Vol. 7 No. 11 (November 1997) pp. 535-537.
 

IN PURSUIT OF PRIVACY: LAW, ETHICS, AND THE RISE OF TECHNOLOGY by Judith Wagner DeCew. Ithaca: Cornell University Press, 1997. 199 pp. Cloth $39.95, ISBN 0-8014-3380-0. Paper $15.95, ISBN 0-801444-8411-1.

Reviewed by Daniel N. Hoffman, Johnson C. Smith University.
 

IN PURSUIT OF PRIVACY declares several goals: to survey the history of the American law of privacy, to review and critique the philosophical literature on privacy, to defend a philosophical view of privacy sufficiently broad to encompass the diverse ways that concept has figured in American law, and to explore how the author's approach applies to selected issues of current concern.

In fewer than two hundred pages, Judith Wagner DeCew provides a well-written, balanced and reasonable, if often less than thorough, treatment of these matters. Readers not already expert in the legal and the philosophical literatures will find this an enlightening analysis, and experts too should find some food for thought.

Briefly summarizing the social science literature, DeCew remarks that privacy in some form is nearly universal across cultures. She then turns to American tort law. In their famous 1890 article, Warren and Brandeis appealed to the principle of an "inviolate personality" and a broad "right to be let alone." (16) Some subsequent commentaries, however, have argued that the law recognizes only a number of narrower, more specific rights.

Tort law and constitutional law treat privacy so differently that some find one or both of these uses inappropriate. Yet DeCew argues that the two bodies of law do share a common foundation. The constitutional rights protected by the Fourth and Fifth Amendments, she explains, pertain largely to "informational privacy." (18) However, it is the distinct line of family, reproductive and sexual privacy cases tracing back to GRISWOLD V. CONNECTICUT that has prompted the most extensive and heated legal and philosophical debates. Today, constitutional privacy rights include not just an "interest in avoiding disclosure of personal matters" but also an "interest in independence in making certain [read uncertain] kinds of important decisions." (25)

Marshalling examples persuasively, DeCew shows that the relevant interest is both narrower and broader than a general "freedom from governmental regulation." (36) In tort as well as constitutional law, "privacy protects both peace of mind and bodily integrity." (40) DeCew explores the imperfect fit between privacy on the one hand and secrecy, seclusion, confidential content, power to deny access, and property on the other. Taking up the proposal that the private is that which is "nobody else's business" or "not the legitimate concern of others," she observes that the right to privacy is not absolute; it can be outweighed on occasion by other interests. Thus she argues that privacy pertains to types of information and activities which, according to a reasonable person, are not ordinarily a legitimate concern of others, although particular interferences can sometimes be justified. (58) The "reasonable person" standard must be applied from the viewpoint of those in need of protection. (60)

To identify the more specific types of information and activity that reasonable persons in our society regard as private, DeCew, drawing on the work of Schoeman, identifies three distinct yet overlapping aspects of privacy: "our ability to control information about ourselves, our ability to govern access to ourselves, and our ability to make self-expressive autonomous decisions free from intrusion or control by others." (62) [Self-expressive OR SELF-CONSTITUTIVE would better state her point.] Illustrating each with numerous examples, she concludes that this account comes close, at least, to exhausting the privacy claims we find plausible. This broad conception of privacy, moreover, supports the Court's result in the GRISWOLD line of cases. Thus, tort and constitutional privacy together protect "a realm free from scrutiny, judgment, and the pressure, distress, or losses" intrusion can cause. (64) Privacy "is essential for one's self-esteem and sense of identity." (66)

DeCew's chapter on the feminist critique of privacy may strike some readers as a bit of a digression. DeCew wishes to defend her argument against the charge of MacKinnon and others that the right of privacy facilitates oppression of women by men in the "private" sphere. As she points out, the right need not be understood to protect unjust and injurious practices; its elaboration can take account of the differences in male and female perspectives. Moreover, the feminist critique sometimes appears to call for total abolition of the private sphere. Not only would this have painful costs for both men and women who value various aspects of privacy, but, given that males also dominate the public sphere, it would not necessarily make women safer against male oppression. One is tempted to add that the feminist critique is misplaced. It is not only women to whom wrongs are done in private, and privacy, like all rights, is indeed subject to abuse. It does not follow that there should be no rights in general, or no right to privacy in particular.

The remaining four chapters of the book are case studies. The first deals with ROE V. WADE and John Hart Ely's critique of that decision. DeCew briefly discusses competing theories of constitutional interpretation and argues against originalist approaches. Two points are of larger concern to her, however. First, her broad conception of privacy covers the decision to obtain an abortion; Ely provides no ground for his narrower reading of GRISWOLD privacy as only a right against governmental snooping. Thus, a legitimate privacy interest is in the case--even if other interests might outweigh it.

Second, Ely's invocation against ROE of the CAROLENE PRODUCTS footnote is fallacious. Ely argues that fetuses, more than women, are the "discrete and insular minority" entitled to special judicial solicitude. This argument, however, depends on his dismissal of the question of fetal personhood as irrelevant. If the fetus is not a person, DeCew claims, its interests will not automatically trump those of the woman. At any rate, "the dispute can be viewed as a disagreement over the stringency of the mothers' and fetuses' rights or claims, where privacy IS the crucial claim for mothers." (109)

While these points are sensible, it is disappointing that DeCew does not explore more deeply the exact nature of the privacy claim involved. For example, she does not consider the distinction between a right to control the number of one's offspring and a right to control the state of one's body. One could argue that privacy includes either or both of these. The former interpretation, however, raises questions about the father's comparable interests--a matter DeCew does not discuss. The latter may entail a right to evict the fetus, but not to destroy it--a distinction that new technology may some day render practically significant. [DeCew appears to endorse the Court's choice of viability as an appropriate dividing line, without addressing the paradox that evicting a nonviable fetus necessarily has far graver consequences than evicting a viable one. She remarks that technological change may have impact on the abortion issue, but does not explore the significance of frozen embryos, artificial wombs, or other actual and potential developments.]

The second case study takes up BOWERS V. HARDWICK, the privacy rights of homosexuals, and the broader issue of privacy's implications for the legislation of morals. After demonstrating the illogical, arbitrary character of the majority's reasoning, she turns to the Devlin/Hart debate on law and morality, concluding that "it is reasonable to view consensual sexual behavior as private ... and therefore not a legitimate concern for state criminalization .... We can recognize the error in using untested or unexamined community morality as the standard for judgment." (120) The glimmer of hope she finds in BOWERS is the narrowness of the decision, which leaves intact all aspects of privacy that do not pertain to homosexual sodomy.

The third case study considers the issue of drug testing. Here DeCew goes beyond her previous case studies in considering just how privacy interests are to be balanced against competing public health and safety concerns. She details at some length the arguments for testing and the competing privacy, accuracy and effectiveness concerns. She briefly reviews the judicial treatment of Fourth and Fifth Amendment objections to testing, which she finds overly permissive in some contexts, and recommends specific procedural safeguards to reduce unwarranted types of testing.

The final chapter deals with new technological threats to privacy--in particular, database information storage, caller ID and e-mail. She is generally optimistic that these problems can be successfully addressed. On databases, she outlines the ways personal information is now being collected and disseminated, and recommends protective legislation similar to that adopted by the European Union. On caller ID, she recommends a system that allows callers to preserve their anonymity by blocking the ID, but that also allows receivers to stop the phone from ringing on calls where caller ID is blocked. E-mail users should have the same prerogatives. This system, she says, respects the vital interests of both sides.

Both the strength and the shortcomings of this book are found in the number and variety of the issues addressed. As a general introduction, it is extremely useful. DeCew's notes provide access to the more detailed treatments and fuller expositions of competing points of view that can be found elsewhere.


Copyright 1997