[Air-l] ethics - aol data

[Julie Cohen]

Jeremy Hunsinger wrote:

>>can't a person lurk in peace?
>>
>>Jeremy, I'm not sure what kind of statement you're making.  If a
>>statement of positive statutory law, it's true (but only in the U.S.)
>>that there are statutes establishing privacy claims in medical and
>>dental records but none establishing claims in search logs.  In the
>>European countries at least, I think there are statutory privacy
>>interests covering both medical/dental records and search logs.  I
>>believe that search logs are also subject to some retention  
>>requirements
>>for law enforcement purposes (this is true at least at the EU level  
>>but
>>I have no idea about the status of national implementation), but the
>>personal information they contain isn't considered the ISP's property.
>>
>>    
>>
>
>above, i was making the more factual claim from my understanding of  
>the situation, which granted was informed by a logging architectures  
>SANS class and not a law class :)
>
>  
>
>>If, otoh, you're making a more general normative statement that  
>>privacy
>>interests exist in medical/dental records but not in the contents of
>>searches, why?
>>    
>>
>
>oh, i generally don't argue that privacy exists.  i take the claim to  
>privacy as existent along with a huge body of discourse that has  
>influenced laws and institutions.   Instead of privacy, I tend to  
>argue that people have a moral claim to their body and mind and  
>anything beyond that is either relations of power as manifest in the  
>state and its institutions or an economic claim.
>
>This is because I don't really think that privacy exists or operates.  
>In the U.S., I see privacy fundamentally as a construct that helps to  
>manage the relationship between record-keeping in the state interest  
>and capitalism.  it attempts to carve out a space that is not to be  
>exploited, but really... i don't see that space as autonomous or  
>unexploited.
>  
>
Forgive me, but that's sloppy on at least three levels:  (1) If it's all 
a construct, then there is no basis for crediting a "moral claim" to 
body, mind, or anything else; (2) If it's all a construct, than an 
understanding of "what is" derived from formal instruction in logging 
architectures is equally a product of that construct and entitled to no 
particular deference; (3) A "space" does not need to be autonomous or 
unexploited in order to serve as a site for the production of, and 
contestation about, social meaning (and a good thing too, if we all like 
our jobs).  All of these are worth pondering if you plan to write about 
this...  :)

-- 
Julie E. Cohen
Professor of Law
Georgetown University Law Center
600 New Jersey Ave., NW
Washington, DC 20001
V 202-662-9871
F 202-662-9410
jec at law.georgetown.edu
http://www.law.georgetown.edu/faculty/jec/