Extremely Serious Privacy Problem in America

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An item about surveillance of conversations in buses has again raised my concern about the vanishing of privacy in America. I view this disappearance and transformation of life into a Kafka-esque world as an extremely serious problem. Privacy is absolutely essential to a person, to normal functioning, to personal interactions with others, to social cooperation with others, and to a proper relation between each American and the governments ruling them. Government officials and bureaucrats, in the name of security or policing, are routinely undermining privacy. The tendency of State officials and bureaucrats to extend and expand the powers of State is fully evident in the case of destroying privacy.

One effect of undermining privacy is to suppress free speech. It makes the person afraid or reluctant to speak for fear that at some undetermined future time , his actions or statements will be used against him. They can be misconstrued. They can be taken out of context. He can be forced to defend himself, and that’s costly. He may be subject to a police inquiry or invasion whereby his belongings are seized and his whole life disrupted. The State’s powers turned against a person in this way are enormous.

Privacy is one of those socially-useful and socially-necessary things that we take for granted when it’s there. That’s why we fail to understand it or investigate it. That’s why the law on it and the understanding of it are not up to par.

I am not aware of a libertarian defense of privacy, not that a libertarian or rights-based defense is the only such defense. Actually, there are some libertarian statements on privacy that will do the opposite from defending it because these statements are so weak or even justify invasions of privacy. For example, the platform of the Libertarian Party on personal privacy is very weak. It relies on the Fourth Amendment. We all know or should know that we can’t depend on that because it doesn’t cover all cases. There are huge gray areas not addressed by the Fourth Amendment. The Fourth Amendment is too vague, and the government is busy destroying it with the approval of courts. This is a very weak reed to support a positive case for privacy.

Those who are anti-state anarchists can say that the existence of the State itself is at the root of the government’s privacy intrusions. Get rid of the State and the privacy problem diminishes drastically. This is true, but the State is with us now and it is attacking us on the privacy front. Americans are not in a position to transition to radically different political arrangements at this time. And when it comes to privacy, all too many support the State’s invasions with the specious argument that you shouldn’t mind such invasions if you have done nothing wrong.Therefore, this defense of privacy is not strong enough. It doesn’t explain why privacy is an essential personal and social good. It doesn’t develop a right to privacy cogently.

The same goes for defenses of privacy such as those of Ron Paul. The defense cited is nowhere near as strong as it should be. It begins fairly well, with this: “…we’re blindly marching towards a dark future where the government knows everything about you but you know nothing about the government.” This should be amplified. Why is this a dark future? Why is it bad that the government knows everything about you? Why is it bad that you know nothing about the government? There is no defense here against the popular counter-argument that a well-behaved citizen has nothing to fear from anyone, including the government, knowing everything about you.

Dr. Paul goes on to describe the invasions of privacy and to attribute the worst current excesses to the Patriot Act. This places the necessity for privacy in a legal spotlight. This is not a full defense of privacy. Privacy has to be understood as a psychological necessity, as a social necessity and as a political necessity. Law at best codifies this or guides issues of justice in which privacy is a concern, but law that’s codified also may limit privacy by attempting in a few statutes to cover all possible cases. This may be impossible. Instead, we need to realize that privacy is a general thing with many categories and nuances that is valuable to us broadly.

Here’s a libertarian article that defends against a national ID card. It makes quite a strong argument:

“…the national ID and its corresponding database would form the backbone of a totalitarian surveillance state.

“The card is a gateway to East German-style monitoring of individuals’ personal lives. Every act would be subject to governmental scrutiny. Many aspects of personal liberty have not heretofore been legislated simply because relevant laws would be unenforceable. But if the government were endowed with complete surveillance power, every facet of human life would be opened up to regulation and intrusion.”

This is not a defense that says why privacy is a good and an essential good. It is an argument that invasions of privacy raise the risk of suppressions of liberty. They are a building block of a totalitarian State. Liberty is a social good, but privacy is another social good. Both require understanding and defense, each on its own grounds. To be sure, they also intersect as this writer makes clear, leading to another kind of defense of privacy, which is in order to defend liberty.

Here is a libertarian who recognizes the end of privacy and sees it as a foregone conclusion. His pessimism is total. He offers no defense of privacy at all.

If we look at Mr. Libertarian, Murray Rothbard, I am sorry to say that he offers no defense of privacy, not as a personal and social good in the senses I am attempting to bring out. He writes “…there is no such thing as a right to privacy except the right to protect one’s property from invasion.” This position has a number of problems. Suppose the police monitor conversations inside your home from the street, or read your e-mails, or tap your cellphone conversations, or eavesdrop as you talk in a plane, train,  bus, or your car. Are your conversations your property? Yes, you have a right to protect them if you can, but what if you cannot? And should a government or police be empowered to monitor these conversations in the first place? Where is there in this statement a positive defense that we need and must have privacy or we are diminished in our social functioning, or where is it said in this statement that the government can overpower us or turn us into virtual slaves? At least the Fourth and Fifth Amendments, inadequate as they are, made some attempt to address the balance between policing and privacy. They reflected to some extent a legal and social history that had a meaningful core to them. If we attempt to defend privacy solely on the grounds of property rights, we are, I fear, not going to come up with strong enough defenses. The term “right to  privacy” carries with it the same potential for a weak defense of privacy. Privacy is more than a rights-based thing. When we speak of a right to privacy, we in fact diminish or mis-characterize the general idea. The term “right to privacy” is a kind of shorthand expression of the need for privacy, but it places privacy needlessly on legal grounds. The origin of privacy is social necessity. Social cooperation and interaction, freely given, depend on it. Speech depends on it. Not being fearful depends on it. Operating as an autonomous person depends on it. No one can operate at all well without feeling that he can take a walk or a drive or say something in privacy, unmonitored by a State agency. To be monitored in all forms of private activities is a form of imprisonment! One may roam, but one is constantly under guard and subject to State intrusions.

It is often said that there is a tradeoff between privacy and security. It is said that to increase security, the State diminishes privacy. This is one idea behind the Patriot Act. It is said that to stop drug money transfers, the monitoring of everyone’s bank transactions is justified. It is said to spot potential terrorists, monitoring conversations is justified. It is said that bodily inspections at transportation checkpoints is justified. Obviously, if every communications and travel means is monitored, privacy vanishes. The premise of these invasions is that security rises as privacy falls, and then the judgment is made by statists that this is worth it. In fact, as invasions of privacy increase, security declines. Every person becomes less secure in his person and property! Security is defined as the state of being free from danger or threat. One threat is assault. How is one made free from assault by being assaulted at an airport? How is one made free from being harassed by being harassed at an airport? How is one made free from the threat of being harassed or charged with a crime by the State by the State’s knowing every move you make, every statement you make, and every financial transaction you make? I say that your security is going DOWN, not up. The State’s increasing invasions of privacy do not enhance security at all. They diminish both privacy and security. The State can fend off terrorists by the ordinary methods of policing if it had a mind to. It doesn’t. It prefers to expand into a totalitarian monster.

Privacy is a necessity. There is a positive case to be made for that. There is also another kind of case. Everyone has many things they want to keep private. Everyone has something to fear from government officials. Anyone can become the subject of an unwarranted case made against them for some legal matter, simply because there are so many stupid laws on the books that most of us know nothing about. Millions upon millions of people break laws that are unjust or needlessly penalize them, if only to survive, smooth out life’s rough spots, lower a tax burden, buy a cigarette in a low-tax state, import something beyond the limit, have sex, drive above the speed limit, roll through a stop sign, or enjoy a drug. Often people fail to report crimes or deal with them in their own home-made ways because that is what their conscience tells them to do. Often people do not want to be enmeshed in legal maneuverings. There are hundreds and thousands of things we want to keep private and below the State’s radar. We all have done and want to do many things that the State has or can turn into a wrong and grab us for or penalize us for. This argument that if you have done nothing wrong, you have nothing to fear, is mythical. It will be found inapplicable to most people. There are laws they know nothing about that they are breaking.

Privacy is in grave danger. We need the strongest possible ideas in defense of privacy.

9:05 am on December 13, 2012