Published March 18, 2001
Scott McNealy, the chief executive officer of Sun Microsystems, made waves a few years ago when in response to a question about whether one of his products adequately protected consumer privacy, he snapped: “You have zero privacy, anyway. Get over it.”
Clearly, America is not over it. The number of books and articles on privacy in the last few years are too many to count–all with foreboding titles like “The End of Privacy,” “The Limits of Privacy,” “The Destruction of Privacy in America” and “The Death of Privacy in the 21st Century.” In a recent Wall Street Journal-NBC poll, Americans named privacy as their No. 1 concern for the 21st century.
Protecting privacy is quickly becoming a big industry, what the market gurus call “the new privacy space.” Companies with names like Anonymizer and Privacy X are rushing to offer high-technology cloaking devices that promise to return to individuals some of the privacy that technology has taken away. Other technologies would allow individuals to profit from selling their personal information to the highest bidders.
But while the nation may highly value privacy, it is also clear that many Americans value invasions of other people’s privacy–made all too evident by the remarkable, almost cult-like success of “reality” television shows like “Survivor” and “Temptation Island” and by the large investments that mainstream companies like AT&T and General Motors have made in the pornography industry.
As in all things American, we look to autonomy and choice–“informed consent,” as the professional ethicists call it–as the bedrock principles upon which to navigate the privacy shoals. In other words, as long as individuals themselves sell their personal information, family stories, love lives and whatever else the market for titillating confessions and tailor-made services can bear, there is no problem. But if a third party does the selling, it is an infringement on the right to privacy, a cause for outrage.
But as in all things moral and economic, autonomy and choice alone cannot guide us. Privacy is often a public matter and, therefore, requires criteria beyond personal choice to balance private interests and the common good, whether the issue is drugs, smoking, land development or sex. Everyone is in favor of privacy, but what they mean by it and how they want to protect it are contentious issues.
So when it comes to privacy, America speaks with multiple voices–both because different people want different things and because the same people want irreconcilable things. This war will not go away. The stakes will only heighten, especially with the coming revolutions in genetics that will allow us to uncover, with scientific precision, the mysteries of our being. Today’s culture wars will be tomorrow’s privacy wars, just as bitter and just as marked by ideological confusions and political expediency among both liberals and conservatives.
For the fact is, most privacy issues are really moral issues in disguise, with the two major political parties defining privacy in accordance with their own most cherished ideals or using it as a club to attack their chosen enemies as anti-privacy. But these ideals and interests, liberal and conservative alike, are not always consistent, which makes either party’s claim to be the “party of privacy” sometimes hard to swallow.
The liberal commitment to “privacy activism” is clear. Democrats have taken the lead in passing privacy legislation to protect individuals’ medical records against “big pharmaceutical and insurance companies.” They have taken the lead in pushing legislation to protect consumer information from being sold without the customer’s consent. They have worked to uphold the Miranda rights of those who are arrested and to limit the search and seizure powers of police and investigators. Perhaps most passionately, they have defended what might be called the “privacy of the body”–the rights to contraception, abortion and sexual autonomy.
Yet, when other liberal ideals are at stake–safety, the environment, health and self-esteem–liberals have been willing to disregard or greatly limit the right to privacy. They have encroached on the privacy rights of gun owners with extensive restrictions on guns. They have attempted, with some success, to regulate people who work at home with restrictions on occupational safety, as part of the so-called ergonomics movement. They have limited the privacy of homeowners and landowners with environmental restrictions. They have fought against private-school vouchers, which would use some taxpayer dollars to allow parents to send their children to private schools. They ignored Franklin D. Roosevelt’s dying wishes by including a statue of the ex-president in his wheelchair at the FDR Memorial, even though Roosevelt took pains throughout his presidency to keep his disability private.
Perhaps on no issue is the contradiction within liberalism about privacy more clear than in sexual-harassment law, where, in stark opposition to their usual views on respecting accused criminals, liberals have subordinated the rights of the accused to the rights of the accuser. At colleges, accused men often have no rights at all. Once a sexual-harassment suit makes it to court, the entire past sexual history of the accused, to every painful detail, becomes relevant evidence, as seen in the Paula Corbin Jones lawsuit against former President Bill Clinton, which is when the name Monica S. Lewinsky first appeared on the U.S. stage.
Similarly, conservatives have their own ideological commitments to privacy, for example, the privacy of gun owners to own guns, landowners to develop their land, workers to have their own private retirement accounts. Above all, conservatives are committed to the rights of business “to be let alone.” Ironically, this is the exact language–to be let alone–used by Samuel D. Warren and Louis Brandeis in their famous 1890 law review article “The Right to Privacy,” which promoted the idea that individuals should have a larger degree of control over what is said and published about them, the very thing many modern businesses often wish to deny as “inefficient.”
Like liberals, conservatives have their own moral ideals that often radically conflict with or limit their commitment to privacy, central among them, the belief in the right to life of the unborn. The problem is that as capitalism increasingly becomes genetic capitalism–dependent as it soon will be on a ready supply of human embryos for research and development–it will become much harder, perhaps impossible, to be both pro-business and pro-life. The twin idols of modern conservatism will be at war with one another.
Even in areas where there is widespread agreement that privacy must be protected–banning the use of genetic screening to discriminate against people applying for health insurance and jobs, for instance–the pro-privacy consensus will soon shatter. A buyer would never purchase a house without a full inspection for problems. Why should a health insurance company accept a client without an equivalent “inspection” once science gives us the power to conduct one? The comparison may seem crass and dehumanizing–and it is–but so is the science that made such great genetic powers possible in the first place: a science that dissects human bodies, clones human embryos, tests placebos in Third World countries and, in general, reduces human beings to spiritless subjects for experiment.
With genetic screening, the American desire for privacy will reach an impasse: We will either allow insurance companies to discriminate or we will socialize medicine to make discrimination impossible. But, as Andrew Sullivan has argued, even if we socialize medicine, the state will have to make decisions about how much treatment it gives individuals or whether it allows them to get their own genetic tests in the private market and then use their positive results, like SAT scores, to buy their own private insurance at reduced rates. Whatever path we choose, our healing powers will be increased, but our privacy and our ideals will be significantly compromised.
Ultimately, there is no easy remedy for our privacy problems, only the hard fact that Americans desire irreconcilable things with equal passion. We are a privacy-obsessed nation that entertains itself with voyeurism; we demand tailor-made services and economic efficiency but resent having private information mined by corporate interests; we want safety from cyber-terrorism but resent cyber-intelligence; we assert all the rights to privacy but usually accept none of the responsibilities; we demand the powers of technology but often dislike the consequences, which may already be too far out of the box to rein in or repair. But at least we can begin by owning up to the inconsistency of our desires and the inadequacies of our politics. At least it’s a start.
Copyright: 2001 Los Angeles Times