The Right To Privacy

In all the brew-ha-ha about our “right to bear arms” under the second amendment to the Constitution we hear very little at all about our right to privacy. Strictly speaking, that right is not mentioned in the Constitution, but it is a basic human right and it has been regarded as implicit in the Constitution in a number of Supreme Court cases — specifically Pierce v  Society of Sisters, Roe v Wade, and Griswold v Connecticut. In defending the right to privacy Louis Brandeis, the great constitutional scholar, noted in an article in the Harvard Review that “the government [is] identified as a potential privacy invader.” This view has been echoed in the decisions mentioned above and reflects the attitude of the majority of the founders of this nation who all worried about the abuses of power. The right to privacy is universally regarded as a basic human right. Indeed, in the Universal Declaration of Human Rights endorsed by the United Nations it couldn’t be more explicit:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Having said that, it is interesting to note the ways in which our right to privacy has been gradually invaded in a variety of ways. Moreover, it has been done so slowly and almost imperceptibly — usually in the name of “national security — or for purposes of commercial profit.  I have blogged in the past about the way we are quite willing to trade our freedom for greater security and the fear that is fostered by the media that makes it easier for the government, or indeed any public agency, to simply collect information about us that we may not be pleased to give up.  But it’s not just the government that is collecting information about us and thereby invading our privacy: it’s the data collecting companies that collect and sell information about virtually everyone in this country who has ever bought anything. As a recent article on the subject mentions:

Other than certain kinds of protected data — including medical records and data used for credit reports — consumers have no legal right to control or even monitor how information about them is bought and sold. As the FTC notes, “There are no current laws requiring data brokers to maintain the privacy of consumer data unless they use that data for credit, employment, insurance, housing, or other similar purposes.

What this means, of course, is that these data are collected, sold, and employed for marketing purposes; the data are collected from previous sales, credit card applications,  and also the social media we use, including the internet sources we connect to. It’s all “out there” and someone is taking it in and using it to find out as much as possible about the buying public in order to sell that information to anyone who wants to profit from it. So it is not just the government that is a “potential privacy invader” as Brandeis suggested. It is also commercial data collectors. The problem Brandeis explored is simply compounded in an economic system in which profit trumps privacy, though in many ways the invasion of privacy in the name of “national security”may be most disturbing.

We know, for example, that in the name of “homeland security” our computers and even our phone lines are subject to prying if there is any reason to suspect that we are up to no good. And we are told the day will soon come when drones fly about collecting information about us and storing it for future use, should we give the government any reason to suspect anything. This smacks of the presumption of guilt: a violation of the fundamental principle of law going back to Rome that declares a person is presumed innocent until proven guilty. It is a brave new world that we are experiencing, and it is one in which the notion of privacy and even individual liberty, are increasingly on hold.

Free From Fear

Stories abound about long-time prisoners who are finally set free and who then commit an illegal act in order to be arrested and sent back to jail. The freedom they have finally achieved scares them and they prefer the security of three meals a day, a place to sleep, and a routine they are familiar with. When the Wall fell separating East and West Berlin there were also reports of people from East Germany who went into a panic because they were suddenly free to make of their lives what they wished. Freedom can be a fearsome thing because it involves both risk and responsibilities and it requires courage and self-confidence to “go it alone.” Freedom varies inversely with fear: the exercise of that freedom demands that we conquer our fear.

We certainly enjoy a great many freedoms in this country. But there are so many people on all sides who are only too happy to tell us how to live — our parents, friends, society at large and, of course, those who would sell us the things we don’t need, including politicians! But in the midst of all these many factors operating on us we still pretty much can come and go as we wish; we can visit the grocery store and marvel at the bounty from which to choose the items we take home to eat — if we have the money with which to make our purchases. That is always the hooker, of course, and there is an increasing number of people in this country who do not have the money to buy what they need to eat and who have no place to live. But the majority of us live relatively comfortable lives, free to come and go as we like and make of our lives what we wish.

When the Twin Towers fell on 9/11, however,  much of this changed. We suddenly felt vulnerable and fear began to enter the hearts of  those who really had no reason to be fearful. And there were those among us in positions of power who nurtured that sense of fear because they came quickly to realize that it was a way to get what they wanted. There followed the  monster known as “Homeland Security” that took away many of our civil liberties without our even knowing it. Our communications were open to prying eyes, guilt was presumed, and our right to privacy was rapidly becoming an empty phrase, dismissed in the name of greater national security. Security cameras started going up everywhere, especially in crowded cities, and access to public transportation is now carefully watched and monitored. Recently there has been serious talk about domestic drone flights in the name of surveillance in order to assure our government that another terrorist attack will not occur — even though the likelihood of anyone in this country being killed in such an attack is on a par with winning the lottery.

All indications are that the vast majority of American citizens are perfectly content to have it this way. We seem to be entering a phase in which we are willing to trade what freedoms we do have for greater security because of an exaggerated sense of fear of terrorists who may or may not ever attack us again. We begin to resemble the prisoner who seeks the safety and comfort of the jail cell rather than face the world on his own. We have crossed the threshold into an era in which we trade what is left of our freedom for the feeling of security — even though our safety is almost certainly not at risk. Fear trumps freedom.