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C H A P T E R 8 o LIFE, LIBERTY, AND THE PURSUIT OF PRIVACY The tension that one finds in the process of democracy, where the proper balance between competing interests is continually calibrated , is clearly evident in the homeland security debate. Those favoring stronger security measures seek to grant the government enhanced powers in the antiterror campaign; those concerned about guaranteeing civil liberties and protecting privacy fight to keep the government in check. Finding the appropriate equilibrium in difficult issues like these is never easy and is made even more challenging by uncompromising attitudes on both sides of the debate. We’ll discuss one of these notions in this chapter, the idea that privacy is an absolute value on par with liberty that should never be limited. A Brief History of Privacy If the public were to reexamine its views on privacy, a first step would be to take a look at the history of the issue. Although most Americans cherish privacy, many would be surprised to learn that a modern right to privacy has been established in only the last few decades. In fact, privacy isn’t even mentioned in the U.S. Constitution, which is somewhat surprising because many discussions of privacy treat it as a hallowed right along the lines of life, liberty, and the pursuit of happiness. To understand how the right to privacy has been established in such a PAGE 117 117 .......................... 10897$ $CH8 08-31-04 10:09:34 PS 118 Chapter 8 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • short period of time, it is helpful to look at a condensed history of the modern privacy movement. For the greater part of America’s history, the legal framework for the idea of privacy was intertwined with the protection of property rights. With a foundation in English law, the courts broadly applied the concept of ‘‘a man’s house is his castle’’ to cover a number of invasions against a person. For example, publishing the contents of a man’s journal could be considered a violation of his personal property. Spreading slander about someone could be viewed in the same light because a man’s reputation was considered his property. The foundation for a more contemporary conception of privacy, and one disconnected from the boundaries of property rights, is usually traced back to an article coauthored in 1890 by Samuel D. Warren Jr. and future Supreme Court justice Louis D. Brandeis. The article, published in the Harvard Law Review by the two close friends, who went to Harvard Law School together, would become very influential in the debate over privacy rights throughout the 1900s, influencing hundreds of legal cases. According to Robert Ellis Smith, ‘‘In just 26 pages, the law review article succeeded in virtually creating a new right of action for aggrieved individuals where none had existed before.’’1 Brandeis and Warren argued that many past court decisions that had granted redress on the basis of private property ought to have been based on a principle of privacy. They believed that the concept of rights must evolve alongside advances in society and that the right to privacy was no different. In their article, privacy was referred to as the ‘‘right to be left alone.’’ Many have pointed out that Brandeis and Warren’s campaign for privacy grew out of their concern with the intrusiveness of the press, particularly with the negative coverage in Boston papers of the Warren family’s social life.2 Their privacy crusade would continue when Brandeis , as a Supreme Court justice, advocated on behalf of the issue. Although Brandeis and Warren provided somewhat of an intellectual foundation for the concept, the growth of government databases first drew the public’s concern to privacy issues. The roots of the issue lay in the creation of the Social Security Administration in 1935 as part of President Franklin Roosevelt’s plan for a government-regulated retirement program. Established by the Social Security Act, it required that a percentage of each worker’s paycheck be deposited into a trust fund with a matching portion from the government. In order for the Social Security Administration to keep track of the millions of people in the program, they had to assign to workers what were called Social Security PAGE 118 .......................... 10897$ $CH8 08-31-04 10:09:35 PS Life, Liberty, and the Pursuit of Privacy 119 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • account numbers. Smith mentions that the need to ‘‘register’’ for SSNs created a political uproar, although within three weeks, most of the...


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