Control and Benefit Are Morally Owed to the Source
Richard A. Wright
1. Introduction
2. Reframing the Issues
3. The “High Cost to Industry” Defense
3.1 Raw Materials as a Cost of Doing Business
3.2 The Cost of Correcting Past Inequities as a Cost of Doing Business
3.3 Originator Control of Materials as a Feature of Doing Business
4. The “Private” is “Public” Defense
4.1 Private Information and “Voluntary” Release
4.2 Private Information in the “Public” Domain
4.3 Autonomy as the Basis for Understanding Privacy
5. Toward a Resolution
6. Concluding Thoughts
Private Information in the “Public” Domain
The second mitigating circumstance, the “public” record, is much
harder to attack, requiring at least in part philosophical arguments concerning
the nature of personhood. However, it is possible to make several suggestions
which throw serious doubt on the industry’s claims to unlimited access.
To begin, when information appears in a governmental domain which is not by
law legally defined as confidential, the industry reads “government”
as “public,” and deems its access and use of the information to be
appropriate. Just because the residing place of information is governmental,
however, it does not follow that the information may be taken from that place
and used privately, for commercial purposes. To do so is to confuse utilization
with access. The earlier example of unlocked oil storage is an appropriate consideration
here; the unlocked gate does not authorize the taking of oil, regardless of
whether it is subsequently sold or used personally.
Another example is a patient’s hospital medical record. There has been
repeated legal verification of the conceptual distinction between record and
information; the record may belong to the hospital, but the information the
record contains belongs to the patient. In the current consideration, the record
may be “public” in the sense that it belongs to a government agency,
but the information in that record still belongs to the individual. Moreover,
the privacy of medical records has been repeatedly upheld, even for “public”
hospitals. Since there is extensive common information in both types of record,
there appears to be no grounds for automatic exemption of the information industry
from the commonly accepted standards of privacy.
Yet another example is personal. Our local newspaper publishes a special listing,
in its Saturday edition, of the owner’s name and address for every house
sold with a sale value over a specific amount. My wife and I did not realize
this until we bought our house, and could not figure out how all our coworkers
knew exactly what we paid for the house. We asked how they knew and they told
us. When questioned about this, the newspaper’s only response was “The
information is a matter of public record, thus we may legitimately use it however
we see fit.” I was never able to get a justification for the publication,
however, only a continuous reassertion of the public nature of the information.
Importantly, there were immediate results from the publication. Solicitations
by phone and mail increased phenomenally. For weeks, not a single dinner hour
went by without at least one call, frequently several. One would think word
was out that despite the house’s price, it was infested with every known
vermin, minus windows, studs open to the weather, missing roof, no heat or air
conditioning, faulty wiring, unlandscaped yard, etc. At least some solicitors,
including accountants, insurance agents, car dealers, investment advisers, and
merchants of all sorts, chose the mail, of which there was often so much the
mail carrier had to strap the excess to the outside of the box!
The point of these examples is to question the industry claim that information
is “public” on the grounds that it misconstrues the nature of records
by confusing the physical record and the information it contains. Moreover,
it is to suggest that the utilization of such information is far from benign
for the original source. On both counts, a case can be made either for not allowing
use of the information or, if used, compensating the original source.
Go to: 4.3 Autonomy as the Basis for Understanding Privacy
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