HPPUB BOOK REVIEW of Etzioni, The Limits of Privacy

Author (or Editor): Amitai Etzioni

Title: The Limits of Privacy

Fiction? Anthology?

Publisher: Basic Books (New York)

Date: 1999

ISBN: ISBN 0-465-04090-X

Series Name:

Physical description: hardbound, 280 pages including notes and index

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Review:

Amitai Etzioni is a law professor at The George Washington University in Washington, DC (I presume “law professor”; the book backcover sas “University Professor,” apparently a misprint.) And, to be sure, this opus makes a curious subject for a book report. Etzioni’s arguments about how “privacy” should be construed in a liberal society are quite conceptually fundamental and sound. His detailed examples seem a bit tangential, and his tone is a bit pompous. His use of first person, addressing the reader, seems either amateurish (from a literary point of view) or even conceited. The best writing is at the end, when he finally explains his communitarian view of privacy, and indeed his message links up to a lot of material in my own books.

Etzioni’s introduction does point out that America has indeed developed individualism as a psychological and political drive since about 1950, and he believes that a “fundamentalistic” view of individual liberty leads to constructions of privacy that are sometimes self-contradictory, actually harming individuals unpredictably as well as “the common good.” He quickly introduces the notion of “communitarianism,” which “holds that a good society seeks a carefully crafted balance between individual rights and social responsibility, between liberty and the common good.” A “common good” is an indivisible common interest, like public health, public safety, consumer protection, the environment, the protection of children and the elderly, and elimination of discrimination, beyond the individualistic idea that an individual must not be aggressed upon by others.

He then dissects five public policy issues, making some pointed and perhaps surprising observations about each one.

First, should mothers and newborns be tested for HIV without their consent, in an “unblended” fashion?. Etzioni argues that the proper medical treatment of children may depend on this being done, and that voluntary or “blinded” testing is not always sufficient.

Second, do “Megan’s laws” (based on the case of a New Jersey victim, Megan Kanka) requiring the registering of sex offenders constitute double jeopardy and invade the privacy of persons after they have served their sentences and paid their debts to society? Etzioni makes the interesting argument that the laws may not effectively protect children. If laws requiring post-release psychiatric confinement (as in Washington state) really do constitute double-punishment, then perhaps ex-sex-offenders should live in expansive, “Truman Show” style gated communities.

Third, should the government require the registration and licensing of all “strong encryption” software? Etzioni argues that this may be necessary as a goal-line defense against terrorism. Here, he gets into the idea that minimal government “pseudo-surveillance” does not lead to the “slippery slope” feared by libertarians if the checks and balances in government work properly, and if there are criminal penalties (for both public officials or polices and private interests) for misusing limited regulatory powers.

Fourth, what about the use of identity cards, and even biometric identifiers? The latter, such as retinal scanning and hand geometry (as well, say, as DNA sampling) can get technically and theatrically quite interesting (they won’t work on Hollow Man). Etzioni makes the argument that the widespread use of consumer data bases (both from credit reporting companies and from Internet use) with unreliable information actually exposes citizens to more abuse (especially, for example, identity fraud) that would a reliable national ID system (effectively done today by states with driver’s licenses). Etizioni does admit that sometimes governments (especially the IRS) abuse information on citizens.

Etzioni’s last topic, medical privacy, is the most diffuse, but here he argues that the threat to privacy is more from private interests than just from government (a theme in Elaine Adlerman/Caroline Kennedy’s 1995 book The Right to Privacy). He mentions the intention of credit reporting company Equifax/CBI to go into the medical reporting business. Etzioni does discuss a few paradigms such as Smart Cards and UPN’s (unique patient numbers).

But Etzioni’s most important contribution is at the end when he provides a bottom-up review of the whole legal notion of privacy. Before 1890 privacy was derived or “inherited” from property rights. In 1890, the essay “The Right to Privacy} by Samuel Warren and Louis D. Brandeis, from Harvard Law Review 4: 289-320, developed as “self-evident” the “right to be left alone,” so eloquently used in Blackmun’s dissent in Bowers v. Hardwick (1986), the Georgia sodomy law case, not mentioned in this book. By the 1960’s, largely in conjunction with reproductive rights cases, the right to privacy was coming to be seen as a right to freedom from state control of one’s unseen or unviewable choices, at least in some contexts (such as marriage and the family). The most important cases were, of course, Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), Carey v. Population Services (1977) and Roe v. Wade (1973).

Here is where Etzioni makes an important distinction between mechanical privacy, the right to be free from unwarranted search and surveillance (the Fourth Amendment), and personal autonomy from state control or “private choice.” Apparently responding to the arguments of writers like me in Do Ask Do Tell, Etzioni explains:

‘We can refer to the first category as “privacy” and the second as a matter of “private choice,” or we can recognize two different kinds of privacy… “Private choice” correctly brings to mind unregulated economic behavior, deregulation, school choice, and reproductive choices. The second approach, establishing two different rights of privacy, is especially attractive to those who are concerned that if choice is not deemed a matter of “privacy” it may lack constitutional protection until a new legal foundation can be formulated; this is a serious consideration.’

Shortly, Etzioni returns to his communitarian philosophy with a rather Heisenberg-Uncertainty-Principle-like statement:

‘… the best way to curtail the need for government control and intrusion is to have somewhat less privacy.’

Now, the detailed policy examples that Etzioni analyzes seem (except for medical records) for the most part unlikely to greatly affect most Americans. Issues like gun control, drug laws, consensual sex laws, the draft, and as I argue in my own books, gays in the military seem to have more obvious bearing on individual liberties—and these concerns are more like the “private choices” in Etzioni’s formulation, which in my Our Fundamental Rights I argue probably do need more constitutional thought and protection.

Etzioni correctly recognizes that some private choices do have public consequences and need appropriate control, more effectively from community, church, family, culture, even
”spontaneous order” than the law itself. Etzioni deliberately avoids passing judgment on all of these issues (drugs, consensual sex, “family values” and the like), perhaps leaving the impression that mildly intrusive monitoring activities in a well-run, progressive democracy may be necessary to keep the state out of making or legislating private choices. Etzioni categories the three main philosophies of state or societal intervention in communal moral values as “socially conservative” (maximum) “libertarian” (none) and “communitarian” (that state is neutral, but society itself may be coercive). Compare this paradigm to the rectangular “world’s smallest political quiz” or Nolan chart. The state still has, to my mind, far too much leverage in regulating or favoring various “private choices,” especially with regard to sexuality and family. For that, we need our shadow conventions and our Bill of Rights 2.

Here is a good place to provide a comparison to

The Unwanted Gaze: The Destruction of Privacy in America.

By Jeffrey Rosen

New York: Random House, 2000.

ISBN 0-679-44546-3 hardcover, 275 pages, including endnotes and index.

Jeffrey Rosen’s offering is not as opposite to Etzioni’s as it might appear from the title. But Rosen does have a different way to bifurcate the concept of privacy.

“In arguing that law can sometimes do more harm than good when it tries to remedy invasions of privacy, it may seem that I have written about two different subjects: on the one hand, the misdefinition of certain kinds of sexual harassment as sex discrimination rather than invasions of privacy; on the other, the recent incursions, by law and technology, into our ability to decide how much of ourselves to reveal to others.” (p. 222).

But immediately follows a statement that, judging from Rosen’s interview on McNeal-Lehrer, he wants us to see as the topic sentence for the whole book:

“But in fact both developments are illustrations of the same subject, and that is, the importance of maintaining private spaces to protect individuals from being judged out of context in a world of fleeting attention spans.”

The “unwanted gaze,” then, is the confusion of information about a person with knowledge of that person; to confuse, in the sense of physics or thermodynamics, information with energy.

Rosen presents several topics: Privacy at Home, Privacy at Work, Jurisprudence, Privacy in Court, Privacy in Cyberspace. His discussion is discursive and expansive. Like Etzioni, he explains the significance of the Warren-Brandeis Harvard Law Review essay in the 1890’s. At times, it draws a lot on Kenneth Starr’s treatment of the Clinton-Lewinsky matter. Those examples are a bit boring. But many of his other points are very interesting, and raise more questions that I could ask.

Early on, he lays out sexual harassment, explaining how the concept has become all encompassing, to the point that “elevator eyes” or inappropriate eye contact in the work place could sometimes run the risk of sexual harassment accusations. I would ask, doesn’t a sexually attractive person (especially a female) have an edge in this situation, in it’s being more likely that she will be believed if it’s one person’s word against another?

Rosen presents the usual discussion of the employer’s “right” and “duty” to monitor employee email and on-line conduct in the workplace. The legal framework, born out of misguided feminism perhaps and now translated into sex discrimination law, makes it mandatory (according to the lawyers) for employers to act on any remark that anyone could perceive as offensive. (As John Stossel points out, the “victim” gets to decide what is offensive in defining “speech codes.”) True, employees working long hours ought to be able to let down their hair and use a bit of metaphor to express themselves, but maybe their worksmithery needs to stick with sports analogies. But as far as employee privacy in using corporate email, why shouldn’t employees be expected to buy their own hardware and set up their own personal accounts for personal use?

But even personal property may not give full “privacy” in speaking activities. Service providers, being “public accommodations,” may be legally obliged to enforce their own conduct codes (like AOL’s “Terms of Service”). And the distinction between employee property and employer property may not be so clear. Rosen mentions two cases where the military has instituted “gay discharges” (under “Don’t Ask, Don’t Tell”) for conduct carried out by a servicemember’s personal account (Timothy McVeigh II and one 1993 case which is new to me). But he could have mentioned Northwest Airlines’s attempts to subpoena home PC’s of employees for strike-organizing activity, or the “right of publicity” problem, where a manager or highly visible associate could create a hostile work environment with his own off-work writings or web-site if his views became known and were offensive.

Rosen provides a balanced discussion of the problems of privacy in cyberspace, and provides examples where technology could offset the temptation to datamine consumer’s browsing habits (technologies like Zero-Knowledge). He provides a discussion of the 1996 Communications Decency Act (CDA), and includes the fact that it was originally intended to “protect children,” but fails to follow up with the 1998 Child Online Protection Act (COPA). He provides an enlightening narrative of the way the Internet makes everyone a potential publisher (eliminating the “middleman”) but also increases the possibility of “gossip.” Here, I wondered, are there some things we should know about others? Do I have a right to know how much another employee makes in my workplace so that I can judge the value of my labor? There are still a lot of questions.

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