We are told there is a privacy crisis. The Snowden revelation and other such things have given the sense that we are in a crisis. I think what we have is a privacy panic. What I would call the Snowden left, joined by the Tea Party right, are churning this up way past any reasonable limits. And then, of course, the press chimes in because that’s what the press does. The press has not been particularly good on this subject. In fact, as I will illustrate to you, they regularly report some technological innovation or some event and say it raises privacy concerns. Their ability to analyze this notion or even to see that it needs to be analyzed is totally lacking. The amount of public attention to these supposed assaults on privacy is out of all proportion to their seriousness. Compare this to the to another set of revelations that came out of the post 9-11 world---the fact that the United States has been using torture, more brutal and extensive than anyone had imagined. Although we now have the startling and detailed report of the Senate Select Committee on Intelligence, and that has produced considerable media coverage, from past experience one can predict that the popular reaction and legislative activity will be muted and short-lived. And that is remarkable because torture has traditionally been viewed as absolutely wrong---as one of the worst things that human beings can do to each other. And I would just cite a couple of examples of this condemnation. There’s Pope John Paul II’s 1993 encyclical Veritatis Splendor, which says quite clearly that torture is out under all circumstance. And, if you are a little skeptical about this because the Pope’s organization back in the days of the Inquisition was a major league torturer, let me cite Article 15 of Abraham Lincoln’s General Orders which made it clear that torture may not be used under any circumstances.
Compare the public reaction to claims of violations of privacy. The very invocation of the word privacy sets off a media frenzy as if to use that word is to make an argument. Well, it isn’t. Consider the Constitution. The word privacy does not occur in the Constitution. The Fourth Amendment speaks about searches and seizures, and people being secure in their homes and papers. However, unlike the absolute and general moral and statutory prohibitions on torture, the Fourth Amendment speaks only of unreasonable searches and seizures and allows these if with a warrant. So this is far from an absolute prohibition. Compare torture: there is no such thing is reasonable torture and so far nothing like torture warrants. Why this disparate reaction? I suggest people are upset about phone tapping and data mining, because it happens to them. Torture is something that happens to other people.
In February, 2014 the The New York Times, which is one of the more hysterical voices on the privacy front, reported the renovation of the ceiling lighting in the Newark Airport---Liberty Airport. The lighting was being renovated by putting in LED lighting as brighter and also more energy efficient lighting. But also being put into those fixtures are cameras which monitor what is happening in the corridors and waiting areas of the airport. The report quoted Fred H. Cate who is the director of something called the Center for Applied Cyber Research as saying that this incursion on privacy in the public spaces of an airport was “terrifying”.
Let me compare that with another story. This one is from the 1850’s, when Scotland Yard was established as a cadre of detectives. The police in Great Britain wore distinctive uniforms with helmets and big brass buttons. You could see them coming a mile off. Now as a result of the great increase in railroad traffic, and the number of vulnerable travelers that this brought to railroad stations, there was a corresponding increase in all kinds of criminal activity---thieves, pickpockets, confidence tricksters, prostitutes. Scotland Yard put plain clothes detectives in large railroad stations’ waiting rooms and public areas. This was intended to make railroad travel somewhat safer. And, the reaction was not uniformly favorable. The notion that the government should send in agents who do not announce themselves as such but are dressed as ordinary citizens was disturbing. I don’t think people went to the lengths of Mr. Cates to describe it as terrifying.
Should people have been disturbed? I don’t think so. There is a famous statement of Henry Stimson’s, Secretary of State in the ‘20’s, when he learned that the government was intercepting and deciphering the messages sent from foreign embassies: “Gentlemen do not read each other’s mail”. That’s a nice huffy sentiment. In fact, when he became Secretary of War during the Second World War he did not repeat that view. I am sure he no longer held it. The interesting contrast to that is that during the Civil War all, and I emphasize all, telegraph traffic in and out of the capital passed through Secretary Stanton’s War Department. Very much like the NSA. So it seems to me that we’d better begin thinking about this subject rather than just using the word privacy as if we’ve made an argument or indeed proved a point.
The questions that I hope will get systematic attention are: Just what is privacy? What counts as an incursion upon privacy? Are you making an incursion on my privacy by reading my published remarks? Do I have a privacy right that people not comment on the fact that I am wearing a rather loud orange tie? What I am getting at is that the flip side of privacy is freedom of thought and freedom of expression. If we were restricted in what we could notice, much less comment on, then our freedom of expression; our freedom to reflect on our world would be severely curtailed. The Europeans, who have recently in legal matters picked up on the American hysteria and brought it to a much higher pitch, have insisted that Google, Facebook and other social media, expunge, refuse to make available, public information about a person, that that person would really rather not have about, for instance the fact that a dozen years earlier he had been arrested for one thing or another. Well he had been arrested. He may have been convicted. And yet, according to the Europeans, this is an invasion of privacy. Think about that. That means that I can’t talk about something that I know and was a perfectly public fact a few years ago, if somebody today would rather I didn’t say so. Oh, well I’m not Google. But, what’s the difference?
What we’re seeing here is a reaction to modern life. It’s as if people wish that we were in a different and friendlier age. But that age was probably harder on what is called privacy than today. That was the age of small towns and villages; that was an age when everybody knew everybody else’s business and didn’t need to snoop on them. What is being reacted to is the fact that we are a complex, urbanized, regulated society. You can see why the Snowden left and the Tea Party right are somehow discomfited by this fact. Their discomfit will not make it go away. It may lead to further regulations, further complications, and a fair amount of suppression of free inquiry, free expression, freedom to notice, and freedom to talk about what we have noticed.
What really matters is not what information the government or anybody has about us but what use they make of it. I see little virtue in controlling government by keeping it ignorant. The important thing is to control government by controlling what it is allowed to do.
Educated at Princeton, Oxford and Columbia Law School, Charles Fried, the Beneficial Professor of Law, has been teaching at Harvard Law School since 1961. He was Solicitor General of the United States, 1985-89, and an Associate Justice of the Supreme Judicial Court of Massachusetts, 1995-99. His scholarly and teaching interests have been moved by the connection between normative theory and the concrete institutions of public and private law. During his career at Harvard he has taught Criminal Law, Commercial Law, Roman Law, Torts, Contracts, Labor Law, Constitutional Law and Federal Courts, Appellate and Supreme Court Advocacy. The author of many books and articles, his Anatomy of Values (1970), Right and Wrong (1978), and Modern Liberty (2006) develop themes in moral and political philosophy with applications to law. Contract as Promise (1980), Making Tort Law (2003, with David Rosenberg) and Saying What the Law Is: The Constitution in the Supreme Court (2004) are fundamental inquiries into broad legal institutions. Order & Law: Arguing the Reagan Revolution (1991) discusses major themes developed in Fried's time as Solicitor General. In recent years Fried has taught Constitutional Law and Contracts. During his time as a teacher he has also argued a number of major cases in state and federal courts, most notably Daubert v. Merrell Dow Pharmaceuticals, in which the Supreme Court established the standards for the use of expert and scientific evidence in federal courts.