Re: Transparency, was re: On January 28th, Criminals No Longer Another Face ...

Date: Sun Feb 04 2001 - 07:20:57 MST

In a message dated 2/4/01 12:43:56 AM Central Standard Time, writes:

> > > As far as video recording (not audio) goes, the courts appear to have
> > > mostly ruled using the notion of "a reasonable expectation of privacy".
> >
> > So how can any interaction with a "public servant" in their official
> > capacity be considered private?
> Very good question, but it appears that courts may have so ruled. Might
> be time to do a Shepard or Lexis-Nexis search... Anyone...? Anyone...?
> Gburch? :)

Not my area of specialty, but here's some comments off the top of my head.
First, you'd need a more precise definition of what you mean by "privacy".
Clearly, the current Anglo-American legal concepts of SECRECY in dealings
with public officials contemplate that some interactions with "public
servants" can be kept secret. Just ask Wen Ho Li in the US or any number of
folks who have run afoul of the Official Secrets Act(s) in the UK.

On the other hand, since the Pentagon Papers and Watergate there has been a
laudable steady erosion of the power of state actors in the US to claim that
information they possess can be legally kept from the public. The federal
Freedom of Information Act and its many state counterparts (usually called
"sunshine" or "open meeting" laws) create a presumption against the secrecy
of information created, gathered and possessed by the government.

Beyond this, the developing common law of defamation of public figures lays
out another vector of insight into the question. Communications ABOUT people
found to be "public figures" (which includes all government actors doing so
in their public capacity) are held to a lower standard in the test for
actionable defamation. (Tom knows more about this field, so I hope he'll
correct me if I've misstated the law.)

Finally, common law rules regarding the recording of people's actions and
words do seem to ultimately turn on the notion of a "reasonable expectation
of privacy." If you put all these lines together, they seem to me to point
strongly in the direction of making all interactions with government actors
freely recordable.

This is what I had in mind when I posted yesterday about the development of a
new presumption regarding evidence derived from near-future PDAs. If I were
sitting on the bench, faced with a questionable arrest in 2015, I would
expect to see at LEAST two distinct recordings of the events in question; one
from the police and one from the defendant. The absence of the defendant's
recording would automatically make the legality of the arrest suspect and
shift the burden to the police to establish that it was constitutional.

Now, how would such a presumption impact police behavior? One, it would make
them very careful not to interfere with a citizen's PDA, if she had one.
Two, it would encourage people who believe that they might be subject to
improper police behavior to get and maintain PDAs. Three, it would encourage
the police to develop and maintain the best possible recording equipment,
with the best possible security against tampering - by the police or anyone
else. Finally, it would create on the part of the government a keen interest
in the development and implementation of secure, tamper-proof data protocols
for EVERYONE, police and citizen alike.


       Greg Burch <>----<>
      Attorney ::: Vice President, Extropy Institute ::: Wilderness Guide -or-
                                           ICQ # 61112550
        "We never stop investigating. We are never satisfied that we know
        enough to get by. Every question we answer leads on to another
       question. This has become the greatest survival trick of our species."
                                          -- Desmond Morris

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