The Right to Privacy vs. the Common Good

USA Today (Society for the Advancement of Education), Sept, 2000 by Amitai Etzioni

"... Privacy encompasses behavior that members of a particular social entity are expected, by prevailing mores or laws, to carry out in ways that ensure these acts will not be readily scrutinizable."

DRUG TESTING violates the privacy of those tested. In effect, the test penetrates into their bodies and often reveals their conduct when they were not on the job. Still, the law and most Americans believe it reasonable to require that school bus drivers, airline pilots, and train engineers--those who directly have the lives of others in their hands--be tested. This approach, which refuses to treat privacy as an absolute right and expects it to yield for the common good under certain circumstances, is based on the Fourth Amendment. It does not read "Congress shall make no law ..." banning searches, the way the much stronger First Amendment does, but merely bans unreasonable searches. Ergo, it recognizes on the face of it that there are reasonable ones--those in the public interest.

The question then arises, under what conditions are searches reasonable? As I see it, there are four criteria that have to be met. First, a free society will limit privacy only if it faces a well-documented and macroscopic threat to the common good (such as public safety or public health), not merely a hypothetical danger. Tampering with ethical, social, and legal traditions--and with the public philosophies that underlie them--endangers those traditions' legitimacy. Once tradition is breached, it is difficult to prevent it from unraveling, a phenomenon often referred to as the slippery slope problem. Changes, therefore, should not be undertaken unless there is strong evidence that either the common good or privacy has been significantly ignored.

Second, after determining that the common good needs shoring up, one should examine whether that goal can be achieved without recalibrating privacy. For instance, when medical records are needed by researchers, personally identifying information (such as names, addresses, and Social Security numbers), should be removed first.

Third, to the extent that privacy-curbing measures must be introduced, a free society makes them as minimally intrusive as possible. For example, many agree that drug tests should be conducted on those directly responsible for the lives of others, such as school bus drivers. Numerous employers resort to highly intrusive visual surveillance to ensure that the sample is taken from the person who delivers it when, in fact, the less intrusive procedure of measuring the temperature of the sample immediately after delivery would suffice.

Fourth, measures that treat undesirable side effects of necessary privacy-diminishing measures are to be preferred over those that ignore these effects. These measures are required both to protect people from unnecessary injury and sustain public support for the needed policies. Thus, if more widespread HIV testing and contact tracing are deemed necessary to protect public health, efforts must be made to enhance the confidentiality of the records of those tested.

Application of these four balancing criteria helps ensure that correctives to a society's course are truly needed and not excessive. Granted, even when these criteria are applied, one cannot pinpoint with complete precision the proper or optimal course to follow. Societies have rather crude guidance mechanisms and may need constantly to adjust their course as they oversteer first in one direction and then in the other. However, the criteria do provide a basic measure of the extent of the imbalance between privacy and the common good, and the direction and nature of the necessary corrections.

I conducted an extensive examination of the condition of the nation in five major matters concerning public safety and public health, the most important common goods. These included HIV testing of infants, encryption of communications, community warnings when pedophiles are released, the new technology of biometrics, and medical records. (The detailed results were published in my book, The Limits of Privacy.) I found that in all but the last case, privacy considerations took precedence over serving the common good.

For instance, despite evidence provided by the government that terrorists, drug lords, and pedophiles use encryption for their nefarious acts, the FBI was not granted the tools it needs to decode such messages--under the same conditions it must meet in order to tap phone calls. These conditions are based squarely on the Fourth Amendment: The government must present to a judge evidence that it has compelling reason to suspect that a crime has been or is about to be committed. Only then, the judge issues a warrant that allow a tap. Those who believe judges grant these warrants lightly may wish to note that, in a recent year, barely over 1,000 were issued nationwide.

Legal foundations

To understand why the current legal tradition often favors privacy over the common good and is not based squarely on the Fourth Amendment, the following is a brief review of how it got here: