338. "The Right to Privacy vs. the Common Good" USA Today Magazine (September 2000), pp 24-25.
Drug testing violates the privacy of those tested. In effect, the test penetrates into their body and often reveals their conduct when they were not on the job. Still the law and most of us hold it reasonable to require that school bus drivers, airline pilots and train engineers--those who directly have the lives of others in their hands--be tested. This approach, which refuses to treat privacy as an absolute right, and expects it to yield for the common good under certain circumstances, is based on the Fourth Amendment. It does not read "Congress shall make no law...." banning searches, the way the much stronger First Amendment reads, but only bans unreasonable searches. Ergo, it recognizes on the face of it that there are reasonable ones, those in the public interest.
The question then arises, under what conditions are searches reasonable? As I see it, there are four criteria which searches have to meet. First, a free society will limit privacy only if it faces a well-documented and macroscopic threat to the common good (such as public safety or public health), not merely a hypothetical danger. Tampering with ethical, social, and legal traditions--and with the public philosophies that underlie them--endangers those traditions' legitimacy. Once tradition is breached it is difficult to prevent it from unraveling, a phenomenon often referred to as the slippery slope problem. Changes, therefore, should not be undertaken unless there is strong evidence that either the common good or privacy has been significantly ignored.
Secondly, after determining that the common good needs shoring up, one should examine whether that goal can be achieved without recalibrating privacy. For instance, when medical records are needed by researchers, personally identifying information (such as names, addresses and social security numbers), should first be removed.
Third, to the extent that privacy-curbing measures must be introduced, a free 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.
Lastly, measures that treat undesirable side-effects of necessary 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 tested.
Application of the four balancing criteria helps us to ensure that correctives to a society's course are both truly needed and not excessive. Granted, 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, 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.
I conducted an extensive examination of the condition of the nation in five major matters concerning public safety and public health, the most important common goods. These included HIV testing of infants, encryption of communications, community warnings when pedophiles are released, the new technology of biometrics, and medical records. (The detailed results were published in a book entailed The Limits of Privacy, published by Basic Books). I found that in all but the last case, privacy considerations took precedence over serving the common good. For instance, despite evidence provided by the government that terrorists, drug lords and pedophiles used encryption for their nefarious acts, the FBI was not granted the tools it needs to decode such messages--under the same conditions it must meet in order to tap phone calls. These conditions are based squarely on the Fourth Amendment: The government must present to a judge evidence that it has compelling reason to suspect that a crime has been or is about to be committed. Only then, the judge issues a warrants that allow a tap. Those who believe that judges issue these warrants lightly may wish to note that in a recent year only about 1100 were issued nationwide.
To understand why our current legal tradition often favors privacy over the common good and is not based squarely on the Fourth Amendment, following is a brief review of how we got here.
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. 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. 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 personal privacy.
The right to private property was, in turn, treated as semi-sacred; it was 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."
True, Locke and the many who build on his writings, 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, 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. 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.)
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," a term typically employed to designate values or precepts of the highest authority--ones that should not be touched, let alone reined 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. 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.
As Columbia University law professor Louis Henkin put it: "consideration has focused on defining the private right of privacy, with little regard to our other balance, the competing 'public good.'"
The third stage of the development of the legal foundations of privacy is commonly recognized as commencing with several Supreme Court cases in the mid 1960s and beyond that lay the foundations of a constitutional right to privacy. They tend to stress the individual right to choose and pay little mind to any other considerations.
Griswold v. United States, the first of these reproductive rights cases, is commonly credited with establishing a 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 v. United States, 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, limitations on the sale of contraceptives to minors were removed. In these cases, too, protection for privacy had become almost absolute.
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 stated that it rejected the unbounded approach and formulated some criteria under which states could ban abortions.
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 personal choice.
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. All these cases avoided both the basic concept underlying the Fourth Amendment text, which creates an explicit category of public interest, of common good, in which violation of privacy is fully justified.
Treating privacy as sacrosanct, however, has had negative consequences that have been largely ignored by those who draw on legal conceptions fashioned in earlier ages. As 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). 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.
In the current historical context, I suggest that we should come to view privacy as the realm in which a person 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. 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, privacy encompasses behavior that members of a particular social entity are 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 conceptions of privacy aim 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 prohibit people to bathe nude on many public beaches, limit public drinking in some communities, and so on.
In short, a new social, moral and legal conception of privacy would continue to cherish it, but would also explicitly recognize that there are situations in which is ought to yield to concerns of public safety and public health. Such a conception, based squarely on the Fourth Amendment, would draw on the mechanism of the Fourth Amendment to sort out conflicting claims between those who hold that a privacy-violating search is called for, and those who hold otherwise: both may present their arguments to a judge who will have the final say in the matter. However, these judges will be expected to draw on the Fourth Amendment rather than on Griswold and the other reproductive choice cases. They will be expected to recognize from the get-go that there is a category of reasonable searches, searches in the public interest, for the common good.
Amitai Etzioni is the author of The Limits of Privacy, just issued in paperback by Basic Books, and of The Spirit of Community (Crown Publishers, Inc., 1993). He teaches at The George Washington University.