About Me

My photo
This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, February 13, 2007

The Challenge of Privacy

In a used bookstore, I picked up a late 1960s volume entitled The Price Of Liberty, a collection of essays on "perspectives on civil liberties by members of the ACLU." It's one of those little gems that you pass by in places of that nature, one that I didn't buy at first, but was still in the little "legal" section months later. I have cited it a few times since then. Among its charms, is a prediction (this is in 1968) that computers would within fifteen years be a means to send newspapers, providing banking services, and shopping. A bit premature, but pretty good.

The first chapter is by Harriet F. Pilpel and is entitled "The Challenge of Privacy." It speaks of the threats to privacy (opinion of Douglas) in the modern technological world, including from government watchdogs, especially when dealing with the poor and others who have a special obligation to open their lives to the state. Pipel was in the forefront of the birth control and abortion rights movements. Thus, it is interesting that she but briefly cites Griswold and related privacy over personal decisions. She then goes into an aside on the lack of privacy among the poor, ending that section with a suggestion that the government has an affirmative obligation to protect our rights.

Pipel earlier noted "freedom and personal privacy" are "redundant" -- one cannot exist without the other. Clearly, since people supported and continue to support threats to such privacy, though redundant, it is not patently obvious. At least, not the proper balancing. Such is part of the "challenge." In fact, she later is wary about those who would balance press freedoms via a somewhat lower standard of proof in libel/invasion of privacy cases when "private" facts are involved. See, e.g., Time v. Hill (dissenting opinion), one of many opinions that highlighted the importance of privacy (not always as a constitutional right, but still an important state secured liberty).

And, many cases spoke of the right of the press to report matters of "public concern." The hint that even the press ("no law") is restrained, underlines the importance of privacy rights. It also underlines that privacy is not just a matter of locale, not just a matter of keeping the government out of our homes in respect to searches and seizures. Certain matters are simply private -- the Fourth Amendment this underlines and secures a broader freedom to make private decisions, certain locales of particular importance in this respect. The choices are ours, even if in certain cases they are known to the world. Thus, one case dealt in the press book referenced allowed the media to broadcast illegally obtained (by others) cell phone conversations. At least, if the matter was of public concern.

The ruling did underline the importance of the privacy of our communications, calling to mind the NSA wiretap controversy:
"In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas." President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 202 (1967).

One cannot thrive in a fishbowl -- one's freedom to communicate only thrives with some degree of privacy. This sort of thing is what Justice Douglas' meant in Griswold when he argued that privacy gave life to the enumerated liberties found in the Bill of Rights. And, more generally, when he noted -- like Pipel -- that liberty in this nation boiled down to a right to privacy ... in all its forms. A privacy that the government both threatens and helps secure (as it does all our rights, its very purpose for being).

Quite a "challenge," huh?