Privacy in a Free Country: In Search of Reasonable Principles
Table of Contents
Comparison and Analysis
This section draws on the previous sections to determine what the different aspects of the privacy problem have in common and what they do not. All of the concerns raised above can be fitted in one or more of the several vague definitions of "privacy." These include Justice Brandeis's famous "right to be left alone," as well as the claim that people have a right to control information about themselves. Nevertheless, privacy policies cannot be based on the assumption that all of these areas are alike.
The Role of Computerization. In each of the above areas, computerization has upset understandings of what is private and what is not. Records stored on a computer are considered more dangerous than records stored on paper. They are easier to copy and to send anywhere in the world. Some people make the leap from knowing that a database is electronic to thinking that the data is on the Internet, which isn't so.
"Computerization has upset understandings of what is private and what is not."
In reality, however, electronic databases are not a fundamentally more threatening phenomenon that ordinary gossip and conversation. At least in the private sector, the new world of electronic information is less threatening. Unlike gossip, the companies that compile electronic records have a business incentive to get the records right, and electronic databases are impersonal. Your name and address are not sold as an individual's name and address - rather, you are one of a thousand on a list of "people who own single family homes" or "people who bought lawn mowers." Usually, the companies that compile the databases view them as valuable property and work hard to keep them secure.
Historically, the electronic database represents the fact that information users in government and in the private sector will finally be able to keep up with the vast numbers of people moving throughout a vast country. We can move to a world where information flows where it is most needed without geographical limits. The information movement can finally be as sophisticated as the movement of people.
Comparing Harms and Solutions. Where the privacy problems that we have considered are fundamentally unalike is in the degree to which they threaten individuals as consumers or citizens. Some might call for constitutional or targeted legislative remedies. Many others warrant no action at all. But consider the following list of issues that might arise under each category. All are privacy problems in some sense. Yet a quite different level of concern is appropriate to each problem. And no single, broad legislative solution could effectively address all of the problems without also hindering legitimate and harmless information exchanges:
- A brutal search is conducted without a proper warrant.
- Information collected by the Census Bureau is used by local authorities to evict a group of immigrants from a home on grounds of housing density restrictions.
- Someone is annoyed at being sent an advertisement in the mail from a new company.
- A person is the victim of credit card fraud.
- A clerk is disciplined for visiting sexually explicit Web sites on company time.
- A patient is disturbed to discover that her treatment notes are being reviewed by a team of federal auditors looking for Medicare fraud at the clinic she goes to.
What is the level of harm experienced by these different privacy "victims?" The subjects of the warrantless search and the credit card fraud have suffered harm in the sense of an injury to property that can legally be measured and addressed by the judicial system. The former endured a search by big scary men with guns without accountability to anyone, even a judge; the other was a victim of fraud. Here, the power to collect information or the information itself was used to do evil.
At the other extreme is someone annoyed at being sent an advertisement in the mail. The suggestion is that the information itself was an evil. Yet it was merely a communication. The interest was not evil, nor is the effect long-lasting.
"Just as harms to privacy are very different, solutions to privacy problems are very different."
Just as harms to privacy are very different, solutions to privacy problems are very different. Because governments are good at passing statutes exempting themselves from restriction on their own authority, the Constitution is probably the best place for restrictions on government information-gathering. Also, the risk of harm to be prevented is very broad - the risk that government power to collect information could help carry out broad human rights violations. In this sense, general, sweeping legal principles akin to the Fourth Amendment are appropriate. Legal rules already target such criminal behavior as identity theft and are also appropriate. Broad, sweeping rules aimed at the private sector will impose unjustifiable costs on many legitimate businesses and activities. The criminal, not everyone else, should bear the penalty for committing a crime.
Where no measurable harm is involved, legal measures are not an appropriate response. The harm is very slight and easily controlled simply by the individual who got the ad's taking a deep breath to calm down. Each individual's response is likely to be different. And the circumstances under which ads will be welcome and under which they will be annoying are bafflingly complex. Businesses do not want to send annoying ads; they want to send welcome information. They have a good incentive to fix the problem on their own.