The principles of mutually beneficial voluntary
exchange, and Pareto improvements, tell us that nobody should ever be
involved in a social situation, economic transaction, nor political
association, which deprives them of the right to consent, nor of the right to negotiate and interact with others at a level of equal standing and power.
This
is to say that we must always recognize others' rights to give
consent, but also their right to be fully informed about what they're
getting involved in, and their right to deny or revoke consent if
they believe that they don't stand to benefit from the action or
decision whatsoever.
Externalizing
costs, and negative consequences, onto other people, without their
knowledge or consent, is unacceptable, if we want to create an
economy and a society in which nobody is pressured to sacrifice, or
give up their rights, such as their right to fully understand the
things they are consenting to.
The
importance of the principle that everyone involved
in a decision should both benefit, and participate on a voluntary
basis, is essential to creating a free and fair economy, and a free
and fair society.
However, in
cases when someone is violating your freedom to remain unharmed, or
your freedom to avoid being defrauded, we have to consider the
possibility that that person's right to fully consent to whatever
happens to them, should no longer be respected.
It's
not that we shouldn't respect a person's right to deny consent; we
should. The problem is that a person who has just shot someone to
death, or stolen something, will usually not consensually submit to
arrest, so they have to be taken into custody against their will.
They
didn't respect your right to deny consent, so why should you respect
theirs? They made it clear that they don't even believe in
your right to deny consent, and that they don't respect your
boundaries.
Now,
we could avoid
the need to force people to submit to arrest, by allowing people to
volunteer to become outlaws (and live outside the law, without its
protections). Allowing people to become outlaws would remind criminal
suspects that they have an incentive to turn themselves in, because
failure to do so would mean that they must forfeit
the state's protection.
But
for people who don't have time to learn about 7th Amendment
methods and the rules of the Old West, and time to start a movement
to re-popularize those sorts of rules, I'll restrict this discussion
to laws that currently exist on the books today.
And
so, I turn now, to the subject of one-party and two-party consent
laws, in regard to recording conversations via audio
and/or video.
Ten
states have what are called "two-party consent laws", in
which both or all parties to a recorded telephone call or other
conversation must give consent to be recorded (and know they are
being recorded in the first place), in order for the recording to be
made legally and to be admissible as evidence in a court of law.
Those
states are California, Connecticut, Florida, Illinois, Maryland,
Massachusetts, Montana, New Hampshire, Pennsylvania and Washington
(nearly all of which are governed by Democrats).
It
would seem that two-party consent laws protect the consent of every
person involved.
With
this in mind, and with the need to preserve the full consent of
everyone involved, it would seem that one-party
consent states have effectively legalized spying on someone and
recording them without their knowledge or consent!
Surely
such an action should be banned, and both parties' consent required.
On
the other hand...
As
a libertarian, the right to privacy is an important concern for me,
and it always will be. But again, as a libertarian, the power of the
government to legalize its own crimes, is also a
huge problem. Maybe even a more important problem.
I
say this because we need to think about whether it's more important
to protect somebody else's right to privacy (such as a police officer
or politician) than it is to protect
yourself (your
body, and your freedoms, and especially your freedom from being
defrauded by elected officials).
I
worry that these two-party consent laws are just a scam - invented by
blue-state politicians - intended to protect lawyers', judges', and
police officers' privileges to lie to us about the law, and commit
crimes, and then suppress our ability to record them while doing so.
And
the politically well-connected, will, and do, suppress our ability to
record them. Even if we are only recording them for our own safety
and protection, and to ensure that we are not incriminated nor robbed
of the ability to create an accurate account of what happened to us
while in contact with such legal authorities.
After
all, we could lose our lives during interactions with police, and we
can't exactly file a complaint against the police when we're a
decaying dead body.
What
the debate about one-party consent laws should come down to, is the
issue of whether the person who is being filmed against their will,
has a reasonable expectation of privacy, based on whose property
they're on, and what they're doing, when the incident is filmed or
audio-recorded.
If
a person is trespassing, or violating a law, or starting a fight –
and that's why they're being filmed in the first place – then they
have no right to expect privacy.
You
forfeit privacy when you attack someone. Not because privacy can be
turned from a right into a privilege, or anything like that. You lose
privacy when you deliberately subject somebody to abuse, harm, or
theft, and when you invade the privacy of someone who has done
nothing wrong (and/or is not reasonably suspected of having done
anything wrong, nor is suspected of having begun to plan an attack or
the commission of a crime).
Your
right to privacy ends when you start infringing on others' rights to
enjoy their property, or a public place, calmly and in peace. You
cannot make an assembly violent, and then expect to have your “right
to privacy” respected. That is just the right to shrink from public
controversy after you have done something wrong; it is the right to
remain unresponsive and irresponsible. The ancient Romans made it
clear that citizens do not have such a right.
If
any type of consent laws for recording conversations, should be
banned, then it shouldn't be one-party
consent laws (which
afford “privacy” to criminals, corrupt police, and professional
liars); it should be two-party
consent laws!
Or,
at the very least, states that have two-party consent laws, should
pass amendments to those laws, which specifically exempt people who
believe they may be under arrest, and witnesses to (and victims of)
crimes who attempt to capture video evidence of those crimes.
Additionally, whistleblowers. These include people like Edward
Snowden, who arguably “spied” on the National Security Agency
(N.S.A.) to report their unconstitutional bulk data collection.
After
all most of the bulk data collection that the N.S.A. did, was done
under conditions of zero-party
consent.
So the need to stop zero-party-consent
data mining, arguably made it necessary, or at least advantageous to
our freedoms, to sacrifice two-party
consent, in order to preserve respect for one-party
consent.
By
this, I mean that it became necessary to sacrifice the government's
supposed need for “privacy” (or rather, secrecy in their
unconstitutional activities), to promote the greater good. I mean that every
person should be free to film what they reasonably believe to be criminal wrongdoing, if it is
necessary to procure evidence, and preserve their rights. Especially if secret filming or audiotaping is the only way to provide a reliable record of what happened.
As long as you don't unreasonably invade someone's privacy, and you believe that your or someone else's safety or freedom is at stake, then "spying" is fine. If this seems unfair, then think about it this way: Abusers typically lie to people, and hurt people, "in private". That is, in what they think is private. If there are two people present, then the only witness is also the victim. To use video or audio tape to record an incident, is to create a witness, which is not a victim (i.e., the videotape or audiotape). Also keep in mind that abusers treat people differently in "private" from the way they treat them in public. Finally, if taken literally, "private" could imply that only one person is present. There's really nothing "private" about attacking or abusing someone else while nobody is around. That is not private; there is another person there.
It is often necessary to drag "private" affairs or problems into the public, in order to expose the fact that an incident happened, to a third party who was not involved; in order to get an outside perspective, and in order to find a neutral party who can moderate the dispute. An abuser and his victim will typically not come to a peaceful, equitable arrangement without an unbiased outside influence to moderate or arbitrate.
As long as you don't unreasonably invade someone's privacy, and you believe that your or someone else's safety or freedom is at stake, then "spying" is fine. If this seems unfair, then think about it this way: Abusers typically lie to people, and hurt people, "in private". That is, in what they think is private. If there are two people present, then the only witness is also the victim. To use video or audio tape to record an incident, is to create a witness, which is not a victim (i.e., the videotape or audiotape). Also keep in mind that abusers treat people differently in "private" from the way they treat them in public. Finally, if taken literally, "private" could imply that only one person is present. There's really nothing "private" about attacking or abusing someone else while nobody is around. That is not private; there is another person there.
It is often necessary to drag "private" affairs or problems into the public, in order to expose the fact that an incident happened, to a third party who was not involved; in order to get an outside perspective, and in order to find a neutral party who can moderate the dispute. An abuser and his victim will typically not come to a peaceful, equitable arrangement without an unbiased outside influence to moderate or arbitrate.
If
you don't want to be filmed, then don't do anything wrong.
This
is not to say that anyone who is filmed against their will, is doing
something wrong. It is not to “victim-blame”, nor is it to say
that it is OK if the consequences of your free speech include being
harmed or being filmed against your will.
It
is simply to say that if you keep going around harming people,
starting fights, daring people to fight you without hitting them,
pointing guns at people, threatening people, or psychologically
abusing or brainwashing people all the time, then you should hardly
be surprised when someone pulls out a camera or a camera-phone or a
tape recorder, and starts capturing proof.
Hell,
sometimes taking out your phone and filming, and threatening to
broadcast it and show it to other people, is the only way to get an
aggressive person to stop doing what they're doing! It is not a
“threat”, nor a deprivation of income, to expose aggressive and
disrespectful people, to the real-life social consequences of their
actions (as long as you're not physically hurting them without cause,
or slandering them).
Spying
is wrong, except when it is the only realistic way to save lives, or
to protect defenseless or systematically discredited people.
Spying
on dangerous people might make us feel dirty or ashamed, but it is
sometimes necessary, to prove things that most people would never
believe happens behind closed doors.
Aggressive
people mistreat others, when there is nobody whom they respect,
around to keep their behavior in-check. And there are very few people
for whom aggressive individuals feel a sense of respect in the first
place.
Just
as they say about allegations of government corruption, to cure
manipulators' and aggressive people's mental illnesses and
personality disorders, "sunlight is the best disinfectant".
To
argue otherwise is to be a "Karen" who projects on others,
saying that she feels attacked, when she is non-violently outed for
attacking or harassing others.
Written on July 17th, 2020
Edited
and expanded on September 4th, 2020
and March 27th, 2021
and March 27th, 2021
Published
to this blog on September 4th, 2020
