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Is"privacy" a right?

Some 40 years ago I wrote a book having to do with the right to privacy. I did not at the time think it important to define what it was that I was talking about. Everyone knew what privacy was. It had long ago been declared a "right", memorably by a pair of Boston law partners, Samuel D. Warren and Louis Brandeis when, in the Harvard Law Review of December 15, 1890, they declared that:

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone" Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years there has been a feeling that the law must afford some remedy. .

So matters stood at the time my book appeared. I felt no need for a close definition of a right as elusive as privacy. After all, as the sainted Augustine of Hippo pointed out that while everyday language about time may be inaccurate, people still manage to understand each other. Justice Potter Stewart could just as well have been talking about the concept of privacy as well as he did pornography when he wrote the famous words, in the obscenity case of Jacobellis v. Ohio (1964), that "hard-core pornography" was hard to define, but that "I know it when I see it."

No more. As Esther Dyson reflects:

Privacy is a public Rorschach test: Say the word aloud, and you can start any number of passionate discussions. One person worries about governmental abuse of power; another blushes about his drug use and sexual history; a third vents outrage about how corporations collect private data to target their ads or how insurance companies dig through personal medical records to deny coverage to certain people. Some fear a world of pervasive commercialization, in which data are used to sort everyone into one or another "market segment"-the better to cater to people's deepest desires or to exploit their most frivolous whims. Others fret over state intrusion and social strictures.

The question now is whether any use is served by carrying on a discussion of a subject as if it were an umbrella covering, for example, a woman's right to choose, "identity theft", industrial espionage, Googling. . .Why trouble our deliberations, and invite mischief, by making of a "right", no less, anything as unspecifiable as the concept of "privacy"? The Stanford Encyclopedia notes that:

There are several skeptical and critical accounts of privacy. According to one well known argument there is no right to privacy and there is nothing special about privacy, because any interest protected as private can be equally well explained and protected by other interests or rights, most notably rights to property and bodily security

The "one well known argument" was made by Judith Jarvis Thomson who has written:

Perhaps the most striking thing about the right to privacy is that nobody seems to have any very clear idea what it is. Consider, for example, the familiar proposal that the right to privacy is the right ''to be let alone." On the one hand, this doesn't seem to take in enough. The police might say, "We grant we used a special X-ray device on Smith, so as to be able to watch him through the walls of his house; we grant we trained an amplifying device on him so as to be able to hear everything he said; but we let him strictly alone: we didn't touch him, we didn't even go near him-our devices operate at a distance." Anyone who believes there is a right to privacy would presumably believe that it has been violated in Smith's case; yet he would be hard put to explain precisely how, if the right to privacy is the right to be let alone. And on the other hand, this account of the right to privacy lets in far too much. If I hit Jones on the head with a brick I have not let him alone. Yet, while hitting Jones on the head with a brick is surely violating some right of Jones', doing it should surely not turn out to violate his right to privacy. Else, where is this to end? Is every violation of a right a violation of the right to privacy?

Good question.

One is reminded of line from Kenneth Koch's One Train May Hide Another:

In a poem, one line may hide another line,
As at a crossing, one train may hide another train.
That is, if you are waiting to cross
The tracks, wait to do it for one moment at
Least after the first train is gone. And so when you read
Wait until you have read the next line--
Then it is safe to go on reading. . .

On the track beyond the one marked "privacy" is the train that may better carry us to where we wish to go, namely the one marked "fourth amendment." It asserts that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The operative phrase is "secure in their persons." Considering the Moebius strip made of the Second Amendment in order to create today's National Rifle Association, the extrapolation needed to make the Fourth Amendment into a place where all of the interests in Esther Dyson's list would be protected should cause no sweat. The rule book is already filled with arguments and annotation on the matter. To wit, this from Find Law:

The premise that property interests control the right of the Government to search and seize has been discredited. . . . We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts."

It will take a lot of negotiation yet to formulate what it takes to be secure in one's own person in today's environment. We might begin by asking ourselves what it would take to achieve that equality of conditions of which Tocqueville spoke.









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