have it. A right is something that is elevated above the humdrum of statute law. So if the “right to contract” is a “right” then it cannot be denied except under extraordinary circumstances, and I find it hard to thing that either prostitution laws or minimum wage laws come anywhere near that bar.

    It used to be that the left was the guardian of the first amendment, it was Republicans that put librarians in jail for having naughty books. But it seems to me that the main enemy of the first amendment is now the left. Marvelous organizations like the ACLU have completely lost their way.

    Having said all of that, the “right to privacy” still smacks to me of excessive judicial reach. If we want to change the constitution, if we want to change our enumerated rights, then it is not a job that we give to the judiciary. It is one that we give to the people. It is extremely hard to pass a constitutional amendment. It is supposed to be. And for that very reason the idea that they can be tossed aside with clever arguments and the torturing of words is especially offensive. It reminds me of that movie Hamburger Hill, where a troop of Marines in Vietnam fought a bloody and deadly battle, taking massive losses, to capture a hill. A hill which the Generals the next day gave up because it didn’t matter anymore. Lions lead by donkeys.

  • Nullius in Verba

    “Google claims to be an objective, unbiased, Search Engine – and it is not. Google searches always tend to support the left”

    What counts as ‘left’ or ‘right’ depends on where you stand. If there is a line of people, and you stand at the right-hand end of the line, you will observe that everyone else is to the left of you. If you stand at the left hand end, you’ll think everyone is to the right. If a sample purports to represent the range of views available to search, and it averages out somewhere in the middle of the line, then half of the people in the line will think the sample skews left, and the other half will think it skews right, and they’ll both be correct.

    How do you measure what is ‘left’ and ‘right’? You listen to the views of the people you know, the views inside your ‘bubble’ of aquaintance. So if everyone you know is clustered up towards the right hand end of the line, but the sample survey includes people outside your circle, the two are going to give different answers. If you use different definitions, then you can have different truths.

    The scientific truth, as psychologists have proved over and over again, is that *everyone* is biased. It’s just the way human brains are wired; to simplify and make tractable a too-complicated world. We all have a set of current beliefs, and we see news that confirms those beliefs as true and useful, and news that disputes those beliefs as false and harmful. And we thus have a tendency to entrench our biases by rejecting and avoiding sources of news that conflict with our beliefs. We retreat inside a ‘filter bubble’, an echo chamber.

    I agree that it would be good if people were more aware that the news they read, along with their own interpretation of it, is inevitably biased. People should be more sceptical. But an information source being ‘ideologically uncongenial’ is a really bad reason to stop using it, or paying attention to it. The only way to counteract our biases is to seek out a broader sample of viewpoints.

    Of course, Google don’t aim to be unbiased, they aim to be useful, which is something quite different. If their human biases lead them to think one set of search results will be more accurate and useful than another, they’re honestly trying to be helpful in providing the former. So as such it’s not fraud, it’s delusion. It’s the same delusion we all partake in: – of believing that we are right and everyone else is wrong. And more, it’s unavoidable. Going to a different search engine doesn’t avoid bias, it just implements a different and less noticeable one.

    I’ve never had any problem finding right-wing supporting information on Google. You just have to choose to look for it.

  • bobby b

    “I have always found the Roe decision, especially with regard to its basis in privacy to be a truly curious thing.”

    We lawyers like to read SC decisions because of the learning of the law that one can accomplish that way. Some of the clearest legal logic ever set out can be found in some of those cases. But there are exceptions.

    In the case of Roe v. Wade, we read it to learn how political decisions are made. There’s nothing resembling legal logic to be found in the decision. It’s a kludged-together morass – in the legal-writing sense.

    It was Blackmun’s attempt to head off a civil war, I think, by coming to an unassailable directive (unassailable because it was a decision of the USSC.) It was Solomon-like – you can kill half of the babies – and completely without legal foundation. I have to admire how he came to support his end result, but few lawyers recognize his logic as being worthy of a USSC decision. It was instead a politician-king’s ruling.

    The Constitution used to protect us against the right. Now it protects us against the left. Trump could blow every decision he makes in his second term, but I’ll excuse him and call him a giant if he can get one more Scalia originalist on that bench.

  • Julie near Chicago

    bobby,

    Thanks. I’ve been trying to reconcile the 9A with all the postings in every corner of the globe arguing that “there’s no right to privacy in the Constitution!” and therefore that Roe was wrongly decided.

    It does seem to me that the restraint applies to the FedGov (Incorporation of the Bill of Rights aside — and can I argue that the 10A overrides unenumerated mucking around by the Feds with State laws such as State laws impeding the 9A, and with those where non-Fed actors commit fraud and/or felonies against private parties in the given State? In fact, right at the moment I don’t see how Incorporation doesn’t tear up the 10A entirely.)

    As for the 14th, if you think the embryo >fœtus > unborn-baby is a human being, then doesn’t the right to life, equal protection of the laws, etc. guaranteed by the 14th also apply to the new human under development? Or could there be an argument that as long as the baby resides inside the mother, it has no separate legal standing as a human, and therefore it has no “rights” to be protected? [Note that I myself wouldn’t buy such an argument, although those who think that a baby/foetus should not be abortable until the point where it could (probably) be removed from the womb and exist on life-support alone are making that argument — just not putting it quite that way.]

    .

    Speaking of Richard, he excoriates Brown v. Board and Heller as “intellectual messes” (though he adores the decision in Brown practically speaking; don’t recall if he opined on the result of Heller, but he’s been slowly coming into the Light re RKBA); and Roe v. Wade is the third of his Intellectual Messes.

    . . .

    Repeated for emphasis, to those who seem to me not to get it: the Bill of Rights was supposed to constitute a list of powers that the Federal Government does not have. It says nothing about the behavior of private parties acting privately, and absent the Incorporation Doctrine it does not, in and of itself, make constraints on the States.

    I would not say that “liberty can be defined as privacy,” as Sam does at 1:33 pm above, but my reason is pedantic: I don’t think “defined” is an apt description. But I do think that, humans being as we are, privacy in a great many areas is necessary to liberty.

    (And Sam is right when he adds, “[Liberty requires] privacy from the gaze and grasp of … society at large.”)

    Therefore it isn’t a “penumbra” or something requiring a distortion of language to find to be in the 9A’s list of “unenumerated” rights “retained by the people.”

  • bobby b

    Julie, as a side note only – let me recommend to you this book (and accompanying video series) by Randy Barnett and Josh Blackman. I sense that you’d appreciate what it has to offer.

    I’ve gone through parts so far, and can attest that it gives the best treatment of our Constitution and its resultant caselaw of anything I’ve seen, and I’ve seen many law school conlaw textbooks. I’ve often said that one cannot understand our Constitution simply by reading the document itself – “our Constitution” truly is the combination of that document, and the body of caselaw by the USSC clarifying and translating and distilling it.

    For someone who wants to be a ConLaw scholar, I can’t recommend this enough. Buy the whole course for $20.

    Amazon blurb:

    “This multimedia platform combines a book and video series that will change the way you study constitutional law. An Introduction to Constitutional Law teaches the narrative of constitutional law as it has developed over the past two centuries. All students even those unfamiliar with American history will learn the essential background information to grasp how this body of law has come to be what it is today. An online library of sixty-three videos (access codes provided with purchase of the book) brings the Supreme Court s one hundred most important decisions to life. These videos are enriched by photographs, maps, and even audio from the Supreme Court. The book and videos are accessible for all levels: law school, college, high school, home school, and independent study. Students can read and watch these materials before class to prepare for lectures or study after class to fill in any gaps in their notes. And, come exam time, students can watch the entire canon of constitutional law in about twelve hours.”

  • Julie near Chicago

    Thanks, bobby. I will certainly check it out. I have Restoring the Lost Constitution and The Structure of Liberty. Prof. Barnett is the first of the Legal Eagles I found on the Internet, and I follow his videos. Plus he’s got all those papers on SSRN, which I will probably never get time to read.

    Randy is by me one of the two top Legal Eagles on our side of the fence, the other being Richard. (In my head they are Randy and Richard, with the order indicative of nothing.) With whom I am in decided disagreement about a lot of things, but when he’s on he’s on! And even though I’ve been concerned about his health for the last few years, he’s still entertaining, if not quite the brash young lad of, say, five years ago, and interesting. (He’s also only six weeks my senior.)

    Speaking of, did you see Richard’s 1910 talk that he gave before the FedSoc on the occasion of their giving him a Lifetime Service Award? Introduced by Nick Rosenkranz, who is introduced by Randy. If by any chance you haven’t seen this, run do not walk to

    yoo-toob .com/watch?v=R_ge4tYI8Vk to watch

    “Natural Law in Ancient and Modern Guise.” The best part of all is at the end of the Q&A, with the question beginning at 1:09:08. He tells this hilarious story about his brush with Steven Wise and Animal Rights. One of the funniest things I’ve ever seen. And he does get in a dig at Prof. (I guess he’s a Prof) Wise, but it’s very low-key and if you blink you’ll miss it. Recommended! 😆

    (The lecture ain’t bad neither. *g* And I listen to or watch everything of his that I can find on the Net. Nowadays I have a bit of trouble concentrating on reading. Amazing. Used to be that I’d much prefer reading. The only thing I guarantee reading is this here rag, which I check several times on most days; and usually I read Neo, but not always.)

    .

    The An interesting thing about Randy is that he knew Rothbard and either knew Miss R. or at least knew of her work. He pointed out that two such strong egos were likely to clash, and that in the end he found Rothbard’s position more compelling. (He also says he owes a whole great lot to his pal George E. Smith.)

    Of course Randy’s actually been a trial lawyer, which Richard has not. (I have a copy of Takings, which I still haven’t read.)

    .
    Probably you already know all what I said. But there might some bright young thing who’ll start kindergarten this fall, who’s checking out the scene here and doesn’t yet know the names. *g*

    Thanks again for the recommendation. I’m eager to read it.

    :>))

  • Julie near Chicago

    CORRECTION: The funny part of the video starts at 1:12:27, with the end of his answer to a listener’s question. And the audience laughs. Me too. 😆

  • bobby b

    Julie: Watching that in a few hours once I get home. (I knew you were a RB fan – just didn’t know if you’d seen the new book.)

    If you haven’t already seen this, it’s good.

  • Julie near Chicago

    Gee, bobby, it’s such a shame you’re heading desertward. Too hot & dry for me. Were it not for that, I would be happy to entertain a proposal* of marriage from a guy who gives me such nifty presents as your link to Barnett & Blackman. (I’ve gotten partway through Unprecedented.)

    *I said entertain, not accept. For acceptance, you’d have to add the front onto the front of this house, and SlipperKitty tells me you have no intention of doing that.

    Thanks — “And I mean it!” quoth She. 😀

  • Sam Duncan

    “That’s why we said it online in the first place – to communicate with other people – with the Public.”

    I like the way you omitted my parenthesis and everything after it. I’m not a fool; I understand that the internet – a network of networks – is in the public sphere. But, as Fraser says, privacy isn’t a binary, black-and-white thing. Even in the public sphere, we expect some degree of privacy. We don’t expect an intimate conversation we have while walking in the park to be brought up in a job interview ten years later. Indeed, to come back to my Eastern Bloc comparison, that was exactly the sort of thing which came to represent the tyrrany of their surveillance states.

    And although I’m well aware (and always have been) that, for example, email is no more private than a message in a bottle, my whole point was: should it be? Shouldn’t we be trying to create privacy on the net, instead of just shrugging our shoulders and accepting that it doesn’t exist?

  • MadRocketSci

    Especially considering that the technological means to do so, were they not subverted and banned at every turn, are simple mathematics worked out in the freaking 1940s. (Encryption – when your math prof gets arrested for ‘arms trafficking’ for writing a textbook.) Encryption (done right, not nerfed or subverted) allows private communications that no one but the sender/receiver can read. It would be (if it were wanted by any active party) more easy to write truly secure communications applications than it would be to create the duct-tape-and-twine tower of security theater on top of a swiss-cheese of backdoors that we have today.

  • Jacob

    Even in the public sphere, we expect some degree of privacy.
    Delusion. There can be no privacy.
    Shouldn’t we be trying to create privacy on the net?

    In an ideal world we wish to have some privacy. In the real world that is not possible on the net. If your privacy is really that important – be paranoid.
    For most people privacy isn’t really such a big issue. That is – as long as we have a more or less benign government. The problem in Communist regimes was the vicious, murderous nature of Government.

    Anyway, relying on government regulations for privacy on the net cannot work.

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