The Limits of Privacy
by Amitai Etzioni
While The New Golden Rule was aimed strictly at academic audiences, The Limits of Privacy speaks to all who care about
the moral, legal and policy issues raised by the tension between personal privacy and the common good, especially public
health and safety.
The book explores five specific current hot issues:
- Megan's Laws: Etzioni argues that these laws do not do enough to protect children from sex offenders. He outlines a
whole new approach to dealing with pedophiles.
- HIV Testing of Infants: The book shows that many infants die unnecessarily because the vast majority of states has not
yet adopted a testing procedure which has worked in New York to identify and treat infected newborns.
- Bio-metrics: In very short order your face and hand will become your 100% reliable, unforgible ID card. Anonymity
will vanish, but so will most fugitives from the law, illegal immigrants, welfare cheats, and many others who rely on
- Hyper-privacy: New encryption programs allow your e-mail to be completely private. But how can we use this
technology to protect our communications and transactions, and also be sure that this same hyper-privacy is not afforded
to Internet-savvy drug lords, pedophiles, and terrorists? Etzioni shows what might be done.
- Medical privacy: The privacy of your medical records is violated daily when corporations trade that information on the
open market. This is a case of Big Bucks, not Big Brother, violating our privacy. What can be done about these Privacy
Each of these issues is debated daily in the media, in public meetings, in legislatures, and at home. Etzioni takes a highly
original stance on all of them: Rather than decrying the loss of privacy, his first concern is safety and health. The book
closes with a call for a whole new legal conception of privacy. One based on the notion of equal concern for the common
good (public health and safety) and privacy, rather than according privacy a privileged position.
Amitai Etzioni has served as president of the American Sociological Association, as White House consultant, and has been
a professor at Columbia University, Harvard, and Berkeley. His book The Spirit of Community was widely hailed by both
the left and the right.
Praise for The Limits of Privacy
- "Etzioni can always be counted on to pose thoughtful challenges to conventional wisdom. His
new book, The Limits of Privacy, which advocates a balancing approach to privacy, does
not disappoint. Though I quarrel with the weight of the communitarian thumb he places on the scale, I admire the wisdom
and data he brings to bear on the debate. A must-read for everyone who values privacy, community and rationality." --Alan M. Dershowitz, Professor of Law, Harvard University;
Author of Sexual McCarthyism, Chutzpah, The Best Defense, and The Abuse Excuse, among others.
- "While privacy rights in a democratic society must always be
balanced with the values of public disclosure and protective surveillance,
people can disagree sharply over where to set the balances. Etzioni
argues in this book that privacy claims have been accepted too
often in recent decades at the expense of the civilized communitarian
society for which Professor Etzioni is a pre-eminent advocate.
Looking at five areas of privacy debate, ranging from HIV testing
for infants to biometric identifiers, Etzioni offers a thoughtful
framework for weighing privacy claims in a high-tech society.
His analyses are a very welcome addition to the privacy literature,
whether or not one reaches the same conclusions as he does in
specific settings." --Alan F. Westin, Professor of Public Law
& Government Emeritus, Columbia University; Author of Privacy
and Freedom; Databanks in a Free Society; Computers, Record Keeping
and Privacy; and The Anatomy of a Constitutional Law Case,
- "Amitai Etzioni's The Limits of Privacy offers much
of what has been missing from contemporary public policy - thoughtful
common sense. As a member of Congress, I have been astonished
by the political might of those who advocate privacy at any cost
- even if the cost is someone else's life or well-being. As a
practicing physician, I have been bewildered by the medical community's
capitulation to political correctness as a substitute for sound
public health in our efforts against HIV and AIDS. Dr. Etzioni's
balanced and thorough analysis of the debate surrounding newborn
HIV screening exposes the atrocity of a misguided policy that
has allowed thousands of innocent babies to be sacrificed at the
altar of privacy. In addition, he offers a sound and reasonable
solution that transcends politics and saves lives. His incisive
analysis of this and other major privacy debates makes this book
required reading for all Americans wishing to balance the right
to privacy with issues of public health and safety." -Congressman
Tom A. Coburn, M.D., Member of Congress and practicing physician.
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Contents - The Limits of Privacy
HIV Testing of Infants: Should Public Health Override Privacy?
Sex Offenders' Privacy vs. Children's Safety: Megan's Laws
Deciphering Encrypted Messages: A Prolonged Deadlock and an
Big Brother or Big Benefits? ID Cards and Biometric Identifiers
Medical Records: Big Brother Versus Big Bucks
A Contemporary Conception of Privacy
Introduction to The Limits of Privacy
Accompanied by his wife and 9-year-old son, John Becerra moved
to Farmington, New York in December of 1995 to start a new life.
Mr. Becerra had pleaded guilty to sexual abuse, served his time,
and quietly begun his probation. In spring of 1997, however,
the Becerra family found themselves in the crosshairs of a neighborhood
campaign to drive them out of town. Picketers rallied outside
the family's home; a brick was thrown through their car window;
a shot was fired through a window of their house, and anonymous
calls were made to Mr. and Mrs. Becerra's workplaces. All this
happened when members of the community found out about Mr. Becerra's
One afternoon in late July 1994, 7-year-old Megan Kanka didn't
come home. Earlier, a neighbor had offered to show her his new
puppy. Once inside his home, the man sexually assaulted Megan,
then strangled her with a belt and wrapped her head in a plastic
bag. Her body was eventually found buried in a nearby park,
blood trickling from her mouth and her shorts cut to pieces.
Investigation led to the arrest of Jesse Timmendequas, a man
who had served six years in prison for two sex offense convictions
and lived with two other child molesters. No one in the neighborhood
knew about his past. Especially the Kankas.(2)
No one needs to read a book--let alone a philosophical tract
or an extensive policy analysis--to be reminded that the right
to be let alone is much cherished, that without privacy no society
can long remain free. And, unless one has been denied access
to all forms of communication and media, one has been fairly
and repeatedly warned that privacy is not so much nibbled away
as stripped away by every manner of new technology. Hardly a
week passes without alarming headlines that warn Americans that
their cell phone conversations are not secure, employers read
their e-mail, mutual funds sell details of their financial records
to marketers, and their medical records are an open book. Public
opinion polls show that Americans are appropriately agitated.(3)
And Congress as well as state legislatures at least are claiming
that they are about to pass new laws to protect privacy.(4)
Also, as the abundance of cliches about cyberspace indicate,
new technologies have made invasion of privacy so much easier,
that one is justified in asking what remains of privacy and
how might it be saved in the new cyber-age?(5)
This is a book largely about the other side of the equation
that makes for a good and free society. It is about our investment
in the common good, about our profound sense of social virtue,
and about our concern for public safety and public health. While
we cherish privacy, we also value other goods. Hence, one must
face the moral, legal, and social issues that arise when serving
the common good entails violating privacy, and seek for ways
to address these issues.
When I mentioned the subject of this book to an audience of
my friends, students in my classes, and people who attend public
lectures, initially they were all taken aback. Privacy, they
pointed out, was under siege if not already overrun. Given privacy's
great importance to a free people, my colleagues stressed, one
should seek new ways to shore it up, not to cast more aspersions
To begin a new dialogue about privacy, I asked my audiences
whether they would like to know if the person entrusted with
their child care is a convicted child molester. I mentioned
that when such screening is done, thousands are found to have
criminal records, including pedophilia.(6)
I further asked: Would they want to know if the staff in the
nursing home in which their mother now lives have criminal records
that include abusing the elderly? I noted that 14 percent of
such employees have are found to have criminal records, including
violent acts against senior citizens.(7)
And, should public authorities should be entitled to determine
whether drivers of school buses, pilots, and members of the
police are zonked on drugs? Should the FBI be in a position
to crack the encrypted messages employed by terrorists, before
they use them to orchestrate the next Oklahoma City bombing?
Meeting such concerns requires measures that diminish privacy
in the service of the common good.
One may be tempted for a moment to employ a double standard,
to seek to enshrine one's own privacy while denying that of
others, perhaps on the grounds that "we" are innocent while
"they" are suspect. However, such a position is too cynical
to be entertained seriously. That all of us are subject to the
same law is a principle at the heart of democratic government.
Nor can one ethically lay claims on others from which we exempt
ourselves. In principle and in practice, there is no escaping
the basic tension between our profound desire for privacy and
our deep concern for public safety and public health.
In my view, a good society does not automatically privilege
one core value over another. To "privilege" a value means to
accord it a special standing, that of a basically unmitigated
good. While such a value is not treated with the ultimate reverence
accorded to an absolute value, because it is assumed that a
privileged value might be curbed out of consideration for the
claims of other values, the burden of proof is assumed to be
on those who speak for other concerns. And, when a value is
strongly privileged, any other claims are suspect on the face
of it and are made to jump over numerous hurdles (lawyers speak
here of "strict scrutiny") before they may be taken into account.
Privacy is treated in our society (more than in any other) as
a highly privileged value; the question this book grapples with
is, under which moral, legal, and social conditions should this
privilege be revoked? What are the specific and significant
harms that befall us when we do allow privacy to be so treated?
The Common Good, Defined
When I refer to the "common good" (or to the good society),
one may fear that I am about to stray into some vague or preachy
realm. Note, though, that while different terms may be applied,
we all view some matters as shared concerns of society-at-large.
Defense from nuclear attack, for instance. And practically all
Americans agree that protecting the environment is a common
good, although we differ regarding the scope and specifics of
The common goods this book focuses on, public safety and public
health, are not two among many, but the mainstays of what are
considered practically uncontested common goods. Indeed, very
often when reference is made by courts or in common parlance
to the public interest, reference is to matters that fall into
one of these two pivotal categories. Without questioning the
basic virtue of privacy, this book will show that in several
important matters of public safety and health, the common good
is being systematically neglected out of excessive deference
Moreover, I shall try to demonstrate in the following pages
that what is called for are not limited, ad hoc concessions
to the common good, some grudgingly accorded elbow room to the
public interest, extended if and when a specific and strong
case can be presented that privacy must be curbed. What is required
is a fundamental change in civic culture, policy making, and
legal doctrines. We need a paradigm that treats privacy as an
individual right that must be balanced with concerns for the
common good (or as one good among others(8)),
without a priori privileging any of them.
Discussions about privacy (and other rights) often take form
around a particular new technology or social measure that violates
privacy and hence, it is argued, should be rejected. When civil
liberties groups learned recently that parents at work now may
watch their children play in child care centers on their desktop
computers, these groups objected on the ground that the cameras
involved violate the privacy of the staff.(9)
However, as I see it, this claim is merely the beginning of
a necessary dialogue on the subject. The next step ought to
be to inquire whether the gains to the children, the parents,
and the community justify whatever loss in privacy is entailed.
(Note that the staff is informed about the presence of the cameras.)
Even the First Amendment, often considered the most absolute
value of them all, does not trump all other considerations,
which is, of course, the reason shouting "Fire!" in a crowded
theater is a forbidden form of speech (unless there is a fire,
the ACLU reminds us). Privacy should be treated with similarly
high, but not unbounded, respect. To put it differently, we
must recall that both ethics and public policies often entail
not a choice between good and evil or right and wrong, but rather
the much more daunting challenge of charting a course when faced
with two conflicting rights or goods. This book seeks to provide
such a sorting out of the conflicting claims of the right to
privacy and the needs of public safety and public health.
On the One Side or the Other: the Need for Balance
My approach is nourished by a social philosophy: communitarian
thinking. I should briefly indicate where I am coming from,
the kind of communitarian philosophy I draw upon, although one
can readily read this book without dwelling on these concerns.
My communitarianism holds that a good society seeks a carefully
crafted balance between individual rights and social responsibilities,
between liberty and the common good, a position I have written
about elsewhere in some detail.(10)
This book applies this general approach to the tensed and confused
relationship between the right to privacy and specific societal
If one takes as a starting point the general principle that
a good society crafts a careful balance between individual rights
and the common good, the next step is to apply the principle
to actual societies. One then asks whether a particular society,
in a given period, leans too far in one direction or the other.
If one finds that a particular society strongly fosters social
duties but neglects individual rights (as does Japan, for instance,
when it comes to the rights of women, minorities, and the disabled),
balancing requires strenuously fostering the other side, which
in this case entails the expansion of autonomy. Indeed, even
in the West, in earlier ages, when John Locke, Adam Smith, and
John Stuart Mill wrote their influential works, and for roughly
the first 190 years of the American republic, the struggle to
expand the realm of individual liberty was very much called
for, and there was little reason to be concerned that social
responsibilities would be neglected. However, as communitarians
have repeatedly noted, the relationship between rights and responsibilities
drastically shifted in American society between 1960 and 1990,
as a new emphasis on personal autonomy and individualism gradually
overwhelmed other societal considerations. As a result, in the
1990s, society has recognized the need to reign in the excesses
of individualism.(11) I will
show in the next pages that this much needed social correction--this
balancing of rights with a fresh emphasis on responsibilities--has
yet to be brought to bear on privacy issues.
Two reasons stand out for the strong reluctance to face this
issue. First, there is a widely held belief in American society
that privacy, far from being excessively indulged, is endangered.
The ACLU, for example, claims that "Americans' right to privacy
is in peril."(12) Popular magazines
have run cover stories about the "death" of privacy, analyzing
"who killed [it]."(13) Scholars
such as Brian Serr have argued, more carefully, but still to
the same effect, that "the [Supreme] Court's means of promoting
law enforcement interests has tipped the balance unnecessarily
further and further away from individual freedom, significantly
diminishing the realm of personal privacy" and that "government
investigatory techniques threaten to intrude more and more on
the privacies of everyday life."(14)
Dr. David Brin puts it mildly, in a book entitled The Transparent
Society: "Privacy is under siege."(15)
Professor Scott E. Sundby chronicles his colleagues' concern
over the "loss of privacy": "The Supreme Court's recent Fourth
Amendment decisions have drawn sharp criticism from the legal
academy. Article after article documents the Court's transgressions...
[how the Court] has suffocated individual privacy through an
all-encompassing reasonableness standard . . . If ever a united
cry of warning has been made that a basic civil liberty was
in danger, this chorus of law review laments is it."(16)
Professor Richard Spinello writes in his article "The End of
Privacy": "The title of this article may sound ominous, but
it is intended to convey the stark reality that our personal
privacy may gradually be coming to an end."(17)
These statements by opinion makers and scholars have left
their mark on the American public, major segments of which are
rather alarmed about threats to privacy. A 1996 Harris/Equifax
poll found that nearly 80 percent of Americans are "somewhat"
or "very" concerned about threats to personal privacy, the highest
percentage ever recorded by the polling agency on this subject.(18)
A 1997 poll found a still larger number of Americans troubled
about the state of privacy in America. Ninety-two percent of
respondents were "concerned" about "threats to their personal
privacy," and 64 percent were "very concerned" in a 1997
Champions of privacy argue that the appropriate consideration
at this stage in history is not to what extent privacy may need
to be limited to serve the common good, but rather what might
be done to save this endangered right.
Effectively summarizing the alarmist position about the loss
of privacy, Sundby writes:
To maintain privacy, one must not write any checks nor make
any phone calls. It would be unwise to engage in conversation
with another person, or to walk, even on private property, outside
one's house. If one is to barbecue or read in the back yard,
do so only if surrounded by a fence higher than a double-decker
bus and while sitting beneath an opaque awning. The wise individual
might also consider purchasing anti-aerial spying devices if
available (be sure to check the latest Sharper Image catalogue).
Upon retiring inside, be sure to pull the shades together tightly
so that no crack exists and to converse only in quiet tones.
When discarding letters or other delicate materials, do so only
after a thorough shredding of the documents (again see your
Sharper Image catalogue); ideally, one would take the trash
personally to the disposal site and bury it deep within. Finally,
when buying items, carefully inspect them for any electronic
tracking devices that may be attached.(20)
The second reason champions of privacy oppose adapting conceptions
of privacy to contemporary social conditions--even when faced
with the kind of evidence presented below, demonstrating specific
significant public safety and public health deficits--is a widely
shared belief that our emphasis on maintaining privacy has no
negative consequences. The courts, champions of privacy hold,
far from neglecting the public interest, have regularly included
careful attention to it in their deliberations. The same is
sometimes said about policy makers, federal and state administrations
and legislatures, and regulatory bodies. To put it in the terms
of reference employed here, it is argued that given that strong
advocacy of privacy has not unbalanced the societal scales,
there is no need to right them.
The Impacts of Strong Privacy Advocates
In the studies of specific public policies, and related matters
of civic culture and legal doctrines, that follow, my first
call is to demonstrate that there is a problem to begin with,
that champions of privacy have not merely engaged in rhetorical
excesses but that these excesses have had significant detrimental
effects. Specifically, I show in the following pages that
the champions of privacy (1) have been successful in delaying
for years needed public actions by bottling them up in the courts,
even if a balanced view ultimately prevailed; (2) have blocked
altogether the introduction of other needed public policies
that entailed some new limitations on privacy; (3) they have
had a chilling effect on the consideration of still other public
policies that would advance the common good, preventing them
from being even seriously examined because public authorities
feared lawsuits by the ACLU or others, and by making such considerations
politically costly (in the court of public opinion, not to mention
on the campaign trail, in various legislatures, and in the White
House). (4) Finally, the champions of privacy (and of related
individual rights) have for years sidetracked the introduction
of new devices that could have enhanced both privacy and public
health. Often, we shall see, individualistic public philosophies,
policies, and legal doctrines had all these effects simultaneously,
each enforcing the other.(21)
I support these claims by examining in detail five public
policies: the issues raised by violation of the privacy of mothers
following HIV testing of their newborn children (Ch. 1); the
pros and cons of protecting children from repeat sex offenders
by notifying the community about the offenders' presence (Megan's
Laws) (Ch. 2); the conflicting views regarding whether the government
should be able to examine privately encrypted communications,
a sort of phone-tapping of the Internet (Ch. 3); the dangers
and opportunities posed by the development of new powerful biometrics
ID systems, which in effect constitute national ID cards (Ch.
4); and new measures needed to protect the privacy of medical
records, measures that go beyond those based on the libertarian
doctrine of relying on the consent of patients for each specific
use of the information about them (Ch. 5).
Several other public policy measures not examined here reflect
the same basic tension between privacy and the common good.
They include drug testing of those who hold directly in their
hands the lives of others (e.g., police, pilots, air traffic
controllers, school bus drivers, and train engineers), anti-terrorist
measures,(22) the placement
of surveillance cameras in public places to observe and deter
criminal activity,(23) searches
of public school lockers for drugs and firearms, searches for
firearms in public housing,(24)
the establishment of sobriety checkpoints and anti-drug checkpoints,
and government-fostered but voluntary HIV testing and contact
These issues are also faced by the 13 states that so far have
not set up sobriety checkpoints, and which the Michigan Supreme
Court has declared unconstitutional. Similarly, anti-drug checkpoints,
which have been proven to be surprisingly effective in closing
open drug markets, eliminating drive-by shootings, and reducing
violent crime, have been challenged in courts.(26)
In some cases these challenges have led to temporary removal
of the checkpoints; in others, barriers have been permanently
dismantled. In still other cases such checkpoints have not been
erected, as public authorities have feared being sued.
The treatment of HIV stands out among the major public policies,
laws, regulations, and court cases in which privileging privacy
has had considerable impact. Privacy advocates and their allies
have prevented HIV from being treated like other dangerous communicable
diseases (a trend referred to among experts as "HIV exceptionalism").
Government-encouraged (but not coerced) HIV testing and contact
notification, which does entail some violation of privacy, is
still blocked--although even several major gay leaders who in
the past opposed such measures, now favor them.(27)
In short, one cannot reasonably claim that privileging privacy
has had no ill effects. The question that needs to be addressed,
as I attempt to do in the following chapters, is how can the
common goods at issue be better served without unnecessarily
undermining privacy? When, specifically, are there "harms,"
and what public policy remedies can be introduced that would
minimize the diminution of privacy these harms may entail? Finally,
how should we address the moral, legal, and social concerns
raised by these remedies?
Wrong Address: The Privacy Paradox
While in the cases of four out of the five policies I examine
in the following pages, as well in those just listed, I find
that privacy often is privileged over the common good, the examination
of the fifth area of public policy, that of medical records,
shows that privacy is very much endangered, often without serving
any significant common good (or one that could not be served
in ways that are much less injurious to privacy). However, the
threat to privacy here turns out largely to be not the state,
the villain champions of privacy traditionally fear most, but
rather the quest for profit by select private companies. Indeed,
I find that many corporations now regularly amass detailed accounts
about many aspects of the personal lives of many millions of
individuals, profiles of the kind that until but a few years
back could be compiled only by the likes of the East German
Stasi or other major state agencies with huge budgets.
Moreover, I find a general pattern: while our civic culture,
public policies, and legal doctrines are rather attentive to
privacy when it is violated by the state, when privacy is threatened
by the private sector our culture, policies, and doctrines provide
a surprisingly weak defense. Consumers, employees, even patients
and children have little protection from marketeers, insurance
companies, bankers, and corporate surveillance. If privacy is
to be better protected from commercial intrusions, a new approach
needs to be developed. This approach will best rely, as I aim
to show below, in part on new technological and social devices,
and in part on a more benign view of an active role of the state.
Totalitarianism deeply concerned people in the 20th century;
its dangers can be hardly ignored in the 21st century. However,
renewed attention will have to be paid to ill effects that arise
out of new unfettering of market forces. Privacy advocates will
not make progress in this area, I show below, until they break
out of the paradox that while they fear most Big Brother, they
need to lean on him to protect privacy better from Big Buck.
Criteria for Corrective Action
I face a common challenge when I argue for a carefully crafted
balance between the common good and individual rights, between
public health, public safety and privacy. This challenge is
particularly keen as the balance I seek is not merely within
some abstract theory or model, but in the context of specific
historical and social conditions of a real, existing society--ours.
The challenge, raised in practically every pubic lecture I delivered
on the subject: how is one to determine if the existing relationship
between privacy and the common good (or between privacy as one
good and other common goods) is out of kilter, and--if it is--what
ought to be done to correct the imbalance?
In the following pages I suggest four criteria which, when
applied jointly, help to determine whether an imbalance exists,
in which the direction society is tilting, the scope of corrective
action that is called for, and the specific qualities of the
correctives that are to be employed. They are applied to each
of the five public policies under review here. Even those who
do not share the approach to privacy advanced in these pages
may well find the specific criteria presented in the following
pages to be of interest for the study of other matters of public
policy, legal doctrines, and civic culture. (Previous presentations
and applications of these criteria have been received favorably.(28))
Indeed, even if the common good would somehow overnight be well
protected in all the areas under study--there would be no more
pedophiles, no infants born with HIV, no criminals hiding behind
false IDs, and no terrorists exchanging unbreakable encrypted
messages--the following analysis would still apply. The specific
studies of public policy, aside from whatever light they cast
on measures needed to protect better public safety and health,
also seek to illustrate a mode of policy analysis that encompass
considerations of ethical, legal, and practical considerations
in the quest for a better society.
Much of the discussion reflects a pivotal fact about society:
unlike ideologies, which can seek to center around one core
value, society cannot but serve multiple needs and wants. This,
in turn, has an important consequence that deserves much more
attention: societies typically cannot make perfect choices,
because often they must sacrifice a measure of one good for
the sake of another. This fact is reflected in that much of
what is under discussion here concerns trade-offs, between privacy
and the common good. I like to note, though that trade-offs
are not always necessarily the case. Indeed, most issues should
be approached first with a quest for policies or laws that could
enhance both goods.
A brief example: Development for a kit that allows one to
determine in the privacy of one's home if one has HIV was begun
in 1985. The kit entailed no visit to a doctor's office or clinic,
no filling out of forms or computer entries. Users can mail
in a few drops of blood and a code name and then call for the
results. Aside from providing more privacy than previously available,
the kit also advanced public health by offering an opportunity
for those reluctant to be tested in other places to proceed.
One notes with some sadness that the politics of privacy are
such that even this very simple kit was bottled up in the FDA
for seven years before it was finally approved.(29)
However, when the FDA finally allowed it to be marketed, it
did serve as an example of zero-plus (rather then the zero-sum)
Four Balancing Criteria
First, a well-balanced, communitarian society will seek to
reduce the scope of privacy only if it faces a well-documented
and macroscopic threat to the common good as opposed to
a merely hypothetical danger. (The phrase "clear and present
danger" comes to mind, but for those who are legally-minded
it implies a standard that is too exacting for the purposes
at hand.) Policy makers and the general public are bombarded
with dire warnings that society is about to face this or that
grave danger (e.g., flesh eating bacteria, chicken-driven flus
and mad cows, holes in the ozone layer, El Niño, and
the extinction of swordfish(30)),
presented as grounds for curtailment of privacy and other individual
rights. If a society were to respond to such frequent warnings
by curbing rights in every instance, rights would erode rapidly,
often without serving any true common good.
Before limiting privacy, a society needs first to determine
how well-documented various reported dangers to the common good
are and how encompassing their expected consequences will be.
When many thousands of lives are lost and many millions more
are at risk, as they are to HIV, we face a clear, major threat.
The effects of abusing marijuana are real but of a much lower
magnitude, and hence do not legitimate the same kind of response.
Still other dangers are highly hypothetical, and hence usually
do not legitimate public action. (I write "usually" because
in situations in which the probability of major ill consequences
is low, but the magnitude of possible disutility is very high--for
instance, a nuclear attack by terrorists--some privacy limiting
measures might be justified, as we argue in the case of encryption.)
Second, if a communitarian society acts to counter a tangible
and macroscopic danger, it ought to start by trying to
cope with the danger without resorting to measures that might
restrict privacy. For instance, if medical records are needed
by researchers and epidemiologists, the data is best collected
and utilized as much as possible without identifying specific
individuals. Because these measures often entail changes in
mores, institutions, or habits of the heart rather than laws
or constitutionally protected rights, I refer to them in the
following discussion as "second criteria treatments."
Third, to the extent that privacy-curbing measures must be
introduced, 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. Yet, the highly
intrusive visual surveillance sometimes applied to those who
provide a test specimen--to ensure that the sample is in fact
from the person who delivers it--often can be avoided by measuring
the temperature of the sample immediately after it is presented.
To distinguish these kinds of measures from those that qualify
by the second criteria, I refers to these acts--often undertaken
by the government, and typically entailing changes in legal
doctrines--as "third criteria interventions".
The principle of limiting the intrusiveness of privacy-curbing
measures is further illustrated by the example of a national
database that contains the names of medical practitioners who
have been sued, sanctioned, or otherwise penalized for crimes,
misconduct, or incompetence. The National Practitioner Data
Bank allows hospitals that consider granting "privileges" (i.e.,
the right to practice in the hospital) to physicians to conduct
limited background checks on these physicians. However, the
data bank discloses only that a physician has been subject to
malpractice litigation or an out of court settlement, or adverse
action (which might include revocation of license to practice
or removal of privileges, for acts such as substance abuse),
but stops short of providing details of the violation. Because
it is known that, as a rule, physicians are disaffiliated only
for major violations, this information suffices for hospitals
who seek to protect the public.(31)
Divulging more information would unnecessarily violate the privacy
of those involved. Moreover, if a particular hospital needs
to establish the specific reasons why a physician has been censured,
it can garner this information from the physician applying for
a position or privileges. But this additional information is
not available to anybody who accesses the national data bank.
For the first screening, provided by the data bank, the
limited information seems sufficient.
Lastly, measures that treat undesirable side-effects
of needed privacy-diminishing measures are to be preferred over
those that ignore these effects. Thus, if more widespread HIV
testing and contact tracing are deemed necessary for public
health purposes, efforts must be made to enhance the confidentiality
of the records of those tested for HIV. These records need to
be particularly well-protected to ensure that individuals testing
positive will not lose their insurance, employment, housing,
or otherwise suffer discrimination. For the same reasons, one
may have to increase penalties imposed upon those who violate
The four criteria are arranged sequentially in the sense that
only policies and social actions that satisfy the first criterion
need to be analyzed in light of the second one, and so on.(32)
While the criteria have just been introduced with examples
of situations 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 tilts too far
in the opposite direction, that is, when privacy is endangered
and the concern for the common good must be scaled back. A case
in point is the abuse of medical records. Information about
patients included in their personal medical records and shared
with health insurance companies is sometimes transmitted to
other parties, such as employers (who use the information to
fire those with problems such as cancer or the "wrong" genes),
to banks (who call in the loans of the sick), and even to tabloids.(33)
Drawing on the four criteria outline to determine whether
or not such spreading of personal medical information should
be curbed and the privacy of medical records strengthened, one
first seeks to establish whether there is a significant common
good served by such spreading of information to third parties.
Finding little or none, one then seeks to determine if these
privacy-endangering transmissions can be curbed without altering
the law, through means such as changing patient consent forms
(which now almost totally relinquish the patient's control over
his or her medical information and history) or via more advanced
technological safeguards in computer information systems (e.g.,
audit trails that allow for the tracking of all those who access
a file, and enable administrators to determine if there has
been unauthorized access), and other such devices. If these
measures are deemed insufficient, legal remedies might be considered.
One might, for instance, introduce new penalties for the unauthorized
transmission of medical information. Finally, those who have
suffered from undue violations of their privacy--for instance,
a person, who loses a job as a result of such actions--might
be entitled to receive compensation. In short, the four criteria
can be used as much to determine if privacy is deficient as
to determine if it is excessive, as well as what actions are
best taken to shore up privacy or to limit the sway of the common
The following analysis proceeds on two levels: it seeks to
determine in which areas major modifications are needed in our
public philosophies, policies, and legal doctrines concerning
the balance between privacy and the common good, as well as
to illustrate extensively the merit of relying on the four criteria
as a way to sort out changes in directions that might concern
most any matter of public concern.
A word about methodology: knowledge is often either analytical
and specialized (the kind basic research often generates) or
synthesizing and encompassing (the kind policy analysis requires).(34)
In the following study, I must draw on sociology, psychology,
ethics, and jurisprudence (and occasionally on other bodies
of knowledge) to try to cobble together a coherent policy analysis.
I recognize that this inevitably prevents me from doing justice
to any of these disciplines; is an imperfect choice, but one
I believe that policy analysis cannot avoid making.
Toward a New, Communitarian Conception of Privacy
The detailed studies that follow serve a significant purpose
beyond examining major instances in which new limits must be
set on privacy (or the common good), and finding ways to ensure
that corrective measures will not be excessively broad. The
studies point to a rather different concept of privacy, developed
in the last chapter.
The volume closes with an extensive attempt to provide a new
conception of privacy, one that systematically provides for
a balance between rights and the common good. The argument unfolds
in response to a series of questions: what are the effects of
the socio-historical conditions under which privacy was fashioned
on the concept of privacy that plays such an important role
in our civic culture, public policies, and legal doctrines?
What led to the blending of privacy as a exception from scrutiny
("informational privacy") and privacy as the right to control
one's acts ("decisional privacy")? Has this blending outlived
its usefulness, and if so, what would a more clearly delineated
conception of privacy entail? Closely related: What is the relationship
between two elements of the right to be let alone, that of privacy
I realize that there are those who will immediately condemn
any such undertaking as an assault on sacred American values.
I hope to engage as many of them as possible in a reasoned and
moral dialogue on a crucial issue.
1. John T. McQuiston, "Sex Offender Sues
Neighbors Over Protests," New York Times, 20 June 1997, A23.
2. Matt Bai, "A Report From the Front in
the War on Predators," Newsweek, 19 May 1997, 67. Also,
Rick Hampson, "Notification: Reason for Law Is its Biggest Problem,"
USA Today, 14 May 1997, A1.
3. 1996 Equifax/Harris Consumer Privacy
Survey, available: http://www.equifax.com/consumer/parchive/svry96/docs/summary.html;
1997 Money magazine poll, cited in Barnet D. Wolf,
"Computers' Spread Heightens Consumer Privacy Concerns," Columbus
Dispatch, 7 September 1997, 1H; 1997 Harris-Westin survey
for the Center for Social and Legal Research, cited in Lawrence
A. Ponemon, "Privacy Needs Protection," Journal of Commerce,
23 March 1998, 7A; 1998 Harris-Westin survey on Privacy and
the Elements of Self-Regulation, presented by Alan Westin at
Department of Commerce Privacy Conference, 23 June 1998, in
4. For an overview, see Center for Public
Integrity, "Nothing Sacred: The Politics of Privacy," 1998.
5. The term cyber-age is rather unfortunate,
but no better term seems available.
6. Carol W. LaGrasse, "Ex-Con Caregivers,"
City Journal, Summer 1998, 8-9.
A new Congressional law bars background checks from reporting
criminal convictions that are more than 7 years old for positions
that will earn less than $75,000, which includes most positions
in child care centers. Del Jones, "Background Check Rule Change
Contains Flaws," USA Today, 24 February 1998, 4B.
7. Carol W. LaGrasse, "Ex-Con Caregivers,"
City Journal, Summer 1998, 8.
8. There are those who object to formulations
of balancing rights and the common good, arguing that privacy
and more generally rights are the common good; hence
objections to the suggestion that one should or even could balance
rights such as privacy and the common good. But this is largely
a semantic issue. If one considers rights a common good, one
needs to balance them with other common goods. The issue does
not change by calling privacy a common good rather than a right.
For an important book that treats privacy as a social good--but
not the only one--see Priscilla M. Regan, Legislating Privacy
(Chapel Hill: University of North Carolina Press, 1995). For
a major, seminal work on privacy and the common good that withstood
the test of time see Alan Westin, Privacy and Freedom
(New York: Atheneum, 1967).
9. Jennifer Lenhart, "Keeping an Electronic
Eye on the Kids; Day-Care Cameras Let Parents View Children
via the Internet," Washington Post, 29 May 1998, A1.
10. Amitai Etzioni, The New Golden
Rule: Community and Morality in a Democratic Society (New
York: BasicBooks, 1996).
11. Robert Bellah, Richard Madsen, William
M. Sullivan, Ann Swidler, and Steven M. Tipton, Habits of
the Heart (Berkeley, CA: University of California Press,
1985); Mary Ann Glendon, Rights Talk: The Impoverishment
of Political Discourse (New York: Free Press, 1991); Robert
Bellah, Richard Madsen, William M. Sullivan, Ann Swidler, and
Steven M. Tipton, Habits of the Heart: Individualism and
Commitment in American Life (Berkeley: University of California
Press, 1985); Amitai Etzioni, The Spirit of Community: The
Reinvention of American Society (New York: Simon &
12. American Civil Liberties Union, ACLU
Take Back Your Data Campaign. Available: http://www.aclu.org/action/tbyd.html.
13. Joshua Quittner, "The Death of Privacy/Invasion
of Privacy," Time, 25 August 1997, 28-35; Roger Rosenblatt,
"Who Killed Privacy?" New York Times Magazine, 31 January
14. Brian J. Serr, "Great Expectations
of Privacy: A New Model for Fourth Amendment Protection," Minnesota
Law Review 73 (1994): 584-85.
15. David Brin, The Transparent Society:
Will Technology Force Us to Choose Between Privacy and Freedom?
(Reading, MA: Addison-Wesley, 1998).
16. Scott E. Sundby, "Everyman's Fourth
Amendment: Privacy or Mutual Trust Between Government and Citizen?"
Columbia Law Review 94 (1994): 1751-52.
Authors who provide the picture Sundby depicts include Beth
Givens and the Privacy Rights Clearinghouse, The Privacy
Rights Handbook (New York: Avon Books, 1997), especially
17. Richard A. Spinello, "The End of Privacy,"
America 176 (1997): 9-13. Reprinted in Robert Emmet
Long, ed., Rights to Privacy (New York: H.W. Wilson
Company, 1997), 25-32.
18. Louis Harris and Associates, Inc. and
Equifax 1996 poll concerning privacy of 1,005 people in the
19. Lawrence A. Ponemon, "Privacy Needs
Protection," Journal of Commerce, 23 March 1998, 7A.
20. Scott E. Sundby, "'Everyman''s Fourth
Amendment: Privacy or Mutual Trust Between Government and Citizen?"
Columbia Law Review 94 (1994): 1789-90.
21. Documentation concerning this development
may be obtained from The Communitarian Network, Washington,
22. John Kifner and Jo Thomas, "Singular
Difficulty in Stopping Terrorism," The New York Times,
18 January 1998, 23.
23. Law professor Randall Coyne contends
that the images captured by such public-space cameras constitute
a search by Fourth Amendment standards. Brian J. Taylor, "The
Screening of America: Crime, Cops, and Cameras," Reason,
May 1997, p. 45.
24. Steven Yarosh, "A Place for Safe Housing
in the Fourth Amendment," The Responsive Community,
4 (1994): 29-41. Adapted from Northwestern University Law
Review, 86 (1992): 1103-1129.
25. Ronald Bayer, Private Acts, Social
Consequences: AIDS and the Politics of Public Health (New
York: The Free Press, 1989).
26. Roger Conner, "The Checkpoint at Inkster:
Reasonable or Unreasonable?" The Responsive Community
1 (1990): 88-91.
27. Ronald Bayer, "Public Health Policy
and the AIDS Epidemic," New England Journal of Medicine
324 (1991): 1500-04. Ronald Bayer, "Public Health Policy and
the AIDS Epidemic," New England Journal of Medicine
324 (1991): 1500-04. See also Gabriel Rotello, Sexual Ecology:
AIDS and the Destiny of Gay Men (New York: Dutton, 1997)
and Michelangelo Signorile, Life Outside: The Signorile
Report on Gay Men::Sex, Drugs, Muscles, and the Passages of
Life (New York: Harper Collins Publishers, 1997).
28. Daniel Bell, "Together Again?" Times
Literary Supplement, 25 November 1994, 5-6.
29. For details, see "The Trials of a Home
HIV Test," Business Week, 18 March 1996, 56; Hanna
Rosin, "Bad Blood," New Republic, 27 June 1994, 12;
Ronald Bayer, Jeff Stryker, and Mark Smith, "Sounding Board:
Testing for HIV Infection at Home," New England Journal
of Medicine 332 (1995): 1296.
30. For an editorial on the topic, see
New York Times, "Saving Swordfish," 21 January 1998,
31. A notable exception is a coding in
the National Practitioner Data Bank for payment made in settlement
of a medical malpractice action, which the National Practitioner
Data Bank cautions "shall not be construed as a presumption
that medical malpractice has occurred." See "Interpretation
of Data Bank Information" in the National Practitioner Data
Bank's Guidebook, available http://www.hrsa.dhhs.gov/bhpr/dqa/factshts/fsnpdb.htm#1.
32. For additional discussion of these
criteria, see Etzioni, The Spirit of Community.
33. For documentation see below, Chapter
34. See Amitai Etzioni, "Making Policy
for Complex Systems: A Medical Model for Economics," Journal
of Policy Analysis and Management 4 (1985): 383. See also,
Etzioni, "Policy Research," The American Sociologist 6,
Supplementary Issue (1971): 8.
Note: There may be some minor differences between this
and the published version.