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How do you reconcile your principle of "every man" as the overarching concept, with the fifth amendment, doctor/patient, lawyer/client, married couples, executi

How do you reconcile your principle of "every man" as the overarching concept, with the fifth amendment, doctor/patient, lawyer/client, married couples, executive privilege, etc. There are many examples of privileged exceptions to "every man". I don't see how "every man" would ever allow the government to demand a tool maker change their tool for the purposes of future evidence collection when that tool has "privileged" uses. Although I agree with you that the fourth amendment was not made to make it hard to get a warrant, only to restrict warrants to specific, narrow searches with evidenced probable cause.

tptacek 7y ago
We don't have a generally recognized doctor-patient privilege in US federal law. The Fifth Amendment, as I understand it, was added as a protection against torture. Attorney-client privilege, which is much more limited than people think it is (see: current US drama), is fundamental to the working of our legal system, which depends on attorneys to function. All you're really observing here is that we order some principles above the entitlement of the state to evidence. That's certainly true! But nowhere above that entitlement is there a countervailing general right to personal privacy; my understanding of the system we live in is that that right, to the extent it exists, is ordered lower than the state's right to evidence.
- mentat 7y ago
  Thank you, I hadn't realized this. Is there a good source to read up on the evolution of the, at least perception, of a right to privacy?
  - tptacek 7y ago
    That is a big question and maybe someone like 'rayiner or 'marcoperaza would be a better person to ask, because I have no legal training. Based on my interested but layperson understanding of the law, my understanding is that it's an open question about the extent to which the Constitution provides a right to privacy. But I do not understand it to be an open question, or at least "as open" a question, about whether the principle of access to evidence is ordered higher than that right to privacy, whatever it may be. (As, just, like, a person shooting the shit on a message board, I should say that of course I value privacy highly, and can think of a number of situations in which I'd order privacy higher than access to evidence! But I can also think of situations where it'd be the other way around. So, for instance: I highly value my right to discuss sensitive political topics privately, without being susceptible to dragnet surveillance trying to find "terrorists" by combing through everyone's messages. But at the same time, I'd like to see Wall Street executives be held more culpable for the harmful decisions they make to abuse their power and access, and those Wall Street execs no doubt feel a strong privacy interests in protecting their discussions about how to, say, price synthetic securities.)
    - filmgirlcw 7y ago
      In Griswold v. Connecticut [1], the Court found the state's law to to be in violation of "right to marital privacy" and deemed right to privacy as right to protection from governmental intrusion. One Justice cited the fifth amendment to get there, another the ninth -- and plenty of legal scholars have argued the ninth amendment basically acts as justification for finding privacy provisions in the Bill of Rights that aren't specifically mentioned in the other eight amendments. You're right that right to privacy is an open question of sorts (especially under the Bill of Rights), but there is nearly a century of case law protecting it in various forms. [1]: https://en.wikipedia.org/wiki/Griswold_v._Connecticut https://en.wikipedia.org/wiki/Griswold_v._Connecticut
  - dredmorbius 7y ago
    There are a number of ... not-very-good books on the subject (I picked up Carolyn Kennedy's 1990s effort, it's ... poor). A challenge is that privacy itself is an emergent concept (this is my view, not one widely shared), which is a response to ever-more invasive or capable technologies. As such, much of the relevant caselaw and legal thinking is fairly new, and reflects advances in publishing (Brandeis and Warren), recording, transmission, and detection. There are some historical antecedants. Some of the more interesting non-legal-scholar work has come from Jill Lepore in recent years. I'd suggest her work as at the least a good entry point. She's a historian, and should be copiously documenting sources which may be of interest. Unseen: A History of Privacy (2013) https://scholar.harvard.edu/jlepore/presentations/unseen-history-privacy https://scholar.harvard.edu/jlepore/presentations/unseen-his... The Unwanted Gaze by Jeffrey Rosen (2001) addresses concerns as the Internet age was beginning to mature. https://www.worldcat.org/title/unwanted-gaze-the-destruction-of-privacy-in-america/oclc/47188291 https://www.worldcat.org/title/unwanted-gaze-the-destruction... The EFF and ACLU have extensive resources on privacy, though not necessarily of specific legal focus: https://www.eff.org/issues/privacy https://www.eff.org/issues/privacy https://www.aclu.org/issues/privacy-technology https://www.aclu.org/issues/privacy-technology For current legal opinion, Solve and Schwartz might be a standard (I honestly don't know, though it gets prominant mention): https://www.worldcat.org/title/privacy-law-fundamentals/oclc/1102813671 https://www.worldcat.org/title/privacy-law-fundamentals/oclc...
- mistersquid 7y ago
  > We don't have a generally recognized doctor-patient privilege in US federal law. You are mistaken. While currently under assault, Roe v. Wade is the paradigmatic case for the recognition of doctor-patient confidentiality (i.e. "privilege") by the Federal government. > The fundamental right to privacy, guaranteed by the Fifth and Fourteenth Amendments to the U. S. Constitution, protects against unwarranted invasions of privacy by federal or state entities, or arms thereof. As early as in Roe v. Wade, 410 U. S. 113 (1973), the U. S. Supreme Court acknowledged that the doctor-patient relationship is one which evokes constitutional rights of privacy. [0] [0] https://healthcare.uslegal.com/doctor-patient-confidentiality/constitutional-right-to-privacy/ https://healthcare.uslegal.com/doctor-patient-confidentialit...
  - tptacek 7y ago
    This doesn't say that the federal rules of evidence recognize doctor-patient privilege, and, in fact, the same site says explicitly that it doesn't.
    - mistersquid 7y ago
      > This doesn't say that the federal rules of evidence recognize doctor-patient privilege, and, in fact, the same site says explicitly that it doesn't. With all due respect, I disagree with your assertion that "the federal rules of evidence [doesn't] recognize doctor-patient privilege". SCOTUS's saying they > simply hold that this record [Whalen] does not establish an invasion of any right or liberty protected by the Fourteenth Amendment. [0] implies that there could be an invasion of a right protected by the Fourteenth Amendment, just not in this case. While you are strictly correct that this is not a representation of doctor-patient privilege, SCOTUS's assertion that Whalen does not violate the Fourteenth Amendment suggests the possibility that some distribution of medical data could violate the Fourteenth Amendment. As a side note, your assertion that the "same site says explicitly that it doesn't" recognize doctor-patient privilege is questionable. Would you mind pointing out which passage is explicit about this? [0] https://healthcare.uslegal.com/doctor-patient-confidentiality/constitutional-right-to-privacy/ https://healthcare.uslegal.com/doctor-patient-confidentialit...

tptacek 7y ago

We don't have a generally recognized doctor-patient privilege in US federal law. The Fifth Amendment, as I understand it, was added as a protection against torture. Attorney-client privilege, which is much more limited than people think it is (see: current US drama), is fundamental to the working of our legal system, which depends on attorneys to function. All you're really observing here is that we order some principles above the entitlement of the state to evidence. That's certainly true! But nowhere above that entitlement is there a countervailing general right to personal privacy; my understanding of the system we live in is that that right, to the extent it exists, is ordered lower than the state's right to evidence.

mentat 7y ago
Thank you, I hadn't realized this. Is there a good source to read up on the evolution of the, at least perception, of a right to privacy?
- tptacek 7y ago
  That is a big question and maybe someone like 'rayiner or 'marcoperaza would be a better person to ask, because I have no legal training. Based on my interested but layperson understanding of the law, my understanding is that it's an open question about the extent to which the Constitution provides a right to privacy. But I do not understand it to be an open question, or at least "as open" a question, about whether the principle of access to evidence is ordered higher than that right to privacy, whatever it may be. (As, just, like, a person shooting the shit on a message board, I should say that of course I value privacy highly, and can think of a number of situations in which I'd order privacy higher than access to evidence! But I can also think of situations where it'd be the other way around. So, for instance: I highly value my right to discuss sensitive political topics privately, without being susceptible to dragnet surveillance trying to find "terrorists" by combing through everyone's messages. But at the same time, I'd like to see Wall Street executives be held more culpable for the harmful decisions they make to abuse their power and access, and those Wall Street execs no doubt feel a strong privacy interests in protecting their discussions about how to, say, price synthetic securities.)
  - filmgirlcw 7y ago
    In Griswold v. Connecticut [1], the Court found the state's law to to be in violation of "right to marital privacy" and deemed right to privacy as right to protection from governmental intrusion. One Justice cited the fifth amendment to get there, another the ninth -- and plenty of legal scholars have argued the ninth amendment basically acts as justification for finding privacy provisions in the Bill of Rights that aren't specifically mentioned in the other eight amendments. You're right that right to privacy is an open question of sorts (especially under the Bill of Rights), but there is nearly a century of case law protecting it in various forms. [1]: https://en.wikipedia.org/wiki/Griswold_v._Connecticut https://en.wikipedia.org/wiki/Griswold_v._Connecticut
- dredmorbius 7y ago
  There are a number of ... not-very-good books on the subject (I picked up Carolyn Kennedy's 1990s effort, it's ... poor). A challenge is that privacy itself is an emergent concept (this is my view, not one widely shared), which is a response to ever-more invasive or capable technologies. As such, much of the relevant caselaw and legal thinking is fairly new, and reflects advances in publishing (Brandeis and Warren), recording, transmission, and detection. There are some historical antecedants. Some of the more interesting non-legal-scholar work has come from Jill Lepore in recent years. I'd suggest her work as at the least a good entry point. She's a historian, and should be copiously documenting sources which may be of interest. Unseen: A History of Privacy (2013) https://scholar.harvard.edu/jlepore/presentations/unseen-history-privacy https://scholar.harvard.edu/jlepore/presentations/unseen-his... The Unwanted Gaze by Jeffrey Rosen (2001) addresses concerns as the Internet age was beginning to mature. https://www.worldcat.org/title/unwanted-gaze-the-destruction-of-privacy-in-america/oclc/47188291 https://www.worldcat.org/title/unwanted-gaze-the-destruction... The EFF and ACLU have extensive resources on privacy, though not necessarily of specific legal focus: https://www.eff.org/issues/privacy https://www.eff.org/issues/privacy https://www.aclu.org/issues/privacy-technology https://www.aclu.org/issues/privacy-technology For current legal opinion, Solve and Schwartz might be a standard (I honestly don't know, though it gets prominant mention): https://www.worldcat.org/title/privacy-law-fundamentals/oclc/1102813671 https://www.worldcat.org/title/privacy-law-fundamentals/oclc...
mistersquid 7y ago
> We don't have a generally recognized doctor-patient privilege in US federal law. You are mistaken. While currently under assault, Roe v. Wade is the paradigmatic case for the recognition of doctor-patient confidentiality (i.e. "privilege") by the Federal government. > The fundamental right to privacy, guaranteed by the Fifth and Fourteenth Amendments to the U. S. Constitution, protects against unwarranted invasions of privacy by federal or state entities, or arms thereof. As early as in Roe v. Wade, 410 U. S. 113 (1973), the U. S. Supreme Court acknowledged that the doctor-patient relationship is one which evokes constitutional rights of privacy. [0] [0] https://healthcare.uslegal.com/doctor-patient-confidentiality/constitutional-right-to-privacy/ https://healthcare.uslegal.com/doctor-patient-confidentialit...
- tptacek 7y ago
  This doesn't say that the federal rules of evidence recognize doctor-patient privilege, and, in fact, the same site says explicitly that it doesn't.
  - mistersquid 7y ago
    > This doesn't say that the federal rules of evidence recognize doctor-patient privilege, and, in fact, the same site says explicitly that it doesn't. With all due respect, I disagree with your assertion that "the federal rules of evidence [doesn't] recognize doctor-patient privilege". SCOTUS's saying they > simply hold that this record [Whalen] does not establish an invasion of any right or liberty protected by the Fourteenth Amendment. [0] implies that there could be an invasion of a right protected by the Fourteenth Amendment, just not in this case. While you are strictly correct that this is not a representation of doctor-patient privilege, SCOTUS's assertion that Whalen does not violate the Fourteenth Amendment suggests the possibility that some distribution of medical data could violate the Fourteenth Amendment. As a side note, your assertion that the "same site says explicitly that it doesn't" recognize doctor-patient privilege is questionable. Would you mind pointing out which passage is explicit about this? [0] https://healthcare.uslegal.com/doctor-patient-confidentiality/constitutional-right-to-privacy/ https://healthcare.uslegal.com/doctor-patient-confidentialit...