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Privacy also allows the convicted miscreant the hope that in time her past misdeeds will fade from public attention and be forgotten. The FBI's master file of computerized histories ensures, on the contrary, that memory will be steadfast and long. Legal theorist and now federal judge Richard Posner argues that this is all to the good, that people should be thwarted in concealing disadvantageous information about themselves. Such concealment, he thinks, amounts to fraud in "selling" oneself to prospective employers and friends. But Richard Wasserstrom, professor of philosophy at the University of California at Santa Cruz, suggests that "there are important gains that come from living in a society in which certain kinds of derogatory information about an individual are permitted to disappear from view after a certain amount of time. What is involved is the creation of a kind of social environment that holds out to the members of the society the possibility of self-renewal and change... of genuine individual redemption."

Those who would have nothing to fear from the disclosure of complete and accurate information about themselves might, of course, have a good deal to fear from the disclosure of partial and false information. Unfortunately partial and false information are just what most databases have an abundance of. Burnham reports the results of one study that found that only 45.9 percent of the records in the FBI's computerized criminal history file were "complete, accurate, and unambiguous." Anyone who has tangled with a computer over a simple billing error knows how difficult it can be to erase a faulty bit of information from the computer's elephantine memory. Furthermore, even accurate information can be subject to misinterpretation; Burnham also points to sociological experiments indicating that employers are reluctant to hire workers with arrest records, even where charges were later dropped, or where a court trial resulted in acquittal. Once arrested, one is presumed guilty even after being proved innocent! While privacy per se is not at issue in the disclosure of false information about ourselves, it at least reduces the sheer volume of personal information stored, thus minimizing the danger of error.

By enhancing and fostering a clear sphere of the private, privacy helps to rein in the sphere of the public, to mark out a clear boundary that we prohibit the state from crossing.

People differ in how approvingly they regard the current government, but no one has much trouble imagining some possible future government that would be far worse. It seems wise, then, to curb the power of the state over its citizens, to make sure that the state doesn't come to know too much. By enhancing and fostering a clear sphere of the private, privacy helps to rein in the sphere of the public, to mark out a clear boundary that we prohibit the state from crossing. It is the crossing of this boundary that is feared

Photo courtesy of International Business Machines Corporation

The FBI's National Crime Information Center offers instant access to information on stolen property, missing and wanted persons, and criminal histories.

when computerized databanks are likened to an Orwellian Big Brother.

These concerns, however potent, still do not seem to capture all there is that matters to us about preserving our privacy from computerized intrusions. If these doubts could be met in other ways - by strictly enforcing a periodical review of stored records for completeness and accuracy, say, or erecting other barriers against official abuse we would still feel that there was some deeper worry left untouched. Privacy is important not only for what it saves us from, but for what it has been argued to make possible: freedom and dignity, on the one hand, and intimate human relationships, on the other.

Freedom and Dignity

Privacy protects freedom: not only the freedom, as noted earlier, to misbehave, but the freedom to do anything that we would be inhibited in doing by the presence of external observation. Think how many actions we would feel less free to perform if there were someone - anyone intently watching us every minute of the day, taking account of every movement we made, every syllable we uttered. Such relentless scrutiny would make one reluctant to do anything commonly perceived, for whatever reason, as foolish or embarrassing; it would curtail groping, experimentation, risk taking, trial and error. Imagine trying to write a paper, a poem, a love letter, with every preliminary scribble inspected by an uninvited third party. We are less free to act, to speak, to dream in public

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Report from the Center for

than in private, and practices of privacy maintain the barrier between the two realms.

Do current uses of computer technology undermine privacy in a way that poses a threat to freedom? The minute-by-minute computerized surveillance of workers that is increasingly relied upon as a management technique seems clearly to make workers less free. When, as in some workplaces, every keystroke is tallied electronically, every momentary respite recorded every noseblowing, every stretch, every bathroom break - the state of observation is too total, and too totalitarian.

Privacy is a social ritual by means of which an individual's moral title to his existence is conferred. Privacy is an essential part of the complex social practice by means of which the social group recognizes and communicates to the individual — that his existence is his own.

To a much lesser degree, projected levels of centralized data collection and storage could also take a toll on freedom and spontaneity. With the routine storage of enormous quantities of information, Wasserstrom speculates, "every transaction in which one engages would take on an additional significance. In such a society one would be both buying a tank of gas and leaving a part of a systematic record of where one was on that particular date.... An inevitable consequence of such a practice of data collection is that persons would think more carefully before they did things that would become part of the record. we would go through life encumbered by a wariness and deliberateness that would make it less easy to live what we take to be the life of a free person."

Privacy is critical as well to the affirmation of human dignity. Jeffrey Reiman, a philosopher at American University, suggests that the cluster of behaviors that makes up the social practice of privacy has as its purpose a resonant societal declaration of respect for the dignity of the individual: "Privacy is a social ritual by means of which an individual's moral title to his existence is conferred. Privacy is an essential part of the complex social practice by means of which the social group recognizes — and communicates to the individual that his existence is his own.

The right to privacy, on Reiman's view, "is the right to the existence of a social practice which makes it possible for me to think of this existence as mine. ." The specific nature and form of this practice may differ from society to society and may change over time. This means that the growth of computerized databanks need not undermine privacy in our society if other practices in the complex privacy ritual receive compensatory emphasis or new practices develop. But there is a danger that the weakening of one strand in the cluster will weaken others as well. Wasserstrom warns, "If it became routine to record and have readily accessible vast quantities of information

about every individual, we might come to hold the bebef that the detailed inspection of any individual's behavior is a perfectly appropriate societal undertaking. We might become insensitive to the legitimate claims of an individual to a sphere of life in which the individual is at present autonomous and around which he or she can erect whatever shield is wished."

Privacy and Intimate Relationships

In one sense, privacy builds fences around persons through which others are not permitted to peer and beyond which they may not trespass. The right to privacy has been categorized as the right to be let alone. Yet here, too, it has been argued that "good fences make good neighbors" that privacy not only protects individual freedom and dignity but is itself a necessary precondition of our entering into a wide range of diverse human rela tionships.

According to University of Alabama philosopher James Rachels, "There is a close connection between our ability to control who has access to us and to information about us, and our ability to create and maintain different sorts of social relationships with different people." An essential part of what distinguishes one sort of relationship from another is "a conception of the kind and degree of knowledge concerning one another which it is appropriate for (the parties] to have." Thus we disclose different amounts of information about different aspects of our lives to our doctor, employer, neighbors, children, casual acquaintances, close friends, spouse. If we could not control the level of disclosure and choose to be selective in our revelations, Rachels argues, we could not maintain an array of diverse personal and professional relationships

Indeed, Charles Fried insists that without privacy our most intimate relationships "are simply inconceivable. To be friends or lovers persons must be intimate to some

Intimacy is the sharing of information about one's actions, beliefs. or emotions which one does not share with all, and which one has the right not to share with anyone. By conferring this right, privacy creates the moral capital which we spend in friendship and love.

degree with each other. But intimacy is the sharing of information about one's actions, beliefs, or emotions which one does not share with all, and which one has the right not to share with anyone. By conferring this right privacy creates the moral capital which we spend in friendship and love.... Privacy grants the control over information which enables us to maintain degrees of intimacy.

Is the possibility of genuine sharing within an intimate relationship precluded by the proliferation of centralized databanks in which the secrets that would be confided to the loved one are handily stored with billions of other tid

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Beport from the Center for CHLOSOPHY & POKY

University of Maryland Computer Science Center

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


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.




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.

The views of Ferdinand Schoeman, Richard Posner, Richard Wasserstrom, Jeffrey Reiman, James Rachels, and Charles Fried are taken from their articles in Philosophical Dimensions of Privacy: An Anthology, edited by Ferdinand Schoeman (Cambridge: Cambridge University Press, 1984). The fac heal information in the article was drawn from The Rise of the Computer State, by David Burnham (New York: Vintage Books, 1984) and two articles that appeared in the Washington Post: "The Computer That Can Send You to Jail," by Bob Braton, September 23, 1984; and "Mentoring by Computers Sparks Employee Concerns," by Peter Perl, September 2, 1984.

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The No Man's Land of High Tech
New devices aid police but threaten the right of privacy

n the morning of Nov. 2, 1983, Fran

ing over the public air waves and have "no

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 skep-
tical, but he sent two detectives to the
woman's house.

finding that may surprise the 7 million or
so owners of the popular instruments. But
to rule otherwise, Rhode Island's attor-
neys argued before that state's supreme
court, could mean that the woman who in-
advertently overheard DeLaurier's con-
versations might be held criminally liable
for violating the federal wiretapping law.

It turned out that the transmissions
that the woman had heard on her
AM radio were coming from a nearby
home whose occupant, Leo De-
Laurier, 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 in-
criminating conversations by De-
Laurier about the sale of cocaine and
marijuana. Then they arrested De-
Laurier, 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 out-
come of an appeal to the Rhode Is-
land Supreme Court. DeLaurier ar-
gues 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 le-
gal 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 vid-
eo 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: "Technol-
ogy-bugs, beepers that police attach to
cars. parabolic microphones-all of this
enables the Government to invade priva-
cy 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 cord-
less-phone issue, holding last March that
those who use such phones are broadcast-


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 planned to mark the July 4 holiday by 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 Sev enth 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 render ing the traditional protections of the Fourth Amendment "irrelevant." Columbia University Law Professor Richard Uviller, a former prosecu tor, says of the new high-tech snooping, "When there is no alternative, when the crime is terror, there is a strong laws enforcement need for this." But he adds that "its uses should be reserved for only the most serious circumstances: kidnap ing, murder, espionage and terrorism."

To clarify the legal muddle, several federal statutes have been proposed, in cluding one by Wisconsin Congressman Robert Kastenmeier that would force po lice to satisfy a series of strict require ments in order to get a warrant for video prying. Though the Kastenmeier bill died in the last Congress, it will be re introduced in this session. Judges, legisla tors and civil libertarians agree that the privacy problems presented by techno logical changes make necessary a new a sessment of existing statutes and court: rules. Warns John Shattuck, a former American Civil Liberties Union official "In many ways, technology is now out


De Laurier'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 instru-
ments 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 well-
publicized "sting" operations have made it
seem that police have broad authority to
videotape criminal activity. In fact, cam-
eras 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.

stripping the law." -By Michael & Ser Reported by Carol Fletcher/Chicago Timothy Loughran/New York


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