I’m a registered Democrat, my disgust was of a different order from my partisan disgust at the news that the Giants have blown a fourth-quarter lead. What I felt I felt personally. I was being intruded on.
A couple of days later, I got a call from one of my credit-card providers, asking me to confirm two recent charges at a gas station and one at a hardware store. Queries like this are common nowadays, but this one was my first, and for a moment I felt eerily exposed. At the same time, I was perversely flattered that someone, somewhere, had taken an interest in me and had bothered to phone. Not that the young male operator seemed to care about me personally. He sounded like he was reading his lines from a laminated booklet. The strain of working hard at a job he almost certainly didn’t enjoy seemed to thicken his tongue. He tried to rush his words out, to speed through them as if in embarrassment or vexation at how nearly worthless they were, but they kept bunching up in his teeth, and he had to stop and extract them with his lips, one by one. It was the computer, he said, the computer that routinely, ah, scans the, you know, the pattern of charges … and was there something else he could help me with tonight? I decided that if this young person wanted to scroll through my charges and ponder the significance of my two fill-ups and my gallon of latex paint, I was fine with it.
So here’s the problem. On the Saturday morning the Starr Report came out, my privacy was, in the classic liberal view, absolute. I was alone in my home and unobserved, unbothered by neighbors, unmentioned in the news, and perfectly free, if I chose, to ignore the report and do the pleasantly al dente Saturday crossword; yet the report’s mere existence so offended my sense of privacy that I could hardly bring myself to touch the thing. Two days later, I was disturbed in my home by a ringing phone, asked to cough up my mother’s maiden name, and made aware that the digitized minutiae of my daily life were being scrutinized by strangers; and within five minutes I’d put the entire episode out of my mind. I felt encroached on when I was ostensibly safe, and I felt safe when I was ostensibly encroached on. And I didn’t know why.
THE RIGHT to privacy—defined by Louis Brandeis and Samuel Warren, in 1890, as “the right to be let alone”—seems at first glance to be an elemental principle in American life. It’s the rallying cry of activists fighting for reproductive rights, against stalkers, for the right to die, against a national health-care database, for stronger data-encryption standards, against paparazzi, for the sanctity of employee e-mail, and against employee drug testing. On closer examination, though, privacy proves to be the Cheshire cat of values: not much substance, but a very winning smile.
Legally, the concept is a mess. Privacy violation is the emotional core of many crimes, from stalking and rape to Peeping Tommery and trespass, but no criminal statute forbids it in the abstract. Civil law varies from state to state but generally follows a forty-year-old analysis by the legal scholar Dean William Prosser, who dissected the invasion of privacy into four torts: intrusion on my solitude, the publishing of private facts about me which are not of legitimate public concern, publicity that puts my character in a false light, and appropriation of my name or likeness without my consent. This is a crumbly set of torts. Intrusion looks a lot like criminal trespass, false light like defamation, and appropriation like theft; and the harm that remains when these extraneous offenses are subtracted is so admirably captured by the phrase “infliction of emotional distress” as to render the tort of privacy invasion all but superfluous. What really undergirds privacy is the classical liberal conception of personal autonomy or liberty. In the last few decades, many judges and scholars have chosen to speak of a “zone of privacy,” rather than a “sphere of liberty,” but this is a shift in emphasis, not in substance: not the making of a new doctrine but the repackaging and remarketing of an old one.
Whatever you’re trying to sell, whether it’s luxury real estate or Esperanto lessons, it helps to have the smiling word “private” on your side. Last winter, as the owner of a Bank One Platinum Visa Card, I was offered enrollment in a program called PrivacyGuard®, which, according to the literature promoting it, “puts you in the know about the very personal records available to your employer, insurers, credit card companies, and government agencies.” The first three months of PrivacyGuard® were free, so I signed up. What came in the mail then was paperwork: envelopes and request forms for a Credit Record Search and other searches, also a disappointingly undeluxe logbook in which to jot down the search results. I realized immediately that I didn’t care enough about, say, my driving records to wait a month to get them; it was only when I called PrivacyGuard® to cancel my membership, and was all but begged not to, that I realized that the whole point of this “service” was to harness my time and energy to the task of reducing Bank One Visa’s fraud losses.
Even issues that legitimately touch on privacy are rarely concerned with the actual emotional harm of unwanted exposure or intrusion. A proposed national Genetic Privacy Act, for example, is premised on the idea that my DNA reveals more about my identity and future health than other medical data do. In fact, DNA is as yet no more intimately revealing than a heart murmur, a family history of diabetes, or an inordinate fondness for Buffalo chicken wings. As with any medical records, the potential for abuse of genetic information by employers and insurers is chilling, but this is only tangentially a privacy issue; the primary harm consists of things like job discrimination and higher insurance premiums.
In a similar way, the problem of online security is mainly about nuts and bolts. What American activists call “electronic privacy” their European counterparts call “data protection.” Our term is exciting; theirs is accurate. If someone is out to steal your Amex number and expiration date, or if an evil ex-boyfriend is looking for your new address, you need the kind of hard-core secrecy that encryption seeks to guarantee. If you’re talking to a friend on the phone, however, you need only a feeling of privacy.
The social drama of data protection goes something like this: a hacker or an insurance company or a telemarketer gains access to a sensitive database, public-interest watchdogs bark loudly, and new firewalls go up. Just as most people are moderately afraid of germs but leave virology to the Centers for Disease Control, most Americans take a reasonable interest in privacy issues but leave the serious custodial work to experts. Our problem now is that the custodians have started speaking a language of panic and treating privacy not as one of many competing values but as the one value that trumps all others.
The novelist Richard Powers recently declared in a Times op-ed piece that privacy is a “vanishing illusion” and that the struggle over the encryption of digital communications is therefore as “great with consequence” as the Cold War. Powers defines “the private” as “that part of life that goes unregistered,” and he sees in the digital footprints we leave whenever we charge things the approach of “that moment when each person’s every living day will become a Bloomsday, recorded in complete detail and reproducible with a few deft keystrokes.” It is scary, of course, to think that the mystery of our identities might be reducible to finite data sequences. That Powers can seriously compare credit-card fraud and intercepted cell-phone calls to thermonuclear incineration, however, speaks mainly to the infectiousness of privacy panic. Where, after all, is it “registered” what Powers or anybody else is thinking, seeing, saying, wishing, planning, dreaming, and feeling ashamed of? A digital Ulysses consisting of nothing but a list of its hero’s purchases and other recordable transactions might run, at most, to four pages: was there really nothing more to Bloom’s day?
When Americans do genuinely sacrifice privacy, moreover, they do so for tangible gains in health or safety or efficiency. Most legalized infringements—HIV notification, airport X-rays, Megan’s Law, Breathalyzer roadblocks, the drug-testing of student athletes, laws protecting fetuses, laws protecting the vegetative, remote monitoring of automobile emissions, county-jail strip searches, even Ken Starr’s exposure of presidential corruption—are essentially public health measures. I resent the security cameras in Washington Square, but I appreciate the ones on a subway platform. The risk that someone is abusing my E-ZPass toll records seems to me comfortably low in comparison with my gain in convenience. Ditto the risk that some gossip rag will make me a victim of the First Amendment; with two hundred and seventy million people in the country, any individual’s chances of being nationally exposed are next to nil.
The legal scholar Lawrence Lessig