Newsgroups: comp.org.eff.talk
Path: utzoo!utgpu!watserv1!maytag!looking!brad
From: brad@looking.on.ca (Brad Templeton)
Subject: Re: Privacy of personal data (was Re: Personal Privacy Violations)
Organization: Looking Glass Software Ltd.
Date: Wed, 16 Jan 91 19:31:30 GMT
Message-ID: <1991Jan16.193130.16894@looking.on.ca>
References: <1991Jan06.230231.21840@hoss.unl.edu> <1991Jan10.204101.29296@hoss.unl.edu> <5776@rsiatl.Dixie.Com> <1991Jan12.180934.1314@looking.on.ca> <5825@rsiatl.Dixie.Com>

In article <5825@rsiatl.Dixie.Com> jgd@Dixie.Com (John G. DeArmond) writes:
>brad@looking.on.ca (Brad Templeton) writes:
>
>>If a doctor publishes your personal medical records, he has broken a
>>confidence.   In the case of the doctor, I think it's even a confidence that
>>is explicitly defined by the law or the medical association.
>
>
>>Folks, the right of privacy is important, but the courts have only
>>stated that the U.S. constitution probably *implies* a right of privacy.  On
>>the other hand, it quite explicitly states, in the very first line of the
>>bill of rights, that there is a right to freedom of the press.
>
>>How on earth can one conclude from this that privacy as a right supersedes
>>freedom of the press?   You might wish it did, but the document
>>says otherwise.
>
>But Brad, you've made my argument.  If the absolute freedom of the press
>supersedes the right of personal privacy, then your doctor has the 
>absolute right to publish your medical record wherever he wants and
>any laws to the contrary are unconstitutional.  If on the other hand,
>the right to privacy (or as the Supreme court once called it, "the
>right to be left alone"), a right that, as I read American history, was
>considered so basic that its existance was implied in the bill of
>rights is supreme, then it is quite legitimate for the Supreme court
>to uphold reasonable restrictions on the 1st amendment.  Some reasonable
>restrictions ARE the rights of professional confidentailty, the limitation
>on the press as applies to libel and slander and so on.

You confuse a requirement for responsibility that we place on publishers
with a restriction on the press.  All adults are responsible for the
consequences of their free actions.   Libel law, commonly brought up as
a restriction of freedom of the press, is not such a restriction.  The
newspaper is still allowed to print libel.  It simply has to pay for
any damages.  (There is one special exception.  If you can convince a judge
that the libel is so damaging it can't be repaired, *then* you can stop
publication.  This is a restriction of freedom of the press.)

The doctor, or anybody else, can't publish your medical records because
you have a contract with the doctor not to publish them!  It has nothing
to do with freedom of the press.  The press are free to make contracts to
publish and not publish things, and the other parties have every right to
demand compliance with the contracts.   The right to enter into a contract
of confidentiality is not a restriction, it's a *freedom*.

It is still a freedom even if we make that confidentiality implicit in
almost all transactions, as long as people are free to waive it if desired.

A law becomes a violation of freedom of the press if it makes it legal to
say "John makes $100K" in private to a friend, but illegal to put it
in the newspaper.   Then you have defined something which can be said in
other ways, but not in the press.
-- 
Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473
