Inside the First Amendment: Old privacy concerns in high-tech era

Opinion

June 25, 2012

Inside the First Amendment: Old privacy concerns in high-tech era

Anonymous ---- The Record Eagle Mon Jun 25, 2012, 10:12 AM EDT

Near-daily incidents demand that we as a society redraw the line between our private lives and our public personas. The "public" is that part of us found in public records, subject to examination by government or disclosure in news reports, or that we expose ourselves.

The vexing problem of public vs. private isn't new, but new technology and new methods of communication raise new concerns. How new? A June 20 column in The New York Times by Columbia University law professor Tim Wu raised the issue of privacy concerns for near-sentient computers — machines that think so much like us they would have constitutional rights.

Closer to immediate reality, we see such situations as police officers arresting citizens for videotaping incidents in public. Then there are companies employing new ways to find public documents about us. Social networks like Facebook invite us to post messages, then harvest data from our most-personal moments. And government carries out Orwellian actions in the name of national security.

Some — count Facebook founder Mark Zuckerberg among them — say online privacy, at least, is a fading ideal. About two years ago he told an Internet conference that such a concept no longer applied to younger people: "People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people."

Choosing to post that embarrassing weekend photo or update your "friends," and thus the World Wide Web, on the progress of your airline trip may well just be "sharing." And while Facebook and other social networks are massive, pervasive and perhaps intrusive, they are not government with its powers over life and liberty.

Our nation's Founders determined right from the start — just after safeguarding the rights of free speech and free press in the First Amendment — to restrict by the Fourth and Fifth amendments the government's right to pry into our lives through "unreasonable searches and seizures" or to compel testimony against ourselves.

But those amendments generally come into play when crime is involved. What about the privacy of law-abiding folks who want to keep as private — or at least control the disclosure of — most facts about them?

Ninety-nine years to the day after we got the Bill of Rights, on Dec. 15, 1890, a landmark Harvard Law Review article set out a "right to be let alone," written by two lawyers, Samuel Warren and Louis Brandeis. In 1928, as a U.S. Supreme Court justice, Brandeis set out the principle again in dissenting from a majority opinion in a wiretap case, Olmstead v. U.S.

Consider what Brandeis and Warren penned nearly 132 years ago and its application to 24/7, Web-wired, relentlessly connected life today:

"Recent inventions and business methods call attention to the next step which must be taken for the protection of the person "¦ Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.'"

Modern readers, please insert news media, social networking and automatic online sharing, along with I-Pads and cell phones, at the appropriate places.

The two law partners warned in a burgeoning information age that some were "overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle."

Attention cable TV talking heads, celebrity trackers and paparazzi: Two guys in the Victorian Age had your number.

Still, there are things about each other we need to know to function as a nation.

On the high court, Brandeis recognized the occasional need for government to force disclosure of individual facts in the pursuit of criminals. National security may also require some disclosures of individuals' activities. We need public-health information to protect ourselves. Transparency in government records holds the record-keepers accountable and self-corrects against fraud and abuse. And what we choose to reveal is, by definition, no longer private information.

We should consider all those benefits in weighing attempts to shut down the flow of information. Still, there is the echo through time of the concerns that prompted Brandeis and Warren to write: "Solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury." You could post that on Facebook.

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212; on the web at: www.firstamendmentcenter.org; by e-mail at: gpolicinski@fac.org.