The End of Privacy

PART 1
The Attack on Privacy
1
Prologue and Introduction
Before breakfast, a businesswoman signs on to the Internet, checks her e-mail, and orders flowers. Even before she has signed off, her on-line movements have left a trail of data that has been added to her profile, including the fact that the recipient of the flowers is a thirty-two-year-old man who lives in the next suburb. Her phone records indicate a number of late-night calls to the man's residence. While she was on-line, every icon she clicked on was tracked and recorded. Someone was learning about her. Several discreet "cookies" are left behind on her hard drive.
Later that week, her purchase of the flowers will be matched and merged with the fact she vacations in Aruba, buys lingerie from Victoria's Secret, uses a high-end hair color, and drives a late-model car. Her name will be sold to marketers looking for consumers who fit that profile. The same marketers have a dossier that already runs to more than eighty-five pages about her spending habits. Every time she uses the smart card at her grocery store, the profile expands, including her recent purchase of hemorrhoid medication, contraceptives, and her preference for cabernets. She is unaware that her ex-husband's attorney has just obtained a copy. Others will be interested to learn that she logged onto an Internet message board for patients with breast cancer for the fourth consecutive day. The next week, she will unexpectedly be denied a new home mortgage.
As she leaves her apartment, the security cameras capture her departure. She seldom notices them anymore, but the cameras keep record of her comings and goings as well as those of her guests. It makes for amusing viewing at the security staff's Christmas party.
The e-mail she read before breakfast was from a coworker, who told her he planned to quit. Writing back, she expressed her own ambivalenceabout her bosses. Their supervisor, who will be waiting in her office, read both the message and her reply. Once in her car, she makes a call on her cell phone, which instantly allows her location to be pinpointed exactly (the FCC has approved new rules that require cell phones to be trackable by law enforcement); and as she speaks her conversation can easily be heard on a nearby scanner. As she passes through a tollbooth, her presence is electronically recorded by an intelligent transportation system, whose cameras snap her license plate number, recognizing it as the same car that passed the checkpoint two days earlier at 2:30 A.M.
She flips on the radio, which reports that Chelsea Clinton has broken up with her boyfriend and has checked into a clinic with stress-related symptoms. Later that day, she has her own appointment with her psychologist, who at the moment is meeting with a representative of her HMO, which is undertaking a "utilization review," a procedure that requires the doctor to turn over all of his patient files. As she drives to work, a representative of the company is reading her therapist's notes about her night terrors. She occasionally wonders about the mail she receives advertising new antidepressants, but it does not occur to her that her pharmacy has been selling her name.






Privacy is like oxygen. We really appreciate it only when it is gone. The death of Princess Diana, the political convulsions over Bill Clinton's sex life, celebrity complaints about the predatory media give the issue prominence. But it is not the violations of the famous that make the battle over privacy the preeminent issue of the Information Age. It is the erosion of privacy in our everyday lives.
Snoops have always been with us. From time immemorial, gossips, nags, governments, and journalists have tried to listen in our conversations, follow our comings and goings and hunt for grist for their endlessly turning mills. What's new, however, is the tools they now have at hand to watch, listen, and record. Technology makes the fears of the paranoiac of the past seen Pollyanna-ish compared with the realities of the present and the prospects of the future. If it remains true that everyone is famous for at least fifteen minutes, it is also true that the average citizen now experiences the loss of privacy once reserved for the famous and infamous.
Questions of privacy touch us in nearly every aspect of our lives, fromour relationships with our doctors, to our ability to communicate on the Net, to the intimacy of our personal relationships.
At the end of the century, the challenge to privacy comes from many fronts:
• Modern technology has made it possible to create vast new dossiers of extraordinary detail and specificity about our tastes, habits, and lives. Every time you apply for a job, subscribe to a magazine, call a mail-order catalog, use a credit card, dial a phone, seek credit, fly on an airplane, buy insurance, rent an apartment, drive a car, pay taxes, get married or divorced, sue someone, see a doctor, use a smart card, apply for government licenses or benefits, you become part of the dataweb, which has proven far more powerful than the paper trails of bygone years.
• People are increasingly anxious about the erosion of their personal privacy. In a 1998 Louis Harris poll, 88 percent of Americans said they were concerned about their privacy, while a majority (55 percent) said they were "very concerned."
• The Internet has rewritten the rules of private and public life, providing an illusion of privacy in a realm that actually is a fishbowl.
• Even as the private sector develops new techniques for tracking us, new government databases ranging from information about newly hired workers to airline passengers threatens to create a seamless dataweb that blurs the lines between government surveillance and commercial marketing.
• The National Research Council has warned that the medical records of millions of Americans are vulnerable to abuse, noting that "today there are no strong incentives to safeguard patient information because patients, industry groups and government regulators aren't demanding protection."a The federal government continues to move toward creating a single universal medical identifier that will track every visit to a doctor's office, every treatment, and every prescription for every patient from cradle to grave.
• In politics the personal has become the political, shrinking the zone of privacy, making the lives of politicians--and the rest of us--fair game. Both the Nannies of the welfare state (in the name of compassion) and the Grundies of the right (in the name of virtue) continue to narrow the zone of our lives that is no one else's business. The loss of privacy has, in effect, become a tax on involvement in public affairs.
• Fueled by our penchant for therapy and sharing, Americans share their intimacies and dysfunctions with therapists, casual acquaintances, and national television audiences. Although the effect is numbing--does anything shock us anymore?--the pressure grows for the rest of us to join in the orgy of self-exposure lest we be suspected of unhealthy repression or concealing guilty secrets.
• The hypercompetitive media continually revise their standards downward as the line between the tabloids and the mainstream press is erased. Salacious gossip in tabloids that would have once been trash-canned with scarcely a comment, now is fodder even for the gray ladies of the establishment press. The Internet is rapidly breaking down whatever barriers between rumor and news that may have survived.
• Workplaces continue to be no-privacy zones, where employers read the e-mail, listen to the phone calls, electronically monitor, and videotape employees. One survey found that nearly three-quarters of large corporations collect information about their workers beyond what employees provide voluntarily; more than two-thirds report hiring private investigators to check into the background of their workers. More than one-third use medical records to make decisions about employees.
• Anxious to protect its own secrets, the government remains jealous of the ability of citizens to keep their own. Law-enforcement and intelligence agencies want to deny the rest of us the ability to encode our own communications to prevent their easy interception or reading.
It is easy to see what it at stake:
The greatest barrier to the growth of commerce on the Internet is not technological. The Net will realize its potential for hypergrowth only whenit resolves concerns over the privacy and the security of information transmitted through cyberspace. Privacy may be worth uncounted billions of dollars.
Perhaps even more urgently, concerns over privacy threaten to erode many of the advances in medical science, including those involving genetic therapy. Fearful that certain information could damage their ability to obtain insurance or jobs, patients are already avoiding tests and even doctors altogether.
Already the political landscape is being laid waste by the assault on the private lives of public and private figures alike. At the heart of the cultural, political, and legal schism over the fate of President Bill Clinton was the question of privacy, an issue that threatens to spill over and poison public life as a whole. Ironically, an age that is obsessive about delving into the private lives of individuals is inevitably dominated at one extreme by the Puritan and the other by the pornographer. The zeal of the neo--Puritans in exposing Sodom and Gomorrah is at least equaled by the zest with which their opponents search out "hypocrisy," that gravest of all modern sins. In the campaign to explode privacy, what begins with piety ends with pornography. The Moral Majority meets Hustler.
But the greatest threats--obscured in debates over sexual McCarthyism, media intrusion, and technological snooping--go to the heart of our self-identity. Some commentators suggest that privacy is the essence of being human; but, in fact, it is quite possible to be human without privacy. It is more accurate to say that privacy is essential to being a free human being. b As Justice Louis Brandeis suggested more than a century ago, privacy--the right to be let alone--is the most valued, if not most celebrated, right enjoyed by Americans. Neither the Founding Fathers of the eighteenth century nor Brandeis of the nineteenth century thought that privacy was optional. How much less so in the twentieth and twenty-first centuries, when others have the power literally to watch us through walls.
BALANCING ACTS
The truth is that as much as we deplore the erosion of privacy--and we can be quite eloquent on the subject--many of us accept the violations in the name of a wide range of equally attractive virtues and interests. To paraphrase Jane Austen, privacy is a value that everyone speaks well of, but no one remembers to do anything about. No one disparages privacy to its face. They simply choose to emphasize the public's right to know, national security, personal safety, conveniences, economic opportunity, politics, ideology, or the pursuit of virtue. Privacy may be all well and good, but the economics of direct marketing are often far more compelling, the hypercompetitive environment of the new media makes reticence seem an unaffordable and archaic luxury, and, anyway, what are you trying to hide? Indeed, attempts to protect privacy are frequently regarded with suspicion. "There is not a crime," thundered Joseph Pulitzer, "there is not a dodge, there is not a trick, there is not a swindle, there is not a vice which does not live by secrecy."
The early privacy advocate E. L. Godkin, once told the story of a traveler in a Western mining town who "pinned a shirt across his open window on the piazza while performing his toilet; after a few minutes he saw it drawn aside roughly by a hand from without, and on asking what it meant, a voice answered,"We want to know what there is so darned private going on in there?"1 The question still makes us uncomfortable.
These days, privacy is whipsawed from both the left and the right. As incompatible as their various agendas might be, virtucrats of all stripes are united in believing that the "personal is political," a slogan that now sounds grimly ironic in the post--Lewinsky political world. Originally used by feminists, to argue that issues like day care should be matters of public concern, the personalization of politics represents a deeper shift in the political debate. Whatever the original intent of the slogan, describing the personal as the political shrinks the zone of privacy while expanding the areas of our lives that are seen to be "everybody's business." Public debates center increasingly not around issues of great moment, but around various aspects of personal life and conduct, including what we eat, what we drink, what we smoke, how we recycle, and how we bond with our kids--tearing down the walls that once divided the public from the private realms.
In some respects, this focus reflects the temper of the times. Having lost faith in their ability to solve big problems, modern do-gooders haveturned to small ones. Frustrated at their failure to fix society, they have turned to fixing one another and the rest of us, as well. As strangers show an ever-increasing enthusiasm to hector their neighbors and intrude into their lives, nagging has virtually become a national pastime.
Unfortunately for privacy, this means a two-front war. If liberals seem anxious to intrude into private lives in the name of "compassion," conservatives often act as if they want the state to be the arbiter of community and personal morality. While the left has supported the proliferation of government-run social-welfare databases, the right has championed the demands of law-enforcement agencies that want a back door to our personal communications. Conservatives object to government intrusions such as a national ID, but are reluctant to support any restrictions on the growth of massive private-sector data dossiers, even though they increasingly blur lines between government and private information-gathering. The left has a proud tradition of defending civil liberties, but therapeutic liberalism has waxed especially enthusiastic over the notion that it takes a whole village to raise your children.
SHUT UP, WE EXPLAINED
The political and ideological threats are dramatically magnified by the more general spirit of the age. We are not the first culture to revel in gossip, but our distinctive contribution is not gossip, but exhibitionism. Having perfectly soundproof walls, we have become a society that cannot shut up. The classical belief that the unexamined life was not worth living has been replaced by our modern conviction that the unpublicized, unexposed life that has no socially redeeming value.
Not only does the love that dare not speak its name now never shut up--no one else does either. The result is a society of way-too-much-information.
Richard Rhodes assaults us with the details of his sex life with a specificity that goes beyond excruciating. Kathryn Harrison feels compelled to publish accounts of her incestuous affair with her father. Joyce Maynard seeks to claw her way upward from mediocrity by exposing her relationship with the intensely private and reclusive J. D. Salinger. Dr. Laura's exboyfriend sells nude pictures of the virtues maven for posting on the Web. Dr. Jack Kevorkian and 60 Minutes team up for a televised episode of euthanasia. Even the most famous privacy victims, Princess Diana and BillClinton, found it necessary to share details about their most intimate affairs with worldwide audiences. Perhaps this is inevitable in a postmodern celebrity culture that has traded achievement for publicity; restraint for exposure; reticence for "authenticity"; and decency for self-revelation. Daytime television has become a national town hall of confession, peopled with a class of individuals willing to endure any humiliation or pay any price to escape their privacy. Unable to achieve fame through accomplishments or actual celebrity through other means, they offer their privacy as the kindling for their moment of pseudo-celebrity, especially on television. Television may be the ideal forum for the modern culture of confession because it provides the illusion of intimacy without the accountability and messiness of real relationships. For many Americans, it seems that reality is such a fragile concept that they are not really sure anything is real unless it is on television. Since nothing is fixed or sure, the virtual reality of television actually becomes more real than "real" life--untelevised life. Privacy is worse than irrelevant.
It is what nobody sees; there is no there there.
This has profound consequences for families, especially since we no longer have secrets from one another, or from our children. The young are no longer the uninitiated or the innocent. They no longer have to pass through various stages as they are socialized and introduced to the secrets of adulthood. All the veils are down. Any child who watches television, author James Twitchell notes, "sees things that only adults would have known of in a pre-electronic world."2 On the Internet they can find out about things that adults do that even many adults have never imagined.
Of course, despite all of the claims made on its behalf, the explosion of sex-talk has demonstrably not made us healthier or wiser in matters sexual. Nor has the orgy of self-exposure and confessionalism made us more insightful. There is little evidence that the prurient press has appreciably raised our moral standards. Reading the peccadilloes and private quirks of celebrities and pseudo-celebrities has not had the cautionary effects its advocates would seem to claim for such intrusive journalism. Yet, the culture of full disclosure does not seem likely to wither away. It has however, established a cultural climate of disdain for privacy and distrust of those who avoid exposure or insist on keeping their private lives to themselves. That, in turn, influences the cultural, political, and legal climate for privacy.But it is not the freakish or the abnormal that is most alarming: it is the routine, the habitual, the almost numbing regularity with which others intrude on our private life. At times it may be possible to ignore the implications of all of this. We believe that we can chip away at others' privacy, but keep our own intact. All the while, we are changing the standards of what is private and what is public, shifting the lines depending on our moods, our politics, or the light. Perhaps the best example is how we feel about sex.
Is sex our most private or our most public activity? Starting in the 1960s, the courts have carved out a special zone of constitutionally protected privacy for almost all matters sexual, from the reading of pornography, to the right to procreate, to contraception, and even abortion. But if sex is private, one would not know it from going to the movies, reading the papers, or watching the typical prime-time sitcom. In modern culture, sex is as private as any other national pastime, and it gets higher ratings than baseball. Nor is this simply a matter of culture: sexual-harassment law has turned some of the relations between men and women into matters of law and political debate. We have found, however, that the loss of privacy, like any once-released genie, is very, very difficult to put back into the bottle.
THE PRIVACY PARADOX
Having said all of this, defenders of privacy need to confront several difficult questions: If there is a genuine concern for personal privacy, as public opinion polls consistently indicate, then why do so many people behave as if they did not care about their privacy? Why do people tell pollsters they are alarmed about the loss of privacy, but then blithely give out their credit-card numbers over the Internet? Or sign consent forms that allow sensitive medical information to be seen by dozens of eyes? Even granting the institutional power of the antiprivacy forces, why has the political support for privacy protections been so ineffectual?
First, few Americans have anything but the vaguest idea just how much of their lives is transparent, or how vulnerable they are to the new technologies and instruments of surveillance and monitoring. But even among those who do have some idea that their privacy is in jeopardy, many feel powerless to do anything about it, perhaps seeing it as an inevitable byproduct of the information age.
But there is another explanation as well. Privacy is not an absolute; likefree speech, or any other right, it must be weighed in the balance against such values as freedom of information, free trade, national security, and the public's need to know. Indeed, there are so many competing claims that privacy can hope to survive the balancing tests only if it is well established and well understood as a basic principle. But it is neither. Its legal status is confused, at best. And among the lost arts of our age is the ability to gracefully tell another, "It's none of your business." In part, that is because we forget too often why privacy matters.

THE END OF PRIVACY. Copyright © 1999 by Charles J. Sykes. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles or reviews. For information, address St. Martin's Press,