by Ellen Alderman

Attorney Ellen Alderman, along with her co-author and fellow attorney Caroline Kennedy, has written two definitive books* and numerous articles examining how the structure of our democratic government and our laws affects the lives of American citizens. In light of Andrew Carnegie’s mandate to Carnegie Corporation of New York, exhorting the foundation to pursue “the advancement and diffusion of knowledge,” coupled with our concern for strengthening our country’s democratic processes, we asked Ellen Alderman to write this essay on the tension between homeland security concerns and privacy issues post-September 11th. Sidebars to the article present overviews of other efforts to address the troubling question of how to protect privacy in a world interconnected by the Internet and confronted by the challenges of terrorism.

*In Our Defense: The Bill of Rights in Action (William Morrow & Co., 1991);
The Right to Privacy, (Knopf, 1995)

September 11th, we are told, “changed everything,” but at least one thing that should have changed, has not—the conventional wisdom that we cannot protect both our country and our civil liberties, especially our right to privacy. While new efforts to increase security undoubtedly pose threats to our privacy, the trauma and rigorous self-examination of the past year present a remarkable occasion to improve privacy protection in this country—providing we are willing to do so. Just as we have now come to the conclusion that our entire homeland security apparatus needs an overhaul, so, too, we must rethink our approach to protecting our right to privacy. Indeed, many issues we must address regarding privacy and homeland security dovetail, so that committing ourselves to both will enable us to better protect our country and our liberties.

We probably made a mistake from the start when we allowed the issue to be cast as a choice between privacy and security. Certainly, if we really did have to choose one or the other, there would be no contest; we would choose security and then perhaps loathe the oppressive world we would live in. As Supreme Court Justice Antonin Scalia recently said in another context, “We can all stipulate that the safest societies in the world are totalitarian dictatorships.” Instead, it is the promise of the Bill of Rights that we do not have to choose between privacy (or any other civil liberty) and security. We can have both, yet neither will be absolute. It is not a choice, then, but a balance.

In striking this balance, as a society we have always been willing to weight the scale toward security. After September 11th, we are understandably and appropriately even more willing to lean in that direction. Yet a thumb on the security side of the scale is one thing; surrendering our privacy for security without question is quite another, and arguably dangerous because, in the process, we may give up a precious right without ensuring increased safety, and so become less free but not more secure. Thus, the key question is not which one to choose, but whether the gain in safety outweighs the loss of privacy.

Answering this question requires a kind of open-minded, rigorous, even imaginative national debate that has not traditionally characterized our engagement with these kinds of issues. Without such thoughtful evaluation, however, our failure is likely to be on both sides of the balance—not only in protecting our homeland, but also in safeguarding our right to privacy. It is imperative that we bring the process of balancing privacy and security into the 21st century, both to preserve our rights and to ensure our safety.

The American Approach to Privacy
One of the reasons there is so much room for improvement in the ways we protect our right to privacy is that we have never been particularly good at it in the first place. In general, our approach to privacy in this country has been a rather piecemeal affair. Instead of developing a comprehensive policy to protect this precious right, we have often waited until our privacy has been violated and then reacted. For example, state motor vehicle departments routinely sold our driving records until a man in California used them to stalk and murder Rebecca Schaeffer, a young actress. Spurred by the circumstances of Schaeffer’s death, in 1994 Congress enacted the Driver’s Privacy Protection Act, which generally prohibits states from disclosing personal information that their citizens submit in order to obtain driver’s licenses. Similarly, records of which videotapes we’d rented were widely available until opponents of Judge Robert Bork’s nomination to the Supreme Court obtained records of his viewing habits during his confirmation hearings (they turned out to contain nothing controversial). After that incident, in 1988 Congress enacted the Video Privacy Protection Act, which prohibits “wrongful disclosure of video tape rental or sale records.” This scatter-shot, after-the-fact approach has left a patchwork of privacy protection that is difficult to understand and often doesn’t make sense. For example, while your video rental records are protected by federal law, your medical records are not.

In the last decade, largely through the work of privacy advocates, we have become much more aware of threats to privacy that are integral to modern society. Accordingly, the issue has gained in public attention and political clout. But much of the new-found power of the privacy movement stems from concerns unrelated to public safety, such as worries about personal habits being tracked and exploited for marketing purposes; sensitive data such as health or financial records being divulged without consent; increasing press intrusion into private lives; and mounting incidents of identity theft and video voyeurism.

In the context of safety issues, though, our approach to privacy remains much like our pre-September 11th approach to security: based on outdated or erroneous assumptions and executed without any real assessment of effectiveness. Out of fear, we have been willing to cede privacy rights without considering less intrusive alternatives, or worse, without questioning whether a new security measure works at all, thus compromising not only our civil rights but also our safety. When new security measures have been implemented, we have rerely built in effective protections against abuse, a step that would protect privacy without affecting safety. And we have not provided meaningful, long-term oversight to serve the twin purposes of deterring any future abuses while also evaluating whether a security measure continues to be effective. Finally, and arguably most important of all, we fail to adequately consider what social frontiers new and stringent security measures may lead us toward and whether we really want to go there.

Next page: It is the promise of the Bill of Rights that we do not have to choose between privacy and security.We can have both.

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