Report from the Center for
PHILOSOPHY &
POLICY

The very impersonality of the computer's storage of intimate information can give rise to a feeling of violation.

bits of information on a magnetic tape? The answer would seem to depend in part on how many people in what capacity have access to the database. The Rachels-Fried view provides one argument for limiting access as far as possible for not, for example, passing files about from one government agency to another.

Reiman argues, however, that Fried and Rachels are wrong to think that intimacy is bound up with privacy in the way they propose. Their view, he feels, "suggests a market conception of personal intimacy. The value and substance of intimacy - like the value and substance of my income - lies not merely in what I have but essentially in what other do not have." Intimacy, on this view, is constituted by its unavailability to others - in economic terms, by its scarcity. Reiman suggests instead that "what constitutes intimacy is not merely the sharing of otherwise withheld information, but the context of caring which makes the sharing of personal information significant." He goes on to say, "It is of little importance who has access to personal information about me. What matters is who cares about it and to whom I care to reveal it. Even if all those to whom I am indifferent and who return the compliment were to know the intimate details of my personal history, my capacity to enter into an intimate relationship would remain unhindered." Computers are no threat to intimacy on this view. What matters for intimacy is not how much some computer knows, but how much some human being

cares.

Computers don't care, of course, and likely the human beings who input intimate information into a database at so many keystrokes a minute don't care, either. This in itself can give rise to a feeling of violation - Schoeman observes that we feel defiled when information that matters deeply to ourselves is handled without recognition of its specialness. He compares intimate information, information that is of the greatest importance to our conception of ourselves, to a holy object - "something that is appropriately revealed only in special circumstances. To use

such an object, even though it is a humble object when seen out of context, without the idea of its character in mind is to deprive the object of its sacredness. ... Such an abuse is regarded as an affront."

None of this is to say that records of intimate information should not be committed to the computer. There are in many cases weighty societal reasons for collecting and storing the information that we do. But it is a good thing for us to remember periodically that the data we collect and analyze and scrutinize are at bottom a record of people's lives. We have a charge to treat them carefully, and with respect.

Conclusion

It is common to assume that technological changes inevitably pose a threat to privacy. But Schoeman notes that the industrial revolution brought in its wake a major increase in privacy, as the resultant urbanization led to heightened anonymity - "the privacy that results from the indifference of others." Generally, Schoeman suggests, "the degree to which privacy is threatened is a function of design rather than of mere consequence." The technology of the computer gives us new capabilities that would allow us to restrict the privacy of individuals in new ways, but it does not dictate how we will choose to use them. That choice depends on how important we, as a society, take privacy to be.

58

Law

The No Man's Land of High Tech

New devices aid police but threaten the right of privacy

On the morning of Nov. 2, 1983, Fran

cis Lynch, then chief of detectives of the Woonsocket, R.I., police department, got a strange call. "You may think I'm crazy," said an excited young woman, "but there is some guy dealing drugs, and I can hear it on my radio." Lynch was skeptical, but he sent two detectives to the woman's house.

It turned out that the transmissions that the woman had heard on her AM radio were coming from a nearby home whose occupant, Leo DeLaurier, owned a cordless telephone. DeLaurier was apparently unaware that such devices are little more than short-range radio transmitters whose signals can sometimes be picked up by ordinary radio receivers. During the next month, the police say, they recorded more than 100 hours of incriminating conversations by DeLaurier about the sale of cocaine and marijuana. Then they arrested DeLaurier, his wife and 22 other people on drug charges. DeLaurier objected to the use of the tapes, and his trial has been postponed pending the outcome of an appeal to the Rhode Island Supreme Court. DeLaurier argues that the monitoring of his phone was an illegal invasion of his privacy since it was done by the police with

out a warrant.

Legal experts point out that cordless phones are one of many new-age technological devices that fall into a legal no man's land, an ambiguous region inhabited by such consumer products as personal computers and the ubiquitous message beepers and by sophisticated police equipment like mini-video cameras. The lack of clear legal rules for police use of the equipment promises to keep the courts busy. Just last month two federal courts clashed on the issue when the U.S. Court of Appeals for the Seventh Circuit in Chicago overruled a federal district court and found that video surveillance of four suspected members of the Puerto Rican terrorist group FALN did not violate the Fourth Amendment's guarantee against "unreasonable searches and seizures." Says University of Chicago Law Professor Geoffrey Stone: "Technology-bugs, beepers that police attach to cars, parabolic microphones-all of this enables the Government to invade privacy in ways far more extreme than one could possibly have imagined when the Fourth Amendment was written."

The Kansas Supreme Court was the first state high court to rule on the cordless-phone issue, holding last March that those who use such phones are broadcast

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Once the cameras had been installed, agents say, they observed some of the defendants constructing time bombs. The four were arrested in June 1983 on seditious-conspiracy and weapons charges when the FBI learned that they allegedly

reasonable expectation of privacy," a finding that may surprise the 7 million or so owners of the popular instruments. But to rule otherwise, Rhode Island's attorneys argued before that state's supreme court, could mean that the woman who inadvertently overheard DeLaurier's conversations might be held criminally liable for violating the federal wiretapping law.

DeLaurier's lawyer, however, asserted that this 1968 legislation, which forbids wiretapping without court authorization, does apply to cordless phones, since the statute defines a "wire communication" as any conversation that is carried "in whole or in part" by wire. Even cordless instruments must utilize regular phone lines at some point to transmit calls.

Video surveillance is as knotty an issue as the new telephones. Abscam, the De Lorean drug investigation and other wellpublicized "sting" operations have made it seem that police have broad authority to videotape criminal activity. In fact, cameras have usually been employed to record only those meetings where an undercover agent or informer with prior knowledge of the filming is also in the room. This was not the situation in the Chicago FALN case, in which the FBI had authorization for both audio and video surveillance from a federal judge. The agency resorted to the video surveillance of two "safe house" apartments after two of the four suspects successfully thwarted wiretaps and bugs.

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blowing up military installations.

U.S. District Judge George Leighton threw out the FBI's 130 hours of videotape evidence in 1984, saying that "no one, not even in the name of ferreting out crime, has the right to invade the privacy of a home" without proper legal authority. He ruled that the 1968 wiretap law provided no such authority because it says nothing

about video surveillance. The Seventh Circuit panel, in an opinion written by Supreme Court Hopeful Richard Posner, held that the wiretap law did not apply but found that video surveillance is permitted under the Constitution without specific legislative approval. Paraphrasing a famous dissent by Justice Louis Brandeis, Posner wrote, "There is no right to be let alone while assembling bombs in safe houses." The accused FALN members plan to appeal the ruling to the U.S. Supreme Court.

Many legal observers are frightened by the prospect of widespread video surveillance. Raising the specter of Nineteen Eighty-Four and Big Brother, Herman Schwartz, a law professor at American University, denounces it as "very dangerous" to everyone's civil liberties. Harvard Law Professor Laurence Tribe cautions that technological innovations like video cameras may be rendering the traditional protections of the Fourth Amendment "irrelevant." Columbia University Law Professor

Richard Uviller, a former prosecutor, says of the new high-tech snooping, "When there is no alternative, when the crime is terror, there is a strong lawenforcement need for this." But he adds that "its uses should be reserved for only the most serious circumstances: kidnaping, murder, espionage and terrorism."

To clarify the legal muddle, several federal statutes have been proposed, including one by Wisconsin Congressman Robert Kastenmeier that would force police to satisfy a series of strict requirements in order to get a warrant for video prying. Though the Kastenmeier bill died in the last Congress, it will be reintroduced in this session. Judges, legisla tors and civil libertarians agree that the privacy problems presented by technological changes make necessary a new as sessment of existing statutes and court rules. Warns John Shattuck, a former American Civil Liberties Union official: "In many ways, technology is now out stripping the law." -By Michael S. Serrill Reported by Carol Fletcher/Chicago and Timothy Loughran/New York

TIME, JANUARY 14, 19.