Privacy Rights Under Attack

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theme runs through the following two news items: privacy rights
are under attack. A "good" reason is offered for the chipping
away of privacies such as the confidentiality of medical records.
Moreover, the cases are so legally tangled that analysis becomes
blurred and "bad law" based on judicial activism becomes
more possible.

item One: last Tuesday, an Indiana judge
that Planned Parenthood must disclose to the State its
medical records of patients under 14.

reason for searching en masse through the records of 40 Planned
Parenthood affiliates – a process referred to as "a fishing
expedition" – would be to verify that clinics are properly
reporting cases of child abuse. The complication: since the clinics
receive Medicaid reimbursement – that is, tax funding – the State
has far more of a presumptive "right" to information than it would
have with a private clinic. Nevertheless, any ruling may well set
a future precedent for private clinics and further erode parental
rights in favor of State supervision.

Item Two: a civilian rape counselor in Colorado may be imprisoned
to provide a military court with records of her sessions
with a former Air Force Academy cadet. The ex-cadet is among approximately
150 women whose rape allegations caused Academy leaders to exit
in disgrace. She has asked a district court to block her unprecedented
arrest by the military.

reason for her threatened imprisonment? One of the accused argues
that his right to a fair trial overrides the accuser’s right to
medical privacy. One of the complications is the case now spans
two worlds of "justice" – civilian and military – each of which
operate along different rules.

complex cases are occurring across North America.

rulings uphold privacy rights. For example, on March 28, the Colorado
Supreme Court
against the claim that a victim’s records at a domestic
violence (DV) shelter are confidential only for information she
imparts but not for information or service she receives.

overall, a principle of personal freedom is being chipped away:

rests on the assumption that – in the absence of specific evidence
of wrongdoing – an individual has a right to shut his or her front
door and tell other people (including government) to mind their
own business. This is a presumption of innocence. Privacy also assumes
an important division between the personal and public spheres, a
division that is reflected in Constitutional protections against
unreasonable search and seizure. Historically, privacy has stood
as a bulwark between individual rights and social control.

comes into question whenever someone enters certain areas of the
public sphere: for example, through filing a criminal charge such
as rape. Even then, however, the legal system has evolved traditions
to insure that privacy is not excessively violated. These traditions
include spousal privilege, a prohibition against "fishing expeditions,"
and the confidentiality of confessionals and medical records.

evolved protections are under concerted attack. In general, the
attacks are occurring in "gray" areas; new law and precedent
is being introduced through complicated cases where it is possible
to take contradictory positions depending on the aspect you are

is interesting to ask, "why are these attacks happening with such
frequency now?" I believe the timing comes from the convergence
of three factors.

judicial decisions have become a form of de facto law. The
legal status of explosive issues, from abortion to gay marriage,
is being decided by hundreds of courts at multiple levels as much
as by legislatures. Activist judges, political advocates, and lawyers
are redefining not only broad principles of law – e.g. Constitutionality
– but also the minutia of the law’s application. The court
system has become a popular vehicle for sweeping social change instead
of its more traditional role as a forum to evaluate the restitution
or other specific justice of individual cases. Privacy is one of
the many battlegrounds of judicial activism.

privacy has fallen into disrepute since 9/11. None of the cases
cited above involve Home Security. Nevertheless, all privacy
rights suffer from a general sense of anxiety that makes people
eager "to trade rights for security." If someone refuses
to provide personal information, such as medical records, the question
immediately arises, "What do they have to hide." Standing
on privacy has gone from being the exercise of a right to being
an indication of guilt.

society may have reached a "tipping point" on a broad
range of issues; a tipping point is when critical mass results from
many small changes that may have occurred over a long period. How
our society approaches issues like abortion, rape, and DV appears
to be at critical mass. And these issues involve privacy.

issues like rape, the backlash is heightened by a growing sense
that some women have abused the system and hidden behind privacy
to do so. For example, reports of false accusations have become
commonplace; men’s rights advocates argue that this reflects a pro-woman
bias in courts. For example, courts routinely name an accused rapist
while shielding the accuser. And, in criminal procedures, anonymity
encourages abuse.

imbalances should be corrected but in a manner that equally protects,
not equally violates the privacy rights of men and women.

social factors converging against privacy rights – and especially
medical privacy – are powerful and persistent. They ride on the
emotional fuel provided by volatile concerns like abortion and rape.

there is a saying about babies and bathwater. Those who push to
strip away the traditional protections of privacy may be trashing
a prerequisite of personal freedom. And, without freedom, there
is no security for individuals…either in court or in society.

9, 2005

McElroy [send her mail]
is the editor of
and a research fellow for The
Independent Institute
in Oakland, Calif. She is the author and
editor of many books and articles, including the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

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