Privacy, Individual Liberty, and the Public Interest

 

 John Paul Ryan

New information technologies enable organizations of all kinds to know about us. Consumer buying habits, medical histories, and financial and credit standing are all part of various information databases maintained by the government and private businesses. We are easily reachable to solicitors of all kinds through mail, telephone, and now, e-mail.

As we begin the 21st century, long after the warnings from Orwel#146;s novel 1984,1 we seem to yearn for more “privacy”—freedom from unwarranted intrusion into our private lives. But what exactly is “unwarranted”? The news media’s inquiry into the private lives of public figures? A police officer’s ‘stop and frisk’ of youth in a gang-frequented area of town? A college’s monitoring of students in a dormitory? The collection of the names of, and information about, dangerous mental patients?

Like other freedoms and rights, privacy is not an absolute value; rather, it is one that needs to be balanced against others. Since privacy is an individual-based right, it is sometimes juxtaposed with the language and idea of a “common good,” which presumes that there may be instances when the interests of society outweigh individual claims of privacy. To explore these conflicts and controversies, the American Bar Association’s Division for Public Education assembled a group of scholars for a discussion in cyberspace of the historical, cultural, and legal dimensions of privacy—today, in the past, and in the future.

The six scholars involved—who have written many books and articles on the subject and have frequently testified before Congress—provide a wide range of perspectives on privacy. Their dialogue includes historical and cross-national perspectives on privacy, the tensions between privacy and the First Amendment, how celebrity and privacy have come to clash, and legislative and judicial responses to new claims for individual privacy protections. Taken together, their voices suggest that privacy raises complex issues and competing values.

Some Contexts of Privacy

There are many contexts in which claims for privacy may arise. John Gilliom, Associate Professor of Political Science at Ohio University, argues that the word “privacy” invokes a wide range of concerns, perhaps so wide as to risk losing an understandable meaning of the concept. Privacy can refer to a longing for peace and solitude, security of personal data (informational privacy), security in one’s home and person (Fourth Amendment protections from unwarranted search and seizure), family autonomy, freedom in birth control decisions, and more. The primary focus of this article is on informational privacy and how it may be jeopardized by the new information, data-gathering, and communication technologies—or, by what Gilliom terms a “surveillance revolution” that may represent one of history’s most important expansions of institutional power.

It is easy to assume that there has been a sharp decline in privacy over the period of the last century. But this may not be entirely true. Priscilla Regan, Associate Professor of Political Science at George Mason University, reminds us that individuals had to work hard to protect their privacy even when living in small towns, as most Americans did at the turn of the last century. Family members, friends, and neighbors comprised a tightly knit network from which there was little opportunity to exit. The local pharmacist was a friend of your parents; neighbors sitting on front porches watched as children and adults walked by. The very practices that we sometimes equate with loss of privacy today constituted what urban sociologist Jane Jacobs refers to as a sense of community—practices, values, and living arrangements that fostered social interaction and curbed crime.2

People living in small towns, however, typically recognized the threats to their privacy. As Judith Wagner DeCew, Professor of Philosophy at Clark University, observes, people in earlier times saw and understood the situations in which their privacy might be compromised. It was obvious, for example, that grocers knew what foods and other sundries customers bought, and that telephone switchboard operators could listen in on private conversations. By contrast, current technology makes the threats to privacy less tangible and less visible. It is difficult to know when, or for what purposes, we are being watched or information about us is being gathered.

Changes in technology and cultural understandings about privacy are by no means a uniquely American phenomenon. David Sorkin, a law professor and Associate Director of the Center for Information Technology and Privacy Law at John Marshall Law School, observes that surveillance cameras are much more common in public places in European countries than here in the United States. Yet in the area of medical records, some European countries more aggressively protect patient privacy. Wagner DeCew points out that in the Netherlands, access to electronic medical data is routinely denied. Physicians and others have to defend their need to know in order to gain access to patient information, whereas in the United States access to medical records is the “default” or the norm. We sometimes think that technology leads to inevitable erosions of privacy; but, as Wagner DeCew notes, humans—not “technology”—choose whether or not to set defaults that permit routine access to information.

 

Privacy and Celebrity in American Culture

Our society’s interest in celebrity, fueled by the mass media, has grown dramatically in the 20th century, so much so that some commentators label it an obsession. How much privacy is possible in this climate of celebrity status? And how might the invasion of privacy in the public realm reverberate on the rest of us?

One key legal distinction is between public and private individuals. Laws of libel and slander afford more protections of privacy for private persons than for those in the public eye, notes Regan. Political figures, as well as celebrities from entertainment, sports, and other industries, can expect to have fewer protections of privacy. Furthermore, our First Amendment traditions, especially freedom of the press, provide broad discretion for inquiry into the private lives of “public” figures—so much so that Herb Strentz, a professor in the Department of Journalism and Mass Communication at Drake University, observes that people find it easy to know, and want to know, information about strangers that, if solicited in earlier times, might have resulted in an old-fashioned “buggy whipping.”

Beyond eavesdropping into the lives of the rich and famous, two other more serious consequences result from our society’s obsession with celebrity. First, the line between news and entertainment is blurred. One visible demonstration of this is the impact that celebrities themselves can have on public attention to news. Strentz points out that when Princess Diana died, part of the press coverage dealt with how she had publicized the land mines issue.3 Do we need celebrities to highlight social problems? Isn’t this the role of investigative journalists? A similar example can be found from the United States in the form of Leonardo DiCaprio’s “interview” of President Clinton about environmental issues in conjunction with the celebration of Earth Day 2000. This interview drew fire from leading news journalists, who argued that professional journalists, not celebrities, should be conducting news interviews. Most observers agree that such “infotainment” jeopardizes the credibility of the news media and, in Strentz’s view, even helps to undermine democracy.

Second, our public obsession with “knowing al#148; may have serious consequences for our political campaigns, elections, and the kinds of candidates willing to stand for public office. As Wagner DeCew notes, there are no standards on what is relevant for the press—and the public—to know about candidates for public office. Indeed, the standards for inquiry into the “private” behaviors of sitting presidents seem to have changed substantially over the course of the 20th century. Most Americans did not know that President Franklin Roosevelt could not walk without assistance because of the ravages of polio. Indeed, the press so effectively helped to shield this disability that a considerable debate took place recently about the appropriate depiction of Roosevelt in the new FDR Memorial in Washington, D.C.

Recent presidents, and candidates for the office, have found their behaviors during and prior to holding public office under increased scrutiny. Too much scrutiny? There is no agreement, judging from the variable public reaction to President Clinton’s “private” behavior during his time in office.

 

Privacy Abuses: Which Are the Most Serious?

For some people, it is government—and especially the federal government—that either poses, or seems to pose, the most serious threat to individual privacy. After all, the Census Bureau inquires into minute details of our families, housing, and living arrangements. The Internal Revenue Service reviews our most intimate financial data. At the state level, departments of family/social services review eligibility and benefits for welfare applicants.

Yet many scholars, including those participating in our dialogue on privacy, see private businesses as the most serious source of privacy invasions today. The financial, medical, and marketing industries are identified as having a “seemingly unquenchable thirst for more information about us,” laments Gilliom. Wagner DeCew concurs, noting that—while government, business, and the media all have the power to collect information—private businesses have a profit motive that makes them a greater threat. It is not only the continual collection of data about individuals that poses privacy concerns, but the ways in which such data can be customized and sold to others. This “consumer profiling” can be misleading and damaging, especially when used in a divorce, child custody, or other legal proceeding, warns Wagner DeCew.

One reason the business sector may pose a greater threat to privacy than the government is that constitutional and statutory controls restrain the government but not industry. Regan points out that an individual citizen may file a request under the Freedom of Information Act or the Privacy Act to obtain information about government practices. In fact, only a very small number of individuals do so, but these Acts probably serve to deter gross abuses by the government. The Driver’s Privacy Protection Act, passed by Congress in 1994, provides citizens with further protections, by prohibiting states from disclosing most personal information gathered in the process of licensing drivers (see the sidebar on page 418).

Even many businesses have become increasingly sensitive to the importance of the privacy issue. Most companies, especially the online dot.coms, have explicit privacy policies designed to alert potential customers to the ways in which their privacy will be protected. Nevertheless, Regan worries that the fear of losing customers because of privacy invasions will be outweighed by the benefits from the targeting and profiling of customers.

But government, too, can still pose serious privacy threats to its people, especially those marginalized by society. Strentz observes that judges rarely, if ever, turn down government requests to conduct electronic surveillance. For example, the Foreign Intelligence Surveillance Agency has approved all requests for surveillance since its inception in 1978; 886 applications were approved in 1999. Approval levels for wiretapping authority are almost as high in domestic criminal cases. In Strentz’s view, the current war on drugs has severely diminished the protections of the Fourth Amendment.

Gilliom points out another impact of government surveillance using the new computer technologies. In his current research in Appalachia, where he conducted in-depth interviews with welfare mothers, Gilliom found that the constant surveillance of their financial and household situations made it difficult for these mothers to care for their children. Gilliom states that “as everyone in the field knows, you can’t make it on welfare if you follow all the rules.”

 

Privacy as a Common Value

Perhaps in response to these abuses, privacy is a popular value invoked by many people in an increasingly wide variety of situations. Today, jurors sometimes ask for privacy in high-profile criminal cases—that is, shielding of their identities for fear of harassment or retribution after the trial has concluded. Crime victims, particularly rape victims, seek to protect their privacy. The criminal records of juvenile offenders have long been sealed to afford them a second chance at life. Advocates for the mentally ill oppose the inclusion of the names and records of mental patients in a databank (commonly referred to as the “Brady Bil#148; databank) that gun dealers must consult before they are allowed to sell a gun.

But some critics question whether the demands for privacy have gone too far. For example, has accountability for past behaviors been eroded? Amitai Etzioni, a professor at George Washington University and founder of the Communitarian Network, believes that society needs to more aggressively search for the “middle ground,” or a point of view that takes into account the common good and the public interest, not merely the rights of individuals. Etzioni supports the inclusion of the names of mental patients in the gun databank, but not their detailed medical records, so as to protect both the public interest and the individuals.

In a somewhat different way, there are unresolved tensions between the First Amendment and freedom of information acts, on the one hand, and the implementation of privacy protections. Strentz argues that our society has moved from a presumption of openness and access to a presumption of secrecy. Increasingly, individuals wish to protect information that warrants public access—arrest records, bankruptcy proceedings, divorces, and even deaths. He believes that our society lacks an “information ethic,” and that all too often we are unwilling to embrace the risks that accompany an open society.

 

The Future of Privacy

Scholars, lawyers, public policy experts, and citizens alike are involved in the debate over how to better protect privacy, particularly informational privacy. Gilliom is skeptical that current or future legislation can help. In a society where science demands all the data, bureaucracy demands all the information, and law demands all the facts, Gilliom finds it unlikely that an “anti-information” value like privacy can be preserved.

Regan points out that current institutional protections of privacy are fragmented. Federal agencies—including the Office of Management and Budget (OMB), the Federal Trade Commission (FTC), and the cabinet departments of Commerce, State, and Health & Human Services (HHS)—all have some responsibility in the area of informational privacy. To remedy this fragmentation, she advocates the establishment of a comprehensive privacy commission or board, an idea often debated but never passed by Congress. Sorkin notes that privacy protections in the United States are ad hoc and reflect a “patchwork of different guidelines with different levels of protection.” Furthermore, the relatively vague language frequently needed to pass such legislation in Congress results in highly discretionary and inconsistent enforcement practices.

Looking at this issue from an international perspective, we see that most European countries, including the European Union, have adopted a more general and comprehensive approach to privacy, typically granting planning and enforcement authority to one overarching commission or board. Such centralization of authority, however, may run against the grain of American federalism. Indeed, the post–New Deal movement toward shifting responsibility from the federal government to the states in a variety of public policy areas suggests that a federal privacy policy may not be viable. Our two-centuries-old suspicions of a strong central government, revived again in the past twenty years, provide a countervailing value that may be stronger even than the clamor for more privacy.

 

Notes

1. George Orwell, 1984 (New York: New American Library Series, 1990; originally published in 1949).

2. Jane Jacobs, The Death and Life of Great American Cities (San Francisco: Modern Library Series, 1993; originally published in 1961).

3. Princess Diana campaigned extensively for a worldwide ban on the manufacture and sale of land mines, millions of which, according to data from the International Committe of the Red Cross, are still scattered through 69 countries.

 

John Paul Ryan is founder and president of The Education, Public Policy, and Marketing Group, Inc., which provides program, editorial, and outreach services to nonprofit organizations. He formerly served asdirector of School Programs for the ABA Division for Public Education.

 

The Supreme Court and Privacy

 

Nowhere in the Constitution, the Bill of Rights, or subsequent Amendments, does the word “privacy” appear. Nevertheless, legal scholars and Supreme Court judges have identified particular privacy rights to be protected by the Constitution.

The Fourth Amendment guarantees the right of the people to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Supreme Court has interpreted this Amendment in a long line of cases involving searches and seizures by the police. Overall, the Court has provided substantial (but not unlimited) privacy protections to individuals in their homes, while affording fewer protections to people on the street or in their automobiles.

The most significant and far-ranging discussions of a constitutional right of privacy have taken place in a group of other Supreme Court cases, dealing with such disparate subjects as birth control and abortion, homosexuality, and drivers’ licenses.

The Court first enunciated a right to personal privacy in Griswold v. Connecticut, 381 U.S. 479 (1965), in which the Supreme Court struck down a Connecticut statute outlawing the use of contraceptives. Speaking for a majority of the Court, Justice Douglas stated that various Constitutional guarantees (under the First, Third, Fourth, Fifth, and Ninth Amendments) create “zones of privacy,” none older or more important than the one surrounding a marital relationship.

In Roe v. Wade, 410 U.S. 113 (1973), the landmark case providing women the right to choose an abortion, the Court concluded that (1) a right of personal privacy does exist under the Constitution, and (2) the right of personal privacy does include the decision of whether or not to have an abortion. Even Chief Justice Rehnquist, who was one of two dissenting Justices in the case, acknowledged a constitutional right of privacy, arguing instead that a medical operation such as abortion was not a “private” act.

In Bowers v. Hardwick, 478 U.S. 186 (1986), however, privacy advocates were on the losing side. In this case, the Supreme Court upheld the constitutionality of a Georgia statute outlawing homosexual sodomy between consenting adults. Speaking for a narrow (5–4) majority of the Court, Justice White stated that only those privacy rights that are among the nation’s “fundamental liberties” justify constitutional protection; homosexual sodomy, outlawed in Georgia and 24 other states in 1986, was not one of these liberties.

In Reno v. Condon (decided January 12, 2000), the Supreme Court unanimously upheld the constitutionality of the Driver’s Privacy Protection Act (DPPA) passed by Congress in 1994. The Act prohibits states from disclosing most personal information gathered in the process of licensing drivers. Congress passed this statute partly in response to testimony that criminal stalkers used such information to locate their victims (in practice, some states routinely sold drivers’ information to businesses and individuals, generating millions of dollars in revenue). The Court held that the DPPA was an appropriate regulation of the states as owners of databases. Freedom of information advocates criticized the decision on the grounds that the Act provides an exemption for law enforcement agencies but not for the investigating news media.

In sum, the principle of a constitutional right to personal privacy seems securely established. It is equally clear, however, that particular privacy claims may or may not be upheld by the Supreme Court, depending upon the context and the potentially competing values raised in such cases. G

What Is the European Union Privacy Directive?

 

Michelle Parrini

In most European countries, personal data protection is a constitutional principle, and the right to privacy is included in the European Convention on Human Rights (Article 8). This principle has been given definition and force by the “European Union Privacy Directive” (Directive 95/46/EC [1995], also called the “European Union Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data.”)

The privacy directive establishes a regulatory framework to ensure a high level of privacy protection for individuals in all the member states of the European Union (EU). It takes a broad legislative approach, outlining common rules for those who collect, hold, or transmit personal data as part of their commercial or administrative activities.

Members of the EU have agreed to adopt national provisions mirroring the rules outlined in the directive, and each member is to provide a public authority or agency responsible for monitoring their application. This centralized authority is to have the power to investigate, intervene in, and engage in legal proceedings with respect to violations of the directive.

No such centralized, comprehensive regulatory system exists in the United States. It relies instead on an array of decentralized measures that combine corporate and industry self-regulation with sector-specific laws that are enforced by state and federal agencies to protect particular types of information, as well as on private civil lawsuits.

Teaching Activities

 

Michelle Parrini and Jennifer Kittlaus

1 Visit the websites of a few large companies, search engines, and other favorite sites. Print out their privacy policies. Compare the length and the level of difficulty of the language used in the statements. What are your rights as a user of each site? How easy is it to “opt out” —to specifically instruct a company not to release any personal information it may collect about you when you visit its website? Do you think that any of the policy language is misleading? After you have compared the policies, identify four qualities that you think a good privacy policy should include for the protection of consumers.

 

2 The mapping of the human genetic code (DNA) has many implications. In theory, with a fully mapped code, doctors would be able to profile patients for diseases and offer preventative treatment. What if banks, credit agencies, or insurance companies had access to your genetic profile? Discuss the pros and cons of genetic mapping. Discuss possible consequences for specific groups of individuals—for example, the poor or uninsured. Should everyone be required to get a profile? Under what circumstances do you believe it would be legitimate to release genetic information, or do you believe genetic profiles are entirely private matters? Why?

 

3Most states have laws prohibiting access to patients’ medical records in an effort to protect patients’ privacy. Do some research on the Brady Bill databank. Some people believe that the names of the mentally ill should be included in a databank that gun dealers must check before selling a gun. Others believe that if the names are included, the people named will face discrimination and persecution. What do you think? Might your opinion be different if you or someone in your family had received psychological treatment? Weigh the pros and cons of the databank from the standpoints of public safety advocates and advocates for the mentally ill. What compromise could be made to address the concerns of both sides?

 

4 Do some research about the “Safe Harbor” arrangement for personal data transfers from European Union (EU) states to the United States and on the “European Union Privacy Directive” (see the sidebar on page 419). Two good online resources are the Center for Democracy and Technology (www.cdt.org) and the European Commission Internal Market Directorate General (europa.eu.int/comm/internal_market/en/index.htm). What is the difference between the U.S. approach to data protection and the approach of the EU? Imagine that you are a citizen of an EU state. What objections might you have to the “Safe Harbor” arrangement? Imagine that you run a U.S. business that depends on data transfer from an EU state. How would you defend the “Safe Harbor” arrangement from its critics? What role do you think that economics should play in decisions about privacy?

 

5 Do some research about Passive Alcohol Sensors (PAS), which look like normal flashlights and are used by police officers to detect the presence of alcohol during traffic stops. Some good web-based research sources include the Mothers against Drunk Driving website (www.madd.org/driven/spring00/happenings.shtml) and the Drivers Against MADD Methods website (damm-madd.com/DAMMp4.shtml). Critics claim that PAS flashlights violate privacy because motorists don’t know they are being tested. Supporters believe that getting drunk drivers off the road justifies the means. Are the results of PAS flashlights admissible in court? What about the results from Breathalyzer tests that are administered after alcohol detection with PAS flashlights? Do PAS flashlights violate privacy and trespass on motorists’ rights? Should increased road safety override motorists’ rights? What do you think? Do some legal research to support your position.

 

Michelle Parrini is acting director of the ABA Division for Public Education school programs unit. Jennifer Kittlaus is an editor and program assistant for the unit.

Teaching Resources

Print

Agre, Philip, and Marc Rotenberg. Technology and Privacy: The New Landscape. Cambridge, MA: MIT Press, 1997.

Bennett, Colin J. Regulating Privacy: Data Protection and Public Policy in Europe and the United States. Ithaca, NY: Cornell University Press, 1992.

DeCew, Judith Wagner. In Pursuit of Privacy: Law, Ethics, and the Rise of Technology. Ithaca, NY: Cornell University Press, 1997.

Ericson, Richard V. and Kevin D. Haggerty. Policing the Risk Society. Toronto, Canada: University of Toronto Press, 1997.

Etzioni, Amitai. The Limits of Privacy. New York: Basic Books, 1999.

Gilliom, John. The Overseer of the Poor: Welfare Surveillance, Everyday Resistance, and Life Beyond the Right of Privacy (forthcoming).

—————. Surveillance, Privacy, and the Law: Employee Drug Testing and the Politics of Social Control. Ann Arbor, MI: University of Michigan Press, 1994.

O’Brien, David. Privacy, Law, and Public Policy. Westport, CT: Praeger, 1979.

Regan, Priscilla M. Legislating Privacy: Technology, Social Values, and Public Policy. Chapel Hill, NC: University of North Carolina Press, 1995.

Rosen, Jeffrey. The Unwanted Gaze: The Destruction of Privacy in America. New York: Random House, 2000.

Rothstein, Mark A. (ed). Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era. New Haven, CT: Yale University Press, 1997.

Strum, Philippa, Gerald W. Nash, and Richard W. Etulain. Privacy: The Debate in the United States Since 1945. New York: Harbrace, 1998.

Swire, Peter P. and Robert E. Litan. None of Your Business: World Data Flows, Electronic Commerce, and the European Privacy Directive. Washington, DC: Brookings Institution, 1998.

Sykes, Charles J. The End of Privacy. New York: St. Martin’s Press, 1999.

Westin, Alan F. Privacy and Freedom. New York: Atheneum Press, 1967.

 

Websites

ABA Division for Public Education
www.abanet.org/publiced/focus/spr00.html
The ABA Division for Public Education moderated the online discussion of privacy among six social science, legal, and humanities scholars that appears in this article. This is a full text of their discussion.

The Center for Democracy and Technology
www.cdt.org
This organization provides news, information, and resources on a range of cyberspace issues, including data privacy.

The Electronic Frontier Foundation
www.eff.org
This organization’s web pages contain news and information about freedom of expression, privacy, and other rights. A “hot topics” section includes medical privacy, encryption, and junk e-mail, among others.

The Electronic Privacy Information Center
www.epic.org
This website, dedicated to the issue of privacy, has relevant legislative, administrative, and court actions, as well as resources and policy archives.

The Online Privacy Alliance
www.privacyalliance.org
These web pages share information about a group of corporations and associations that discuss, and exchange ideas about, the development and improvement of organizational privacy policies.

Policy.com
www.policy.com/issues/19/
In the “Communications and Technology” section of this online policy news and information service, there is a wealth of news reports, articles, advocacy organizations, and government reports pertaining to privacy since 1995.

The Privacy Rights Clearinghouse
www.privacyrights.org
This website offers consumers the opportunity to learn about their privacy rights, including advice on how to protect personal privacy.