Mini-Feature: Is Privacy a Right?

Is privacy a right? If not, should it be?

When the history books chime in on this era decades hence, the real story could be the problem of privacy in terms of machine memory. The NSA's database of America’s communications, for instance. As it developed, the Obama administration couldn’t resist using it against its political opponents, and now that the potential power to obtain everything on anyone seems within grasp, most administrations will fall to the same temptation. This sort of spying (and the ensuing cover up) helped lead to the collusion mess in ways that few are now talking about.

But this presents a larger problem of the digital era: increasingly all will be recorded and all that is recorded will be unified together for easy retrieval. If so, isn’t it merely a matter of time before all of that becomes public? The details of past lives will be available to all, and available to be reconstructed and remembered in ways previously unimaginable. 

But perhaps it is imaginable. Ultimately, will this lead us to something like the lack of privacy humans previously experienced in small villages or communities in which everyone knew each other and their business—or the lack of privacy we associate with the military? We are used to having privacy, or the illusion of privacy, in previously unimaginable ways. Calling privacy a "right" is a very new way of speaking, and perhaps bears some intuitive truth to it, but also conceals and obscures many fundamental issues. 

In any event, the fact that all can be recorded and easily be retrieved digitally is profoundly and radically changing culture. And what to do about it is one the most serious debates we are not having.

-Matt Peterson, founding editor of The American Mind

It is hard to think of a life worth living in a regime that acts as if there is no such thing as private life. Then again, the main loci of privacy in this sense are four: one, the home; two, the heart; three, the association; four, the restroom. It strains sense to try to find a right to privacy in other places.

But there is a potential fifth locus of privacy that gives us maybe the most trouble: the communication. Forever there has been a basic presumption that private communications should as a rule be private, that a violation of this rule is justified only in extraordinary circumstances, that its violation in other circumstances tends to destroy fundamental social and personal interests, and that (nevertheless) the onus in on communicating parties to take reasonable steps to ensure what they wish to remain private is very likely to do so.

Needless to say digital communications have complicated the picture. Barack Obama himself counseled that if you didn’t want it in the news you shouldn’t put it in an email, and this was before things really heated up, and people realized that in many cases they didn’t particularly care if their communications—or other things they did online—were tracked and traced by private or public entities.

Yet this realization did not really diminish people’s desire for what they did want to be private to remain that way, without them having to do much, or anything, to labor for privacy. One reason for the shift is that most people even now believe digital privacy is basically impossible, an apparent fact they think they have merely assented to. Even encrypted chat platforms can be and are “backdoored” by the feds and monitored.

So setting aside all additional details, the longstanding balance of order concerning privacy is being upset and a new balance must be created. Whether or not this requires a right to privacy (which sounds blanket but never turns out to be, and which conflates rights granted by the regime with rights inherent to the gift of human life) remains to be seen, but it may be that, just when we could most use civil rights to restore the balance of order in the realm of privacy, the awareness aroused by the triumph of digital technology disenchants what is left of our sense of the sacred around rights talk, which has for so long been abused by those who wish to make it simply a tool of power.

-James Poulos, executive editor of The American Mind

The right to privacy is an issue of contention in the United States. Legal abortion, for instance, is premised on the assumption of a right to liberty. The Constitution asserts that we have the right, within reason, to security in our "persons, houses, papers, and effects," which sounds a lot like privacy. 

In reality we can't expect much in the way of privacy. As in Orwell's 1984, we are surveilled more or less constantly. That is to say—the technology exists and surrounds us that is capable of having us watched all the time: even in 1984 there is uncertainty about how closely the telescreens are monitored. But the fear that we could be watched is basically tantamount to being watched, in terms of how we respond. 

Certainly there is no expectation of privacy outside one's residence, for cameras are everywhere. Nor is there any chance of disappearing and assuming a new identity, unless one is willing to live as an indigent for the rest of one's life.

It's funny: in the old days people could light out for the frontier or go to another country to start afresh. But today, America is where people come to dump their old identities and start anew. If you are a deadbeat dad or wanted felon from Central America, you can easily slip your old self and obligations by coming here, almost no questions asked. Being indocumentado, without "papers" in the sense of the Fourth Amendment, actually bestows a new right to be left alone and to self-create personhood in a way that normal Americans lack. 

-Seth Barron, managing editor of The American Mind

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Privacy is the very definition of a negative right: it is a kind of absence. Privo in Latin means "to strip away, to remove"; this is where we get both "private" and "deprivation" in English. For Caesar and Cicero no less than for us, privacy is a carve-out removed from the realm of rightful interference by others: it is a region of life and action that cannot justly be subject to unwanted intervention, scrutiny, or control.

A regime with no such exemption from public action would be one in which every thought, word, and deed was at least potentially subject to state evaluation and punishment. Witness the modern Chinese Communist state. Since we instinctively recognize that this state of affairs is inhuman and abusive, we must conclude that there is a natural right to privacy, to that which you can do or say without input or intervention from others. Some things are, or should be, private. The question is: what?

One typical answer rests on the Fourth Amendment, which guarantees "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." But with all respect to the Constitution, those who use it in this way seem to me to beg the question: what are rightfully our persons, houses, papers, and effects? 

James Madison gave an answer to that question, woefully out of fashion today but still highly serviceable and certainly superior to that of the English Jurist William Blackstone upon which it expanded. Property, says Madison, is "that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.” This includes not just your rightfully acquired belongings but also your opinions, practices, and faith: all of this is private. The state may not confiscate or frustrate any of it without becoming illegitimate in the most extreme degree.

At present it seems to me the sphere of the private is at once expanding far beyond its rightful remit in theory—as when abortion, which deprives another individual of that life which is rightfully his, gets defended as an exercise of the mother's right to privacy—and contracting painfully in practice—through digital surveillance, state-mandated shutdowns, and hate speech law. We react against both these developments instinctively, because instinctively we know what is rightfully ours, and what is not. My land, my weaponry, my mind, my speech, belong to me. Your land, your life, is yours and not mine. 

It should not be hard—though it is, apparently—to respect these basic truths.

-Spencer Klavan, associate editor of The American Mind