A Middle Ground in the Privacy War?
By John Schwartz
Washington Post Staff Writer
Monday, March 29, 1999; Page F21
Jim Hightower, the former agriculture commissioner of Texas, is fond of
saying that "there's nothing in the middle of the road but yellow stripes and
dead armadillos."
It's punchy, and has become a rallying cry of sorts for activists on all sides.
But is it right? Amitai Etzioni, a professor at George Washington
University, thinks not. He thinks he has found a workable middle ground
between the combatants in one of the fiercest fights in our high-tech
society: the right to privacy.
Etzioni has carved out a place for himself over the decades as a leader in
the "communitarian" movement. Communitarianism works toward a civil
society that transcends both government regulation and commercial
intrusion -- a society where the golden rule is as important as the rule of
law, and the notion that "he who has the gold makes the rules" does not
apply.
What does all that have to do with privacy? Etzioni has written a new
book, "The Limits of Privacy," that applies communitarian principles to this
thorny issue.
For the most part, the debate over privacy is carried out from two sides
separated by a huge ideological gap -- a gap so vast that they seem to feel
a need to shout just to get their voices to carry across it. So Etzioni comes
in with a theme not often heard, that middle of the road that Hightower
hates so much.
What he wants to do is to forge a new privacy doctrine that protects the
individual from snooping corporations and irresponsible government, but
cedes individual privacy rights when public health and safety are at stake --
"a balance between rights and the common good," he writes.
In the book, Etzioni tours a number of major privacy issues, passing
judgment as he goes along. Pro-privacy decisions that prohibited
mandatory testing infants for HIV, for example, take the concept too far
and put children at risk, he says. Privacy advocates' campaigns against the
government's attempts to wiretap and unscramble encrypted messages, he
says, are misguided in the face of the evil that walks the planet.
The prospect of some kind of national ID system, which many privacy
advocates view as anathema, he finds useful for catching criminals,
reducing fraud and ending the crime of identity theft. The broad distribution
of our medical records for commercial gain, however, takes too much
away from us for little benefit to society.
I called Etzioni to ask about his book. He said civil libertarians talk about
the threat of government intrusion into our lives, and government talks
about the threat of criminals, but that the more he got into his research, the
more it seemed that the two sides were missing "the number one enemy --
it's a small group of corporations that have more information about us than
the East German police ever had about the Germans."
He's horrified, for example, by recent news that both Microsoft Corp. and
Intel Corp. have included identifier codes in their products that could be
used to track people's online habits: "They not only track what we are
doing," he says. "They track what we think."
His rethinking of privacy leads him to reject the notions that led to a
constitutional right of privacy, best expressed in the landmark 1965 case
Griswold v. Connecticut.
In that case, Justice William O. Douglas found a right of privacy in the
"penumbra," or shadow border, of rights granted by other constitutional
amendments -- such as freedom of speech, freedom from unreasonable
search and seizure, freedom from having troops billeted in our homes.
Etzioni scoffs at this "stretched interpretation of a curious amalgam of
sundry pieces of various constitutional rights," and says we need only look
to the simpler balancing act we've developed in Fourth Amendment cases
governing search and seizure, which give us privacy protection by requiring
proper warrants before government can tap a phone or search a home.
"We cannot say that we will not allow the FBI under any conditions,
because of a cyberpunk dream of a world without government, to read any
message." He finds such a view "so ideological, so extreme, that somebody
has to talk for a sense of balance."
I was surprised to see, in the acknowledgments in his book, warm thanks
to Marc Rotenberg, who heads the Electronic Privacy Information Center.
Rotenberg is about as staunch a privacy advocate as I know, and I can't
imagine him finding much common ground with Etzioni -- but Etzioni told
me that "Marc is among all the people in this area the most reasonable.
One can talk to him."
So I called Rotenberg, too. He said he deeply respects Etzioni, but can't
find much in the book to agree with. For all the talk of balance, he says,
"we have invariably found that when the rights of the individual are
balanced against the claims of the community, that the individual loses out."
We're in the midst of a "privacy crisis" in which "we have been unable to
come up with solutions to the privacy challenges that new business
practices and new technologies are creating," Rotenberg told me.
The way to reach answers, he suggested, is not to seek middle ground but
to draw the lines more clearly, the way judges do in deciding cases. When
a criminal defendant challenges a policeman's pat-down search in court,
Rotenberg explained, "the guy with the small plastic bag of cocaine either
gets to walk or he doesn't. . . . Making those lines fuzzier doesn't really
take you any closer to finding answers."
As you can see, this is one argument that isn't settled. But I'm glad that
Etzioni has joined the conversation -- both for the trademark civility he
brings to it, and for the dialogue he will spark.
John Schwartz's e-mail address is schwartzj@washpost.com
© Copyright 1999 The Washington Post Company
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BTW, this weeks BusinessWeek also has a big article on internet privacy issues (cookies et al.) and mentioned Novell's Digital Me as one of the possible solutions. Could someone pull that article into this thread? TIA, QuadK |
