Interview by Michael Cromartie
Why We Need Less Privacy
Amitai Etzioni is director of the Institute for Communitarian Policy Studies and University Professor at George Washington University. A sociologist by training and the author of a number of highly regarded academic works, he is best known as the founder of the communitarian movement, in which capacity he has had a significant impact on public policy in the 1990s. He is the editor of a journal, The Responsive Community, dedicated to communitarian studies; his most recent book is The Limits of Privacy (Basic Books). Michael Cromartie interviewed Etzioni in Washington, D.C., in March of this year.
Can you define communitarianism for us?
I started my social science training in Jerusalem under Martin Buber. Buber had written not only I and Thou but also Paths in Utopia, which is a very communitarian book. I spent a year with him in a private school where I saw a lot of him and read a lot as well. That left a very deep mark on me. While in the United States he often would quote the communitarians of the 1890s. While the Frenchman Emile Durkheim is considered the father of sociology, it is the German, Ferdinand Tonnies, who created the most important distinction in the discipline, between Gemeinschaft (community) and Gesellschaft (society). This distinction still dominates the social science community. Tonnies contrasted the small village community with the more impersonal atmosphere of the city. In the village, people know each other intimately, and as a result, the village fosters virtuous behavior. But it also leaves little room for individuality. In the city, people are relatively anonymous and therefore free to do what they please. But they are also no longer under the community's watchful eye. That very well captures the sociological side of communitarian thinking. Our argument has been that people need to cherish individual rights while at the same time taking the common good into account. That is communitarianism in a nutshell.
I should mention the "apple" that hit this Newton's forehead. I was paying for my sins by teaching ethics at the Harvard Business School, where I had been terribly unsuccessful. There I discovered that young Americans feel very strongly that they have the right, if they are charged with a crime, to be judged by a jury of their peers. But when they themselves are asked to serve on a jury, they say, "Find somebody else."
For some time now, we've been hearing that privacy is under siege. Why have you written a book advocating limits to privacy?
While there are many areas in which our privacy is threatened—by merchants, for example, who specialize in selling information about us—there are other areas in which less privacy would be enormously beneficial to the common good.
Last year the press violated Vice President Gore's privacy by publishing the fact that he gave less than $400 to charity in 1997. There was quite a bit of fuss about the revelation. After all, in the liberal understanding, his private life has nothing to do with his public life. Well, I am willing to lay a hefty wager that in 1998 Al Gore gave considerably more to charity, and that as we speak, there are scores of politicians who are phoning their accountants, reminding them to be sure to give more to charity. That is the way a village works. True, we should all have good consciences and do what is right all around, but most of us need the occasional helping hand. It takes a village to prevent the sin.
It was the feminists who first pointed out that the distinction between public and private is too simplistic. We do care about what happens in the home. If a parent abuses a child, we care. If a husband beats his wife, we care. Suppose you work in an emergency room where someone brings in a child who has cigarette burn marks on her arm. What is the first thing we do? Do we violate the privacy of that home by going and asking questions and checking? The notion that what is happening in the privacy of the home is none of our business is just one of those slogans that has no reality to it. We may properly argue about which things we should check, but there is no absolute distinction between public and private. I know I am going to stir a hornet's nest here, but this is my calling.
Beyond questions of right and wrong, there are some very specific policy is sues. For instance, while we have lost a lot of privacy, there is now a new technology which gives us a hyperprivacy, called encryption. This is now routinely built into technological devices. For instance, in many cellular phones, you just push a button and your conversation gets encrypted. In a very short time all computer messages will be encrypted. Your purchasing on the Internet will be protected by this very simple technology. The encryption, which you can buy in the common market, or download free from the Internet, is extremely powerful.
It turns out that this technology is being used by pedophiles, terrorists, and drug lords. For example, when one of the conspirators who blew up the World Trade Center was caught, they found in his computer a disk in which it was thought he had encrypted plans for his next target.
We come to the question: Should we honor the privacy of all encrypted messages, or should we have the capability, when there is specific proof, under the same conditions we use to tap a phone line, to be able to decode these encrypted messages? There is no question in my mind that this is the way it should be done. But the position of the ACLU and various libertarian groups, not to mention the industries that sell these programs, has been sufficiently powerful that for the last seven years they have been able to block any and all procedures necessary for the government to be able to read such encrypted messages using the latest technology.
How have these groups responded in the past to the kind of concerns you've raised?
In my book I have a whole chapter of quotes from them. They range from extremist to hyperextremist. The hyperextremists argue that cyber space is a different kind of world. In cyberspace there is going to be ultimate freedom: no government, no FBI, no police, no regulations. For such zealots, cyberspace is the ultimate libertarian utopia.
How extreme are they? I went to one of their meetings, and they reported correctly that the FBI is visiting chatrooms of pedophiles in order to catch people who specialize in molesting children. (By the way, the slogan of that pedophile group is "Sex after eight is too late.") These cyberpunks, as they are sometimes called, say that they do not want police in those chatrooms to catch pedophiles. I asked one of their members why they believed this, and he answered, "Once the FBI goes into this chatroom, nothing will stop them from going in to monitor other chatrooms." That is the famous slippery slope argument. In the new virtual Holy Land, nobody should dare to threaten their privacy.
What I am talking about is exactly the same procedures by which the government is allowed to tap a phone. The only condition under which the government can tap a phone is if they can provide specific documentation to a judge. These judges are, by and large, very strict about what they will and will not accept as sufficient grounds for wiretapping. If we decide later that they are not strict enough, we should change the law for everything, from phones to encrypted messages.
Finally, the argument made by business people is that if the United States will not allow the selling of "back-door key" encryption software, France or Russia will sell it. Since someone else is going to sell this software, Americans are going to lose business. First, let me say, if you want to buy an encryption program from Russia or France, you are welcome to it, but you will find a French policeman nosing into your files. Second, if this is truly the situation, the United States should form treaties with other countries, the way we do about other things, to ensure that terrorists will not be immune.
How did privacy become such a sacred concept in American society?
It really began, as a constitutional right, quite recently. Before the 1960s, there was no constitutional right to privacy. The famous Supreme Court case Griswold v. Connecticut (1965), which struck down a law prohibiting even married couples from buying contraceptives, was the first to read privacy into the Constitution. Eisenstadt v. Baird (1972), which struck down a law prohibiting unmarried couples from buying contraceptives, was the next major privacy case, followed by Roe v. Wade, which elevated privacy to its present height. Ultimately, these precedents are all based on an issue that has nothing to do with privacy. They have to do with the right to make choices.
Privacy means that I am surrounded by a veil or wall or drapery that I'm allowed to do things behind without fear of others watching me. Privacy is not a question of my ability to make choices. It is a question of whether I do or do not want people reading my mail or listening to my phone conversations. It is protection from scrutiny.
The Supreme Court cases I cited were not based on protection from scrutiny. They were based on who makes a decision about a given act. Should the government or the person decide? Should the government control abortion, or should it be up to the woman? It doesn't have to do with privacy. It is not as though the pro-life people want abortion to go public. Similarly, the issue of contraceptives was not a question of whether the government wanted to keep track of who was using them. The question was, Can you buy them? Justice Douglas, who wrote the opinion on Griswold, created a "bedtime story" (bedtime is very appropriate here for an otherwise tortuous argument), that in order to know whether you bought contraceptives or not, the government would have to go into the bedroom. He made it into a privacy issue because privacy has a sort of moral currency.
I strongly favor separating the two issues. The question of choice, a very important and controversial issue, could be addressed under the Fourteenth Amendment, for example, but it has nothing to do with privacy. Privacy should be limited to the question of scrutiny.
You argue that there are significant harms that befall our communities when we do not allow privacy to be compromised. What are some of those harms?
We've already talked about our in ability to decode encrypted messages. Once strong encryption has been used, we cannot decode messages, even if they are exchanged by nuclear terrorists. Even those who radically disagree with me do not deny this fact.
This tension between the common good and an absolute "right to privacy" has been building since the 1960s. In 1973, when we introduced airport metal detectors that search everyone who passes by, the ACLU claimed that such searches were unconstitutional. It is still part of the official position of the ACLU to take those screening gates down. For years and years, drug testing of pilots and school-bus drivers was delayed by ACLU court challenges. They argue, and they have a point, that if you want to search someone under the Fourth Amendment you must have a probable cause. If a pilot stumbles out of a bar after having six drinks, they would say he could be tested. But testing all pilots means that you do not have probable cause. While it is true that by testing these pilots we are violating our legal tradition, we have done so in response to a compelling need to protect the common good.
Today one of the critical areas of tension is testing of newborns. In all 50 states, when a child is born, physicians take a drop of blood or two from the child's heel. They test it for a disease called PKU. If a child has that disease, the doctor is allowed to go to the mother and tell her that she has to put the child on a strict diet. If she will do that, the child will be fine. If not, the child will be severely retarded. Notice that in the process the physician violated the privacy of the mother.
Physicians then take the same blood and test it for one more thing, HIV. Until recently, while they used the results to compile statistics on how far the disease had spread, they never informed the mother of the results of the test. There was a reason for this, since there wasn't much the mother could do about it anyway. Over the last two years, however, we learned two things. If the mother does not breastfeed her infant, and if the child is given AZT immediately at birth, the child will be able to survive HIV.
I want to be precise here. I am not talking about merely ameliorating the illness, but actually throwing it off. No one in the medical profession denies this. In New York, they have waived the mother's privacy, so that doctors have the right to inform the mother. As for the rest of the 49 states and the District of Columbia, they have not gotten around to doing that. To me, it is a no-brainer, frankly. Most mothers would be grateful to know, and hospitals are probably legally at risk if they know about the HIV and still allow the child to die unnecessarily. The arguments are extremely tortured on the other side of this debate.
Now, a more complicated development is happening with the Megan laws. These laws require that if a pedophile is released to a community, the community will be notified. All of the 50 states now have such a law. It is a tricky issue, because there is no question that this person has served his term in jail, completed his duty to society, and is now back in the community. The question is, Do we violate this person's privacy? Is this necessary?
Let me cut to the chase. The average pedophile molests 30 children before he is caught. And these pedophiles are the first to tell you that they cannot help themselves. Ask yourself, as a citizen, as a parent, as a neighbor, because there is a tradeoff: Either violate this person's privacy, or let him go and molest perhaps another 30 victims, with terrible consequences in their lives, before you catch him again and put him in jail.
While the liberals have been up in arms about these Megan laws, a further development has attracted much less attention. Seventeen states already, with New York set to join them, have said that the Megan laws do not go far enough. In these states, under the so-called Stephanie laws, pedophiles who are still deemed dangerous are put in state mental hospitals after they have served their sentences. The Kansas State Supreme Court has ruled that this is an appropriate action.
Can you briefly explain the four criteria for corrective action you cite in your book?
There are four principal questions that must be asked when a conflict between privacy and the common good seems to require corrective action. First, is there a clear and present danger to warrant action? Second, is there a way the problem can be fixed without touching any rights? For instance, the government is against cigarette smoking by teenagers, but if it does not allow advertising, then it raises a lot of First Amendment issues. Also, since the government can achieve the same goal by raising the taxes on cigarettes, it has an option available that defuses the conflict between privacy and the common good. Third, if action is warranted, will it be minimally intrusive? Even if it is minimal, there can still be undesirable side effects when action is taken—and this brings us to the fourth criterion: If an action is minimally intrusive, are there further actions that need to be taken to protect privacy? If we are going to tell mothers about HIV, we need to make sure that the word does not get out that their children have HIV.
What has been the impact of historical conditions under which the notion of privacy that prevails today was fashioned?
This is a very important question, because most of us tend to think about privacy and other such rights ahistorically. We take free speech for granted, for example, and forget that until the 1920s—despite the clear intent of the Bill of Rights—the right to free speech had very little power. Establishing that right is one very positive contribution of the ACLU. The right of privacy of any kind did not exist until the 1890s. At that time society was strongly community oriented. In the 1960s we introduced a constitutional right to privacy in order to give people more choices. The former was an era when there were far more restrictions than we have today. Today you have the opposite problem. People take too many liberties. In that sense, the pendulum has swung the other way. I do not want to see it swing all the way back, but I would like to see it move toward the center. Privacy is contingent on historical conditions.
Michael Cromartie directs the Evangelical Studies Project at the Ethics and Public Policy Center in Washington, D.C.
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