270. A Contemporary Conception of Privacy," Telecommunications
and Space Journal, Vol. 6 (1999), pp. 81-114.
The headlines remind us almost daily that privacy is endangered, but there are times
when our commitment to privacy endangers public health and public safety. Frequently, the
common good is neglected to protect privacy. Good societies carefully balance individual rights
and social responsibilities, autonomy and the common good, privacy and concerns for public
safety and public health, rather than allow one value or principle, to dominate. Once we accept
the concept of balance, the question arises as to how we determine whether our policy is off
balance and in what direction it needs to move, and to what extent, to restore balance.
In Fourth Amendment cases, courts often rely upon the criteria articulated in United
States v. Katz to determine reasonable expectations of privacy by the defendant and by society.(1)
In this court case, the defendant, an gambler who made calls from a public phone booth, won on
the grounds that he had a reasonable expectation of privacy that his phone calls would not be
intercepted by the police or FBI agents and that society shares this expectation.
To one untrained in law, and especially to a sociologist, this twin criterion is difficult to
comprehend, let alone to apply. How, for instance, is a court to determine if a person who grows
marijuana on his private property, concealed by some bushes, has a "reasonable" expectation of
privacy, say, when a police helicopter flies overhead? Is it legitimate for police to search a
person's street-facing porch when no public good is served, just because the person and his
community may have no, or only a low expectation of privacy there?(2) A leading lawyer, in a
private conversation, referred to the criteria articulated in Katz as "bizarre." Another pointed out
that Katz is tautological: once the Supreme Court rules that there is an expectation of privacy
regarding a certain area of conduct, there is such an expectation--whether or not it existed prior to
Rather than drawing on pseudo-sociology of expectations, four criteria should guide the
analysis of the public policy areas from ethical, social, and legal perspectives.
First, a well-balanced, communitarian society will take steps to limit privacy only if it
faces a well-documented and macroscopic threat to the common good, not merely a hypothetical
danger. Is there a compelling need for corrective action? Or aw we about to recalibrate privacy
unnecessarily? Tampering with ethical, social, and legal traditions--and with the public
philosophies that underlie them--endangers their legitimacy because once tradition is breached it
is difficult to prevent it from unraveling, a phenomenon often referred to as the slippery slope
problem.(3) Changes, therefore, should not be undertaken unless there is strong evidence that
either the common good or privacy has been significantly neglected.
After determining that the common good (or privacy) needs shoring up, the second
criterion examines whether that goal can be achieved without recalibrating privacy. Or,
conversely, can privacy be enhanced without recalibrating the common good? For instance, when
medical records are needed by researchers and epidemiologists, the date are collected and utilized
in a communitarian society as much as possible without identifying individuals. Because such
measures often entail changes in mores, institutions, or habits of the heart rather than laws or
constitutionally protected rights, I refer to them as "second criterion treatments."
Third, to the extent that privacy-curbing measures must be introduces, a communitarian
society makes them as minimally intrusive as possible. For example, many agree that drug tests
should be conducted on those directly responsible for the lives of others, such as school bus
drivers. Many employers, however, resort to highly intrusive visual surveillance to ensure that
the sample is taken from the person who delivers it when in fact the less intrusive procedure of
measuring the temperature of the sample immediately after delivery would suffice. To
distinguish these kinds of measures--often undertaken by the government, and typically
entailing changes in legal doctrine--from second-criterion treatments, I refer to them as "third-criterion interventions."
Lastly, measures that treat undesirable side-effects of needed privacy-diminishing
measures are to be preferred over those that ignore these effects. These measures are required
both to protect people from unnecessary injury and to sustain public support for the needed
policies. Thus, if more widespread HIV testing and contact tracing are deemed necessary to
protect public health, efforts must be made to enhance the confidentiality of the records of those
Application of the four balancing criteria helps ensure that correctives to a society's
course are both truly needed and not excessive. True, even when these criteria are applied, one
cannot pinpoint with complete precision the proper or optimal course to follow. Societies have
rather crude guidance mechanisms,(4) and may need constantly to adjust their course as they
oversteer first in one direction and then in the other. However, the criteria do provide a basic
measure of the extent of the imbalance between privacy and the common good, and the direction
and nature of the necessary corrections.
Moreover, although the criteria for corrective action have been introduced with examples
in which the public good may need to be given priority over privacy, it should be stressed that
the same criteria also provide guidance when the societal balance has tilted too far in the opposite
direction, that is, when privacy is endangered and the concern for the common good must be
Far from being mutually exclusive, treatments and interventions can often complement
one another. For instance, self-regulation has been urged on private actors such as marketers on
the Internet (a second-criterion treatment) as a way to protect privacy of consumers.
self-regulation has little effect because there is no way to ensure compliance. Champions of self-regulation responded with suggestions that such sites could be audited (a second criterion
treatment), but also they also have agreed that corporations that violate their posted policies may
be considered to have engaged in fraudulent business practices and will be subject to legal claims
(a third criterion intervention).(5) Many other examples come to mind in which it is better to
consider combining treatments and interventions rather than view them as stark alternatives.
In what may be called the "privacy paradox", most civil libertarians and many other
privacy advocates keep railing about third criterion alternatives, as they view Big Brother--the
government--as the enemy of privacy. As Justice William O. Douglas stated, in Osborn v. United
States, that "We are rapidly entering the age of no privacy, were everyone is open to surveillance
at all times; where there are no secrets from the government."(6) I have found, however, that to the
extent that privacy is grossly and wantonly violated in contemporary American society, more
often than not it is violated by privacy merchants rather than by Big Brother government. As a
result, privacy advocates have sought to stop massive and encompassing privacy violations by
these profiteers--by drawing on new legislation--that is, on the government.(7)
The tendency to allow privacy considerations to take precedence over concerns for public
safety and public health is not accidental. It reflects fundamental conceptions deeply imbedded
in our civic culture, public policies, and jurisprudence. What is needed is a different conception
of privacy, one that accords it equal standing with the common good, without privileging either
To reconceptualize privacy, a highly revered right, may seem offensive, almost
sacrilegious. We traditionally view individual rights as strong moral claims with universal
appeal--that is, we perceive them as inalienable rights. While we realize that individual rights
have been formulated in a given historical period, we tend to conceive of these formulations as
truths rather than mores fashioned for a given time that are open to amendment as conditions
I argue in the following pages that privacy is a contingent concept. While some vague
notion of privacy exists in most, if not all, societies,(8) the specific way we treat privacy in our law
and culture is a recent phenomenon, and one that has already been recast at various times. In
other words, it is hardly a near-sacred concept that cannot be reformulated.
The also show that the governing formulation of privacy, as I have tried to show in the
preceding cases, often treats privacy as an unbounded good, prioritizing it over the common
good. This conception was, as I will show, well-suited to the socio-historical conditions that
prevailed from the formulation of privacy as a legal concept until roughly the 1960s. However,
in the wake of the rise of radical individualism between 1960 and the 1990s, a new conception of
privacy is called for, one that does not privilege privacy over the common good but rather is open
to balance this right with concerns for social responsibilities, a communitarian concept.(9)
I - PRIVACY ARGUMENTS REEXAMINED
A reexamination of the often-told legal history of privacy in American society helps to
illuminate the nature of the arguments used to "extrapolate" privacy as a right from the common
law and Constitution.
In examining the arguments that were used to formulate the legal doctrines that support
privacy in American law, I discuss three stages of development: pre-1890 (utilizing principles
derived from property rights to protect privacy); 1890 to 1965 (generally considered the era
during which a right to privacy was developed, largely as a part of tort law); and post-1965
(which saw a major expansion of the right to privacy, particularly with regard to its constitutional
basis). While my discussion focuses on legal concepts, I cannot stress enough that, as the
preceding case studies show, these concepts have parallels in civic culture and play a major role
in the decisions of policymakers.
1.1 The development of American Privacy Law
Before 1890, American society, like many others, had a vague social concept of privacy,
albeit one that was not ensconced in a distinct legal doctrine or constitutional right.(10) While there
were several legal cases defending some aspect of what later would be called privacy, these
relied upon the well-established right to private property.(11) For example, harming a person's
reputation through the revelation of private details was deemed legally redressable because it was
thought to do damage to something one owned (i.e., one's reputation), rather than because it was
viewed as an invasion of privacy.(12)
The right to private property was, in turn, treated as semi-sacred: a reflection of a natural
law, an inalienable right, and an unbounded, or at least strongly privileged, good. John Locke,
who heavily influenced American thinking on these matters at the time, wrote that property is
based in "an original law of nature" that "still takes place" even though societies "have made and
multiplied positive laws [laws created by humans] to determine property."(13)
Classical liberals did recognize that the rights of an individual could be asserted only up
to the point where such exercise intruded on the liberties of others, and thus were, in a sense,
"limited." But such limitations were not, as a rule, considered for the common good. It was thus
typically assumed that property owners were free to do with their property as they deemed fit,
unless and until their actions plainly impinged on the rights of others. Even then, the burden of
proof fell on those who would limit the use of private property, and no principled concessions
were recognized to serve a socially-formulated conception of the good.
The next marker in the legal history of privacy was an 1890 essay by Samuel D. Warren
and Louis D. Brandeis,(14) which served as the basis for hundreds of legal cases in the century that
followed and is considered "the most influential law review article ever published."(15) In it,
Warren and Brandeis advance the novel claim that the right to privacy is conceptually distinct
from other freedoms, particularly the right to private property. (As others have observed, the
authors were far more explicit in rejecting the notion that privacy is derived from other rights
than they were in articulating any specific legal foundation for privacy.(16))
Warren and Brandeis frame their argument in terms of "the right to be let alone," a right
the two assumed to be self-evident. Indeed, at one point, Warren and Brandeis refer to the
"precincts of private and domestic life"--implying the capability to isolate oneself from public
spheres and the community--as "sacred,"(17) a term typically employed to designate values or
precepts of the highest authority, ones that should not be touched, let alone reigned in. It is
indicative of the reverence of rights in general and of privacy in particular that the term sacred is
frequently employed by people who otherwise draw on no religious images, terminologies, or
beliefs.(18) As invoked, the right to be let alone stands supreme and apart from other
considerations; it presumes that all people can be left alone as much as they desire--completely if
they so prefer--without restricting other persons' abilities to similarly exercise their right to be
left alone to the fullest extent. Nor is there any apparent recognition that if the members of a
community exercise this liberty in full, the common good will be shortchanged.(19)
Later, authorities referred to privacy as an "inalienable right,"(20)
thereby connoting its powerful claim and trump standing. (Trumps
are defined as "reasons that can be played against any and all ethical
concerns."(21)) Indeed, as Justice
Holmes stated: "Rights tend to declare themselves absolute to their
logical extreme."(22) As the right
to privacy is viewed as an inalienable right, it does not yield
to the common good. "Moreover," William Lund observed, "any citizen
who manages to get an interest wrapped in the cloak of a right appears
to have an absolute claim against other considerations."(23)
Louis Henkin has made the communitarian point that "consideration
has focused on defining the private right of privacy, with little
regard to our other balance, the competing 'public good.'" He added
that although this lack of balance characterizes applications of
the Bill of Rights generally, the public good have been given particularly
short shrift in the area of privacy.(24)
Moreover, there has been a strong tendency to treat privacy either as a cardinal element of
autonomy (or liberty), or to treat these concepts as if they were synonymous with privacy, further
extending the reverence for privacy. Charles Fried adds that "men feel that invasion of that right
injures them in their very humanity" and in regards to respect, love, friendship, and trust,
"without privacy they are simply inconceivable."(25)
Others have claimed that privacy is intimately associated with our most profound values,
our understanding of what it means to be an autonomous moral agent, capable of self-reflection
and choice; and that its violation is "demeaning to individuality, is an affront to personal
dignity," that is, its violation offends the core of Western values.(26) Jean Cohen adds that "a
constitutionally protected right to personal privacy is indispensable to any modern conception of
All of these arguments paint a picture of fairly unbounded, at least privileging, claims in
the name of privacy. Indeed, few individualists (a term used here to refer to civil libertarians,
libertarians, classical liberals, and contemporary classical liberals) even broach the question of
whether there can be excessive privacy. Avishai Margalit, for instance, simply states that "The
institutions of a decent society must not encroach upon personal privacy,"(28) recognizing no
principled situations where the common good may require some limitations on privacy. Glen O.
Robinson points out, in "controversies over regulating communities and community activities,
most legal scholars and judges start with a [classical] liberal bias."(29) This legal approach is
particularly well summarized by Stanley I. Benn:
The liberal . . . claims not merely a private capacity--an area of action in which he
is not responsible to the state for what he does so long as he respects certain
minimal rights of others; he claims further that this is the residual category, that
the onus is on anyone who claims he is accountable . . . There is room for a good
deal of disagreement about the extent to which considerations like those of
general economic well-being, social equality, or national security justify pressing
back the frontiers of the private, and thus holding men responsible for the way
they conduct their daily business. For the liberal, however, every step he is forced
to take in that direction counts as retreat from a desirable state of affairs, one in
which, because men may please themselves, what they are about is properly no
one's business but their own.(30)
The third stage of the development of the legal foundations of privacy is commonly
recognized as commencing with cases such as Griswold v. Connecticut,(31) Eisenstadt v. Baird,(32)
and Roe v. Wade,(33) all dealing with reproductive choices. These cases have been discussed so
often and so extensively that I shall focus only on those points relevant to our thesis. Basically,
if one uses the early 1960s as a baseline, the period in which the cases that lay the foundations of
a constitutional right to privacy were decided, one sees that then prevailing conceptions of the
common good were very strongly privileged and left little room for considerations of privacy and
autonomy. Thus, the use, distribution, and sale of contraceptives was outlawed even for married
couples. Abortion was banned by law in most states, it was allowed only to save the life of the
Griswold, which was the first of these reproductive rights cases, is commonly credited
with establishing a general constitutional right to privacy. In Griswold, the Supreme Court ruled
that a Connecticut statute forbidding the use of contraceptives violated the right of marital
privacy. Thus, overnight, behavior that had been banned (as far as the law was concerned) was
transformed into one married couples could engage in without limitations. Privacy was now
honored. (To note that no limitations were set on this new right is not to suggest that they should
have been set, but rather to highlight the dramatic nature of the reversal of the previous position.)
This new right was soon extended. In Eisenstadt, the Court went further and invalidated
a ban on the distribution of contraceptives, even to unmarried couples. In a subsequent case,
Carey v. Population Services International,(34) limitations on the sale of contraceptives to minors
were removed.(35) In these cases, too, the Court did not introduce or explicitly acknowledge any
qualifications or limitations on the liberty in question. Protection for privacy had become almost
absolute. As Louis Henkin observes, "the Court paid virtually no attention to the State's possible
purpose or motive in outlawing contraception."(36) And while Griswold was limited to the use of
contraceptives by married couples, Eisenstadt created a new, much broader, conception of
privacy, that of the individual, which a person could and did carry with her any place so to speak,
a freedom which would no longer be confined simply to one's bedroom or house.(37)
To reiterate, I am not suggesting that the various prohibitions on use and sale of
contraceptives or abortions should have been allowed to stand. My argument only points to the
unbounded nature of the position embraced. No limits on the right to privacy in the name of
some other consideration--for instance, respect for community values or special considerations
for parents' responsibilities for minors--were allowed to stand.
In Roe v. Wade, the Court further expanded the right of privacy by striking down bans on
abortions. This case, however, was arguably somewhat less comprehensive than the others.
While the Court did not let stand any limitations on terminating pregnancies, it explicitly stated
that it rejected the unbounded approach and formulated some criteria under which states could
ban abortions. Justice Harry Blackmun wrote:
[S]ome amici argue that the woman's right is absolute and she is entitled to
terminate her pregnancy at whatever time, in whatever way, and for whatever
reason she alone chooses. With this we do not agree . . . [A] state may properly
assert important interests in safeguarding health, in maintaining medical
standards, and in protecting potential life.(38)
The Court ruled that the states may override a woman's decision "whether or not to
terminate her pregnancy" if the state's interest is "compelling."(39) And the court, by introducing
distinctions among the trimesters of pregnancy, indirectly legitimated more regulation of the
third than the second and of the second than the first.
Whether one sides with those who believe the court should have allowed the bans on
abortion to stand, or with those who hold that the ruling was too restrictive, does not alter the
observation about the structure of the argument at issue here: Roe v. Wade is an important case
in which a behavior that had previously been controlled by the state was freed to be subject to
In short, the approach to privacy that evolved first in tort law and then in Supreme Court
decisions concerning reproductive choice cases treats privacy as an unbounded good. In its more
moderate form, this approach lays the burden of proof on those who seek consideration for other
claims, thus treating the common good at best as secondary.
1.2 Historical Context for the Privileging of Privacy
The nature of these individualist arguments is best understood in the historical context in
which they arose. The extrapolation of a legal right to privacy from common law cases, from
newly fashioned arguments, and ultimately from the Constitution, took place late in the long
development of legal individual rights, a process that was itself an indication of the growing
value accorded to individual dignity and liberty. Indeed, one can read the writings of John
Locke, Adam Smith, and some of those of John Stuart Mill, as arguments for individual rights
and liberty that were formulated in authoritarian and excessively communal historical ages, as
arguments for rolling back extensive and oppressive societal controls imposed by both the state
and the community. Not surprisingly, social philosophers whose societies faced these highly
restrictive conditions did not concern themselves with the danger of building excessively strong
legitimacy for individual rights--no more than one is concerned about over-using a town's water
supply in the depths of the rainy season, after decades of more than ample rainfall, indeed
Historically, the formulation of privacy is actually a late addition to the long list of rights.
Its development followed by several generations the first recognition in American law of the
rights to free speech, freedom of association, and freedom of worship, among others. In fact,
Warren and Brandeis are explicit about this point in their 1890 article. They open their
renowned essay with a discussion of their belief that it was time for the common law to "grow to
meet the demands of society," much as it had done on previous occasions when social
circumstances had shifted.(40) The same basic approach is reflected in the work of T.H. Marshal,
who viewed Western history as a relentless march toward increasingly expansive spheres of
rights, growing from legal, to political, to socio-economic rights, with little concern or
suggestion that rights might be over-extended or intrude on other common goods.(41)
1.3 The Same Arguments--In a New World
Contemporary champions of privacy often still employ arguments that either treat privacy
as an unbounded good, or at least privilege it over all other social goods. Though they may
recognize that rights in general, and privacy in particular, are significantly better protected in
contemporary America than they were in the 1890s and earlier, contemporary individualists
nonetheless marshal arguments similar to those of their ideological forbearers because they
continue to fear that the state is, or may grow to be, overbearing. Moreover, these individualists
are concerned that new technological and social developments may lead to the diminution, if not
the destruction, of privacy. We frequently hear statements like the following: "The dossier and
computer bank threaten us with victimization and persecution by unscrupulous, intolerant, or
merely misunderstanding officials." "[T]rade-offs where privacy has been sacrificed are now so
common that, for all practical purposes, privacy no longer exists."(42)
Treating privacy and other individual rights as sacrosanct, however, has had negative
consequences that have been largely ignored by those who draw on legal conceptions fashioned
in earlier ages. As has been demonstrated by Robert Bellah and his associates, Mary Ann
Glendon, and myself, American society after 1960 entered an era of growing individualism and
neglect of the common good, in which expressive individualism (of the counter-cultural variety)
was followed by instrumental individualism (of the sort championed by Margaret Thatcher and
Ronald Reagan and other laissez faire conservative thinkers).(43) The realms of rights, private
choice, self-interest, and entitlement were expanded and extended, but corollary social
responsibilities and commitments to the common good were neglected with negative
consequences such as the deterioration of public safety and public health. The new socio-historical context, as we saw it, called for greater dedication to the common good and less
expansive privileging of individual rights.(44)
II - THE QUEST FOR A COMMUNITARIAN BALANCE
There is no agreed-upon or even widely accepted communitarian conception, let alone,
definition of privacy. I suggest that a sound communitarian treatment of privacy views it as the
realm in which an actor (a person or a group, such as a couple) can legitimately act without
disclosure and accountability to others. Privacy thus is a societal license that exempts a category
of acts (including thoughts and emotions) from communal, public, and governmental scrutiny.(45)
For instance, contemporary American society largely exempts from scrutiny most acts that occur
inside the home, especially the bedroom, and to a lesser extent those that occur within the
automobile. Exceptions include child abuse, domestic violence, and illegal drug use. Even in
these situations, respect for privacy typically requires that the state act only after the
consequences of acts that took place in the home or auto have become visible outside the space
exempted from scrutiny; for example, when a violent fight inside a house is heard from the
outside or when a child comes to school or a physician's office showing clear signs of abuse.
In addition to legitimately exempted action,(46) privacy encompasses behavior that
members of a particular social entity are positively expected, by prevailing social mores or laws,
to carry out in ways that ensure these acts will not be readily scrutinizable (for instance,
defecating is expected or required to take place out of sight in many societies). Such privacy
aims to shore up the common good or certain social virtues (modesty, for instance), rather than
individual autonomy. Mandated privacy is reflected in the so called "moral laws" that prohibiting
people to bath nude on many public beaches, limit public drinking in some communities, and so
on. This is a topic rarely treated and not developed here but deserves much additional study for
those who are concerned about the good, and not merely a civic, society.(47)
In many societies, public spaces are scrutinized to ensure that the conduct and acts
characterized as private will be carried out in privacy. For example, the moral squads of Iran's
police ensure that women's hair and bodies are exposed only at home. In America, some
communities prohibit public consumption of alcohol and most prohibit nudity in communal
spaces. This kind of privacy ought to be referred to as "mandated" or positive privacy.
Considering its normative nature, mandated privacy is, on the face of it, not a right but a
social obligation. This kind of privacy is at issue when, for instance, the subject of bans on
nudity on beaches is explored; however, the way it is typically treated is as a protection of the
right to be nude rather than of the social requirement to be clothed. Given the prevalence of
rights talk, one should not be surprised to find that positive privacy rarely is mentioned, let alone
studied, in the vast literature on legal privacy.(48) Mandated privacy is a topic that deserves a
treatment all of its on.
Many discussions of privacy ignore the normative component and simply define privacy
empirically as an avoidance or absence of surveillance, the kind of protection a wall or curtain
provides.(49) In contrast, the definition of privacy provided here has a normative element because
it includes an exemption from scrutiny, and, in some instances, the requirement to curtail
visibility and audibility elements that are considered normatively appropriate or inappropriate by
the relevant society. At issue, then, is not merely whether there are or could be barriers that
block visibility and audibility, but also which barriers are considered legitimate and which are
not. The concept of privacy, at least implicitly, denotes the existence of legitimate barriers; those
that are illegitimate are seen as fostering concealment or secrecy, terms that imply illicit, if not
illegal, behavior. That is, both the scope of privacy and the nature of the specific acts that are
encompassed (e.g., sexual behavior, voting) versus excluded (e.g., office mail including e-mail,
private lives of public figures) reflect a society's particular values. I discuss the implications of
this point later.
I will draw on a critical distinction in the following pages between accountability (matters
the government is/is not entitled to "watch") and control (the "decisional" realm, choices the
government is/is not entitled to make).(50) But let us look first at the roots of this suggested
definition of privacy in communitarian thinking and in the sociohistorical context.
2.1 Roots in Responsive Communitarianism
The definition of privacy I advance here reflects a particular brand of communitarian
thinking sometimes referred to as responsive (or new) communitarianism.(51) Responsive
communitarians seek to balance individual rights with social responsibilities, and individuality
with community. They differ from early communitarians such as Ferdinand Tönnies and
contemporary Asian communitarians who celebrate community and authority but ignore (at best)
individual rights.(52) Responsive communitarians do not view community or social harmony as an
unbounded or privileged good, but rather treat social formulations of the common good as values
that need to be balanced with concerns for individual and sub-group autonomy.(53)
The responsive communitarian approach, on which this examination of privacy draws,
reflects historical circumstances decidedly different from those Warren and Brandeis faced in the
1890s. It evolved in response to the American historical context of the period between 1960 and
1990, a time when American society shifted dramatically toward egoism after decades of strong
communalism and even a measure of authoritarianism (especially in the treatment of minorities
and women). It led communitarians such as Robert Bellah and his associates, Mary Ann
Glendon, Michael Sandel, and Michael Walzer to stress the importance of communal factors.
During the 1960s, America experienced various social movements that emphasized many
previously neglected rights, particularly in the areas of race and gender. Such movements also
placed new limitations on police powers (e.g., with the Miranda ruling in 1966 and the
introduction of guidelines limiting the FBI in the 1970s) and glorified counter-cultural
expressions of self, which often involved the flouting of traditional communal mores. These
movements were followed by the celebration of self-interest during the 1980s. What started as
an individualistic correction of excessive communalism led to strong individualism, wanton
manufacturing of presumed rights such as a right to a credit card or a right to use the men's room
if there is even a small queue in front of the women's room,(54) neglect of social responsibility, and
of the waning of commitments to the common good. If society was to move toward a state of
equilibrium, it required a communal shoring up--hence the rise of the communitarian movement
in the early 1990s.(55)
The simple image of a bicycle rider who must constantly adjust her balance captures the
essence of the responsive communitarian public philosophy: The rider pulls the bicycle back to
the center when it tilts too far to the left or to the right.
It follows that the necessary societal adjustments in the scope and specific nature of any
right--in the case of privacy, how much and what kinds of conduct are legitimately exempted
from social scrutiny--are deeply influenced by the socio-historical context in which they occur.
Consequently, privacy is not treated in this paradigm as an unbounded good, let alone as a good
one seeks maximize in and of itself.(56) Privacy cannot be extended to the point that it undermines
the common good; conversely, duties set to maintain social order cannot be expanded to the
point that they destroy privacy. Thus, policymakers and active citizens who advocate the
communitarian ideal of equilibrium between privacy and the common good may seek to limit
privacy when doing so will yield major gains in public safety and health, and no viable
alternatives are available. By the same token, people who live in societies where their mail is
reviewed by the police, their phones are tapped without warrant, and files are kept about their
sexual proclivities, may (and should) legitimately fight to expand the scope and protection of
privacy. Moreover, within the same society and time period, achieving balance may necessitate
better protection of privacy in some social spheres (for instance, acting to stem the disclosure of
sensitive medical information to employers), while curtailing it in others (e.g., requiring
individuals who have the lives of others directly in their hands, such as school bus drivers, to be
Fred Cate puts it especially well:
Privacy is not an absolute. It is contextual and subjective. . . . Moreover, the
privacy interests at stake in any given situation may vary from the profound to the
trivial, and that valuation will depend significantly on who is making it. For
example, if privacy protects the combination to my safe or the location of a key to
my house, it is extraordinarily valuable to me and, in most circumstances, to
society more broadly, which shares my interest in avoiding theft and other
criminal conduct. . . . If, however, privacy permits me to avoid paying taxes or
obtain employment for which I am not qualified, it may be very valuable to me,
but extremely costly to society as a whole. It is clear, therefore, that neither
privacy values nor costs are absolute. . . . What is needed is a balance, of which
privacy is a part. Determining what that part is in any specific context requires a
careful evaluation of subjective, variable and competing interests.(57)
Alan Westin observes:
Each individual must, within the larger context of his culture, his status, and his
personal situation, make a continuous adjustment between his needs for solitude
and companionship; for intimacy and general social intercourse; for anonymity
and responsible participation in society; for reserve and disclosure."(58)
While the detailed justification of each balancing act is, by necessity, complex (as we
shall see below), the basic approach is straightforward: privacy is not treated as an unbounded or
privileged value, but rather as one that needs to be balanced with concerns for the common good,
and the question of which core element needs shoring up depends on the socio-historical context.
2.2 Sources of Legitimacy for Privacy: Alternative Public Philosophies
The responsive communitarian public philosophy has strong foundations in social science
and social philosophy. It builds on the sociological observation that while ideologies can be
structured around a single organizing principle--like liberty, or a particular social virtue--societies must balance various values that are not fully compatible.(59)
Second, the communitarian position at hand reflects the finding that the scope and legal
standing of privacy, like that of private property, is contingent on sociohistorical context.(60) The
right to private property, the initial basis for the legal concern with privacy, fails to provide a
strong or privileged ground for privacy because we now understand property as a social construct
rather than as a natural or innate quality of objects.(61) Different societies define different objects
and spaces as legitimate subjects of private--as opposed to public--ownership. In the early
kibbutzim, all property, even the shirt on one's back, was considered communal. When members
of kibbutzim started to harbor coffee cups in their rooms, this prompted grave ideological
debates and condemnation. In this context, the onus rested on those who sought an exception
from the prevailing rule to justify the right to privately hold an object. And certain countries
define land, certain minerals, and beaches as inappropriate for private ownership. Large parts of
the land in Israel are owned by the state or the Jewish National Fund, and can be leased for 49
years with an option to extend for another 49, but cannot be owned outright.(62) All these
examples make clear that the definition of property itself is based on socio-economic facts and
upon that which the society considers legitimate, and hence cannot be simply an expression of
some overarching, universal "nature." It should be noted that, in line with the approach followed
here, reference is not merely to socio-historical facts, but also to that which is considered
legitimate. In short, relying upon private property rights to serve as a legal basis for privacy
hardly provides this right with the privileged standing individualists claim for it.(63)
Turning now to Warren and Brandeis's fashioning of privacy as a legal concept, it is
reported that they created its rationale in response to an increasingly intrusive press that was
spreading gossip to large groups.(64) As for the post-Griswold era, it is commonplace to note that
privacy is not even mentioned in the Constitution; rather, it was derived from "penumbras" and
"emanations" of the specifically detailed guarantees of the Bill of Rights.(65)
Carl Schneider put it so effectively that I quote him at length:
The case [Roe] turns on the constitutional "right to privacy," a right inferred from
the fourteenth amendment's provision that no state may deprive a person of life,
liberty, or property without due process of law. Since little in the language,
structure, or intent of the clause establishes the nature or limits of that right, since
the Court has never defined those limits, since the right has little to do with
"privacy" in the colloquial sense, and since the right of privacy is a "greedy" one,
the right has long seemed menacingly capacious. The Court in Roe opens its
discussion of the right to privacy with a sentence that acknowledges that the
Constitution mentions no such right. In its next two sentences, the Court attempts
to identify the origin of the right:
In a line of decisions . . . going back perhaps as far as . . . ,
the Court has recognized that a right of personal privacy, or a
guarantee of certain areas or zones of privacy, does exist under the
Constitution. In varying contexts, the Court or individual Justices
have, indeed, found at least the roots of that right in the First
Amendment . . .; in the Fourth and Fifth Amendments . . .; in the
penumbras of the Bill of Rights . . .; in the Ninth Amendment . . .;
or in the concept of liberty guaranteed by the first section of the
Fourteenth Amendment. . ..
After this disjunctive jumble of precedent (which may
establish no more than "the roots of that right"), and after adding
that the right has "some extension to activities relating to" various
family law issues, the Court closes its attempt to define and defend
the right, having established neither the principle that justifies
nor the principle that limits it.
Nevertheless, the Court next says, "This right of privacy . . . is broad enough to
encompass a woman's decision whether or not to terminate her pregnancy." Why
that right is "broad enough" the Court does not say. The Court does follow this
sentence with a list of "detriments" a woman would suffer who could not have an
abortion, and one may infer that it is the severity of the detriments that gives rise
to the right. But while the Court cannot mean that "detriments" create rights--since all statutes impose "detriments," and since most "detriments" do not give
rise to a legal right--the Court does not say why detriments create a right here, or
why these particular detriments create this particular right.(66)
Others have used harsher terms in describing the Court's finding of a constitutional right
to privacy. Hyman Gross, for instance, declares that the right of privacy defined in Griswold was
"a malformation of constitutional law which thrives because of the conceptual vacuum
surrounding the legal notions of privacy."(67) Indeed, Justice Douglas's reasoning reportedly
provoked "not only giggles but guffaws" by clerks in the office of concurring Justice Goldberg.(68)
It is often suggested that Douglas went through such legal contortions simply to avoid the
charge that he was engaging in substantive due process--the original sin of constitutional
interpretation. Indeed, Douglas takes great pains at the beginning of his opinion to distance his
reasoning from this discredited doctrine.
The lack of a clear basis for an absolute or "natural" right of privacy brings us again to
the idea that privacy varies with context. Social scientific comparative studies leave no doubt
that the scope of what is considered a matter of privacy varies greatly not only across societies
but also within a given society over time, including democratic societies.(69) In Britain, for
example, privacy is much more restricted in many social domains than it is in America.
Surveillance of public spaces by the use of cameras and searches of one's person and belongings
are carried out much more readily there than in the US. At the same time, Britain protects
privacy to a greater extent in the domain of libel law.(70) On the continent, people are routinely
required to carry some form of identification, and to identify themselves at police request,
without any special cause. In short, privacy is a highly contingent right, whose scope and
standing varies sharply with the sociohistorical context.(71)
III - THE FOURTH AMENDMENT AS THE CORNERSTONE FOR PRIVACY LAW
The communitarian conception of privacy advanced here is founded not on a stretched
interpretation of a curious amalgam of sundry pieces of various constitutional rights, but instead
rests squarely on the legal conception contained in the Fourth Amendment. In this Amendment,
the Constitution provides a clear and strong foundation for acts that serve the common good and
that take precedent over privacy considerations, by establishing a whole category of legitimate,
"reasonable" searches. In effect, this Amendment (though, by some interpretations, the Second
as well) is the only one containing an explicit qualification on the right at issue. To stress this
point, one should contrast the texts of the First and Fourth Amendments. If the Fourth were to be
written in the same strongly privileging language as the First, it would read "Congress shall
make no law . . ." legalizing searches and seizures.
The extent to which the Fourth Amendment is not as privileging of privacy than the texts
examined earlier is open to interpretation. A straight reading of the first clause seems balanced
between a privacy-favoring ban on unreasonable searches and a common good-favoring
legitimation of reasonable searches. The Fourth Amendment's further requirement that "no
Warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly
describing the place to be searched, and the persons or things to be seized," can be read merely as
providing a mechanism for sorting out when searchers are unreasonable versus reasonable, rather
than further restricting them. Admittedly, if one applies the criterion of original intent, there can
be little doubt that the Fourth Amendment was constituted as one of a list of rights, meant to
protect individuals from an overpowering government. The same holds for a fair number of
historical interpretations and even a larger number of court cases, which very much tended to put
the burden of proof on those who sought to limit privacy rather than the other way around.
However, the changed historical conditions we currently face, the rise of radical individualism
and the erosion of authority,(72) have already led to a much more even-handed interpretation of the
Fourth Amendment. There are more and more legal searches for which neither warrants nor even
specific suspicion are required. Examples include drug testing, screening gates in airports, and
field sobriety checkpoints.(73) This is a trend one might argue could and perhaps should be further
extended to make future interpretations of the Fourth Amendment more even-handed, although
obviously one should not automatically favor every single case that points in this direction.
All said and done, one can argue whether current interpretations of the Fourth
Amendment are even-handed or simply less privileging of privacy than other governing texts.
But in either case, it is closer to a balanced approach than a jurisprudence that grows out of the
reasoning of Warren and Brandeis on the reproductive cases. This, I suggest, is what a
communitarian position calls for.
The Fourth Amendment is mentioned as an afterthought in many earlier discussions of
the evolution of the legal doctrines of a right of privacy,(74) and even those that are dedicated to
analyzing the Constitutional basis of privacy either give it short shrift or do not mention it at
all.(75) The focus instead is on the cases involving reproductive choices because, it is stated
repeatedly, the Supreme Court cases preceding Griswold did not treat privacy as an independent
right. Rather, the decisions in those earlier cases treated privacy concerns through other rights,
with different rights supporting the claim in different cases.(76) In Boyd v. United States, for
instance, the Court held that the Fourth and the Fifth Amendments protected papers as within a
person's "zone of privacy," but did not treat privacy as a distinct right.(77)
The question may be asked why the Supreme Court, when it did turn to fashion a
constitutional right of privacy in Griswold and in the reproductive right cases that followed it,
did not rely squarely on the Fourth Amendment, and only on it? Without inquiring into either
the scholarly and normative motives of those involved or the institutional and doctrinal
constraints upon them, a compelling reason stands out on the face of it: a straightforward
reliance on the Fourth Amendment would not have led to free choice, the right of a person to
control her reproductive life that the Court was evolving in Griswold, Eisenstadt, and Roe. The
Fourth Amendment view of privacy is one of legitimate avoidance of being subject to public
scrutiny, of being "watched" by the government--not the right to control the action at stake, to
make the driving decisions. Searches make public what heretofore was kept in privacy, in the
sense of being protected from disclosure. They help determine whether or not that which was
deliberately or unwittingly kept from scrutiny is a matter of subordination, concealment, or even
illegal secrets, and therefore no longer subject to privacy rights. Thus, if a person is suspected of
having purchased a stolen painting, a search (based on a proper warrant) will help determine
whether or not this suspicion is valid. The question as to who has a right to own (to control) this
painting will be resolved by other means and considerations.(78)
Usually, the chief criticism of Griswold et al. is that reproductive rights are poorly
founded on privacy grounds (or, that there are no such rights); the argument advanced here runs
the other way: that a concept of privacy fashioned to suit reproductive rights is not soundly
crafted. I will justify this statement after making several more points about the public
philosophy that emanates from the Fourth Amendment; here I would add only that I favor
reproductive rights but join others who hold that these rights would be much better protected if
they were based on different legal grounds than those currently used to support them.
My examination of the Fourth Amendment seeks to make one observation and one
observation only: that the Fourth Amendment provides a conception of privacy that does not
privilege it. The discussion does not seek to explore the numerous important other issues that
arise when one studies the specifics of the relationship of the Fourth Amendment to privacy.
This would entail examination of the text, the intentions of the founding fathers,(79) and Supreme Court interpretations of the amendment, specifically in Boyd,(80) Olmstead v. United States,(81) and Katz.(82) A fine place to start would be the many law review articles on privacy and the Fourth Amendment.(83) There is only one observation, however, that I wish to make her about the Fourth Amendment: It provides a balanced conception of privacy.(84)
The public philosophy that emanates from the Fourth Amendment is an enormous
subject that can be visited only briefly here. Although the jurisprudence evolved by Warren and
Brandeis and those that build on them focuses on a privileging of the "right to be let alone," the
conception reflected in the Fourth Amendment suggests that one may identify a significant
category of situations in which a violation of privacy is reasonable and can serve the common
good. Legal scholars stress correctly that, technically, the Fourth Amendment deals with the
relations of citizens to the government and not to one another. I merely suggest that the idea of
balance contained in the Fourth Amendment can also be applied to relations among private
To illustrate this line of thinking, one may examine numerous situations in which one
private party searches the property of another, and the question arises if this is legitimate,
ethically speaking. While these are not searches in the Fourth Amendment sense because they
are not conducted by the government, they clearly are searches in terms of common parlance and
understanding. Cases in point are shippers who, without consent or prior notice, open packages
entrusted to them by private parties, or a husband who rummages through his wife's office
drawers. It seems clear that these are acts whose legitimacy ought to be judged in part on the
basis of the extent of the common good served versus the extent of the violation of privacy.
Thus, if the shippers seek to ensure that no explosives are being shipped (assuming there is no
law requiring them to so examine the packages), and they do not unnecessarily display or
disclose what they see when examining packages entrusted to them (for instance, call attention of
co-workers to sexual toys included therein), such an examination would be fundamentally
different from opening parcels to satisfy their voyeuristic curiosity.
A major category of person-to-person situations in which the balance idea of privacy and
the common good can be applied includes the numerous situations in which the media is allowed
to violate a person's privacy in order to keep the public informed and to invigorate the
marketplace of ideas.
In many other situations that do not involve a direct government-citizen relationship, the
common good is properly privileged over privacy, including conditions under which client-psychiatrist confidentiality can be legally set aside, mail addressed to someone else can be
opened, and polygraph tests may be conducted. For example, in Tarasoff v. Regents of the
University of California, a California judge ruled that mental health professionals have a duty to
provide adequate warning if a patient threatens the life of a third party during counseling
sessions.(86) But courts have staunchly protected patient-psychiatrist confidentiality in cases where
such compelling interest cannot be shown, even extending such confidentiality rights to
communications with social workers.(87)
Last but not least, it should be noted that the Fourth Amendment model reflects the issues
raised by the tension between privacy and the common good. That is to say, it reflects profound
tension between two core visions of America: the virtue and public spiritedness fostered by
republicanism, and the liberty and individualism championed by classical liberalism. It is a
conflict between those who see American society as a community dedicated to fostering a
specific set of social virtues (or social formulations of the good), and those who see it as thriving
by promoting the free choices and actions of individuals (and favor only individual formulations
of the good). While each of these camps has claimed that it represents the true conception of
American values, and while in some ages one or the other of these two conceptions has been
stressed more, the truth is that the uneasy conjunction of the two is what constitutes the
American creed, the core set of values that guides American society and nurtures its laws.(88) It
follows that whenever American society tilts too far in the direction of one of these core
elements, the other needs to be shored up.(89) The same holds for privacy, a balance that can be
achieved by redefining what is considered reasonable versus unreasonable under the Fourth
IV - PRIVATE CHOICE V. PUBLIC CONTROL: A PIVOTAL DISTINCTION
Making the conception embedded in the Fourth Amendment the cornerstone of the public
philosophy of privacy allows one to limit privacy to matters concerning limits on legitimate
scrutiny. Doing so clears away a very great amount of intellectual, normative, and legal
confusion that has arisen because the Supreme Court extended the right of privacy from the right
to be exempt from scrutiny to the right to make choices, that is to the right to be exempt from
state control.(90) The expansion of the conception of privacy to include decisional matters has
been criticized by a number of authorities, legal and otherwise, including strong supporters of
reproductive rights of women, such as Ruth Bader Ginsburg.(91)
The important distinction between exemption from control (granting a freedom to
choose) and exemption from scrutiny is highlighted by the very behavior at issue in the
reproductive choice cases. The question is not whether couples should be expected to make
decisions concerning the use of contraception, or women concerning abortions, in public view.
Indeed, those who find that such behavior violates their values would be even more perturbed if
such conduct were not carried out behind closed doors or if the decisions affirming such actions
were publicized. What is at stake in these cases is who controls the decision--the persons
involved or the state.
There is room for disagreement whether Griswold deals with privacy as a scrutiny issue
or one of private choice. Several eminent constitutional scholars, such as Gerald Gunther and
John Hart Ely, take the position that it deals with transparency.(92) Others, in contrast, see it as a
matter of control. Louis Henkin, for instance, notes in reference to Griswold that "the issue was
whether the state could bar the use of contraceptives not whether it could intrude into the
bedroom for evidence of its use."(93)
True, Justice Douglas' argument in Griswold was not that the Court ban was
unconstitutional because it sought to control what the couple does, but rather that surveillance
procedures necessary to establish whether or not contraception is used would be unacceptably
intrusive.(94) Note, however, that the result of the Court ruling was not to move contraceptive
behavior from being conducted in public view to spaces not subject to scrutiny; the behavior was
not public to begin with! The ruling did change the designation of the behavior from one that the
state could control to one that was from then on a matter for individual decision. As Henkin
emphasizes: "In a word, the Court has been vindicating not a right to freedom from official
intrusion, but to freedom from official regulation."(95) Indeed, the Douglas argument seems
somewhat difficult to comprehend given that there are no particular difficulties in devising
procedures for determining if people use contraceptives without intruding on their homes. For
instance, if a person regularly purchases contraceptives, and has no medical prescription for them
for non-contraceptive purposes, and can offer no evidence that he or she sold them to another
party or gave them away, say, as a gift, there would be strong circumstantial evidence that the
person was using them. (Also, sellers of contraceptives could be judged as accessories.) Indeed,
Douglas himself at one point argues in reference to Griswold that the "government purpose to
control or prevent activities constitutionally may not be achieved by means . . ." the Court finds
too sweeping.(96) Most important, there is no controversy that the subsequent reproductive choice
cases, including Roe, dealt with control and not scrutiny issues.
In contrast, the Peeping Tom nature of the media, which purportedly prompted Mrs.
Samuel D. Warren to encourage her new husband to act to curb such intrusion,(97) violates privacy
but does not entail state control. Mrs. Warren feared that gossip about her would be spread
widely by the press and be afforded the ostensible objectivity of appearing in print. She was not
afraid that if details about her personal life were to become public she would be subject to arrest,
or that her private choices would be preempted by the government.(98)
In short, the Supreme Court's expansion of the right to privacy in the reproductive rights
cases conflates notions of scrutiny and control, and privacy and private choice.(99)
Once it is agreed that there is much to be gained, both in clarity of thought
and judgment as well as for the communitarian balance, if the distinction
between exemption from scrutiny and exemption from control is drawn,
there are at least two basic ways to proceed.(100)
One can either refer to the first category as "privacy" and to the
second as a matter of "private choice," or, one can recognize two
different kinds of privacy. The first approach makes a great deal
of sense given the meaning of these terms in common parlance, and
given that it evokes the appropriate intellectual and normative
associations. "Private choice" correctly brings to mind unregulated
economic behavior, deregulation, school choice, and reproductive
choices. (Or, one can use the terms privacy and autonomy to connote
the difference between being legitimately free from scrutiny and
from state control.) The second approach, referring to two kinds
of privacy, seems especially attractive to those who are concerned
that if choice behavior is not deemed a matter of "privacy" it may
lack constitutional protection until a new legal foundation can
be formulated, which is a serious consideration.
In either case, each category requires, and in effect already implicitly contains,
a strong and distinct rationale. While both implicate human dignity
and liberty--the independence of a person within the communal context--two
rather different facets are involved. The first deals with the value
of being able to be legitimately different, with being able to individuate
(to be an individual) without activating legal (governmental) or
moral (communal) pressure: a respite from the social. A useful image
here is that of a veil or cloth with which one drapes parts of one's
self when one legitimately seeks to keep them invisible to others
(some or all), such as one's scar from a mastectomy, the size of
one's member, the depth of one's pocket. (That one lifts such veils
for certain others, say a physician and a nurse, should not mean
that one gives up the right to drape one's self in regards to that
matter in regard to others, a key issue in recent concerns about
medical privacy, as we have seen above.) The second facet concerns
autonomy in the profoundest sense, the definition of the spheres
in which one can legitimately direct one's life.(101)
The first category is characterized by trust, in which society deems that
a person will not be under surveillance, but society does not forgo
its right to act, for example in cases where a person uses his or
her privacy to molest a child or make bombs. The second category
is one of societal indifference and hence full individual (or group)
liberty; it concerns all those numerous matters about which the
society rules that these are matters in which the individual is
free to act as they deem fit, whether or not the action takes place
out of sight and audibility.
The following examples serve to further highlight this pivotal distinction.
The government may have a right to determine what a person cannot
carry in a car (contraband, human corpses, etc.) and what a person
must carry (e.g., a flare or a spare), that is, to control certain
acts and choices. But the government does not have a right to examine
a trunk or glove compartment without specific cause; that is, it
does not have a right to scrutinize spaces cordoned off in the name
Buying items in a supermarket is a matter of personal choice, not a state-controlled
action. It is a private act, but cannot be said to implicate privacy
because its commission is quite visible to the public. Generally,
the advocates of the private sector and the opponents of government
interventions are concerned with who controls the act rather than
whether the action is visible (or audible). In contrast, preparing
a tax return is legitimately carried out in privacy, but is not
a matter about which one has a choice; it is required by the state,
and in this sense is a public act typically carried out under the
condition of privacy.
Some acts are both under the person's control and are legitimately conducted
in ways that defend them from scrutiny--voting for public offices,
for instance. Others, such as many criminal trials, are both expressions
of government control and are carried out in full public view, even
One might argue that while privacy and private choice (and publicness and
public control) are clearly distinct conditions, the second presumes
the first--a state that seeks to control certain kinds of behavior
must be able to scrutinize them, and thus cannot allow them to take
place in privacy. Yet this is not the case. Precisely in order to
respect the privacy of certain acts, and yet to control them, before
taking any action the state often waits until there are publicly
visible consequences of behavior that took place in private. Thus,
the state typically acts to rescue a child from abuse only after
some signs of ill treatment are noticed at school or at a clinic,
or someone files a complaint before a public authority and backs
it up with evidence, rather than scanning homes preemptively to
ensure that no child abuse is taking place.
There are many important matters in which the law calls for public scrutiny
but not state control. Examples include the legal requirement that
many meetings of elected officials, corporate stock holders, and
others be held in open session, numerous disclosure requirements
including data that must be revealed in annual reports of publicly
held corporations, and personal financial details that people running
for certain public offices must provide. (While some of the disclosures
are required to enable governmental controls, audits for instance,
others presume that the very exposure to the "sunshine" of the public
and the press will suffice to prevent anti-social conduct, thereby
precluding the need for state-controlling acts.)
Especially telling is a considerable category of laws, mores, and behaviors--typically
not even mentioned in this context, at least in part because it
does not fit the conflated and over-expansive conception of privacy--that
refers to acts mandated by the state to be carried out in privacy!
Nudity, sexual intercourse, and toilet functions all fall into this
category. Those who treat privateness and privacy as synonymous,
as many do, would be in the odd position of saying that these are
acts which are public and private, which of course makes no sense.
Although there is certainly some initial awkwardness in drawing a distinction
between privacy and privateness, and between publicness and public
control, numerous issues cannot be properly conceptualized and examined
unless such a distinction is made, and separate legal rationales
for both kinds of cases are provided. The particular term one uses
is, of course, a less important matter. And whatever course one
follows, there is a pressing socio-historical need to consider adopting
in both areas the Fourth Amendment model of balance rather than
V. MORE PUBLICNESS--LESS PUBLIC CONTROL
At issue here is much more than an accurate definition of privacy; at the very heart of this
discussion is the appropriateness of social formulations of the good, the point of contention that
separates communitarians from both individualists as well as social conservatives. For
individualists, who strongly oppose social formulations of the good, who believe that each
person should be free to form and pursue his or her own good, and who thus seek to maximize
both private choice and privacy, the distinction matters little. For social conservatives, especially
religious fundamentalists who would rely on the state to enforce their values--for instance, to
suppress pornography--and who are willing to curtail both private choices and privacy, the
difference between these two concepts is also of limited import. In contrast, the distinction is
crucial for communitarians (at least for responsive ones) who hold that important social
formulations of the good can be left to private choices--provided, of course, there is sufficient
communal scrutiny! That is, the best way to curtail the need for governmental control and
intrusion is to have somewhat less privacy. This point requires some elaboration.
The key lies in the importance of the "third realm,"(102) one about which communitarians
are particularly mindful. This realm is not the state or the market (or individual choices), but
rather the community, which relies on subtle social fostering of good conduct by such means as
communal recognition, approbation, and censure, processes that require the ability to scrutinize
some behavior, not by police or secret agents but by friends, neighbors, and members of one's
Indeed, crimes are best prevented when a community abhors the behavior that is
considered criminal by law makers; and, conversely, law enforcement works poorly when not
supported by the community's moral and informal enforcement systems.(104) For instance, abuse
of controlled substances and alcoholism are very rare in religious communities that object to such
behaviors, such as in Mormon, Hasidic Jewish, Amish, and black Moslem communities, and are
relatively rare in much of the Bible Belt and segments of small-town America.(105) The reason is
not simply that internalized values lead individuals to avoid the behaviors in question; these pro-social values also find much support in their communities, support that entails a measure of
scrutiny by others. The extent to which many professionals, such as physicians and lawyers,
conform to their ethical codes is largely determined by the values their particular community
upholds, and mostly by informal enforcement mechanisms, which require social scrutiny but
reduce the need for government control. The same holds true for honor codes among students in
military academies and select colleges.
In fact, continual efforts by groups such as the ACLU to extend the sphere of privacy
paradoxically force increases in governmental interventions. We saw a sterling example in the
examination of encryption. As the ACLU and other individualistic groups blocked the
introduction of public key recovery, which enables the government to decode encrypted
messages if proper court authorization is accorded, the government was pushed to use more
invasive procedures for the same kind of criminal investigations, for instance planting
microphones in the homes of suspects.
William Donahue effectively highlights these self defeating tendencies:
The ACLU is driven by an atomistic vision of liberty. It envisions solitary
individuals, armed with rights and unencumbered by duties. This vision does not
conform with reality. When we look at society we do not see solitary individuals.
Rather we see constellations of people in associations . . . These groups arise
naturally when people are left alone. This explains the great paradox of the
ACLU. Its atomistic ideal is so unnatural that its realization (if possible) would
require a great coercive power. Thus it is than an organization devoted solely to
individual rights seeks in practice the total aggrandizement of the state.(106)
In short, if we hold constant the values involved and the level of adherence we seek,
publicness reduces the need for public control, while excessive privacy often necessitates state-imposed limits on private choices.(107) Admittedly, each community and society determines the
scope and content of their particular formulations of the good, the normative claims they make,
and the intensity with which they foster compliance. However, once these matters are agreed
upon, higher levels of communal scrutiny facilitate compliance better than higher levels of public
control, and often allow that control to be kept at a lower level.(108)
It might be argued that these are not matters that concern the legal realm. Yet there are
numerous laws that affect the level of communal scrutiny rather than public control. For
example, laws that limit the right of the press to report scandalous behavior of public officials,
corporate executives, foundation officials and others, or make it too easy to win libel suits
against other citizens, raise not only First Amendment concerns, but also may extend privacy too
far, diminish community scrutiny, and undermine the common good. The same holds for laws
that limit the scrutiny of professionals by one another and the disclosure of ill-conduct.
The conception that is expressed in the Fourth Amendment provides a solid foundation
for a communitarian public philosophy of privacy, that has significant implications for our social
mores, public policy, and jurisprudence, as we struggle to adapt our institutions to the cyber-age.
This philosophy recognizes as justified a whole category of acts in which concerns for the
common good take precedent over privacy rather than strongly privileging privacy a priori,
implying that a balance between these two core values must be worked out.
Another merit of relying on the conception embodied in the Fourth Amendment, as
opposed to an amalgam of various constitutional rights used to construct a constitutional right to
privacy in the reproductive choice cases, is that the Fourth Amendment focuses on scrutiny
rather than on control. Thus, it avoids a major conceptual and ethical confusion between privacy
and autonomy (or privateness) that affects numerous matters of public philosophy, civic culture,
public policy, and jurisprudence. Most important, the Fourth Amendment, by introducing the
distinction between searches that are unacceptable violations of privacy and those that are
justified by public needs, recognizes the need of balance between privacy and the common good
rather than treats privacy as privileged under all circumstances.
Above all, a communitarian approach to privacy avoids the failings of static conceptions
by taking into account historical changes in societal conditions. For instance, it recognizes that
the more privacy is granted from informal social controls in a given period, the more state
controls will be necessary in following years to sustain a given level of social order.(109) It follows
that the best way to ward off theocratic tendencies of religious fanatics foreign and domestic, as
well as authoritarianism and tyranny, is not relentless expansion of permissiveness, but
endeavors to ensure that society's elementary needs for public health and public safety are not
1. 389 U.S. 347 (1967).
2. For discussions of these matters by legal scholars, see Richard G. Wilkins, "Defining the
'Reasonable Expectation of Privacy': An Emerging Tripartite Analysis," Vanderbilt Law Review
40 (1987); Stephen P. Jones, "Reasonable Expectation of Privacy: Searches, Seizures, and the
Concept of Fourth Amendment Standing," Memphis State Law Review 27 (1997); Anthony
Amsterdam, "Perspectives on the Fourth Amendment," Minnesota Law Review 58 (1974); Lewis
R. Katz, "In Search of a Fourth Amendment for the Twenty-First Century," Indiana Law Journal
65 (1990); Daniel B. Yeager, "Criminal Law: Search, Seizure and the Positive Law: Expectations
of Privacy Outside the Fourth Amendment," Journal of Criminal Law and Criminology 84
3. Frederick Schauer, "Slippery Slopes," Harvard Law Review 99 (1985), 361-383.
4. Amitai Etzioni, The Active Society: A Theory of Societal and Political Process (New York:
The Free Press, 1968).
5. For a discussion of self-regulation by companies on the Internet, see Esther Dyson,
"Governance," in Release 2.0: A Design for Living in the Digital Age (New York: Broadway
Books, 1997), 103-130.
6. Osborn v. United States, 385 U.S. 323 (1966).
7. Jeri Clausing, "Group Proposes Voluntary Guidelines for Internet Privacy," New York Times,
21 July 1998, D4; Electronic Privacy Information Center, "Self-Regulation Gets Low Marks at
Privacy Summit," EPIC Alert, 25 June 1998.
8. Barrington Moore, Jr., Privacy: Studies in Social and Cultural History (New York: M. E.
Sharpe, Inc., 1984).
9. For an early book that laid important ground work to this way of thinking see Alan Westin,
Privacy and Freedom (New York: Atheneum, 1967).
10. Ferdinand David Schoeman, Privacy and Social Freedom (New York: Cambridge University
Press, 1992), 1-10.
11. Samuel H. Hofstadter and George Horowitz label the right of privacy a "parasite," stating
that it developed "[a]nnexed to or as a part of property or contract rights or some relationship of
confidence...." The Right of Privacy (New York: Central Book Company, 1964), 5. See also
Richard F. Hixson, Privacy in a Public Society: Human Rights in Conflict (New York: Oxford
University Press, 1987), 62.
12. A pivotal case in this regard was Olmstead v. United States (1928), in which the Supreme
Court explicitly rejected the idea that privacy was a separate constitutional right protected by the
Fourth Amendment's prohibition of unreasonable searches and seizures, but instead reasoned
that protection of privacy is embedded in, and legitimated by, protection of property rights. The
case involved the wiretapping of a phone by the FBI without a warrant so federal agents could
gain evidence of violations of Prohibition laws. The Court ruled that since wiretapping did not
involve trespassing on private property, the evidence which was gained was not an unreasonable
search and seizure. See Edward J. Bloustein, "Privacy as an Aspect of Human Dignity: An
Answer to Dean Prosser," New York University Law Review 39 (1964): 975.
13. John Locke, The Second Treatise of Civil Government (New York: Hafner Publishing Co.,
14. Samuel Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review IV
15. Gregory and Kalven, Cases on Torts 883 (1959). Hixson states that due to the publication of
Warren and Brandeis's article, "The legalization of privacy moved like a brush fire through this
[the twentieth] century" (Privacy in a Public Society, 50).
16. Bloustein, "Privacy as an Aspect of Human Dignity," 970. See also Hixson, Privacy in a
Public Society, 49-51.
17. Ibid., 196.
18. See, for instance, Center for Public Integrity, "Nothing Sacred: The Politics of Privacy,"
Washington, D.C., 1998, and also about this point, Roger Scruton, An Intelligent Person's Guide
to Philosophy (New York: Penguin, 1996), 112.
19. Warren and Brandeis's privileging of privacy is highlighted toward the end of their seminal
essay, ironically, in a section devoted to outlining six conditions under which competing
concerns should be accommodated. While the two scholars first observe that privacy may have
to be curbed for purposes such as allowing the "publication of matter which is of public or
general interest" and "meeting the communicative need of courts and legislative bodies" ("The
Right to Privacy," 196), item five of their list establishes that privacy is violated not only by false
statements but can be transgressed even by truthful publications (Ibid.). And item six notes that
the absence of malice by a publisher who violates privacy is insufficient to afford him legal
defense. Even as they seek to curb privacy, they end up extending it (Ibid.). Item three argues
that oral communication, as distinct from written or published communication, cannot be
construed to be an invasion of privacy--unless there is "special damage," which Warren and
Brandeis do not define. The fourth item argues that the right of privacy cannot be asserted after
an individual explicitly consents to a disclosure, or publishes private things himself, which of
course does not diminish the claim the right lays on others, but only notes that it does not bind
the acting self.
20. US Office of Science and Technology, Privacy and Behavioral Research (Washington, D.C.:
US Government Printing Office, 1967), 3.
21. William R. Lund, "Politics, Virtue, and the Right to Do Wrong: Assessing the
Communitarian Critique of Rights," Journal of Social Philosophy 91 (1997): 103. See also Mary
Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free
22. Lund, "Politics, Virtue, and the Right to Do Wrong," 104.
24. Louis Henkin, "Privacy and Autonomy," 74 Columbia Law Review 1410, 1429-1430 (1974).
25. Charles Fried discusses privacy as an "intrinsic" value as distinct from an instrumental one.
"Privacy,"77 Yale Law Journal 475 (1968). To suggest that a value is unbounded puts a higher
claim on it; a value can be inherently or intrinsically good, such as public safety, but not
26. Bloustein, "Privacy as an Aspect of Human Dignity," 973.
27. Jean L. Cohen, "Rethinking Privacy: The Abortion Controversy," in Public and Private in
Thought and Practice: Perspectives on a Grand Dichotomy, eds. Jeff Weintraub and Krishan
Kumar (Chicago: University of Chicago Press, 1997), 137.
28. Avishai Margalit, The Decent Society (Cambridge, Mass.: Harvard University Press, 1996),
29. Glen O. Robinson, "Communities," Virginia Law Review 83 (1997): 294.
30. Stanley I. Benn, "Privacy, Freedom, and Respect for Persons," in Philosophical Dimensions
of Privacy, ed. Ferdinand David Schoeman (New York: Cambridge University Press, 1984), 239-41.
31. 381 U.S. 479 (1965).
32. 405 U.S. 438 (1972).
33. 410 U.S. 114 (1973).
34. 431 U.S. 678 (1977).
35. See Michael Sandel's discussion of this case and the general development of privacy rights in
American jurisprudence. (Michael Sandel, "Moral Argument and Liberal Toleration: Abortion
and Homosexuality," in New Communitarian Thinking: Persons, Virtues, Institutions, and
Communities ed. Amitai Etzioni (Charlottesville, Va.: University Press of Virginia, 1995), 78.)
36. Henkin, "Privacy and Autonomy," 1430.
37. Cf. Michael Sandel, who sees Griswold v. Connecticut as distinct from later opinions
asserting the right of privacy in that its basis was not the expansion of individual choice or
autonomy. (Sandel, "Moral Argument and Liberal Toleration," 71-87.
38. 410 U.S. at 154.
39. The right to an abortion, as Justice Blackmun wrote, is "not unqualified and must be
considered against important state interests in regulation" (Id. at 154-55).
40. Warren and Brandeis, supra note 15 , at 194. They then provide a considerable list of prior
instances when the common law evolved to accommodate changing social arrangements by
establishing new rights. For example, they point out that early on, people were secured only from
physical intrusions, such as harm to their bodies. This protection was in turn extended to include
their property, and eventually grew to encompass their very feelings and intellects.
41. T.H. Marshall, Citizenship and Social Class (London: Cambridge University Press, 1950).
42. Benn, supra note 31, at 239; Calvin C. Gotlieb, "Privacy: A Concept Whose Time Has Come
and Gone," in Computers, Surveillance, and Privacy, eds. David Lyon and Elia Zureik
(Minneapolis, Minn.: University of Minnesota Press, 1996), 156.
43. Robert N. Bellah, William M. Sullivan, Ann Swindler, and Steven M. Tipton, Habits of the
Heart: Individualism and Commitment in American Life (Berkeley, Calif.: University of
California Press, 1985); Mary Ann Glendon, Rights Talk: The Impoverishment of Political
Discourse. Amitai Etzioni, An Immodest Agenda: Rebuilding America Before the 21st Century
(New York: McGraw-Hill Co., 1983); Amitai Etzioni, The New Golden Rule: Community and
Morality in a Democratic Society (New York: Basic Books, 1996), 58-84.
44. Marshall, supra note 42; Benn, supra note 31, at 239-241; and Gotlieb, supra note 43, at 156.
45. Jeff Weintraub and others have stressed the role of scrutiny, in terms of not being visible or
audible to the community, in their formulations of privacy, while leaving the question of its
normative standing in society--how much and in what social territories privacy is appropriate--largely unexamined. See Weintraub's essay, "The Theory and Politics of the Public/Private
Distinction" in Public and Private in Thought and Practice: Perspectives on a Grand
Dichotomy, eds. Jeff Weintraub and Krishan Kumar (Chicago: University of Chicago Press,
1997). In addition to the role of scrutiny, we aim to address the question of the legitimacy of a
given society's commitment to and desired level of privacy.
46. Others have used location, private versus public, for their differentiation of privacy and
publicness. For reasons that will become obvious shortly, I focus on action.
47. Amitai Etzioni, "The Good Society," 6 Journal of Political Philosophy 395 (1998).
48. However, for a remarkable and groundbreaking article on the topic, see Robert C. Post, "The
Social Foundations of Privacy: Community and Self in the Common Law Tort," California Law
Review 77 (1989): 957-1010.
49. Richard A. Posner's analysis ignores the inherently normative dimension in the concept of
privacy ("The Right of Privacy," Georgia Law Review 12 (1978): 393-422). He explicitly states
that he will "avoid the definitional problem" in his inquiry by focusing on "the withholding or
concealment of information" (393). By this token he de facto defines privacy while skirting any
assessment of whether society, or the law, deems the concealment at the core of his definition to
be legitimate. Another example is provided by Richard Parker, who states that "privacy is control
over who can sense us"--again without any reference to the legitimacy of that control ("A
Definition of Privacy," New York University Law Review 42 (1967): 35). Charles Fried too limits
the definition of privacy to the ability to be free from scrutiny, neglecting the notion of a
legitimate exemption from such scrutiny, when he defines privacy as "not simply an absence of
information about us in the minds of others; rather it is the control we have over information
about ourselves" ("Privacy," 482).
Cf. Carl J. Friedrich, who does keep a clear distinction between secrecy, as an empirically
determined notion, and privacy, as a normative one. "Secrecy Versus Privacy: The Democratic
Dilemma," in Nomos XIII: Privacy, eds. J. Roland Pennock and John W. Chapman (New York:
Atherton Press, 1971), 105-120.
50. The legal literature draws a similar distinction between informational and decisional privacy.
We shall see that referring to the decisional sphere as privacy confused the matter and suggest
below that the second realm be viewed as a realm of private choice.
51. Amitai Etzioni, "The Responsive Communitarian Platform: Rights and Responsibilities" in
The Spirit of Community (New York: Crown Publishers, Inc., 1993), 251-267.
52. See Bilahari Kausikan, "Asian versus 'Universal' Human Rights," The Responsive
Community 7 (1997): 9-21.
53. Etzioni, The New Golden Rule, 34-44.
54. Glendon, op. cit.; Amitai Etzioni, The Spirit of Community (New York: Simon and Schuster,
55. See Amitai Etzioni, "Introduction," in The Essential Communitarian Reader, ed. Amitai
Etzioni (Lanham, Md.: Rowman and Littlefield, 1998).
56. The idea is gradually gaining some currency. My first stab at it was published in The
Responsive Community and later reprinted in Legal Times. Steven L. Nock reached a similar
conclusion, following his own considerations. Amitai Etzioni "Less Privacy is Good for Us (and
You)," 6 The Responsive Community 11-13 (1996); Steven L. Nock "Too Much Privacy"19
Journal of Family Values 101-118 (1998).
57. Fred H. Cate, Privacy in the Information Age, (Washington, D.C.: Brookings Institution
Press, 1997), 31.
58. Alan Westin, Privacy and Freedom, (New York: Atheneum, 1967) 42. Another book that
leans in this direction is David Brin, The Transparent Society: Will Technology Force Us To
Choose Between Privacy and Freedom?, (Reading, Mass.: Perseus Books 1998).
59. Talcott Parsons, The Structure of Social Action: A Study on Social Theory and Special
Reference to a Group of Recent European Writers (New York: Free Press, 1968). See also Philip
Selznick, The Moral Commonwealth: Social Theory and the Promise of Community (Berkeley:
University of California Press, 1992); John Gray, Isaiah Berlin (Princeton, NJ: Princeton
University Press, 1997).
60. Cf. Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass: Cambridge University
61. In the section "Of Property" of his Second Treatise of Civil Government, Locke makes the
claim that ownership of property derives from, and is legitimated by, the individual's expenditure
of labor to acquire or transform some natural or physical entity. "Whatsoever then he removes
out of the state that nature hath provided and left it in, he hath mixed his labor with, and joined it
to something that is his own, and thereby makes it his property " (134). As a direct consequence,
legitimate ownership--a right of property--is not dependent upon social formulations, collective
agreements, or other contextual factors. "Thus the grass my horse has bit, the turfs my servant
has cut, and the ore I have digged in any place where I have a right to them in common with
others," he states, "become my property without the
assignation or consent of anybody" (135). In this way Locke asserts a natural right to property,
concomitantly denying that it is a social construct or grounded in collective commitment. (Two
Treatises of Government (New York: Hafner Publishing Company, 1956).)
62. Arie Wiernik, Israeli Business Law: An Essential Guide (Kluwer Law International, 1996),
Part 2, Chapter 11.
63. Some may argue that the concept of private property no longer plays a role in current
conceptions of privacy. However, Morgan Cloud argues that a close overlap between property
rights and privacy still exists. Morgan Cloud, "The Fourth Amendment During the Lochner Era:
Privacy, Property, and Liberty in Constitutional Theory," Stanford Law Review 48 (1996): 555.
64. James K. Weeks, "Comparative Law of Privacy," Cleveland Marshall Law Review 12
65. Henkin, "Privacy and Autonomy," 1421.
66. Carl E. Schneider, "Moral Discourse and The Transformation of American Family Law,"
Michigan Law Review 83 (1985): 1864-65.
67. Hyman Gross, "The Concept of Privacy," New York University Law Review 42 (1967): 35.
Robert Bork echoes the sentiments of a fair number of conservatives when he writes unabashedly
about the Supreme Court's creation "out of thin air, of a general and undefined right of privacy."
(Robert Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline (New
York: Regan Books, 1996), 103.)
68. Jeffrey Rosen, "Breyer Restraint," New Republic, 11 July 1994, 20.
69. Herbert J. Spiro, "Privacy in Comparative Perspective," in Privacy: Nomos XIII, 121-148.
See also James K. Weeks, "Comparative Law of Privacy," Cleveland Marshall Law Review 12
(1963). Cf. Alan Westin, Privacy and Freedom.
70. For a rather informal but insightful account by a prominent British attorney, see Geoffrey
Robertson, "Privacy Matters," New Yorker, 8 September 1997, 38-40.
71. For further discussion, see Barrington Moore, Jr., Privacy: Studies in Social and Cultural
History (M. E. Sharpe, Inc., 1984).
72. See Alan Ehrenhalt, The Lost City: The Forgotten Virtues of Community in America (New
York: Basic Books, 1996).
73. For further examples of such warrantless, suspicionless searches that have been ruled
permissible under the Fourth Amendment, see Michael Froomkin, "The Metaphor is the Key:
Cryptography, the Clipper Chip, and the Constitution," University of Pennsylvania Law Review
143 (1995): 824-25.
74. See, for instance, Priscilla M. Regan, Legislating Privacy: Technology, Social Values, and
Public Policy (Chapel Hill, N.C.: University of North Carolina Press, 1995); Richard F. Hixson,
Privacy in a Public Society (New York: Oxford University Press, 1967), 26-51. Hixson devotes a
scant three pages, which are not even indexed, to discussing the role of the Fourth Amendment in
the development of privacy (48-50), while devoting almost entire chapters to Warren and
Brandeis's article, William Prosser's reformulations of privacy protections in tort law, and the
concept of privacy articulated in Griswold v. Connecticut and Roe v. Wade.
75. June Aline Eichbaum, "Towards an Autonomy Based Theory of Constitutional Privacy,"
Harvard Civil Rights-Civil Liberties Law Review 14 (1979): 361-84; Henkin, "Privacy and
Autonomy," 1410-33; Ruth Gavison, "Privacy and the Limits of Law," Yale Law Journal 89
(1980): 421-71; and Sandel, "Moral Argument and Liberal Toleration."
76. There is much debate among scholars even today if privacy is a unitary right, or just a name
for a bundle of other rights. We shall not join this discussion here. See William L. Prosser,
"Privacy," California Law Review 48 (1960) and Bloustein, "Privacy as an Aspect of Human
Dignity." Privacy has been considered an aspect of the Fifth Amendment's protections
(particularly against self incrimination), free speech in the right to anonymity in public
expression, and freedom of association.
77. 116 U.S. 616 (1886). See also Gilbert v. Minnesota, 254 U.S. 325 (1920), in which the court
ruled that, under the First and Fourth Amendments, parents were free to teach their children the
doctrine of pacifism in the privacy of their homes, and also National Association for the
Advancement of Colored People v. Alabama, in which the court found that Alabama could not
require the NAACP to publicize its membership lists under the First and Fourteenth
Amendments' protection of freedom of association.
78. I discuss searches and seizures precisely because the latter are often concerned with primary
control rather than scrutiny. While in some cases seizures are related to obtaining and preserving
evidence, often they deal with transfer of property rights from the current actor to the state,
especially in the so-called zero tolerance cases, in which the assets of drug dealers are seized and
turned over to the police for their own use.
79. Patrick Henry, for instance, argued in favor of the Fourth Amendment, stating, "The officers
of congress may come upon you now, fortified with all the terrors of paramount federal authority
. . . They ought to be restrained within proper bounds." That is, he saw a balance as expressed in
the notion of "proper bounds," rather than ruling such interventions completely out of bounds or
demanding those who seek to allow them to pass a strict security test. Quoted in Regan,
Legislating Privacy: Technology, Social Values, and Public Policy, 35.
80. 116 U.S. 616.
81. 277 U.S. 438 (1928).
82. 389 U.S. 347.
83. See, for example, Scott E. Sundby, "Everyman's Fourth Amendment: Privacy or Mutual
Trust Between Government and Citizen?" Columbia Law Review 94 (1994); Brian J. Serr, "Great
Expectations of Privacy: A New Model for Fourth Amendment Protection," Minnesota Law
Review 73 (1989); Mary I. Coombs, "Shared Privacy and the Fourth Amendment, or the Rights
of Relationships," California Law Review 75 (1987); Christopher Slobogin and Joseph E.
Schumacher, "Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases:
An Empirical Look at 'Understandings Recognized and Permitted by Society'," Duke Law
Journal 42 (1993); Robert J. Liebovich, "Privacy Goes Camping: Staking a Claim on the Fourth
Amendment," Memphis State University Law Review 26 (1995); and Morgan Cloud, "The Fourth
Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory,"
Stanford Law Review 48 (1996).
84. One may suggest that the Fourth Amendment does not treat privacy as a trump but does
privilege it. Even such an interpretation would serve many of the points that need to be made;
other amendments tend to leave them open to more absolutist reading. However, the Fourth
Amendment can be read as not privileging privacy if one notes that prohibition on unreasonable
searches is not accorded more weight than the permission to conduct reasonable searches.
85. For additional discussion see Marc Stanislawczyk, "An Evenhanded Approach to
Diminishing Student Privacy Rights Under the Fourth Amendment: Vernonia School District v.
Acton," Catholic University Law Review 45 (1996). Although the author refers to administrative
searches, the same point might be extended further.
86. Michael A. Riccardi, "Duty to Warn Weighed by Pa. Justices," Legal Intelligencer, 13
December 1996, 1.
87. See discussion of Jaffee v. Redmond in Daniel J. Capra, "Communications with
Psychotherapists and Social Workers," New York Law Journal, 12 July 1996, 3.
88. For an example of the argument that America is a Lockean nation, see especially Louis Hartz,
The Liberal Tradition in America: An Interpretation of American Political Thought since the
Revolution (New York: Harcourt, Brace, 1955). In response to Hart, see, among others, J.G.A.
Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Political
Tradition (Princeton, N.J.: Princeton University Press, 1975); Isaac Kramnick, Republicanism
and Bourgeois Radicalism: Political Ideology in Late Eighteenth Century England and America
(Ithaca, N.Y.: Cornell University Press, 1990); and Rogers M. Smith, "Beyond Tocqueville,
Myrdal, and Hartz: The Multiple Traditions in America," American Political Science Review 87
On the other side, Robert Bellah explains that "in Alexis de Tocqueville's Democracy in
America, individualism was treated as a destructive tendency that needed firm restraint if
American democracy was to flourish." (Robert N. Bellah, "Individualism, Community, and
Ethics in the United States and Japan," Moral Education 4 (1995): 1-2.)
89. For additional discussion, see Etzioni, The New Golden Rule.
90. This important distinction has been highlighted by Michael Sandel. See Sandel, "Moral
Argument and Liberal Toleration."
91. Weintraub, "The Theory and Politics of the Public/Private Distinction," 5. Cf. Cohen,
"Rethinking Privacy: Autonomy, Identity, and the Abortion Controversy," 144-46. See also
supra reference to Hyman and Bork.
92. Gerald Gunther, Constitutional Law (Westbury, N.Y.: The Foundation Press, Inc., 1991),
491-571. John Hart Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade," Yale Law
Journal 82 (1973).
93. Henkin, "Privacy and Autonomy," 1424.
94. See also Sandel, who accepts this argument, supra note 100.
95. Henkin, "Privacy and Autonomy," 1424.
96. Griswold v. Connecticut, 381 U.S. 479 (1965), at 485-486.
97. William L. Prosser, "Privacy," California Law Review 48 (1960): 383.
98. For more discussion on this point, see Etzioni, The New Golden Rule, especially 138-49.
99. I do not go into here the many issues raised by the fact that this distinction is much more
problematic and blurred than is often assumed. Alan Wolfe also addresses the slippery nature of
the distinction between the public and the private. See "Public and Private in Theory and
Practice: Some Implications of an Uncertain Boundary," in Jeff Weintraub and Krishan Kumar,
eds., Public and Private in Thought and Practice: Perspectives on a Grand Dichotomy
(University of Chicago Press, 1997), 182.
Using privacy as an all-encompassing concept often results in confusion and conceptual
vagueness, such as one scholar's attempt to refer to freedom from scrutiny as distinct from
freedom from control with the circumlocution "private right of privacy." (Henkin, "Privacy and
See also Jeff Weintraub's discussion of the line between private and public. (Jeff
Weintraub, "The Theory and Politics of the Public/Private Distinction.")
100. Michael Sandel in effect suggests that one should talk about two kinds of privacy that have
been recognized in American jurisprudence. The first is freedom from surveillance, and was the
dominant understanding of privacy up to and including Griswold v. Connecticut. Beginning in
1972 with Eisenstadt v. Baird, the Court shifted to what Sandel terms a "voluntarist," or
autonomy-based, conception of privacy. In short, Sandel's thesis is that the pre-Eisenstadt
conception is freedom from surveillance (including Griswold, which is often interpreted to
advance a notion of autonomy), and afterwards it shifts to encompass freedom from control.
While it does not matter much which words are used as long as the distinction is clearly
maintained, the already established term for freedom from public control seems to be private
choices or acts, as implied in phrases such as the "private sector." See Sandel, supra note 36.
101. "Autonomy" does not have one precise, agreed-upon definition. I suggest, though, that it
tends to evoke the right to choose while privacy evokes the right to be exempt from scrutiny.
Both might be seen as elements of the right to be let alone. If this distinction is accepted, one can
use this pair of concepts to denote the important difference between choice and exception from
102. Alan Wolfe, Whose Keeper: Social Science and Moral Obligation.
103. In a similar discussion, Steven Nock frames the issue in terms of reputation: "Reputation, I
will argue, is a necessary and basic component of the trust that lies at the heart of social order.
To establish and maintain reputations in the face of privacy, social mechanisms of surveillance
have been elaborated or developed. In particular, various forms of credentials and modern
ordeals produce reputations that are widely accessible, impersonal, and portable from one
location to another. A society of strangers is one of immense personal privacy. Surveillance is
the cost of that privacy." Steven L. Nock, The Costs of Privacy: Surveillance and Reputation in
America (New York: Walter de Gruyter, Inc., 1993). Emphasis in original. For additional
discussion of this issue, see also Schoeman, Privacy and Social Freedom.
104. See Robert J. Sampson, "The Community," in Crime, eds. James Q. Wilson and Joan
Petersilia (San Francisco: Institute for Contemporary Studies Press, 1995), 193-216.
105. On a related note, see Robert J. Sampson, Stephen W. Raudenbush, Felton Earls,
"Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy," Science, 15
August 1997, 918-924.
106. William A. Donahue, "Culture Wars Against the Boy Scouts," Society, May 1994.
107. Ernest van den Haag, "On Privacy," in Privacy: Nomos XIII, 149.
108. On the question of how communities make such formulations, see Etzioni, The New Golden
Rule, 85-159. The basic idea is that social and public decision-making is substantive and not
merely procedural. See also Michael Sandel, Democracy's Discontent: America in Search of
Public Philosophy (Cambridge, Mass.: Belknap Press, 1996).
109. I am referring to a society-wide rise in permissiveness
rather than to the relation of mores in one limited area of behavior.