When privacy is paramount, is democracy in danger?
Ombudsman
By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org
09.21.98
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This morning, we endured the breach of yet another barrier to the private
and confidential as various media began streaming to us four hours of
unedited and unexamined grand jury testimony by President Clinton.
Stunned and numbed, we watch and wait for the next barrier to fall.
We have in the past eight months witnessed one of the most massive invasions
of personal privacy imaginable in President Clinton's sexual travails.
Presidents, of course, do not have the sort of privacy expectations as the
rest of us, but this was intrusion on a previously unimagined scale.
Then there was the inevitable collateral damage: the forfeited privacy of
Mrs. Clinton and their daughter Chelsea; Monica Lewinsky and her family; not
to mention House Judiciary Committee Chairman Henry Hyde, two other members
of Congress and Eleanor Mondale — so far.
Our reaction to all of this in many ways is a measure of our collective
anxiety about individual privacy. We wince as much from that threat as we do
from the tawdry facts that have been revealed.
Our anxieties about personal privacy are well founded.
We are a society under surveillance. It doesn't matter whether we are at
home, in the workplace or on vacation. It doesn't matter whether we are
shopping, driving, sitting in front of our computer or trying out our new
interactive television set.
In this society of surveillance, each of us is monitored, measured, scanned,
tracked, archived and analyzed. The reasons range from security to curiosity
to research to marketing -- and sometimes to mere prurience.
Examples of privacy under siege abound:
- Identity theft.
- Internet Web sites deceptively collecting and misusing personal
information.
- Massive government and commercial databases disclosing unflattering,
embarrassing, or incorrect accounts of our medical, psychological, sexual,
financial, or criminal histories.
- Business mergers and acquisitions, resulting in merged databases that
can work to the individual's detriment.
- Ominous proposals for a national I.D. number and a national I.D.
card.
Technological innovations bring a whole new array of anxiety about privacy.
All of these things conspire to create a fear of fragmentation of the self.
They threaten to take away our identity, to rob us of control over our
lives. These are not small matters.
And while most of us generally applaud this heightened awareness of our
privacy needs, the debate over the ramifications and implications for
democracy has been muted, nonexistent or decidedly one-sided. As a result,
there has arisen what some in the academic world are hailing as a "new
privacy paradigm."
The proponents of this new privacy paradigm exploit the fear of new
technology and the outrage over egregious instances of privacy violation by
calling for new laws or the creative application of current laws. More
important, they dismiss the primacy of other rights that secure a citizen's
freedom and rights in a democracy.
As a result of such persuasive advocacy, we are seeing a deluge of new laws
proposed and enacted, as well as court decisions that elevate the status of
privacy in the realm of rights.
Carried to its logical limits, this passion for privacy over all else could
reduce even further the right of citizen access to information that
lubricates democratic processes.
It could restrict the ability of the press to gather and report the news
that helps citizens evaluate and improve government performance.
It could make the judicial system of this country more secretive and less
accessible, as a growing number of judges resort to protective orders,
sealed settlements, closed proceedings, gag orders, prohibitions against the
press interviewing jurors, and a parade of anonymous witnesses, anonymous
victims, and anonymous juries.
When, in the name of privacy, the public is denied access to government
information and shut out of the judicial process, democracy suffers
immeasurably.
Indeed, privacy is precious. We must do everything we can to protect it. But
we also must guard against rushed remedies. In current discourse, there are
many more assumptions and presumptions than there are rationales and
definitions.
In fact, our thinking about personal privacy thus far has been so visceral
as to discourage the application of reason or logic to the issue. But we
must if we are to make personal privacy such an important component of
public policy.
Democracy is diminished when First Amendment and other rights are demoted in
order to elevate the right to privacy. It is diminished even further when we
come to disregard the danger of pitting one's personal life against one's
social and civic life.
The vitality of democracy hangs on the willingness of its citizens to
sacrifice part of themselves for the common good. Thus, one must endure
speech that offends in order to secure maximum free speech for oneself. And
in order to achieve the maximum potential for self-realization, one must
endure some infringements of one's private life.
Imagine if you will a society where the normal processes of civic and social
life are suspended. In such a world, when a crime is committed on the
street, the police can find no one to tell them what happened because
citizens value their privacy over their security. Prosecutors will have no
one to call to the stand because potential witnesses value their privacy
over their duty to the community. The judge has no jury to seat because
potential jurors value their privacy over serving justice.
Further afield, no one will rise to voice an opinion at city council or
school board meetings because they value their privacy over petty politics.
No one will vote because putting their names on the voter rolls would
subject them to jury duty.
That world isn't that hard to imagine, is it? Democratic processes already
suffer because elements of that world already are with us.
None of these thoughts are meant to deny or denigrate the importance of
privacy to each of us, the need for the sanctuary and solitude that
rejuvenates. Quite the contrary.
These thoughts are meant instead to advance the notion that putting privacy
above all values and fixing that notion in law is to court social and
democratic disaster.
It also ultimately thwarts the goal of protecting individual privacy. The
most basic guarantee of personal privacy is personal freedom, the kind
guaranteed by the First Amendment. The defining characteristic of an open
society, in fact, is freedom of belief, freedom of speech, freedom of
association, and the right to access information.
Those are, indeed, the freedoms that permit us to define ourselves. And
defining ourselves is how we define our privacy.
What better way to craft our identity than by comparing and contrasting it
with others?
What better way to enhance our individuality than with maximum access to
information?
What better way to celebrate free speech and a free press than to employ
them to announce to the world our unique being?
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