UNLV
Institute for Ethics & Policy Studies
Chapter 5,
On the value of privacy:
a short historical and philosophical rumination
As I have alluded to elsewhere in this thesis, one of the most durably contentious of American Constitutional claims involves the right to privacy. If we are to establish a case for privacy as a fundamental ethical principle that the law ought reflect and administer with vigor, we ought examine a bit of its legal, sociological, and philosophical evolution. In Chapter 4 we began by examining the historical evolution of search-and-seizure restraints that ultimately found their way into our Fourth Amendment, and we ended with a review of the convoluted, often contradictory U.S. Supreme Court case law history and constitutional interpretation theory that undergirds our current legal and political confusion over the role of privacy as it pertains to drug policy. We begin here with some general sociopolitical and legal theory reflections that serve as foundation for and transition into the larger philosophical concepts bearing on privacy discussed in the latter part of this chapter.
Some regard privacy as an inseparable aspect of personal autonomy requisite for the very notion of liberty we ostensibly revere as a cardinal element our social and legal order. Critics, on the other hand, either dismiss the notion of a general right to privacy out of hand, or assert that it is a relatively recent, weak, and “derivative” declaration, one inherently inimical to and necessarily deferential to society’s “right-to-know” in the interest of commercial efficiency, public safety, and criminal prosecution. Those holding this latter position view the quest for privacy as a reaction to increasing urbanization and advances in information processing technologies, that the inhabitants of earlier eras and non-industrial cultures had and have little concern with our notions of “privacy.” Critics of the former persuasion who disavow the very notion of a general right to privacy under federal law find the concept adequately accounted for principally in terms of property rights. Libertarian advocate Murray N. Rothbard, for example, argues in The Ethics of Liberty that “there is no such thing as a right to privacy except the right to protect one’s property from invasion.” Rothbard holds that what some regard as an invasion of privacy is more correctly seen as a misappropriation of property, “not some vague and woolly invasion of a “right to privacy.”’”
This is a recurrent apology one sees sprinkled throughout the legal policy literature, an unhelpful rhetorical tic emblematic of our jurisprudential and philosophical confusion with respect to “privacy.” The Oxford Companion to the Supreme Court of the United States notes that
“[A]lthough there may be widespread agreement that a decent society is one in which individuals possess significant control over the release of information about themselves, it is difficult to find much protection for such a right in the Constitution, at least as it has been interpreted by the Supreme Court. As Lucas Powe has written, ‘privacy has never done as well in the courts as in the legal journals.’”(p. 676)
A discouraging observation, that one—for privacy’s standing in the legal journals is mixed at best. A few representative examples from the voluminous privacy legal theory archives suffice to illustrate:
Whatever the extremity of positions taken pro or con, it is generally agreed that privacy is difficult to define, at least for jurisprudential purposes. Conservative legal theorist and former Supreme Court nominee Robert Bork is remembered for, among other things, his exasperated retort “Privacy to do what, Senator?” in arguing his proposition that he could “find no generalized right to privacy in the Constitution” during his Senate confirmation hearings. In Neutral Principles and Some First Amendment Problems (see The Normative Constitution pp. 15-43), Judge Bork derides the landmark Supreme Court “privacy” decision in Griswold vs. Connecticut (381 U.S. 479, 1965) as “unprincipled,” specifically with respect to what he views as Justice Douglas’ spurious creation of a new general right of privacy out of thin air:
He called the First Amendment’s penumbra a protection of “privacy” and then asserted that the other amendments create “zones of privacy”...[and] that these various “zones of privacy” created an independent right of privacy, a right not lying within the penumbra of any specific amendment. He did not disclose, however, how a series of specified rights combined to create a new and unspecified right.
Justice Douglas had concluded that the amalgam of 1st, 3rd, 4th, 5th, and 9th Amendment proscriptions conferred a broad presumptive privacy right. For Judge Bork and jurists of similar views, however, each assertion of Constitutionally protected activity must be evaluated as to its particulars and whether they mesh with explicit textual provisions of the Bill of Rights. For Bork, the burden of proof is on each privacy claimant. And, such is indeed to some degree evident in the history of U.S. Supreme Court adjudication of major federal “privacy” cases:
The foregoing comprise a mixed bag of particulars providing the grist for privacy affirmations and denials: wiretaps, private school curricula, heterosexual relations, homosexual relations, abortion, possession of “obscenity,” and warrantless drug testing of various classes of citizens. While it is apparent that litigated privacy issues have primarily been and will likely continue to be decided fairly narrowly with a focus on their case-specific attributes—particularly during the conservative Rehnquist Court era—it is difficult to see the textual bases for much of the foregoing. While the word “privacy” admittedly appears nowhere in the text of the Bill of Rights, neither do the terms “obscenity,” “sodomy,” “pregnancy,” “sacred marital bedroom,” or “drug abuse.” Those who espouse a view of the Constitution as a document of broad moral principles find such lack of specificity compelling in their argument against simplistically limited textual “strict construction.” Indeed, the 9th Amendment—“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”—is universally cited by “broad construction” advocates to counter the observation that the specific term “privacy” is absent from the Constitutional language. To the “Constitution-of-Principle” advocate, the very brevity and generality of the Constitutional text is dispositive evidence that, far from being a document essentially no different than a commercial insurance contract, the “large-C” Constitution provides the general vision of justice and procedural guidelines for those who must administer ongoing the “small-c” constitution comprised of the very breadth of our social fabric.
| A different take on Constitutional “text”: In a forceful dissent in Skinner vs. Railway, Justices Marshall and Brennan chide the majority for “jettisoning” the 4th Amendment in favor of drug war policy expediency, observing that “[T]he majority’s concern with the railroad safety problems caused by drug and alcohol abuse is laudable; its cavalier disregard for the text of the Constitution is not. There is no drug exception to the Constitution, any more than there is a communism exception or an exception for other real or imagined sources of domestic unrest.” To these jurists the plain English of the 4th Amendment requires probable cause and the issuance of a warrant to authorize the invasion of privacy in pursuit of criminal conduct. What could be more “textual”? |
A final word on “textualism”: In recent speeches and writings, Justice Antonin Scalia has taken pains to expound on the difference between “originalism” and “textualism,” planting himself squarely in the latter camp. Considered by many the intellectual leader of the Rehnquist Court, Scalia has grown weary of the insurmountable problems associated with searching for the original intent behind constitutional clauses asserted to apply to issues brought before the judiciary. Such is illustrated by his remarks before The Catholic University of America in Washington, D.C. on October 18, 1996, wherein he observes that
I belong to a school, a small but hardy school, called “textualists” or “originalists.” That used to be “constitutional orthodoxy” in the United States. The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.
I do the same with statutes, by the way, which is why I don’t use legislative history. The words are the law. I think that’s what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, which are set forth in words, of course. As I say, until recently this was constitutional orthodoxy. Everyone at least said that: That the Constitution was that anchor, that rock, that unchanging institution that forms the American polity. Immutability was regarded as its characteristic. What it meant when it was adopted it means today, and its meaning doesn’t change just because we think that meaning is no longer adequate to our times.
Fine. The exact words of the Fourth Amendment germane to the argument of this thesis declare that “[T]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated...” The Amendment does not add a qualifier advising that “these strictures apply only to officials of the government,” though such is indeed the popular (and mistaken) interpretation. Even had we no access to the extensive documentation of the Framers’ intent with respect to the Fourth Amendment, we know from Cuddihy and a wealth of addditional scholarly sources what the words “secure in their persons” meant at the time of constitutional enactment. They meant that authority—any authority, whether law enforcement agents or proxies acting under color of the now-repudiated Writs of Assistance and private-sector Hue and Cry—could no longer search and seize indiscriminately. Both the “textual” and the “contextual” (original intent) historical/political meanings could not be more clear with respect to the paternity and applicability of the Fourth Amendment. The citizens of the nascent United States of America prized their liberty—and the personal privacy requisite for its effective functioning, privacy breachable only upon showing of sufficient and rational cause.
While Judge Bork and his philosophical brethren insist on framing privacy issues exclusively in terms of specific individual acts that require case-specific Constitutional evaluation, more than a century ago former Supreme Court Justice Louis Brandeis alluded to a more general sense of privacy in his seminal 1890 Harvard Law Review article The Right to Privacy: the implicit made explicit, the source of his now oft-cited comment on “the right to be let alone.” While Brandeis’ monograph was occasioned by and directed toward his outrage over the excesses of the tabloid “yellow journalism” sensationalist media of his time, his argument for a “right to be left alone” is easily seen to fit with the textual proscriptions of the 4th Amendment. Brandeis and many other legal theorists take the 4th to indeed impel recognition of a more general right to privacy.
What are the implications of this “right to be let alone”—absent cause to intrude—in the context of indiscriminate drug testing? The three previously cited Supreme Court rulings pertaining to drug testing (Skinner, Von Raab, and Vernonia) all include the full text of the 4th Amendment and acknowledge its centrality to their holdings, stipulating that drug tests in fact constitute “searches” within the purview of the Amendment. The threshold questions the Court saw fit to address in these cases were
The first question owes to the distinction made between Constitutional protections afforded citizens against governmental activities and the tort remedies applied to privacy violations committed by private parties. This distinction is crucial to the legality of all manner of indiscriminate surveillance of employees and others in the private sector. The second question addresses empirical assertions of exigency: are the nature, extent, and cost of drug abuse sufficiently adverse to warrant extreme measures? Third, what is the severity of the intrusion? Collection of a urine sample is less invasive than that of an IV blood sample, and far less invasive than, say, forced stomach pumping or body cavity examinations in search of contraband. Finally, the ostensible purpose of the testing program: prosecutorial or “administrative?” Following a trend developed in the lower courts over the last generation, the Supreme Court has allowed “administrative” or “special needs” exceptions to the “probable cause” and “warrant” requirements of the 4th Amendment. In short, since positive drug test results are supposedly “confidential” and not referred for prosecution—despite the fact that they constitute “scientific evidence” of recent criminal conduct—the Court finds them acceptable as mere non-discretionary administrative functions. Critics point out, however, that such can amount to “administrative punishment” with a concomitant denial of the 5th Amendment’s guarantee of due process, given that the employment consequences for an individual testing positive are likely to be far more immediate and severe than the typical court conviction for drug possession.
One justification the court has set forth in defense of non-cause surveillance is seen in a footnote in Von Raab citing United States vs. Edwards [498 F2d 496, 500 (CA2 1974), validation of airline passenger searches], later cited by Justice Ginsberg in her Vernonia partial concurrence opinion. In Edwards the court noted that “the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.” A similar principle is held to validate workplace drug testing; consent constitutes waiver of any 4th Amendment or tort claim. Job applicants are free to seek work where testing is not policy. Given that more than 80% of major U.S. corporations now routinely test for drug use, however, employees have little choice in the matter. Moreover, the Edwards analogy is invalid on its face; those passing through airport detectors do not have their identities recorded unless they are confirmed to be carrying proscribed items such as weapons or explosives. “False positives” (those who set off the walk-through scanners or whose carry-on items appear suspicious under X-ray) are quickly searched by electronic wand and/or visual inspection of personal articles and then sent on their way. Where drug screens are concerned, however, identities are recorded and troublesome vagaries exist with respect to just who owns the resultant lab data, how long and by whom they must be kept, what criteria exist for breach of confidentiality, and what the precise probabilities are for false positive findings.
A recent example of the potential confidentiality problems can be seen in the suits filed by local law enforcement agencies to strike down the so-called “Brady Bill” Handgun Control Act signed into law by President Clinton. Local police found that in the course of the required background checks they would have to search for any existing drug test records of handgun applicants because under Brady “known drug abusers” are ineligible for a weapons license. Should someone with an undiscovered “positive” drug test record obtain a weapon and subsequently use it in the commission of a crime, the local agency might face liability. While local authorities mainly object to the “unfunded mandate” character of Brady, the drug test record search requirement adds an additional burden, and exemplifies a general difficulty with “confidentiality” policy issues.
Congressional House Resolution 184, the “Individual Privacy Protection Act of 1995” sought to update federal laws regarding “privacy.” Section 2(4) of the measure asserts that “the right to privacy is a personal and fundamental right protected by the Constitution of the United States.” A close reading of the bill’s specifics, however, leaves no doubt that Congress is almost exclusively concerned with “confidentiality” issues, principally with regard to digitally stored and readily disseminated personal data such as financial and medical records. Insurers, marketers, and inquisitors of every stripe wish to probe our digital histories in furtherance of their agendas. Errors and omissions in and misuse of these computerized repositories can lead to significant harms, hence the concerns over “confidentiality.” As Seth Kreimer points out in Sunlight, Secrets, and Scarlet Letters: The Tension Between Privacy and Disclosure in Constitutional Law:
In the course of her job, the bureaucrat learns more intimate details about citizens than would the police officer or judge...Information gathered in one arena is available for use in others. Similarly, the increasing rationalization and routinization of the private sector has generated stores of information potentially available to the government...Indeed, the government often intervenes to facilitate the process by requiring private parties to compile records. (University of Pennsylvania Law Review, Vol. 140, No. 1, Nov. 1991, pp. 3-4)
Endless policy disputes loom large given such realities: Recall the Brady Bill background check flap. Another example: In 1997 Newark welfare officials sought to implement a computerized fingerprint ID system to help crack down on public assistance “double-dipping” by welfare clients simultaneously registering for benefits in multiple jurisdictions. Law enforcement agencies immediately announced their intent and authority to access the system in pursuit of those with unrelated outstanding criminal warrants. Another: The IRS is known to have for years indiscriminately sifted through taxpayers credit and financial data in search of suspicious anomalies that might signal tax evasion. Yet another: Also in 1997 the Clinton Administration proposed new medical records privacy legislation. During a September 11th interview on National Public Radio, HHS Secretary Donna Shalala admitted that the new law would include exceptions permitting law enforcement access to patient data.
Finally, consider a firm now known as ChoicePoint. As they tout in a recent press release:
ChoicePoint offers its customers a suite of employee-related risk management tools. These services include drug testing administration and program management, background verifications, public records searches, credit reports, motor vehicle records, and employee verification database services.
ChoicePoint is a corporate descendant of Equifax, one of the major national credit bureaus, one with a less than stellar history of data accuracy. The ChoicePoint marketing slogan winks at us: “Information has always been available. ChoicePoint makes it accessible.” Amid their promotional literature is a curious observation:
Companies are becoming concerned with the choice points their employees face in their non-professional lives. We at ChoicePoint keep abreast of the issues and trends both in and out of our market focus, in anticipation of what we believe to be a future opportunity of risk assessment information delivery.
Interesting, no? Should we have any confidentiality concerns here? Is our government, given the current predominantly anti-regulatory political climate, up to the task of constraining information-traffickers such as ChoicePoint, a company ever on the lookout for opportunities to help employers monitor and manage the “non-professional” (i.e., private) aspects of their employees’ lives? A company now also directly in the business of drug testing?
Don’t worry, be happy? Consider a couple of closing confidentiality tidbits. First, MIB, the Medical Information Bureau, wherein reside a good bit of data beyond merely records of your medical encounters (source: Federal Trade Commission):
MIB, based outside of Boston, is an organization with approximately 750 member insurance companies. It collects and furnishes information on consumers to all MIB members for use in the insurance underwriting process. In addition to an individual’s credit history, data collected by MIB may include medical conditions, driving records, criminal activity, and participation in hazardous sports, among other facts. MIB’s member companies account for 99 percent of the individual life insurance policies and 80 percent of all health and disability policies issued in the United States and Canada.
On November 11, 1993, CBS Morning News reported on a flap involving MIB that had to do with the supposedly confidential medical records of U.S. Congresswoman Nydia Velasquez (D-NY). During the 1992 election campaign, Ms. Velasquez’s political opponents leaked information regarding her distant psychiatric history, including details of her long-ago hospitalization for suicidal depression. The CBS report noted that no federal laws were violated in the acquisition and dissemination of this information, and that commerical information brokers routinely acquired such types of data with profitable impunity.
Nothing much has changed with respect to this type of activity.
A large, prominent newspaper ad periodically appearing the the Las Vegas newspapers in the early 1990’s issued a bold warning: “If you’re not pre-employment drug testing, you’re hiring the rejects of those companies that do!” The assertion is targeted straight at the anxieties of human resources managers. As Kim Broadwell noted:
A group of managers, when asked why their companies had instituted preemployment drug screening, indicated that their overriding concern was to avoid hiring drug-using applicants who had failed drug screens at other companies in their area. (D. Kim Broadwell, The Evolution of Workplace Drug Screening, The Journal of Law, Medicine, and Ethics, Vol. 22, No. 3, Fall 1994, p. 241)
Recall the four hypothetical job application questions posed at the outset of this inquiry:
1. Have you ever committed a crime for which you were not apprehended?
2. Do you now engage in ongoing or periodic criminal conduct?
3. Do you support the war against drug abuse?
4. Are you willing to submit proof of the foregoing?
How about one more?
5. Have you ever been tested for illegal drug use before?
5.a. If yes, please list all places and dates (attach additional sheet if necessary).
More plausibly, since it is certain that questions 1 through 4 would be found impermissible, just place question 5 on the application amid the other routine queries. Why could you not? Well, first because prior drug testing records are ostensibly “confidential.” But, since a principal justification for employment drug screening hinges on management imperatives to assess applicant and employee physical-fitness-for-duty and to minimize employee health benefits expenditures, these data are, at least in part, effectively “medical” records (and relevant thereby to employer interests). Should you undergo a physical exam for private health or life insurance, for example, the fine-print waiver you sign on the consent form—putative “confidentiality” boilerplate provisions notwithstanding—gives the underwriter permission to traffick in your results, exchanging them with others perhaps “having a need to know” (in their judgement) in the “ordinary course of business” through data warehouses such as the Medical Information Bureau. (Please: next time read the tiny, light print on the back of those consent and/or claims forms you sign.)
Simply knowing via a records search that job candidate X had tested negative on two dozen prior occasions—or, tested positive merely once—would tell a hiring decision-maker essentially everything he or she needed to know with respect to likely (or actual) prior drug use, without having to waste money on an additional screen.
We can rest assured, however, that commercial data harvesters such as ChoicePoint, despite their soothing marketing assurances that they can make the all data you need “accessible,” would demur, given this type of request. They would in fact likely be in the forefront of defending the precious “confidentiality” of such data—given their conflicting financial interest in selling further drug testing services (unless, of course, they could somehow persuade the client to pay actual drug testing prices for the archival data). One can imagine their representatives testifying before Congress in support of legislation such as H.R. 184, heads nodding in solemn sworn agreement that, indeed “the right to privacy is a personal and fundamental right protected by the Constitution of the United States.”
Lest data-dredging competitors, unencumbered by the marketing complications of a ChoicePoint, divert a big chunk of the drug testing revenue into mere digital bio-info-assays.
(As comedian Dennis Miller is fond of saying: Of course, I could be wrong; it’s just my opinion.)
Finally, consider the implications of all the foregoing in this section in light of a recent Washington Post article by Jane Bryant Quinn:
How Your Credit Could Affect Your CareerBy Jane Bryant Quinn, Tuesday, March 11, 1997, The Washington Post NEW YORK—When you apply for a job, you expect the company to check your references. But do you also expect it to pull your credit report? Tens of thousands of employers take a peek at this slice of your personal life: Do you have big debts, do you pay bills on time, have you ever been sued by a creditor, is there a tax lien on your home or a bankruptcy in your past? Employers use these reports “to serve as a general indicator of an applicant’s financial honesty and personal integrity,” says Experian (formerly TRW), one of the three major credit bureaus... |
Recall Kreimer’s observation above. Don’t worry, be happy? Do any of us have the slightest clue ongoing as to what our “reasonable expectations of privacy” are across the length and breadth of interactional domains? Any clue as to the extent of the uses to which our personal data are daily being put?
Privacy scholars see ’confidentiality” as only one element in the privacy matrix. In 1960 William Prosser reported on a content analysis of more than three hundred privacy tort cases (see Privacy, Readings in the Philosophy of Law Arthur &Shaw, Ed.). He noted four basic characteristics of “privacy” as revealed by litigation over its breach:
While intuitively sensible, the foregoing is rather tautological in using the word “private” in defining certain aspects of privacy. Whereas false light issues fall under the domains of libel and slander law, and misappropriation of name or likeness is a “property rights” issue, what, we are left asking, constitute our “private affairs” and “private facts”? Privacy skeptic Richard Posner observes that “[M]uch ink has been spilled in trying to clarify the elusive and ill-defined concept of ‘privacy’” (see An Economic Theory of Privacy, Philosophical Dimensions of Privacy: an Anthology, Schoeman, Ed.). Posner continues:
I will sidestep the definitional problem by simply noting that one aspect of privacy is the withholding or concealment of information. This aspect is of particular interest to the economist now that the study of information has become an important field of economics. It is also of interest to the regulator, and those affected by him, because both the right to privacy and the “right to know” are becoming more and more the subject of regulation.
Posner goes on to note that privacy provides
opportunities for exploitation through misrepresentation. Psychologists and sociologists have pointed out that even in everyday life people try to manipulate other people’s opinion of them, using misrepresentation. The strongest defenders of privacy usually define the individual’s right to privacy as the right to control the flow of information about him. A seldom-remarked corollary to a right to misrepresent one’s character is that others have a legitimate interest in unmasking the misrepresentation.
Posner makes a cogent observation, and his point goes to the heart of the suspicionless drug testing issue. Many privacy skeptics view the claim of a privacy right as “the guilty man’s privilege.” Defenders of Constitutionally-protected privacy, on the other hand, bristle at the notion, retorting that fundamental to our jurisprudential tradition is that the individual need not “prove” his or her innocence—that, absent reasonable evidence of misrepresentation, adverse inference pursuant to a privacy claim is demagoguery, pure and simple, inadmissible in court and unethical in social discourse. Posner’s view, while valid to an extent, is overbroad in its assumption that deception is the principal motivating force of the privacy claimant.
The drug-abstinent person objecting to a suspicionless drug test on principle stands at a significant rhetorical disadvantage, given the widespread view of this particular privacy claim as indeed a manifestation of “the guilty man’s privilege,” and further given the framing of the issue in a way that requires the individual to justify his or her refusal. In Legislating Privacy: Technology, Social Values, and Public Policy, however, Priscilla Regan argues that we must re-frame the issue 180 degrees for a proper perspective and defense of privacy:
The philosophical basis of privacy policy overemphasizes the importance of privacy to the individual and fails to recognize the broader social importance of privacy. This emphasis on privacy as an individual right or an individual interest provides a weak basis for formulating policy to protect privacy...As a result privacy has been on the defensive, with those alleging a privacy invasion bearing the burden of proving that a certain action does indeed invade privacy and that the “social” benefit to be gained from the privacy invasion is less important than the individual harm incurred.
Regan sees in the extensive empirical data gathered to assess “privacy concerns” throughout the past twenty-odd years (and which she summarizes in some detail in her book) an inadequately articulated recognition of privacy as a social value:
Privacy is a common value in that all individuals value some degree of privacy and have some common perceptions about privacy. Privacy is also a public value in that it has value not just to the individual or to all individuals in common but also to the democratic political system. The third basis for the social importance of privacy is derived from the theoretical literature in economics. Privacy is rapidly becoming a collective value in that technology and market forces are making it hard for any one person to have privacy without all persons having a similar level of privacy.
For Regan, “viewing privacy as a common value—as a social claim rather than an individual claim—would also shift the burden of proof”:
Rather than leaving it up to individuals to show damages or to prove willful intent on the part or the record keeper, the burden would be placed on the organization. The organization would be responsible for justifying the need for the information rather than the individual being responsible for justifying withholding the information.
Which of course brings us right back to 4th Amendment “reasonableness” and “probable cause” in the context of drug testing policy. Given that the proportion of people objecting to indiscriminate drug testing is far greater than the most generous yet plausible estimates of the prevalence of drug users, a reflexive insinuation of “guilty privilege” is unsustainable. The vast majority of those opposed to suspicionless testing indeed have “nothing to hide.” Beyond an understandable sense of indignation, the practical basis for their objections, however inchoate for some, cannot be but that they have no information “of value” to add (being drug-free), nothing to gain, and everything to lose should things go awry. Moreover, and pertinent to the “social value” perspective of privacy Regan advocates—albeit in a purely utilitarian way—submission without cause in fact adds to the probability that things will go awry for some.
Finally, what of “an understandable sense of indignation” at being pressured or coerced to “prove” one’s abstinence? Is such a legitimate response? A plausible reading of Kantian principles of reciprocity and “universal maxims” might have us conclude that, rather than framing the privacy issue as one of “right” versus “duty,” perhaps we have a “duty” to defend this fundamental “civil right” as the core element of reciprocal autonomy it truly is. Kant was adamant regarding our duty to be truthful. He was equally adamant with respect to the propriety of indignation as response to gratuitous or groundless insinuations of cover-up:
The man who is asked whether or not he intends to speak truthfully in the statement that he is now to make and who does not receive the very question with indignation as regards the suspicion thereby expressed that he might be a liar, but who instead asks permission to think first about possible exceptions—that man is already a liar (in potentia). This is because he shows that he does not acknowledge truthfulness as in itself a duty but reserves for himself exceptions from a rule which by its very nature does not admit of any exceptions, inasmuch as to admit of such would be self-contradictory. ( Immanuel Kant, On a Supposed Right to Lie Because of Philanthropic Concerns, [430] )
Well, that begs the obvious rub, insofar as liars can and do adopt the indignant response in ruse. Such has always been the case, but equally obvious should be that inverting the due process “presumption of innocence” fundamental to our political and legal order will have little to no effect whatever on the mores of the duplicitous. It will, however, ensure that society in general becomes comprised of those who—as Justice Scalia stated so well in his Treasury dissent—“suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own.”
Smith claims she is “clean,” and her resume tends to back her assertion. Jones suspects otherwise, often on the basis of irrelevant or bogus “data.” Beyond “mere” legalisms, the moral burden of proof is on the latter. Smith has a moral claim to indignation in response to groundless inquiry.A duty, even. Adverse inference toward such indignation is the moral equivalent of the ad hominem attack, disdained in rational discourse, ethically bankrupt in policy practice.
Many privacy scholars answer the skeptics by pointing to the considerable ethological, anthropological, psychological, and philosophical evidence supporting the need for and acceptance of privacy. First, almost all higher species tend to exhibit cyclical behavior patterns of immersion in and withdrawal from the group. As Alan Westin observes in The origins of modern claims to privacy (see Privacy and Freedom, NYBar Association, 1967):
Man likes to think that his desire for privacy is distinctively human, a function of his unique ethical, intellectual, and artistic needs. Yet studies of animal behavior and social organization suggest that man’s need for privacy may be rooted in his animal origins, and that men and animals share several basic mechanisms for claiming privacy among their own fellows...
One basic finding of animal studies is that virtually all animals seek periods of individual seclusion or small-group intimacy. This is usually described as a tendency toward territoriality, in which an organism lays claim to an area of land, water, or air and defends it against intrusion by members of its own species.
Westin finds interpersonal mechanisms of “social distance” a nearly universal phenomenon, albeit one with broadly divergent culture-specific parameters. He cites the research of numerous anthropologists as evidence of varied yet widespread acceptance of privacy, allowing the caveat that “[O]ne could compile a long list of societies, primitive and modern, that neither have nor would admire the norms of privacy found in American culture-norms which some Americans regard as ‘natural’ needs of all men living in society.” However, he goes on to point out that
Yet this circumstance does not prove that there are no universal needs for privacy and no universal processes for adjusting the values of privacy, disclosure, and surveillance within each society. It suggests only that each society must be studied on its own terms...to see whether there are norms of privacy called by other names, and recognizing the difficulties in making cross-cultural comparisons. The analysis must also recognize the fact that there are psychological ways of achieving privacy...which are crucial in those societies where communal life makes solitude or intimacy impossible within the living areas.
Barrington Moore provides a detailed account of personal adjustments to just such spartan communal living arrangements in Privacy, Anger, and Dependence: Notes on an Eskimo Community ( see Anthropological Perspectives, in Privacy: Studies in Social and Cultural History) wherein researcher Jean L. Briggs reports on her experience of seventeen months spent living far above the arctic circle with the Utkuhikhalingmuit Eskimo tribe of Canada (the “Utku”). Moore notes that because of their atomistic economy,
the Utku cherish independence of thought and action as a natural prerogative and look askance at anyone who shows signs of wanting to tell them what to do,...Briggs also found them a people reluctant to answer questions. They displayed “an extremely strong sense of privacy with regard to their thoughts, their feelings, and their motivations; and I feared to offend it.”
Moore notes, however that, because of the harshness of their physical environment and its relentless assault on basic survival, “the Utku like other Eskimos soften their individualism with a strong emphasis on reciprocity and responsiveness to the needs of others.” On the other hand, this sense of shared obligation is tempered by a distinction between legitimate and illegitimate obligations:
Briggs reports that the Utku resent any sign of bossiness. Among the Utku nobody has the right to tell other people what to do, and everybody has the right to reject an intrusion on his or her freedom of action. The feeling seems to be so strong that such intrusions hardly ever take place.
A sense of legitimate reciprocal obligations with a concomitant disdain for presumption and intrusion into one’s private zone? Rather Kantian, it would seem. And a validation of privacy as an ethical principle as seen in one of the harshest and most physically restrictive social environments.
Moore goes on to examine the nuances of the private in Classical Athenian, Old Testament Hebrew, and ancient Chinese cultures, concluding that nearly all societies sufficiently advanced to have an organized “public” of any consequence provide for the “private,” even if only minimally through informal cultural norms of tolerance, irrespective of the formal structures of law and political power:
To summarize very briefly, the evidence shows that even authoritarian regimes with universal moral claims on the population are capable of developing some institutions that protect ordinary subjects from some abuses of power. But there are close limits on how far such trends can go. Democratic polities provide a more favorable setting for such trends and for personal autonomy as well. But in a democracy there are also limits and obstacles. For various reasons, such as war and economic despair large sections of the population may turn to atavistic forms of loyalty, with suspicion of ideas and thinkers that seem the least bit unconventional. They take up Community with a vengeance and in its name suppress all forms of dissidence. Out of fear or secret sympathy (or both) sections of the elite may abet or even lead such popular movements. All in all, the wonder is not that privacy rights have been attacked or suppressed but that they have managed to grow at all.
The foregoing observation should have a disturbingly familiar ring to anyone even mildly familiar with our present-day “war on drugs.”
We can cite ethology, anthropology, and political history in empirical defense of privacy. We can argue that privacy has proven a necessary tool for the individual to employ in the operation of checks and balances against the abuse of power. We can point out that privacy is perhaps the most fundamental of democratic political rights, requisite for the functioning of all others—we do, after all, take the social good of the secret ballot as a given. We can cite the substantial and credible psychological literature asserting the central role of privacy in the very formation of a socially competent persona. But nagging concerns will linger, with skeptics insisting that privacy thwarts community whereas self-disclosure promotes it. As Barrington Moore concludes:
Privacy cannot be the dominant value in any society. Man has to live in society, and social concerns have to take precedence. In both ancient Greece and ancient China the words for private and public existed, with the words for private conveying some hint of the antisocial in their meaning. Among the ancient Hebrews prior to the monarchy, we find no distinctions between public and private. Yahweh seems to have played the role of the public. Thus all three civilizations displayed a feeling of priority for social concerns, but this priority does not mean that all social concerns always take precedence. The great civilizing achievement in the concept of privacy has been its questioning of social concerns. That was mainly an achievment of Western civilization.
Judith Swanson, in The Public and the Private in Aristotle’s Political Philosophy, agrees. While acknowledging that, “[I]f Aristotle lived in the twentieth-century western world, he might agree with communitarian critics that disequilibrium between the public and private exists,” Swanson insists that Aristotle’s political philosophy “defends privacy as vigorously as liberalism, but better.” Echoing sentiments set forth by Priscilla Regan, Swanson observes that
Liberalism, by conceiving privacy as a set of rights forming a protective bubble around every individual, enabling them to do whatever they like within it, justifies privacy only from the point of view of the individual, not from that of the public...Aristotle offers a corrective to liberalism’s conception of privacy in that he conceives the private to be virtuous activities that discount popular opinion; the private thus benefits the individual and, thereby, the public...
Aiming at excellence, private activity cannot accommodate prevailing values (except in the best regimes). This is in fact fortunate from the point of view of the regime; by resisting what is merely fashionable or politically necessary, private activity embodies a standard of excellence that political activity can aspire to uphold.
While insisting that cultivation of cardinal moral habits requires the private, Swanson would agree with privacy skeptics that, for some, privacy indeed provides little more than a cover for self-indulgence, a refuge “largely for letting go of virtue.”
As a consequence of their using the private in this way, the private has little to offer the public. Moreover, Aristotle would perhaps point out that the unpreparedness of people today to engage properly in private activity is in part the result of laws and educational institutions failing to encourage the proper use of privacy.
Well, yes—but for those who would interpret such counsel as justification for policies requiring indiscriminate searches of all in search of the dissolute few, the words of John Stuart Mill (On Liberty) regarding moral education come to mind:
| The existing generation is master both of the training and the entire circumstances of the generation to come; it cannot make them perfectly good and wise, because it is itself so lamentably deficient in goodness and wisdom...but it is perfectly well able to make the rising generation, as a whole, as good as, and a little better than itself. If society lets any considerable number of its members grow up mere children, incapable of being acted upon by rational consideration of distant motives, society has itself to blame for the consequences...let not society pretend that it needs, besides all this, the power to issue commands and enforce obedience in the personal concerns of individuals, in which, on all principles of justice and policy, the decision ought to rest with those who are able to abide the consequences. |
Virtuous moral character is not a mere function of the ongoing prod of actual or threatened surveillance. The virtuous person is one who chooses the good even in the absence of observation or the threat of punishment. In the context of this discussion it is incontrovertible that the vast majority of Americans are drug abstinent, despite the ready availability and ever-lower cost of drugs. Moreover, this preponderant preference for sobriety (or at least temperance) owes to positive motivating factors (i.e., “moral habituation”) considerably more complex than any (largely theoretical) anxiety regarding detection. That a small minority will indulge themselves in proscribed risk-taking to sometimes tragic excess—even in the face of surveillance measures and severe sanctions—in no way reflexively legitimates the disembowling of the Fourth Amendment and the very real moral good it codifies.
While it is beyond dispute that a social order has both right and obligation to take reasonable measures to prevent harm, a timorous society of chronic suspicion which accedes to the arbitrary violation of the private in search of mostly apparitional heresies cannot but beget a culture of secrecy, expediency, disrespect for law, and—ultimately—political instability. We ought indeed take care that we not “destroy the village in order to save it.” It required a long struggle entailing much blood and tears to build it.
Next: answering the critics forthrightly, and some concluding observations (Chapter 6).