Thursday, April 17, 2008

The Steady Retreat of Privacy

I was brought up to believe that all rights are important and need to be respected, exercised and defended. I was given to believe that there exists no right that cannot and will not be taken away from us should we become complacent about it. Finally I was imbued with the concept that we don't have a single right that hasn't been bought and paid for, often in blood and often several times over.

Coming from this set of values, I find it hard to grasp how freely we have yielded our fundamental right to privacy. I watched a documentary last night about Britain's CCTV or closed-circuit television monitoring network, the most extensive anywhere. Travel through many public places in England today and there's a good chance someone or something is observing you and yet this inherent breach of individual privacy is actually embraced by the British people.

This month's Walrus magazine features a lengthy article on privacy in Canada and how it's been all but lost, largely of our own doing. Every time we use a credit card or a store card or a health care card or almost any card with an individual identity number, information about us is logged and stored away. From this information it's possible to build a profile of who we are, our preferences and weaknesses, where we travel, with whom and what we do when we get to our destination - the list is endless. Then there's the internet, instant messaging, chatrooms, blogs and social networking sites such as Facebook. We practically beg to have people intrude on our private lives.

My kids' generation has the weakest appreciation of the right of privacy but, then again, at least part of that is probably a function of youth. Yet I've seen no discernable interest on their part about the wobbly state of their privacy. It seems they just don't care.

Do we, as a society, continue to value the right of privacy? Are we willing to surrender it even more than we already have? I suspect our understanding of the significance of privacy in the 21st century is so weak as to almost ensure that outcome.

So, why ought we to care about privacy anyway?

Janna Malamud Smith, Private Matters: In Defense of the Personal Life (1997, states:

"The bottom line is clear. If we continually, gratuitously, reveal other people's privacies, we harm them and ourselves, we undermine the richness of the personal life, and we fuel a social atmosphere of mutual exploitation. Let me put it another way: Little in life is as precious as the freedom to say and do things with people you love that you would not say or do if someone else were present. And few experiences are as fundamental to liberty and autonomy as maintaining control over when, how, to whom, and where you disclose personal material." Id. at 240-241.

In 1890, Louis D. Brandeis and Samuel D. Warren defined the right to privacy as "the right to be let alone." See L. Brandeis, S. Warren, "The Right To Privacy," 4 Harv. L. Rev. 193.

In their book, The Right to Privacy, (Alfred A. Knopf, New York, 1995) Ellen Alderman and Caroline Kennedy describe the importance of privacy in this way:

"Privacy covers many things. It protects the solitude necessary for creative thought. It allows us the independence that is part of raising a family. It protects our right to be secure in our own homes and possessions, assured that the government cannot come barging in. Privacy also encompasses our right to self-determination and to define who we are. Although we live in a world of noisy self-confession, privacy allows us to keep certain facts to ourselves if we so choose. The right to privacy, it seems, is what makes us civilized."

By most accounts we're entering into an era of prolonged, social upheaval. I would think that, before we get too far down that road, we need to have a clear debate on our rights of privacy and how they're to be protected, even as against our own governments.

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