Topic: Law and Civil Liberties

Confidentiality

Washington University School of Law professor Neil Richards and George Washington University Law School professor Daniel Solove have an important new law review article out.  Privacy’s Other Path: Recovering the Law of Confidentiality is a useful reminder of a dimension of privacy apart from the privacy torts so famously inspired by Warren and Brandeis in their 1890 Harvard Law Review article.

Confidentiality is the idea that you can share information subject to restrictions on further disclosure and use.  There are often implicit understandings about how shared or mutually created information should be treated.  It’s an important point that’s been conveniently forgotten in government arguments for “data retention,” for example.  Confidentiality in the financial services sphere has been eviscerated by the Bank Secrecy Act and the Supreme Court cases that followed it, as well as Smith v. Maryland in the telecommunications context.

Richards and Solove’s work has its awkward turns - they characterize continental Europe’s focus on dignity and America’s focus on liberty as highly individualistic, while suggesting that confidentiality is ”based on the protection of relationships.”  If these characterizations are relevant at all, confidentiality can be seen just as much as a protection of individuals, the difference being that confidentiality is rooted more deeply in contract.  Small matter, though. 

Overall a good work, and an important reminder.

(HT: Schneier)

Cock-fighting and Freedom

It’s not often that you can point to a stirring article about American liberty by a Weekly Standard editor. But Chris Caldwell’s piece in the Financial Times on cock-fighting is a fine read. Yes, cock-fighting. Presidential candidate Bill Richardson doesn’t want the legality of cock-fighting in New Mexico to burden his candidacy as he travels the length and breadth of this great land. So rather than defend New Mexico as the last bastion of American freedom, he chose to sign a law banning it to help his campaign.

Caldwell notes sadly that even the defenders of the practice hardly mentioned liberty. Instead, they mentioned the economic benefits of tourism and the alleged anti-Hispanic bias of the drive to ban a sport popular with Hispanics. The better argument, he thought, would have been liberty: some people want to attend cock-fights, and Americans have been doing so for centuries, so why should “reformers” be able to take a small pleasure away from others? Caldwell deplores the decline of the general presumption of liberty:

It used to be, under the US system, that one could do anything that was not expressly forbidden. Now one is forbidden to do anything one cannot make an explicit case for. The burden of proof has shifted.

It’s especially sad that Bill Richardson, who is not so bad on fiscal issues and is a supporter of medical marijuana, felt that he had to take people’s freedom away for his own political gain.

Missouri Joining the REAL ID Rebellion

The Missouri House of Representatives voted overwhelmingly Thursday to reject the REAL ID Act.

Representative Jim Guest (R- King City) is quoted in the Carthage Press saying,  ‘‘We must not lose what this nation was founded upon.  The Real ID Act is a direct frontal assault on our freedoms.’’

The bill now goes to the Senate.

The Corrosion of Parental Rights

Today in the Oregon newspaper Bend Weekly, Phyllis Schlafly opines that “Congress should restore parental rights in public schools.” In the 35 years since I first heard Schlafly speak, I have rarely agreed with her on anything, but today is one of those occasions.

I certainly don’t believe in the substance of what she finds offensive, but I do agree that parents are being robbed of their rights to educate and bring up their children as they see fit. Of course, the answer is to abolish the public school system altogether, but until then, how do parents maintain even a minimal control over what their children are taught and exposed to in the public schools? 

Two things Schlafly proposes are appealing: She would like Congress to require public schools with human papillomavirus (HPV) vaccination programs to offer the vaccine only on a parental “opt in,” not “opt out,” basis and that no public school should be allowed to deny a child entry into school for not being immunized against HPV. She also believes Congress should require that schools get written parental consent before subjecting children to mental health screening.

For once, I hope Schlafly gets her way.

Will McCain Talk Straight?

John McCain has once again boarded the Straight Talk Express. You might recall that his bus trips and cozy conversations with the media brought victory in the New Hampshire primary in 2000, though not ultimately the Republican nomination for president that year. The bus symbolized that McCain was “a different kind of politician” and all the other cliches that have come to denote his public persona.

McCain’s back on the bus because his campaign for the GOP nomination has stumbled. Rudolph Guiliani leads in the polls, and McCain appears on the cusp of a death spiral. Politicians have long appealed to popular sentiment to attain power. The Straight Talk Express continues that tradition.

But how straight will McCain’s talk be? In 2000 in New Hampshire, he talked mostly about campaign finance restrictions. McCain’s current political problem comes in part from that “straight talk.” Republican primary voters don’t much support campaign finance restrictions. They understand correctly that the dominant purpose of such restrictions has long been to limit the speech and political activity of anyone who is not a liberal, a group that includes almost all of the Republican primary electorate.

So will McCain talk straight at his moment of greatest need? Will we once again hear of the corruption brought to politics by Big Money? Will he speak straight and forcefully against the Swift Boat ads in 2004?

This is a crucial moment for Senator McCain. He must talk incessantly about his support for restricting political speech. If he does not, Republican primary voters might conclude that McCain is just another ambitious, opportunistic politician who will say anything to gain power equal to desire.

And we know that is incorrect in his case, don’t we? After all, he talks straight.