Sunday, October 10, 2010
Privacy, a Right to a Privilege (I)
The great Constitution of the United States of America contains no expressed right to privacy, which leaves the Supreme Court in an uphill battle trying to establish some general guidelines as to what constitutes an individual's right to privacy. For the most part, the Bill of Rights suggests that the Framers of the Constitution had some concerns about protecting specific aspects of individual privacy. For instance, the privacy of beliefs framed in the First Amendment and privacy of the home against demands to house soldiers guaranteed in the Third Amendment. Furthermore, the Fourth Amendment addressed privacy of persons and their possessions against unreasonable searches, and the Fifth Amendment's privilege against self-incrimination provides protection for the privacy of personal information. The Ninth Amendment states that the "enumeration of certain rights," in the Bill of Rights, "shall not be construed to deny or disparage other rights retained by the people."
Scholars agree that the meaning of the Ninth Amendment is somewhat elusive, thus privacy issues not only remain highly controversial but also constitute a slippery slope, which some attributes mainly to the ever-expending worlds of innovation and technology. As people get more comfortable with the illusions created by the Internet and its multiple dimensions, they tend to get complacent and less concerned about its implications. At this rate, the so-called right to privacy may soon become a right to a privilege. Unless people implement proactive and pragmatic solutions to retain vanishing values of freedom, this once natural right will dissipate.
It is not a secret: an individual's right to privacy, a vital component of any healthy democracy, has become an endangered species in American society. This era of Facebook, YouTube, twitter, “War on Terror” and our evolving Internet culture is rapidly redefining societal norms. Faithful members of social networks have little to no control over their own privacy and social networks have demonstrated that they are not bound by loyalty or ethics with respects to their privacy rights. However, people are willing to take enormous risks just to be cool or fit in.
Careful analysis of this relatively new phenomenon unveils three main factors eroding individuals of their rights to privacy. First, the overreaching hands of government, which American citizens have experienced first hand with the passage of the Patriot Act one month after September 11, 2001. Second, the rejection of citizenry for the seemingly limitless powers of consumerism via the Internet poses real threats to privacy. Both Sparks and Sunstein’s observations have been proven valid and on point in their assessment of the problem. Third, the rise of social media empires raises serious concerns among experts with their deliberate, yet subtle assaults on privacy rights. So-called social media have renegotiated the values of societal norms while reframing the argument with regard to what is acceptable or not. Rights so fundamental to the human experience should undeniably be a priority to all citizens, but society’s plunge towards the realm of the privilege of privacy seems inevitable.
One Aristotelian school of thought successfully argued happiness is the end to all things, which means that humans engage in a perpetual pursuit of happiness. It is natural, reasoned Aristotle, for people to live social lives because only as a member of society can individuals truly be happy. This perception implies successful societies require some structure and form of government to survive. For instance, the United States of America utilizes what experts call a deliberate democracy as opposed to other countries like China, which embraces communism, and Burma also known as Myanmar that is military ruled or a dictatorship.
While determining factors of successful forms of governments are entirely subjective, responsible governance shares a common interest: that is finding the intricate balance between the powers of government and the rights of individual citizens. Here again Aristotle's notion of temperate mean comes into play. He wrote in his book Nicomachean II (page 6); "Now virtue is concerned with passions and actions, in which excess is a form of failure, and so is defect, while the intermediate is praised and is a form of success; and being praised and being successful are both characteristics of virtue. Therefore virtue is a kind of mean, since, as we have seen, it aims at what is intermediate." Successful or virtuous societies must find that intermediate mean, which provides government with the necessary tools to promote the national interest while validating its citizens’ rights to pursue their own happiness.
It is therefore safe to infer individuals deprived of the right to privacy could eventually lose their freedom of speech as well. For as history has taught us, people get self-conscious to the point of modifying their behaviors when under the watchful eyes of influential others. Hence, just knowing the government is on the other end of our phone calls, in our living rooms, workplace, or church instills chilling effects preventing citizens’ free speech. Solove made a similar argument in his "Nothing to Hide" article. He stated that the "utilitarian balancing between individual rights and the common good rarely favors individual rights—unless the interest advanced on the side of the common good is trivial. Greater society will generally win when its interests are balanced against those of the individual."
Following this logic, the equilibrium that kept the U.S. government and its citizens on equal footing when it came to privacy rights was lost with the passage of the Patriot Act after the deplorable events of September 11, 2001. Granted, a country under attack or in a state of war must undertake drastic measures to fortify its borders and protect its population. Further, the utter shock and horrors of airliners striking the World Trade Center towers was undoubtedly traumatic for all Americans and will haunt their dreams for years to come. Nevertheless, as the government tried to be swift in its response, it alienated the rights of its citizens.
In addition, the Telecommunication Act between 2001 and 2006 tipped that balance even further towards the government and its corporate partners. To the surprise of many, the National Security Agency (NSA) urged AT&T, Verizon, Quest and BellSouth to share records of their customers’ conversations with the government without any legal authority. Arguing the legality of such actions, critics imagined obtaining warrants on legal grounds to combat terrorism would be relatively easy for the NSA in a post-9/11 era. However, it insisted on such controversial and harmful requests fully aware of its implications.
AT&T, Verizon and Bellsouth complied with the NSA’s requests forfeiting the rights of their customers; however, Quest challenged the National Security Agency to produce legal documents for their request. This example validates Solove's point: it is simply not enough to say that since one has nothing to hide, it is ok to allow government and its agencies to permit "roving wiretap" authority, which allows the interception of any communications made to or by an intelligence target without specifying the particular telephone line, computer or other facility to be monitored.
These deliberate and intrusive actions undermine the social value of privacy, considered by many theorists to be inherently personal that validates the sovereignty of individuals. Can we, for example, call prisoners free men and women simply because they can eat, sleep, play, and even study while in incarceration? The forfeiture of their rights comes at the hands of their crimes; consequently, prison guards monitor them constantly.
The evidence seems clear: too much censorship constitutes some form of social control, a punishment for deviance, not sovereignty for free citizens. Freedom of expression has a linear relationship with privacy rights and government boundaries; hence, any abuse of authority or variation in one factor will affect the other factors directly. Such rationale compelled observers to ask one question: how far the government will go to deny the rights of its citizens in the name of the greater good?