[LINK] RFID Issues: Privacy in Public Places

[Adam Todd]

At 10:38 AM 4/11/2006, Richard Chirgwin wrote:
>Some musings ...
>
>One of the problems with privacy in terms of the debate and the "thing in 
>itself" is that too many things have been swept under a single 
>heading.  There is a difference between:
>a) The right to close the door of my home on the world without 
>unreasonable intrusion

Common law tort of Trespass :)

>b) The right to hold beliefs without submitting them to audit by the state

Section 11 of the Mental Health Act.

>c) The right to conduct legal transactions anonymously

Actually there doesn't appear to be one of those.

>d) The right to expect that identity data cannot be abused or misused

No, we don't have a Tort for Privacy in Australia.  And the Privacy Act has 
no teeth unless you are a Government Agency.

>e) The right to go about lawful activities in public without constant 
>surveillance

Nope you don't have that either.  In public you have no right whatsoever to 
privacy.  However if you are in your own backyard, it may be torteous for 
your neighbor to watch you.

In a public place, you are fair game.  (Unless you are a child, there seems 
to be a movement to stop parents taking photos and video of their 
children.  I was harassed in the city the other day whilst taking photos of 
my daughter.  She was a good 20 feet from me.)

>On one side of the argument, all of these are called 'privacy' so they can 
>be treated as equal and indivisible.

Nope, because we don't have a right to privacy in Australia.

>On the other side of the debate, they are all called 'privacy' so that a 
>violation of one can be justified as being trivial ("you are in a public 
>place, therefore you have no privacy, therefore we can do what we like to 
>you".).

I'd not say it's trivial, but it's fact.

>I would also note that much of the American contribution to the debate is 
>coloured, on both sides, by the way in which 'property rights' are used as 
>a hole card ... "ah, but you are on *my* property, therefore ..."

But this too is true for Australia.  Unless you charge a person to come 
onto your property, in which case you enter into a contract.  (I never 
understood why clubs charge a door charge, because in doing so they enter 
into a contract with the patron and become liable - especially if the 
person sues for negligence in allow them to become drunk.)

Even the Police with a warrant from a Magistrate can't enter on your 
property unless you let them.  However most Australians are too thick to 
know that, and hence fear the deceit from the police "You will be arrested" 
however police can't arrest you on your own property (or property to which 
you have exclusive possession.)

>The elevation of property rights above all other rights; the assumption 
>that the property rights of a company are superior to the property rights 
>of the citizen - these pollute the debate. It means that to put a 
>"pro-privacy" position, you either have to ignore the specious property 
>rights argument, or you have to divert some of your energy to dealing with 
>the limits of property rights.

Privacy and Property are two different things, as are Property and Chattels.

>(One of the reasons the lunar right in the US likes to hang 'property 
>rights' on every hook it can find is so it can say 'communist!' to anyone 
>taking a contrary position. Something that is a non-property right is 
>subject to debate; corporate property rights are sacrosanct. so it's a 
>stated strategy: "this is not a trademark right, it's a property right, 
>and if you don't believe in property you're a communist". It's a disaster 
>that this scrubby trick is being imported into Australia, and even worse 
>that it passes unnoticed.)

But we've always had it, in fact until the last ten years, property rights 
as you describe above were the foundation for people to protect their logos 
and interests in ideas.  Now sadly, because of a call for legislated 
property rights and registration of the same, you almost no longer have a 
"prior use: right.  If it's not registered, it's not yours.  And if someone 
sees you're use and registers it, too bad to you.

>Back to "privacy in public places". Going down the list above, (a) doesn't 
>apply in a public place; (b) does apply and should not be diluted merely 
>because of where I happen to be; (c) is not particularly subject to 
>difference of place; (d) is more important in the public place, since 
>that's where exposure is greatest; and the same applies for (e).

It doesn't matter in a public place, you are public, not private.  If you 
don't want to be public, stay out of public places.  You change your status 
when you enter into different places.

>Note also that the author, having raised the question "how much privacy in 
>a public place", turns in fact to "privacy on someone else's private 
>property". The workplace is only semi-public -

The work place is not public at all.  It's a private place.

There is a Licence granted for visitors to come into the place of business, 
however not a right to possession.

There is a license granted for employees to come into the place of 
business, but not a right to possession.

Only the Business Owner has the right to possession, and an exclusive right 
to decided who can and can not be there.

>the owner can deny entry to the workplace to people who have no cause to 
>be there.

The owner can deny a right to entry to an employee, even if still employed.

>So you cannot reasonably or sensibly draw a general "in a public place" 
>conclusion from rules in a workplace.

Because a work place is not a public place.  It is an exclusive and private 
place, that either implies or specifically grants rights to trespassers, in 
exclusion or limited ways and is able to be revoked at any time.

>And, as I said, the author has simply put the position that the owner's 
>rights automatically trump the citizen's rights.

The author is an idiot and knows not what s/he is talking about!  These are 
common law facts that have been around since 1218.

>Does the property right trump any other citizens' rights? Try these 
>statements:
>- you are on my property, so I have the right to require that you attend 
>work in the nude.

Yes.  In fact that's a true fact.  If you don't want to work for the person 
in the nude, then don't take on the job.  The exclusive possessor has the 
right to make that a condition of entry.

>- you are on my property, so I have the right to demand that you use a 
>ladder with a missing rung.

Yes you can do that.  And if the person uses the ladder know it to be 
unsafe, they are unfortunately not mitigated.  In such case the person 
should leave the property.  I can quote some case law on this if you 
like.  It's all Australian and all in the last 30 years.

You are not protected and don't have a torteous right if you do something 
that you know is unsafe.

>- you are on my property, so I have the right to audit any personal 
>financial documents you carry into the workplace (for example, the bill 
>you carry in the briefcase to pay at lunchtime).

Well, that's a stretch, but technically yes.  That is untested, so 
far.  But if the Possessor makes it a condition of entry, then you are 
required to do that.  If you don't like the term, then don't enter.

>These are all ridiculous;

No, they aren't.  The last one perhaps, because it's untested.  The rest 
are founded in common law already.

>so why can the implicit assumption that "you are on my property, therefore 
>my rights trump your privacy" be allowed to stand without any more 
>justification than a sprinkling of the 'property rights' holy water?

Because as a possessor of property you have the exclusive rights under 
common law to make the rules that protect YOUR interests.  Above and Beyond 
that of the Legislative Law.

>Next, going back into the public place (the airport).

An airport is NOT a public place.

>First, the author commits (deliberately) the logical error of 
>equivocation: the workplace is a piece of property owned by someone;

It is.  A person (or company perhaps, which is a natural person by law) is 
in EXCLUSIVE possession of that property and may decide who does and does 
not come onto the property and if there are any specific conditions.

>the airport is a piece of property owned by someone;

Get this clear:  The LAND may be owned by someone who leases it exclusively 
to someone else, or may lease it with conditions.  If it's exclusive then 
the owner no longer has any rights to the property.  Not even to "visit" 
it, unless invited by the Leasee.

>therefore the 'rights status' of the airport's owner is the same as that 
>of the workplace owner.

No.  There are two different parts to this.

Is the airport owner also the exclusive occupier, or does the owner lease 
it to an occupier?

>There are two clear differences between the two:
>- the airport is explicitly created for the use of the public;

No it is not.

>and therefore
>- most of the people within the airport have no relationship with its 
>owner (they are not employees or contractors, but members of the public 
>required to use the airport for the purpose of their travel).

Wrong again.  They are employed by parties who have licences to be present 
within or on the property.  However the Possessor of the airport can deny 
any person entry.


>So even granting that ownership of a workplace grants a certain set of 
>rights over activities within that workplace, ownership of an airport does 
>not grant rights to the same degree of control.

Ownership, Possession and Occupiers are all different things and have 
different status under laws of the UK, USA, Canada, NZ and Australia.

Common Law sets the rights.  An Airport is not a public place, nor is a 
workplace.

There are heaps of case law examples of this on Austlii alone.