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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The Legacy

Lest we forget all of the things that Bush brought to the presidency.

Some notes on terrorism

    1795, in specific sense of "government intimidation during the Reign of Terror in France" (1793-July 1794), from Fr. terrorisme (1798), from L. terror (see terror).
    "If the basis of a popular government in peacetime is virtue, its basis in a time of revolution is virtue and terror -- virtue, without which terror would be barbaric; and terror, without which virtue would be impotent." [Robespierre, speech in Fr. National Convention, 1794]
    General sense of "systematic use of terror as a policy" is first recorded in Eng. 1798. Terrorize "coerce or deter by terror" first recorded 1823. Terrorist in the modern sense dates to 1947, especially in reference to Jewish tactics against the British in Palestine -- earlier it was used of extremist revolutionaries in Russia (1866); and Jacobins during the French Revolution (1795) -- from Fr. terroriste. The tendency of one party's terrorist to be another's guerilla or freedom fighter was noted in ref. to the British action in Cyprus (1956) and the war in Rhodesia (1973). The word terrorist has been applied, at least retroactively, to the Maquis resistance in occupied France in World War II (e.g. in the "Spectator," Oct. 20, 1979).
    Pronunciation: 'ter-&r, 'te-r&r
    - ter·ror·less  /-l&s/ adjective
    “Terrorism”
    01/01/2003 GMT
    Terrorism is the unconventional use of violence for political gain. It is a strategy of using coordinated attacks that fall outside the laws of war commonly understood to represent the bounds of conventional warfare.
    "Terrorist attacks" are usually characterized as "indiscriminate," "targeting of civilians," or executed "with disregard" for human life. The term "terrorism" is often used to assert that the political violence of an enemy is immoral, wanton, and unjustified. According to definition of terrorism typically used by states, academics, counter-terrorism experts, and non-governmental organizations, "terrorists" are actors who don't belong to any recognized armed forces and who don't adhere to their rules, and who are therefore regarded as "rogue actors".
    Etymology
      Etymology: Middle English, from Anglo-French terrour, from Latin terror, from terrEre to frighten; akin to Greek trein to be afraid, flee, tremein to tremble -- more at TREMBLE
      1 : a state of intense fear
      2 a : one that inspires fear : SCOURGE b : a frightening aspect <the terrors of invasion> c : a cause of anxiety : WORRY d : an appalling person or thing; especially : BRAT
      4 : violent or destructive acts (as bombing) committed by groups in order to intimidate a population or government into granting their demands <insurrection and revolutionary terror>
      The term "terrorism" comes from the French word terrorisme, which is based on the Latin language verbs terrere (to frighten) and deterrere (to frighten from). It dates to 1795 when it was used to describe the actions of the Jacobin Club in their rule of Revolutionary France, during the so-called "Reign of Terror". Jacobins are rumored to have coined the term "terrorists" to refer to themselves. Acts described as Jacobin Club "terrorisme" were mostly cases of arrest and execution of opponents as a mean of frightening the "enemies of the Revolution
      synonym see FEAR
      3 : REIGN OF TERROR
      Although the term is often used imprecisely, there have been many attempts by various law enforcement agencies and public organizations to develop more precise working definitions of terrorism
      The United Nations Office for Drug Control and Crime Prevention has proposed a short legal definition —that "[an act of "terrorism"is] the peacetime equivalent of a war crime." A U.S. court found that "the malice associated with "terrorist attacks" transcends even that of premeditated murder."
      Etymology: Middle English, from Anglo-French terrour, from Latin terror, from terrEre to frighten; akin to Greek trein to be afraid, flee, tremein to tremble -- more at TREMBLE
      1 : a state of intense fear
      2 a : one that inspires fear : SCOURGE b : a frightening aspect <the terrors of invasion> c : a cause of anxiety : WORRY d : an appalling person or thing; especially : BRAT
      3 : REIGN OF TERROR
      4 : violent or destructive acts (as bombing) committed by groups in order to intimidate a population or government into granting their demands <insurrection and revolutionary terror>
      synonym see FEAR
    Official definitions of "terrorism" tend to be relativist, because views toward particular acts of political violence are often only subjective, and rarely aim to objectivity. For example, according to the United States Department of Defense, "terrorism"is:
    "the calculated use of unlawful violence or threat of unlawful violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological."
    This definition is vague because it relies on unclear terms which are left to interpretation —terms such as "unlawful violence," "intended to coerce or intimidate," "the pursuit of goals..." all can easily be applied to violent actions by state actors, though the above definition suggests such can be "lawful."
    Like all political ideas, the meaning of the term "terrorism" has evolved in response to circumstances. The words "terrorism" and "terror" originally referred to methods employed by regimes to control their own populations through fear, a tactic seen in totalitarian regimes such as Nazi Germany and Soviet Russia. As well at it was used by those regimes to qualify resistance movements.
    In response to the September 11, 2001 attacks, political leaders from Europe, North America, Asia, and the Middle East have placed the phenomenon of "terrorism" within the context of a global struggle against systems of government perceived by those accused of using "terrorist" tactics as harmful to their interests. The European Union includes in its 2004 definition of "terrorism" the aim of "destabilising or destroying the fundamental political, constitutional, economic or social structures of a country."
    Causes
    Theories on the causes of terrorism include:
    Sociological explanations, which focus on the position of the perpetrators in society
    Conflict theory which examines their relationship to those in power
    Ideological explanations, which focus on the differences in ideology, and the different goals of the ideologies
    Media theory explanations, which treat "terror" acts as a form of communication.
    Separatism
    During much of the 20th century, the term "terrorism" was primarily applied to nationalist movements of various types. Most of them were separatist movements, seeking to create a new independent nation-state on the territory of a larger, existing state. There were also some cases of non-state irredentist violence, seeking to annex territory. Classic counter-terrorist operations were a feature of the decolonization in Africa and the Middle East.
    Perpetrators
    Acts of "terrorism" can be carried out by individuals or groups. According to some definitions, clandestine or semi-clandestine state actors may also carry out attacks outside the framework of a state of war. The most common image of "terrorism" is that it is carried out by small and secretive cells, highly motivated to serve a particular cause. However, some acts have been committed by individuals acting alone, while others are alleged to have had the backing of established states. Over the years, many people have attempted to come up with a "terrorist" profile to attempt to explain these individuals' actions through their psychology and social circumstances.
    Responses to terrorism
    Responses to "terrorism" are broad in scope. They can include re-alignments of the political spectrum and reassessments of fundamental values. The term counter-"terrorism" has a narrower connotation, implying that it is directed at terrorist actors.
    Military intervention
    "Terrorism" has often been used to justify military intervention in countries where suspects could be found. That was the false justification used for the U.S. invasion of Afghanistan and one reason for the 2003 invasion of Iraq. It was also a stated justification for the second Russian invasion of Chechnya.
    Source: wikipedia.org
    First rate source: http://www.cla.purdue.edu/academic/engl/conferences/covar/Program/novotny.pdf