FREE SPEECH, PRIVACY, PROPERTY AND CONTRACT IN THE ELECTRONIC AGE:

                          A JOURNALIST'S VIEW

                           By Tom Burroughes

                         Political Notes No. 90

              ISSN  0267-7059         ISBN  1 85637 233 2

         An occasional publication of the Libertarian Alliance,
       25 Chapter Chambers, Esterbrooke Street, London SW1P 4NN.

            (c) 1994: Libertarian Alliance; Tom Burroughes.

Tom Burroughes is Deputy Chief Reporter with the "Evening Star" 
newspaper in Ipswich, part of East Anglian Daily Times Ltd. He is a 
History/Geography graduate from Brighton Polytechnic. He has written a 
number of LA publications, and is a regular and much respected book 
reviewer for the LA's journal, "Free Life".

This paper is based on a talk given by the author at the First European 
Conference on "Computers, Freedom and Privacy", at the New Cavendish 
Club, London, November 20, 1993. It is reprinted with permission.

The views expressed in this publication are those of its author, and not 
necessarily those of the Libertarian Alliance, its Committee, Advisory 
Council or subscribers.

 LA Director: Chris R. Tame      Editorial Director: Brian Micklethwait

                     FOR LIFE, LIBERTY AND PROPERTY

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My discussion of the privacy issue falls into two parts. First, I 
explain why free media are important and why privacy is best understood 
in connection with private property and freedom of contract; second, I 
will discuss some examples of eavesdropping and how corporate and 
government bodies are involved in encryption controversies.

FREEDOM OF INFORMATION?

Free speech requires constant defence at a time when governments possess 
ever greater power to restrict individual liberty. Without free media, 
voters have little information upon which to base their electoral 
choices. Businesses can sell shoddy goods to uninformed consumers, 
conmen can commit crimes against the unwary, and minority points of view 
can be crushed by the mainstream climate of opinion. [1] Exposing crooks 
and scrutinising what our politicians are up to is a vital task for 
journalists, and often a difficult one. It has been said that one 
definition of news is that news is something that someone wants kept out 
of the newspaper. The battle for free speech has not been wholly won, 
and what progress has been made was not achieved lightly. In Britain, of 
course, we do not possess formal legal protection for free speech as in 
the First Amendment of the US Constitution. It is therefore very easy 
for us to lose freedoms through piecemeal encroachment in ways that 
raise little controversy at the time - until it is too late.

Journalists are faced with many hurdles in the course of doing their 
job. Privacy is one of them. But privacy and its protection need not 
prevent journalists from going about their job. The issue of privacy is 
full of grey areas, of course, as a number of recent famous cases 
illustrate. Covering the dishonest business methods of Robert Maxwell, 
for example, could involve violations of business confidentiality. 
Discovering the doings of politicians can also present journalists with 
a fuzzy ethical area - what may be a private issue to some people can be 
a legitimate public concern to others. The recent case of former 
Heritage Minister David Mellor is a case in point. As a result of some 
particularly grotesque intrusions into private lives, a number of 
writers have argued that we need both a formal right to freedom of 
information plus a privacy law with specific exemption clauses relating 
to public interest cases. There has been the Calcutt Report (1990), 
which recommended new laws to ban journalists from entering private 
property or recording conversions without prior agreement. As the 
journalist Nicholas Elliott has pointed out, [2] the proposal is that 
these restrictions should apply only to journalism, which is an attempt 
to violate the principle of equality before the law - a crucial bulwark 
of our liberties. The Labour MP Clive Soley has proposed extensive legal 
reforms partly motivated, no doubt, by the often cruel and muckraking 
invasions of privacy suffered by the Royal Family in recent years. The 
Royal Family cases have been instrumental in generating recent concerns 
about privacy - it seems likely at this time that some form of privacy 
legislation will be enacted. 

My argument is that although statutory privacy laws may do some good and 
meet righteous anger at press thuggery, they can, if badly conceived,  
also be a potential threat to free speech. The widely differing styles 
of newspapers and other media organs  make it difficult to establish the 
"correct" way to handle privacy. Under a privacy law establishment- 
minded judges could be tempted to over-protect the mighty while stroppy 
juries, if employed to decide such a law, could make decisions which had 
more to do with the popularity of an individual than the merits of a 
case. Who would enforce a privacy law? (The "Great and the Good", 
probably). Who would decide what was in the public interest? One major 
objection about a heavy-handed statutory approach is that it could 
become an attempt to control the freedom of expression of others.

The difficulty of answering such rhetorical questions in detailed terms 
leads me to believe that solutions lie in a better appreciation of the 
connection between privacy, freedom of contract and private property. By 
property I don't just mean material possessions - I also want to 
highlight the concept of self-ownership in general. The great advantage 
of  property rights in this case is they require us to define, fairly 
precisely, where boundaries lie. I also believe that better enforcement 
of property rights would help deal with many of the problems of privacy 
raised at the present time. Further, using a contract model enables us 
to use a ``market'' argument, one which recognises the right of people 
to make their own arrangements, whether it is with the press, credit 
companies, market research bodies, banks, or data gathering 
organisations. What I am sure of is that it is impossible to give a 
completely watertight definition of privacy in all cases. There will 
always be grey areas with any approach, where argument centres on taste, 
decency and civilised standards. That no total solution exists, however, 
is no reason for not attempting a sensible approach to the issue. 
Certainly, I disagree with members of my own trade who say that privacy, 
because it is so hard to define, should never be a subject for legal 
reform.

PROPERTY CREATES PRIVACY

In researching privacy issues in the general media I was struck by the 
almost complete absence of reference to property rights and contract. 
This may be caused by anti-capitalist feeling among many journalists. 
Yet the more I think about it, the more an understanding of property and 
contract helps to shed light on the sensible approach to privacy and on 
how people can control information about their lives. [3] Consider the 
process of getting a story. The case of those photographs of Sarah 
Ferguson unwittingly baring all is an example.

If I understand events properly, the shots had to be taken by someone 
standing on a piece of land somewhere. Now, if the owner of that land 
consents to photographers standing there and snapping shots *within* the 
boundaries, then there can be no complaint. But if, under a strict 
understanding of private boundaries, a photographer shoots pictures of 
people or things beyond that boundary, then he is violating a property 
right, and can be sued. In short, strict definitions of boundaries will 
make it much simpler for privacy-conscious individuals to stipulate 
where the press can be. If a landowner owns a street, for example, he 
can evict the gutter press from standing outside his home all day and 
night. The likes of Madonna deal with privacy simply by buying opulent 
Hollywood homes with large grounds, defended by guard dogs and top-notch 
security. Property rights, then, can go a long way to ensuring a large 
measure of privacy. More recently, of course (November 7, 1993) we have 
had the case of Princess Diana seen exercising in a gym in the "Sunday 
Mirror" and the "Daily Mirror". I understand that these not terribly 
interesting pictures were taken with concealed cameras, and certainly 
without the prior consent of the Princess. This is a very clear and 
unpleasant example. The gym was obviously a private place. The "Mirror" 
newspapers clearly ignored this, causing the Princess considerable 
distress and have prompted calls for a new clampdown on the media as a 
result - which will affect us all, muckrakers and responsible papers 
alike.

And of course, the Princess of Wales and the Prince have both been the 
victims of snooping on cellular phones. Although users have become aware 
of the risks of snoopers, the user of a mobile phone is just as entitled 
to privacy as a sender of a letter. I have heard it said that privacy in 
the electronic media age is going to be harder to protect and *own* with 
all this knowledge zooming around. Encryption techniques invalidate this 
point to a degree, however. [4] Of course, once knowledge about X is 
out, one cannot stop people like curious journalists knowing about X. 
Unlike physical matter, knowledge is not diminished by being shared - 
quite the reverse sometimes. And it is not easy for people to stop 
things being known about them. I have certain characteristics, and have 
done certain things, which are known to some people. I can't always stop 
this knowledge from getting out and it is futile to try. I cannot own a 
piece of information which has become a public fact. But I can own the 
territory in which that information is acquired in the first place. By 
concentrating on property and on the physical circumstances in which 
information is acquired, we ensure that our definition of privacy is 
*hard* rather than vague. From vagueness, I believe, comes bad law, 
often illiberal and dangerous law.

THE MARKET IN PRIVACY

But what of the less lucky persons who cannot afford to defend their 
privacy through direct ownership of some kind of territory and who find 
themselves caught in the glare of beastly publicity?

Well, even if a person is in someone else's private area - with the 
owner's permission, of course - then that person will be protected by 
whatever rules the owner chooses to operate. If I invite guests to my 
home for a party, and some news photographer starts snapping away 
without permission, he is violating the guests' right to privacy, 
because I have not consented to the photographs being taken. If I tell 
my guests a photographer is coming from the "Daily Libido" looking for 
material for a gossip page, then the guests can hardly complain. 
(Whether anyone would want to come to the party or see me again is 
another matter!)

Once this point is grasped, the benefit of different rules being decided 
by different property owners becomes obvious. Some night- club owners, 
ski resort owners, bar landlords, football stadium chiefs and others 
will ban the media in all or part of their territory, while others will 
take a completely relaxed attitude. People will be able to ``shop 
around'' for places depending on how private they are. And of course 
this goes on already. In a society where all property was privately 
owned, this would become far more widespread. I understand that in the 
Princess Diana gym photos case, the gym's boss actually connived at 
getting secret cameras installed and arranged a financial deal, all 
without the knowledge of the Princess. This is clearly unjust - the 
Princess had no idea of what was going on and was clearly not a 
consenting party. One cannot even argue that there was implied consent: 
a gym is not the sort of place where publicity is expected. It is not 
the same as signing a credit card agreement, where it is a commonly 
known practice for firms to circulate data about their clients.

One important result of having differing approaches to privacy would be 
greater awareness of the risks. People would make sure areas they 
entered had privacy-protection, while others who did not bother about 
privacy would go to their preferred places. Some firms would operate 
strict privacy and confidentiality rules, others would be more relaxed. 
Pluralism of this "laissez-faire" kind makes sense because different 
people regard privacy as being more important than others do. Some are 
paranoid and hate publicity, others crave it. Why should everyone 
conform to one model of what it is right for the public to know?

The "market" aspect of this "shopping around" has other benefits. Some 
people would become notorious for their love of privacy, and suffer 
certain adverse consequences. In the case of politicians and business 
leaders privacy obsession could harm their image, particularly in cases 
where the person was refusing to disclose details about business or 
policy. The public is far more likely to trust the company that tells 
people about its products in a straightforward manner, while the 
politician who tries to protect himself too fiercely from the public 
gaze can suffer from the "What has he/she got to hide?" problem. 
Openness is a marketing and electoral tool like any other. This also 
ensures that people who choose to put themselves in the public eye and 
acquire power must, to an extent, lose more privacy than the rest of us.

CONFIDENTIALITY AND CONSENT

There is also the question of what one can call "implied contracts", 
which I briefly mentioned earlier. One can argue that data collection 
services, such as those operated by credit organisations, have an 
implied contract with their clients to release information. [5] If I 
have a credit card, so this argument goes, then I have given implied 
consent to the card firm to give data about me to other marketing 
organisations unless I specify otherwise. I take the "Spectator" 
magazine, and I have noticed an increase in my junk mail. I don't mind 
this very much and it is implied that subscribers to magazines will 
expect such a response. If I really took offence, I could always write 
to the Spectator's sales staff accordingly. It would make direct 
marketing very difficult if firms had to get prior consent from each 
individual. Junk mail is only junk to those who don't want it. In a 
market some businesses will actually use confidentialilty as a customer 
tool. Some firms will promise not to release any details in a bid to win 
over privacy- conscious clients. Others will brazenly state that data 
will be handed over, and junk mail lovers will buy their services!

Journalists need access to information of all kinds if they are to do 
their job, and it is very useful to find names, addresses and 
occupations if one is working on some stories. Sometimes journalists do 
stories about surveys, and need to test their accuracy. Newspaper 
companies also carry out extensive market research these days in a bid 
to shape their products more sensitively. Now if a statutory law makes 
it illegal for data gathering services to operate in the private sector 
to protect *privacy*, then such research could be impossible. We could 
end up with a situation where the only body allowed to do such data 
gathering would be the State - an unpalatable thought. In the United 
States, the Lotus Development Corp got into difficulties with its 
Marketplace: Households product, which combined details of about 120 
million US consumers. It would have given small firms and non-profit 
organisations details previously open only to large companies. But 
following protests from, among others, the American Civil Liberties 
Union, the Lotus project was scrapped, in 1991. One cannot help 
wondering if the motive for this was more a case of anti-market 
prejudice than a genuine love of the right to privacy.

When journalists cover business and politics, there is, of course, the 
issue of confidentiality to contend with. Once again, however, the issue 
of freedom of contract cuts through much complexity and confusion. In 
recent years the law of confidentiality, which is part of the civil law, 
has been used and extended in a bid to keep information out of the 
media, particularly by the State. There have been a number of well-known 
cases, such as the Paddy Ashdown case, and the Spycatcher affair, where 
court injunctions were used to halt publication or broadcast of a story 
obtained in alleged "breach of confidence". The great problem with the 
often complex and shifting laws on this is that if a reporter learns 
about some newsworthy misconduct from a source who has received this 
information confidentially, then the journalist will have difficulty 
checking the facts to avoid being sued for libel. As soon as he 
approaches the alleged malefactor for his side of the story, he faces 
the risk that the offending person will immediately get an injunction 
preventing use of the information.

Although a discussion of this complex subject would take too long, the 
broad principle in my view should be that voluntary agreements to make 
information confidential should be honoured like any other contract. If 
I go to a Swiss bank and secrecy is part of the contract, then this 
cannot be violated by people trying to use my financial affairs for 
marketing purposes or a scandal story. Of course, companies, persons and 
Government organisations who wish to keep everything confidential will 
pay a cost. Companies and politicians who constantly use injunctions to 
prevent any information emerging about their doings will forfeit public 
trust in the form of sales and votes. Once again, this is not a simple 
black and white issue of "Privacy good, freedom bad," or "vice versa". 
Confidentiality may be crucial in large business negotiations for a 
costly new product, or cabinet discussions about anti-terrorism policy. 
Without the ability to deal in private - in confidence - many deals we 
take for granted would be impossible. Trust breaks down if a person 
cannot keep a secret. We all know of the gossip who ends up being told 
nothing important by anyone.

In the marketplace, confidentiality is both part of the rules of 
civilised behaviour and also a commodity which varies in value. 
Sometimes it simply is not worth it to keep everything private, and 
better to let people know about things quickly and straightforwardly. To 
repeat: the crucial point here is *consent*. Where possible, agreements 
between employees and bosses, doctors and patients and so on, should 
spell out the conditions of confidence. Some privacy activists get very 
- sometimes understandably - angry when doctors give out information 
about their patients to a snooping medical journalist, for example. But 
if a client chooses, in a contract, to let his medical condition be made 
known, then there is no problem. Let us have freedom of choice. Better 
to let two parties work out a deal than have the lawmakers impose a 
majoritarian solution on us all.

PRIVACY AND THE STATE

One problem for the market approach to privacy is the existence of Big 
Government, and of large corporations which share many features of 
government, largely because of state intervention. Contracts are not 
things governments are noted for respecting. Their power today is huge. 
Bureaucracies, recent reforms notwithstanding, still play a huge part in 
our lives. Can their secrets be treated by journalists the same way as 
that of a company competing in a market or a person trying to win social 
approval? I don't think so, and so a measure of statutory reform for 
both freedom of information and privacy is needed here. (The best thing 
that could happen would be a hefty cut in the size and role of the 
state.) The question arises of democratic accountability and the right 
to know what our representatives are up to. As long as government is 
here to stay - as a libertarian I hope it is not forever - we need to 
know what is going on, and journalists are crucial in making this 
possible. A private company obsessed by privacy cannot coerce us to buy 
its products or work for it as governments can. You cannot sign an 
individual contract with the Inland Revenue about concealing or 
releasing certain financial details.

Of course, the issue of whether a journalist should ever reveal his 
sources is also affected by the difference between leaks from government 
and leaks from private individuals and firms. Government rules such as 
the Official Secrets Act have, in theory at least, been approved by our 
democratically elected representatives. Are journalists entitled to use 
information leaked in contravention of the law, and if so, are they 
entitled to protect a source who has committed a criminal act? This is a 
serious ethical dilemma, and one hard to resolve in an age when 
investigative journalism can play a crucial role in exposing government 
wrongdoing. As a matter of editorial policy, I am told never to reveal 
sources. What happens if a journalist gets a tip-off about a terrorist 
incident or a criminal act? If he discloses a source, he will never get 
such information again and be useless as an investigator. On the other 
hand, disclosing a source may be necessary to catch criminals who have 
committed serious acts. In my view, the rule should be that journalists 
are no different from other members of the public as far as their rights 
and duties to uphold the law are concerned. If we demand the privilege 
to protect sources from the police or other authorities, then the demand 
will soon come to turn journalism into a state-licensed profession - an 
ominous thought.

To sum up so far. I believe free speech is vital in scrutinising those 
in power, particularly the State, the foremost violator of our freedom. 
I believe privacy is best understood by thinking of people as 
self-owners, and private property helps give a hard definition of 
privacy that can shape law, preferably common - not statute - law. I 
believe people should, as much as possible, be allowed to make what 
agreements they like about how much of their lives should be known to 
the public, while understanding that information can never be completely 
controlled, even were it desirable. I believe politicians and 
bureaucrats, who do not operate in an open system but in one which 
forces others to support it by compulsory taxation and law, must be 
subject to a different discipline in the form of Freedom of Information 
and Privacy Laws.

ENCRYPTION AND SNOOPING

I have mentioned already the problems posed for the journalist by 
governments and big firms with close government links. An excellent 
example is the telecommunications industry. In the UK, British Telecom, 
the country's largest telecommunications firm, has recently been at the 
centre of controversy about encryption standards, and the ability to 
make cell phones "snoop proof". [6]

BT has denied that it wants to downgrade the code of a new mobile phone 
system and protect surveillance powers of Government security services 
like GCHQ. Calls on a system known as GSM can be scrambled so well that 
security agencies like MI5 cannot intercept conversations. As a result, 
spy-masters in several European countries are forcing manufacturers of 
the system to make it more vulnerable to eavesdroppers, according to 
some press reports, including an article by Jamie Dettmer in the 
"Times".

In fact, some of the most advanced research on encryption is being 
carried out in my own news patch of Suffolk, at the BT research labs at 
Martlesham Heath, near Ipswich. It has been alleged that GSM was 
inspected at Martlesham and that MI5 and GCHQ engineers thought the 
system too difficult to crack. But when I checked the Times story, a BT 
spokesman dismissed this as "speculation". He said claims that BT had 
insisted on downgrading of phone codes was unfounded. Because of our 
libel laws I will not say if I believed him!

In fact BT is one of up to twenty operators involved in GSM, which is 
designed to allow mobile phone subscribers use the system across Europe. 
There have been no moves to make mobile phones easier to crack although 
the idea has been discussed in trade publications, say Cellnet. I spoke 
to William Ostrom, head of public relations at Cellnet. In June this 
year he told me: "There have been no definite moves to downgrade the 
system - there has just been a lot of talk about it. There are 1.5 
million mobile phone users in the UK, but only a maximum of about 30,000 
users have expressed an interest in encryption." He added that no-one 
was entitled to intercept communications of any kind without a proper 
warrant - which sounds a pretty open-ended proviso to me.

This story, even if one accepts the arguments and explanations, clearly 
suggests that BT, a quasi-monopoly with a few smaller competitors, has a 
close relationship with Government, and allegedly with security 
services. Phone-tapping undoubtedly goes on, and any research into 
making tapping more difficult must therefore mean governments will try 
to make deals with companies in this field, possibly with some kind of 
threat.

In this case, governments will no doubt cite the need to fight 
terrorism, organised crime and subversion. These are often legitimate 
targets, but one wonders how the public interest arguments in defence of 
such snooping will be interpreted in practice. Many snooping powers 
acquired in wartime, for example, have a habit of staying permanent 
during peacetime. I don't have a firm idea of what the real answer is 
where government snooping is concerned, but in general the ``market for 
privacy'' approach works best - those who crave privacy will attract 
some suspicion. Snoop-proof systems have a cost, if only because they 
will make people wonder what a person is trying to hide.

No doubt some journalists, whether they are investigating organised 
crime or getting the latest on Princess Di's love life, would love to 
snoop at will or get people to do it for them. But anyone caring for 
privacy should be allowed to buy phones with total protection, if such 
products are technically possible.

After all, journalists have a lot to lose both from a situation where 
encryption is universal and one where it is banned or limited. We hacks 
use phones a great deal, and sometimes get told many things "off the 
record". If snoopers working for firms or government can listen in, then 
a journalist's tip off man can be landed in hot water. Sometimes people 
are quoted anonymously to protect people's feelings, even though the 
journalist can verify the person quoted. If journalists can't have 
private conversations and win the trust of a source, we could face great 
difficulties. This is just one example of how the privacy issue cuts two 
ways.

As a parting shot, I have repeatedly tried to get a Home Office 
statement on this issue, and to find out more about what is happening at 
BT. So far, the response has been one of polite silence.

CONCLUSION

Journalism faces many threats in Britain. We live at a time when the 
European Community has more powers than ever before, and who knows what 
heavy-handed laws may be imposed on us from Brussels? The Royal Family 
stories are sure to prompt renewed calls for a clampdown on the press, 
which also faces the prospect of VAT. It is not an easy time for the 
Fourth Estate. Getting the balance right between freedom of speech and 
privacy is a difficult one, particularly for anyone conscious of the 
need to curb and scrutinise State power. But I am sure my libertarian 
approach, with its stress on property and consent, is the most fruitful 
approach for getting the balance right.


NOTES

1. Nicholas Elliott, "The Value of a Free Press", Libertarian Alliance, 
Political Notes No 52, London, 1990.

2. Ibid.

3. A very good discussion of privacy issues in the electronic age, and 
the advantages of the consent or market approach, is Jacob Sullum, 
"Secrets for Sale", "Reason", April 1992, Vol. 23, No 11, The Reason 
Foundation, Los Angeles.

4. Chuck Hammill, "From Crossbows to Cryptography: Thwarting the State 
Via Technology", Libertarian Alliance, Scientific Notes No. 9, London, 
1992.

5. Sullum's "Reason" article discusses the whole idea of implied 
contracts and the difficulties companies would face if they had to get 
prior consent from every consumer before putting them on a mailing list. 
Implied or explicit, consent is the issue here.

6. See Jamie Dettmer, "Spymasters Pull Plug On Snoop-Proof Telephones", 
"The Times", May 29, 1993. See also Tom Burroughes, "Snoop-Proof Phones' 
Code Stays Secure, BT Insists", "East Anglian Daily Times", June 9 1993, 
page three of Business Scene, Ipswich.


FURTHER READING

Mary Eisenhart, "Encryption, Privacy and Data Security", "Microtimes", 
March 8, 1993.