Home » America’s Lost Right of Privacy — Did We Ever Have One to Begin With?

America’s Lost Right of Privacy — Did We Ever Have One to Begin With?

by Louis J. Wasser

“Why are they after me?”

“You have something they want.”

“I don’t have anything.”

“Maybe you do and you don’t know it.”

— Dialogue between the Will Smith and Gene Hackman characters in the 1998 film, Enemy of The State

Those of you approaching 60 can remember a time when Mom insisted you close the Venetian blinds so the neighbors couldn’t peer in while the family was having dinner.  Drawn Venetian blinds, locks on doors, sealed envelopes:  the bar was pretty low for a US citizen’s privacy back then.

Fast forward to 2014.  We’ve morphed into a nation-state of apps, spy cameras, NSA privilege, TSA luggage invaders, paparazzi, and online vendors who know the size of our underwear. Want to know the true age of the person you’re going to go out with Saturday night? Want to know what your ex-husband paid for his new house? Want to see if the guy dating your daughter has a criminal record? It’s all there online for the asking.

For all of these frightening changes, we still cling to the notion that, as American citizens, we have a constitutionally protected right to our privacy. Liberals and conservatives alike stubbornly hold to this right as an article of faith. Rand Paul has said “The purpose of government is to protect the secrecy and the privacy of all individuals, not the secrecy of government.”  Hillary Clinton echoes Paul’s proud belief:  “I believe in a zone of privacy.”

The best we can do to protect ourselves is to refuse to give out information — even at the cost of our own convenience.

We’ll probably never get back to where we once were — or thought we were — with respect to our privacy.  Here are several reasons why:

Our Government Won’t Let Go:  In the famous words of the British historian, Lord Acton, “All power tends to corrupt; absolute power corrupts absolutely.” Sure, a few hotshot attorneys will win a case or two against the government every once in a while. But power wills out. You can’t un-ring the bell.

American Corporations Won’t Let Go: Sensitive information about consumers’ buying choices and habits are part of what fuels the engine of our economy. We’re not about to put the brakes on what has become a very reliable steam roller.

We Won’t Let Go: Let’s face it.  We may be proud, and we may defend to the death our own right of privacy.  But we’re much too willing to violate our neighbor’s right of privacy. We want to know what the guy across the street paid for his house. We want the power to see if the used car we’re about to purchase has been in an accident.  And, despite what we’ve told colleagues in the office, we really do care about the 3rd and 4th marriages of the actors and actresses who grace our screen.  Oh… and we really do want our government to be able to ferret out potential terrorists and spies.  If a technology is available to us, we want it.

But the most telling reason we won’t let go is: We never had the right of privacy to begin with. You can’t lose what you don’t have.  In fact, there is no express, over-arching “right of privacy” in the US Constitution. We have a First Amendment that has to do with freedom of expression and the privacy of our beliefs. We have a Third Amendment that protects us from being forced to house military personnel.  And we have Fourth Amendment that protects us from undue search and seizure.  Try using these as an argument against your credit card issuer who has “too much” information from your credit file; or against a government that argues it has “probable cause” to tap your phone.

The very best we can do to protect ourselves is to refuse to give out information we don’t want anyone to have — even at the cost of our own convenience.  Or, we can turn our backs on technology altogether.  And we’re not about to do either.  So we wind up raising the bar on what we call our right of privacy.  We narrowly redefine it.  Welcome to the brave, new world.

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