Coercing privacy.

• Author: Allen, Anita L.

INTRODUCTION

This Essay advances two propositions about a pair of complex ideas that I will call "the liberal conception of privacy" and "the liberal conception of private choice."(1) Both ideas will be familiar to anyone who has followed the personal privacy debates in the United States during the past three decades.

The liberal conception of privacy is the idea that government ought to respect and protect interests in physical, informational, and proprietary privacy.(2) By physical privacy, I mean spatial seclusion and solitude. By informational privacy, I mean confidentiality, secrecy, data protection, and control over personal information. By proprietary privacy, I mean control over names, likenesses, and repositories of personal identity.(3) The liberal conception of privacy informs popular understandings of, for example, the four invasion of privacy torts, the Fourth and Fifth Amendments of the U.S. Constitution, state confidentiality statutes, federal wiretapping legislation, and proposed genetic privacy codes.(4) The liberal conception of privacy overlaps considerably with the liberal conception of private property. We associate privacy with certain places and things we believe we own, such as our homes, diaries, letters, names, reputations, and body parts. At the core of the liberal conception of privacy is the notion of inaccessibility. Privacy obtains where persons and personal information are, to a degree, inaccessible to others.(5)

The liberal conception of private choice is the idea that government ought to promote interests in decisional privacy, chiefly by allowing individuals, families, and other nongovernmental entities to make many, though not all, of the most important decisions concerning friendship, sex, marriage, reproduction, religion, and political association.(6) The liberal conception of private choice informs normative understandings of the First Amendment and the substantive due process requirements of the Fourteenth Amendment.

The concept of private choice seems to presuppose that social life is divided into distinguishable public and private spheres, the private sphere being a realm of individual decisionmaking about sex, reproduction, marriage, and family. So conceived, "decisional" privacy has origins in classical antiquity. The Greeks distinguished the "public" sphere of the polis, or city-state, from the "private" sphere of the oikos, or household.(7) The Romans similarly distinguished res publicae, concerns of the community, from res privatae, concerns of individuals and families.(8) The public realm was the sector in which free males with property whose economic status conveyed citizenship participated in collective governance.(9) By contrast, the private realm was the mundane sector of economic and biologic survival.(10) Wives, children, slaves, and servants populated the private sphere, living as subordinate ancillaries to male caretakers.(11) The classical premise that social life ought to be organized into public and private spheres survives in the post-Enlightenment Western liberal tradition, as does the premise that the private sphere consists chiefly of the home, the family, and apolitical intimate association.

Privacy, on the one hand, and private choice, on the other, restrain and obligate government. Government must leave us alone as a matter of government restraint. Government also must protect us from interference and invasion as a matter of government obligation. There is a special point to this restraint and obligation: where restrained and obligated to advance interests in privacy and private choice, government is decent and tolerant in a way liberals believe moral justice demands.

Relative to the moral justice liberals demand, privacy and private choice are indispensable, foundational goods. Neither privacy nor private choice, however, is an absolute, unqualified good. There can be too much privacy, and it can be maldistributed. Some liberal feminists take an appropriately skeptical view of traditional uses of privacy and private choice to subordinate women.(12) Likewise, some liberal exponents of law and economics take an appropriately skeptical view of traditional uses of privacy to conceal adverse information unreasonably.(13) Characteristically, though, liberals of all stripes proclaim that a degree of privacy and private choice is beneficial to individuals and a society marked by aspirations for free, democratic, and reasonably efficient forms of life.(14)

It is no secret that liberals disagree among themselves about the rights of privacy and private choice that justice requires. Conservative-leaning liberals disagree with liberal-leaning liberals about whether government is obligated to permit abortion, gay marriage, drug use, and certain other forms of conduct.(15) Conservative liberals stress traditional notions of decency and propriety along with home and family-centered intimate lives.(16) Liberal liberals stress the importance of tolerating nonconformity and responsible departures from traditional modes of private life.(17) All liberals agree, though, with a general principle of substantial government restraint with respect to broad dimensions of personal life.(18) Subscription to this rough principle of public and private is one of the ties that bind competing versions of liberalism.

The impossible ideal of a private sphere free of government and other outside interference has currency despite the reality that, in the United States and other Western democracies, virtually every aspect of nominally private life is a focus of direct or indirect government regulation. Marriage is considered a private relationship, yet governments require licenses and medical tests,(19) impose age limits,(20) and prohibit polygamous,(21) incestuous,(22) and same-sex marriages.(23) Procreation and childrearing are considered private, but government child abuse and neglect laws(24) regulate how parents must exercise their responsibilities. The liberal ideal of a private sphere can be no more than an ideal of ordinary people, living under conditions of democratic selfgovernment, empowered to make choices about their own lives that are relatively free of the most direct forms of governmental interference and constraint.

The first proposition that I will advance against the preceding background is this: although the liberal conception of private choice is flourishing, as evidenced by the growing acceptability of homosexual unions(25) and abortion rights,(26) the liberal conception of privacy is not flourishing similarly. One detects signs of an erosion of the taste for and expectation of privacy. Neither individuals, institutions, nor government consistently demand or respect physical, informational, and proprietary privacy. Liberals may need to rethink the claims they have always made about the value of privacy. We are forced to be free. Liberal governments cannot permit us to sell ourselves into slavery. Are we forced to be private? Should we be? Should liberals urge government to force people to be modest, keep sexual and family matters confidential, get off of mailing lists, install caller-ID blockers, and sanitize their memoirs?

The second proposition that I will advance relates to the first: traditional liberal conceptions of privacy and private choice have survived appropriately strenuous feminist critique, re-emerging in beneficially reconstructed forms.(27) As a result of the feminist critique, we understand that the conditions of confinement, forced modesty, obedience, and unaccountability that once constituted the private sphere are not a model of privacy worthy of the name. Ironically, just when meaningful, unoppressive forms of privacy and private choice are becoming imaginable and available to women,(28) privacy is losing its cache.

What good are the ideals of physical, informational, and proprietary privacy that survive feminist critique if no one subscribes to them? Everyone should want privacy, for reasons liberal moralists have stated, and for other reasons relating to responsibility and participation that they have tended to overlook. What if, however, some people do not want privacy? "Coercing privacy"--imposing privacy norms to make sure everyone lives in accordance with a particular vision of privacy--would be problematic. That kind of intolerant moralism is part of the problem with the military's "Don't ask, Don't tell" policy respecting gay service members; that kind of intolerant moralism was part of the problem with the cult of domesticity. Nonetheless, I suggest that imposing privacy norms to undergird the liberal vision of moral freedom and independence is generally consistent both with liberalism and with the egalitarian aspirations of feminism.

1. TECHNOLOGY AND THE TABLOIDS

   The final decades of the twentieth century could be remembered for the rapid erosion of expectations of personal privacy and of the taste for personal privacy in the United States. Recent polling data as well as high profile litigation and policy debates suggest impressively high levels of concern about physical and informational privacy.(29) Certain legal and policy trends; certain modes of market, consumer, and political behavior; and certain dimensions of popular culture, though, suggest low levels of concern.(30) I sense that people expect increasingly little physical, informational, and proprietary privacy, and that people seem to prefer less of these types of privacy relative to other goods.

   An erosion of privacy-related tastes and expectations could have numerous causes. These causes could include an avalanche of technologies that make it easy and advantageous for us to make ourselves available to others (e.g., cellular phones, fax machines, e-mail); easy and advantageous for our government to keep track of us (e.g., video surveillance of urban streets, databanking, testing); and easy and advantageous for the corporate sector to collect and exchange...