[He Bigot
lobe
left Alone
The right to be left alone
Medical sensory
implants could help
deprive you of
control over
your own body
where they have lived over the past
ten years, their buying habits, their
payment records on debts, [and] the
trips they have taken.”
Such fears are not unfounded.
The federal government maintains
an average of fifteen files on every
American, and state and local au-
thorities often have collected more
information than is necessary for le-
gitimate purposes. In New York, for
example, a drunk drivers program
required enrollees seeking rein-
statement of their licenses to fill out
a form that, for no apparent pur-
pose, asked questions about their
sex lives. Other requirements have
been equally intrusive.
Today, information collected for
one purpose may be shared with
other agencies and used for entirely
different purposes, since fragments
of information about an individual
that once might have been filed
away in dozens of dusty storerooms
now may be assembled into a com-
plete personality profile at the touch
of a computer button.
Also, government agencies have
almost total access to privately col-
lected information. A General Ser-
vices Administration program
designed to prevent fraud and abuse
in federal programs will provide
nearly 100 federal agencies with a
24-hour direct computer link to
seven major credit reporting com-
panies. The instantaneous access to
frequently inaccurate credit reports
may easily lead to their use for pur-
poses other than checking the cre-
ditworthiness of loan applicants.
Moreover, the technology will
soon exist for what has been called
the “intelligent” or “smart” identi-
fication card, that will be more than
merely computer readable. This
type of card will contain a sophisti-
cated microprocessor that, when
plugged into a computer, will reveal
personal data, including the medi-
Robert S. Peck is staff director of
the American Bar Association’s
Commission on Public Understand-
ing About the Law. This article is
ada pted from an article that origi-
nally appeared in the Hofstra Law
Review.
cal files and financial records of its
owner. It will also be capable of re-
placing the need for cash or current
forms of credit cards by making
electronic fund transfers at the point
of sale for major purchases, such as
appliances or stock, as well as minor
purchases, such as groceries.
Other technological innovations
with privacy implications include
medical sensory implants and inter-
active cable television.
The implants, while serving the
important medical purpose of mon-
itoring body functions or providing
periodic electrical or drug stimuli,
could become a means of depriving
an individual of control over his or
her body.
The two-way capability of the
new cable television systems, which
allows viewers to participate in pro-
grams or make use of their televi-
sion for non-programming functions,
could also provide the programmer
with a record of each viewer’s tele-
vision usage.
The conflicting liberating and
monitoring aspects of the new tech-
nology, while complicating the is-
sues our society must face, do not
necessarily require a societal choice
between progress or individualism.
A computerized society may pro-
vide great benefits in terms of in-
creased efficiency, leisure time, and
progress in mass communication
and education. Despite the wel-
come prospects, the scientific ad-
vances in data accumulation remain
a double-edged sword. If the new
technology is properly used, society
benefits; if it is abused, it can be-
come a tool of enslavement by those
who control the data flow: 1984 in
1994.
A number of states have been es-
pecially sensitive to the privacy
needs of their citizens in this new
information age. Several have con-
stitutional provisions to protect pri-
vacy, including Alaska, Arizona,
California, Florida, Hawaii, Louisi-
ana, Massachusetts, Montana, South
Carolina, and Washington.
New York and Wisconsin have
gone the statutory route to recog-
nize the right of privacy. In addition,
many federal statutes also establish
privacy policies, including the Con-
Robert S. Peck
sumer Credit Protection Act of 1968,
Right to Financial Privacy Act of
1978, Family Educational Rights and
Privacy Act of 1974, Privacy Protec-
tion Act of 1980, and the Privacy Act
of 1974.
The statutory approach, how-
ever, leaves loopholes that rapidly
changing technologies can enlarge.
For example, the federal wiretap
law, enacted in 1968, fails to cover
the interception of information
transmitted by computerized “dig-
ital bits” that are being used more
frequently in sophisticated com-
munications and electronic mail
systems. While statutes will remain
an important source of legal protec-
tion in this area, the right of privacy
will be secure only if recognized as
a basic liberty within the constitu-
tional pantheon. The degree to
which privacy is valued becomes
critical when we try to balance the
benefits of data accumulation and
accessibility against the potential
threats to individual liberties. Only
when the right to privacy is elevated
to a fundamental constitutional
principle will the interest of the in-
dividual in withholding personal in-
formation withstand the interest of
the government in obtaining that in-
formation.
Public officials would then be ob-
ligated to consider the implications
of their policies on individualpri-
vacy; courts would be required to
consider the primacy of this right in
deciding privacy questions that fall
between the statutory cracks, and
in developing appropriate remedies
for invasions of personal privacy.
It is difficult to define privacy.
Many observers agree that it is “the
right to be left alone”-the defini-
tion coined by Warren and Bran-
deis in their seminal law review
article of nearly a century ago. Oth-
ers have written that privacy is an-
other name for personal autonomy,
a notion that captures the various
libertarian strains that also equate
freedom with personal sovereignty.
The new capacity to store and re-
trieve information has not so much
redefined privacy as it has en-
hanced its importance. The rapidly
changing world around us demands
the need for determining constitu-
tional doctrine. As Oliver Wendell
The Section of Individual Rights
and Responsibilities is well repre-
sented on the new American Bar
Association Commission on
Women in the Profession.
Members of the commission,
recently announced by ABA Pres-
ident Robert MacCrate, include:
* Elaine R. Jones, a member of
the IRR Section Council; she is as-
sistant counsel to the NAACP Le-
gal Defense Fund and a member
of the ABA House of Delegates.
• U.S. Bankruptcy Court Judge
Lisa Hill Fenning of Los Angeles;
president of the National Confer-
ence of Women’s Bar Associa-
tions, she is co-chairperson of the
IRR Committee on the Rights of
Women and a member of the
steering committee of the ABA’s
Women’s Caucus.
0 Lynn Hecht Schafran, director
of the National Judicial Education
Program of the NOW Legal De-
fense and Education Fund, and a
program coordinator of the IRR
Committee on the Rights of Wo-
men.
The ABA Board of Governors Li-
aison to the Commission is Martha
Barnett, a senior partner with the
Tallahassee, Fla., law firm of Hol-
land & Knight, and former chair-
person of the IRR Section.
In announcing the 11-member
commission, MacCrate said: “More
than 80 percent of women practic-
ing law today entered the profession
after 1970. Women entering the
profession are largely responsible for
Holmes declared, “the life of the law
has not been logic: it has been ex-
perience.” Chief Justice Warren also
recognized the changing demands
on the constitutional system. “Our
system faces no theoretical di-
lemma,” he wrote, “but a single
continuous problem: how to apply
to ever changing conditions the
never changing principles of free-
dom.” It is that challenge that faces
us today in the privacy area.
Privacy was a theme that had great
appeal to Brandeis. In an often-
quoted dissent in Olmstead v. United
the great growth in the number of
lawyers over the past 15 years. They
represent a rich new resource for the
profession, but they are confronted
y personal and professional prob-
lems on a scale no prior generation
has faced.. ..”
The commission chairperson is
Hillary Rodman Clinton, a partner in
the Rose Law Firm of Little Rock,
Ark.; she chairs the Children’s De-
fense Fund, in 1978-80 was chair-
person of the Board of Directors of
the Legal Services Corporation, and
was a counsel to the Impeachment
Inquiry Staff of the U.S. House Ju-
diciary Committee in 1974. Past ABA
president William W. Falsgraf was
named vice-chairperson.
The commission was directed to:
e Assess the current status of
women lawyers and to identify their
career paths and goals.
* Identify barriers preventing
women lawyers from full participa-
tion in the work, responsibilities and
rewards of the profession.
* Develop an educational pro-
gram addressing discrimination
against women in the justice system
and the unique problems women
encounter in pursuing their careers.
Other commission members in-
clude Barbara Mendel Mayden, an
IRR Section member and former
chairperson of the ABA Young Law-
yers Division; Cory Amron, a former
director of the Young Lawyers Di-
vision, and Randolph W. Thrower,
president of the American Bar
Foundation.
States (1928), the significance of
which was later recognized, Justice
Brandeis wrote:
“The makers of our Constitution
undertook to secure conditions fa-
vorable to the pursuit of happiness.
They recognized the significance of
man’s spiritual nature, of his feelings
and of his intellect … they con-
ferred, as against the Government,
the right to be let alone-the most
comprehensive of rights and the
right most valued by civilized men.
To protect that right, every unjusti-
fiable intrusion by the Government
IRR MEMBERS APPOINTED TO
ABA COMMISSION ON WOMEN
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The right to be left alone
“The right to be left
alone,” wrote Justice
Brandeis, “is the most
comprehensive of rights
and the right most
valued by civilized men.”
upon the privacy of the individual,
whatever the means employed,
must be deemed a violation of the
Fourth Amendment.”
When William 0. Douglas was
appointed to the Brandeis seat on
the Court, he seemed to inherit the
privacy cause. Douglas first articu-
lated his vision of the constitutional
standing in a dissent. “Liberty in the
constitutional sense,” wrote Doug-
las, “must mean more than freedom
from unlawful government restraint;
it must include privacy as well, if it
is to be a repository of freedom. The
right to be let alone is indeed the
beginning of all freedom.”
Other rights, not specifically
mentioned in the Constitution, have
become well-accepted after a pe-
riod of gestation. For example, the
constitutional right of every citizen
to travel freely from state to state,
like the right to privacy, springs not
from any specific constitutional lan-
guage, but from the document’s
overall scheme.
Courts, since 1849, have experi-
enced difficulty in attaching the right
to travel to a particular constitu-
tional provision. That inability, how-
ever, has neither diminished the
right nor made it unusually difficult
to apply.
Just as the right of privacy is not
absolute even in one’s home, since,
for example, it must give way to
warranted searches, the loss of the
right outside the home is also not
absolute. Thus, although one’s
property forms the strongest zone
of privacy for government to over-
come, it is paralleled by additional
zones-concentric circles-where
privacy protections become pro-
gressively weaker.
As one moves from the private
realm to a more public one, it nat-
urally follows that his or her expec-
tation of privacy is reduced. Indeed,
the courts, in attempting to apply the
right of privacy, have placed sub-
stantial emphasis on a complain-
ant’s expectation of privacy. The
Supreme Court has addressed the
privacy issue in a number of cases.
– In Griswold v. Connecticut
(1965), the majority of justices gen-
erally agreed that a disputed statute
prohibiting doctors from advising
married couples in the use of con-
traceptives, and the prohibition
against use of those contraceptives,
was offensive, but they disagreed as
to the proper constitutional grounds
for finding the statute invalid.
Justice Douglas, speaking for the
Court, declared that “specific guar-
antees in the Bill of Rights have pen-
umbras, formed by emanations from
those guarantees that help give them
life and substance …. Various
guarantees create zones of pri-
vacy.” Douglas found a right of pri-
vacy implicit in the First, Third,
Fourth, Fifth, and Ninth Amend-
ments.
– In Katz v. United States (1967),
the Court reversed a conviction that
had been based on evidence ob-
tained by unwarranted electronic
eavesdropping on conversations
conducted from a public telephone
booth.
The Court declared: “One who
occupies a [telephone booth], shuts
the door behind him, and pays the
toll that permits him to place a call
is surely entitled to assume that the
words he utters into the mouth-
piece will not be broadcast to the
world. To read the Constitution
more narrowly is to ignore the vital
role that the public telephone has
come to play in private communi-
cation.”
• In United States v. Miller (1976),
the petitioner was defeated on ex-
ectations-of-privacy grounds when
e challenged the admissibility of
microfilmed evidence of checks,
deposit slips and other records ob-
tained by subpoena from the two
banks maintaining the records.
The Court viewed the microfilm
as bank business records rather than
private papers, and found no Fourth
Amendment violation.
The Miller decision illustrates the
judicial reluctance to expand the
privacy right to modern needs. A
society that is becoming more re-
liant on computer-generated rec-
ords maintained by third parties
must recognize the privacy interests
within that exterior circle, and the
expectations of privacy that neces-
sarily attend.
It is unlikely that government in-
vestigators will bother with the
cumbersome procedures required
Robert S. Peck
to obtain private papers directly, for
law enforcement or other purposes,
if they can obtain the papers more
easily from third parties who have
no privacy interest to assert.
Because technology has ex-
panded the accessibility of records
once kept at home, the law must
equally expand the available pro-
tections. If it does not, all informa-
tion concerning an individual may
become available for government
inspection, and privacy could be-
come a hollow concept. Despite the
result in Miller, it is clear that infor-
mational privacy will remain on
court dockets as new informational
demands and new data retrieval
techniques continue to generate lit-
igation.
Perhaps it is too easy to dismiss
the Miller case as a product of the
present Court’s hostility to the use
of the protection against unreason-
able search and seizure in order to
withhold clear evidence of crimi-
nality when the government’s con-
duct is not patently offensive;
nonetheless, privacy issues that are
outside the realm of criminal pro-
cedure may receive different treat-
ment.
– In 1977 the Supreme Court, in
Whalen v. Roe, demonstrated great
sensitivity to the privacy needs of an
information-based society in up-
holding a statute requiring that cen-
tralized computer records be
maintained on all persons who pur-
chased certain lawfully prescribed
drugs for which there was also an
illicit market.
The statute at issue required that
a system be established to protect
the records against disclosure, and
that the data be destroyed after five
years. In addition, public disclosure
of a patient’s identity was expressly
prohibited. The Court found that the
security precautions required by the
statute sufficiently protected the in-
formation against disclosure and
thus did not violate the constitu-
tional right to privacy. The Court was
satisfied that a “carefully designed
program [with] numerous safe-
guards intended to forestall the
danger of indiscriminate disclo-
sure” would protect personal infor-
mation gathered for a legitimate
state purpose.
Yet, without such statutory atten-
tion to constitutionally protected
privacy interests, it is not clear that
the statute could have passed mus-
ter. And it should not have. This
statute, without its privacy safe-
guards, might have identified law-
abiding citizens as users of illicit
drugs, jeopardizing their employ-
ment and community standing.
Any violation of personal privacy
is a serious affront to individual free-
dom. The right to privacy should re-
quire no less judicial protection than
do other constitutional rights. The
courts have an obligation to step into
the vacuum created between the
constitutional principle and the in-
adequacies of statutory language.
– To enforce the constitutional
right to privacy, the Supreme Court
declared in United States v. United
States District Court (1972), “our task
is to examine and balance the basic
values at stake,” weighing “the duty
of Government to protect the do-
mestic security, and the potential
danger posed by unreasonable sur-
veillance to individual privacy and
free expression.” Applying that text,
the Court in District Court con-
cluded that judicial approval is re-
quired before the government may
engage in domestic surveillance of
persons thought to pose a threat to
national security. If judicial author-
ization is necessary where the gov-
ernment seeks to investigate acts of
subversion, it certainly should be
necessary for lesser investigations,
and an individual should have a
cause of action if the government
infringes on his or her right of pri-
vacy.
When the infringement is perpe-
trated by state or local govern-
ments, a cause of action under
Section 1983 of the Civil Rights Act
is available “where official policy is
responsible for a deprivation of
rights protected by the Constitu-
tion.”
When the federal government is
the source of the offensive conduct,
a federal cause of action should be
inferred directly from the Constitu-
tion, as in Bivens v. Six Unknown
Named Agents of the Federal Bureau
of Narcotics (1971 ).
(Please turn to page 50)
The federal government
maintains an average
of 15 files on every
American citizen
The truth about AIDS
crucial in correctional settings, said
San Francisco County Sheriff Mi-
chael Hennessey. Two inmates have
died of AIDS while in custody in the
San Francisco County Jail, and five
deputy sheriffs have died of the dis-
ease, he said. Policy issues thus re-
volve around the fears of co-workers
as well as concern for inmate safety
and the AIDS-diagnosed employee.
“AIDS hysteria is an epidemic it-
self,” Hennessey said, “and it
threatens to harm the very effec-
tiveness of that important tunction
of government, that of public pro-
tection.”
Public service personnel should
not only deal with AIDS, but with
the issue of homophobia, Sheriff
Hennessey said. “Homophobia is an
emotional response we cannot tol-
erate,” he said. “AIDS is caused by
a virus, not by a lifestyle.” San Fran-
cisco County Sheriff’s Department
policy states that refusal to work with
a suspected AIDS victim constitutes
insubordination, Hennessey said.
Mandatory AIDS testing for pris-
oners would give the scope of the
problem in jails and would allow
for segregation, Hennessey noted.
But practically speaking, AIDS-re-
lated segregation is impossible due
to overcrowding, he said. In addi-
tion, most inmates would be out of
custody before the jail received
test results. Other problems could
arise, Hennessey said: “Does your
mandatory testing program create
a duty to treat?”
Law enforcement professionals
have a special duty to understand
AIDS, Hennessey said. “We must
not be fooled by the promise of
isolation or quarantine,” he said,
“for it is us who are going to be
isolated and quarantined with
those people and who must en-
force that set of rules.”
Right to be left alone (Continued from page 31)
In Bivens, the Court created a
cause of action for damages to rem-
edy a Fourth Amendment violation
where several agents of the Federal
Bureau of Narcotics, acting under
color of law, entered the plaintiff’s
apartment, allegedly without a
search or arrest warrant, and man-
acled him in front of his family while
conducting a sweeping search of his
home. Similar causes of action must
exist for individuals deprived of their
privacy by official action.
° In York v. Story (1963), the Ninth
Circuit moved in this direction by
permitting a Section 1983 action for
damages against police officers who
took and distributed photographs of
the plaintiff in the nude under the
pretext that the pictures were nec-
essary evidence to investigate the
assault charges she had filed. The
court found sufficient basis for the
lawsuit in the privacy protections af-
forded by the due process clause of
the Fourteenth Amendment.
Similarly, the Fifth Circuit has al-
lowed a private right of action un-
der Section 1983 against the state of
Florida for abridging the privacy
rights of people who had given per-
sonal information to the state attor-
ney’s office after having been
assured that their testimony was ab-
solutely privileged under Florida
law.
The court declared that “[an] in-
trusion into the interest in avoiding
disclosure of personal information
will thus only be upheld when the
government demonstrates a legiti-
mate state interest which is found to
outweigh the threat to the plaintiff’s
privacy interest.”
° In Plante v. Gonzalez (1978), the
Fifth Circuit upheld, on privacy
grounds, a challenge by five state
senators to certain financial disclo-
sure requirements, declaring that
“[the] constitutionality of the
amendment will be determined by
comparing the interests it serves
with those it hinders.”
A weapon stronger than statutory
invalidation and private damage ac-
tions may be necessary to protect
privacy rights. In the criminal con-
CRIME VICTIM ACT
SUPPORTED
The American Bar Association has
told Congress that federal funding
is needed to continue compensa-
tion and assistance programs for
victims of crime.
Testifying before the House Ju-
diciary Subcommittee on Criminal
justice, David T. Austern-chair-
person of the ABA Criminal Justice
Section Victims Committee-
called for reauthorization of the
1984 Victims of Crime Act. Austern
said the legislation has worked well
to support state efforts aimed at
helping victims cope with the fi-
nancial and emotional conse-
quences of crime.
text, the judicially created exclu-
sionary rule vindicates an accused’s
privacy rights by excluding uncon-
stitutionally seized objects from evi-
dence. An extension of the Fourth
Amendment, the rule is designed to
deter illegal searches by denying use
of the illegally obtained evidence. A
civil version of the exclusionary rule,
which would deny the government
use of the improperly gathered in-
formation, may be appropriate to
combat egregious conduct. Like its
criminal counterpart, a civil exclu-
sionary rule would seek to force of-
ficials to consider the privacy
ramifications of their actions by re-
moving all incentive to disregard
them.
The adoption of a civil exclusion-
ary rule would prevent the govern-
ment from using information
gathered properly for one purpose
but used for another, and would
likewise apply to abuses of power.
Still, even a civil exclusionary rule
may prove insufficient to induce the
government to observe constitu-
tionally protected privacy rights. The
extent of those zones of privacy and
the protections which they are to be
accorded must evolve with chang-
ing technology. They must also
change with the uses made of that
technology.
Courts may be able to protect
fundamental constitutional values
only by denying new technology to
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the government unless its use serves
an important state purpose and is
accompanied by adequate techni-
cal and procedural safeguards.
Justice Brennan suggested as
much in his concurrence in Whalen
v. Roe (1977), where he com-
mented that “the Constitution puts
limits not only on the type of infor-
mation the State may gather, but
also on the means it may use to
gather it. The central storage and
easy accessibility of computerized
data vastly increase the potential for
abuse of that information, and I am
not prepared to say that future de-
velopments will not demonstrate the
necessity of some curb on such
technology.”
Justice Brennan’s statement poses
interesting dilemmas for the courts
in coming to terms with the new
technology. While it is impossible to
presuppose the types of technolo-
gies that will come into being, or the
uses to which they may be put, the
movement in technological inno-
vation is toward the more intrusive.
Banning the use of certain tech-
nologies is an extreme measure,
particularly when those bans would
apply only to government and not
to foreign powers or private indus-
try. That remedy may be the only
means of forcing the government to
adopt adequate privacy safeguards.
Privacy is a fundamental freedom
guaranteed under our constitu-
tional system of government. This
freedom must evolve further as le-
gal doctrine to respond to the new
demands placed upon it by the
technological advances of our infor-
mation-based society.
As in so many areas of the law,
the role of the judiciary will be crit-
ical in preserving our liberty. The
courts must assume a leading role
in addressing newly emerging issues
in order to reach a rational accom-
modation between the benefits of
technological progress and the at-
tendant threats to individual free-
dom.
Statutory solutions cannot meet
the rapid need for change. The rem-
edies needed to protect privacy may
be more far-reaching than ever
imagined if technology is to serve,
rather than erode, the cause of lib-
erty. hr
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