315. "Podium: Rational Privacy Doctrine," The National Law Journal, (May 17, 1999), page A21.
Our rights are constantly being recast. For example, the right to free speech meant much less before 1920, and the constitutional right to privacy did not exist until 34 years ago. This is why I dare suggest major changes in legal doctrines governing privacy in public and private lives.
Our right to privacy against the government should be squarely based on the Fourth Amendment, instead of on the mishmash of rights that now support it. As fashioned in reproductive rights cases, the privacy right deals with choice, with who controls the act--the state or the person. It does not deal with privacy commonly understood as legitimate exceptions from scrutiny--the right to act out of sight and earshot.
The right to choice is best anchored in the 14th Amendment. But the right to be exempt from scrutiny should be based on the Fourth Amendment because, built into it, is the conception of balance of individual rights and the public interest.
It does not read, "Congress shall make no law" or "there shall be no search." It only bans "unreasonable" searches, and hence it recognizes reasonable searches--those in the public interest. Moreover, the Fourth Amendment provides a mechanism for sorting out which searches are reasonable--namely, the requirement of a court-ordered warrant before a legal search can be conducted.
The reason for recognizing the public interest up front, as an explicit constitutional category, is that in a detailed analysis of matters of public safety and health, I found that the public interest is neglected in many cases, while the right to privacy is excessively accommodated. Such cases include HIV testing of infants (a matter settled so far only in New York); the opposition to Megan's laws, which led many states unduly to limit their implementation, especially in New Jersey; and preventing the government from breaking the encrypted messages of terrorists, drug lords and pedophiles.
While we all realize that the Fourth Amendment concerns the relationship between citizens and their government, I argue--and here one must truly be willing to be open to new approaches--that the basic concept underlying it should also apply to our right to privacy regarding corporations and other private actors, which are becoming the main sources of attacks on our privacy.
New federal and state laws should be enacted to limit the right of private parties to use or trade personal information without prior consent of the affected parties to those instances in which
a service to the common good (including to the economy) clearly and significantly exceeds any disservice to individuals.
Accordingly, using personal medical information for medical research would be acceptable, while drawing on it to cancel loans of cancer patients because they pose a credit risk, would not. (The rationale is that medical research provides an important common good, and if such research is properly conducted, the information used does not harm individuals. In contrast, the gain to banks is minimal, while the damage to the cancer patients is severe).
Using personal information in refusing to rent cars to drunk drivers would be legal, but drawing on the results of genetic tests to fire people would not. (The reasoning here is that preventing drunks from driving greatly benefits both the public and these drivers, while firing people who have "poor" genes but exhibit no ill effects provides no public service and greatly harms the people affected.)
Following the same rationale, parents should be permitted to install surveillance cameras to monitor the treatment of their children by babysitters and au pairs, but landlords should be prohibited from installing microphones under the beds of tenants (which, believe it or not, has occurred). Admittedly, there are many instances in which the relative claims of the common good and personal rights are unclear. We need mechanisms to sort these out, once the basic notion of a quest for balance between the common good and individual rights is accepted. With goodwill and based on a new approach, such devices will be found in the legislatures and in the courts.
Amitai Etzioni is the director of the Communitarian Network and author of The Limits of Privacy (Basic Books, 1999). He may be reached at firstname.lastname@example.org.