16 December 2005
The Future of Privacy
Images like the one above (via Murdoc Online, click on it for a larger picture), Bush administration decisions to ignore the law and use the NSA to spy on Americans without warrants, and spying conducted on groups that are political opponents rather than national security threats in the Bush Administration, show us why privacy is not going to disappear as an issue.
Other cases illustrate why lots of Americas on the left and right are going to welcome limitations on privacy in some areas. For example, in one case, a DNA test simultaneously resulted in the acquittal of a man who spent twenty years in prison for rape and the arrest of a man who in all likelihood was the actual rapist but had not been a suspect at all before, because his DNA profile was in a database and received a "cold hit" when the test was done. In another recent Colorado case (via Colorado Appeals blog), a woman's parental rights were terminated when post-natal tests of an infant's meconium definitively showed "highly elevated levels of amphetamines, methamphetamines, and alcohol" used in the last twenty weeks of pregnancy, which could only have entered the system of the fetus through the mother, who denied having ever used controlled substances, but offered no explanation to rebut the scientific evidence.*
In the era when the Bill of Rights was drafted, privacy was mostly about not having people barge onto your private property and snoop around, about not forcing spouses to rat on each other, and about allowing lawyers and priests to keep secrets. Privacy was largely an outgrowth of the concept of private property rights which emerged from the previous feudal regime in which everyone was to a greater or lesser extent a tenant of the King who was the ultimate owner of everything.
Many of the big privacy issues of today are technologically driven and hadn't yet emerged then. DNA testing, drug testing, blood typing, hormonal contraception, abortions that don't pose huge medical risks to the pregnant woman, wiretapping, infrared surveilance, helicopter and aircraft and satellite based surveilance, wireless telecommunications, cheap and pervasive surveilance cameras, hidden microphones, credit cards and the ability of computers to comprehensively corrolate massive amounts of information about individuals from diverse sources to create dossiers not just on persons of interest but on entire populations, simply didn't exist two centuries ago.
The tension of privacy rules, which will only grow worse as time goes on, is that upholding them when a breach of privacy has in fact resulted in the disclosure of improper conduct is, at best, an uncomfortable matter. Like a "white lie", a secret is worth protecting when it doesn't hurt anyone, or at least, isn't used for any improper purpose. But, when secrecy, which is what results from successful invocation of privacy rights, is used to hurt someone or for some other improper purpose, it starts to look sinister, rather than like a virtue to be protected. Of course, it is hard to know if a secret is really used to carry out an improper purpose unless it is disclosed, which defeats its purpose for existing.
Privacy is also a principle which can have implications that are very different on the micro and macro level. For example, in a prejudiced society, allowing people to keep the fact that they are homosexual or an atheist or a sexual assault victim secret may protect people in that class. But, if most homosexuals or atheists or sexual assault victims choose to come out and not keep secret their identies, even if they could, the prejudices themselves may begin to break down, which provides a different kind of protection for the same groups of people.
As technology advances, privacy that arises from the way we conduct our affairs by accident (e.g. because public records are too widely dispersed and hard to search to permit people from easily compiling dossiers about people) are going to disappear one by one. Instead, privacy is going to exist only where we make conscious decisions to protect it by social convention and law. My prediction is that most of the time, when those decisions get made consciously, we are going to decide that the benefits of strong privacy protections are not outweighed by the benefits punishing people who use secrecy to carry out improper actions, and that we will increasingly grow more comfortable with living our lives more transparently, with only small, well defined enclaves of privacy in our lives.
* It is worth noting that the Court took care to note that the parental rights were terminated because of strong evidence that the child "will lack proper parental care" in the future because the mother did not acknowledge or try to address a definitively proven existing substance abuse problem, and not because of the mother's acts during pregnancy per se, and that the mother was not prosecuted criminally for drug use revealed through her decision to seek medical care in giving birth. As a result, some of the stickier issues concerning doctor-patient privilege and the legal status of a fetus during pregnancy were avoided in the case. The only privacy issue in this case was the use of tests conduct on the infant to protect the infant's own health and future in a protective proceeding, which is addressed to a great extent by statute in Colorado.
Posted 8:50 AM