I could only think of one response….

Well, OF COURSE the Internet should be regulated.  Isn’t that how America works these days?  How are we ever going to be a complete police state if we don’t start regulating speech?

Whenever someone doesn’t like something and they want to government to step in and regulate it notwithstanding the Constitution, they point out how things are different today to when the Founders first wrote the Constitution.  Because things are different, governmental authority needs to be different.  Since at least the 1990s, the best way to show this is to point out that today, we have the Internet.  The Internet is totally different from a broadside, or from rampant unsupportable rumors and hearsay burning through a town, province, or state such as existed…well, everywhere…in the late 1700s.

After all, defaming someone in a broadside, or starting a defamatory rumor that turned the entire town against them…well, that could only put someone out of business.

TODAY, we have the Internet!  A defamatory rumor on the Internet could put someone out of business!

See how different things are today?!

What is not different is the fascistic drive within many of us that makes it impossible to allow for the kind of freedom our Founders envisioned when they formulated the Constitution.  What is not different is the misguided specks of humanity who are incapable of recognizing patterns from the past and think that every “new” thing they don’t like is so totally new that it requires a complete re-casting of our societal mores and law.

I see no hope for the future of our people if they are dependent on frivolous youth of today, for certainly all youth are reckless beyond words… When I was young, we were taught to be discreet and respectful of elders, but the present youth are exceedingly wise [disrespectful] and impatient of restraint” (Hesiod, 8th century BCE)

Children nowadays love luxury, have bad manners, contempt for authority, disrespect for their elders. (attributed to Socrates, 5th century BCE)

What has been will be again,
What has been done will be done again;
There is nothing new under the sun. (Ecclesiastes 1:9 (NIV), probably 3rd century BCE)

Someone did something I didn’t like and it’s different from when other people in the past did things someone didn’t like. They did it using the Internet! The Constitution doesn’t apply! We need a new law! (about a brazilian people — with the same level of intellect as the person who allegedly thought “brazilian” was a really large number — since at least the rise of the Internet)

And several more brazilian before the Internet who thought the Constitution stood in the way of their being able to stifle speech they didn’t like.

The Internet may be bigger, but apparently our brains are getting smaller.

Uh-oh! Did I just defame an entire species?

Being of a philosophical bent and also with a strong interest in Anthropology, I couldn’t help but ponder some the impact the Internet was having on our world. And, of course, privacy issues were quickly becoming paramount.

The impact computers and internetworks have had upon privacy concerns is not limited to the Internet, of course. Nowadays, in particular, someone who wanted to know could tell what kind of food you prefer to eat, what types of medicines you require, what books you like to read, etc. Even if you don’t use a credit card, you probably have something like a Von’s card. These are perfectly good for tracking your purchases and dumping them into some massive database somewhere just waiting to be mined.

And don’t give me that, “It’s not tracking individual purchases. It just collects data, but ‘anonymously.’” Do you think when the checker looks at your receipt and says, “Thank you, Mr. Horowitz,” that they just happen to have prodigious memories and recognize all the customers who’ve ever come through the line?

But enough of longing for the old days, when what one ate, bought, or needed was nobody else’s business.

Recently, Judge Kozinski of the Ninth Circuit Court of Appeals was smeared by the media after an angry litigant invaded his privacy and discovered what, for awhile, was erroneously referred to as “Internet porn.”¹ Whoa! A judge in the Ninth Circuit Court of Appeals is into Internet porn!?!?

Turns out, it’s not quite that juicy.²

The interesting thing about this is not that Judge Kozinski had files of which some people might disapprove on his computer. Nor is it interesting to realize how easy it is to incorrectly set up a computer so that it can be invaded by miscreants who don’t care about your privacy rights. What’s interesting is the people saying things like, “There is no expectation of privacy on the Internet.”

Why not? My initial response to this statement, posted earlier today on the ABA’s solo practitioners’ listserv, was similar to that of Lawrence Lessig’s.³

The thing I find wrong with arguments against any expectation of privacy on the Internet is this: I see no difference between hacking into someone’s computer system and hacking into their house, or mailbox. Some people hack into houses using their feet: I’ve defended some whose alleged modus operandi is kicking in doors. Others break windows. Some simply walk in to homes after owners leave doors unlocked. Do none of those people who choose to live in houses have a reasonable expectation of privacy in their own homes?

Some people hack into mailboxes by various means. For the older-style mailboxes that don’t have keys, hacking is even easier: there’s not so much as an index.php or index.html.⁴ You simply walk to the box outside the house, pull the front open with the handy latch and, voila!, you’re in! Then you hack into the envelope and retrieve the goodies.

The argument that people don’t have an expectation of privacy in their own stuff just because it’s possible to hack into it without having to physically kick in a door or break into a mailbox is specious. The ownership of the stuff is undisputed. The DESIRE to not have others going through one’s stuff is likely still there. Just because the invaders did not have to physically journey to your home to violate you doesn’t make you any less violated. That they could rifle through your private communications without having to actually break the doors or physically tear open the envelopes should not alter whether or not you have an expectation of privacy.

Unless we think that your stupidity in owning a house and keeping things behind a door which can be kicked in, or having an old-style mailbox anyone can pull open to steal your mail means you have no reasonable expectation of privacy.

I’m sorry. There are no locks so strong that they can’t be broken somehow. Just ask Benjamin Franklin Gates.

1. For those who may visit this article after the links have expired, there was no Internet porn. There was definitely no bestiality. As others have noted, the “bestiality video” was a silly video that had been posted on YouTube — hardly the hotbed of hardcore perverse pornography.
2. See Lawrence Lessig’s article on this for more at http://www.lessig.org/blog/2008/06/the_kozinski_mess.html.
3. Ibid.
4. Such pages will usually prevent you from seeing what other files might exist in the same directory where they are found.