Posner on Privacy: Who Cares?

Most sitting appellate judges are reluctant to express an opinion about the negligible worth of a constitutional right in a newspaper op-ed, if for no other reason than they may well be called upon to decide an issue and, having already announced they don't care much for the right, have conclusively demonstrated their bias. Not Seventh Circuit Judge Richard Posner.  Oh no, not Judge Posner.

From the Daily News:

This past Monday, Mayor Bloomberg said that in the wake of the Boston Marathon bombings, the country’s interpretation of the Constitution “will have to change” in order to enable more effective prevention of and response to terrorist attacks and other violence, such as attacks on schoolchildren.

All of which is to say that he wants concerns with privacy to take second place to concerns with security.

I strongly agree, though I’m not sure that the Constitution will have to be reinterpreted in order to enable the shift of emphasis that he (and I) favor. Neither the word “privacy” nor even the concept appears anywhere in the Constitution, and the current Supreme Court is highly sensitive, as it should be, to security needs. The Court can and doubtless will adjust the balance between privacy and security to reflect the increase in long-run threats to the lives of Americans.

Is this a return to textualism or a living Constitution?  Some (like me) would argue that privacy pervades the Constitution, like the Fourth Amendment's protection against unreasonable searches and seizures, but Poser disagrees.  The word may not be there, but is it a stretch to conclude that the 1st, 3rd, 4th, 5th and 9th Amendments don't relate, as the Supreme Court has held case after case, and protect our right to privacy?  Posner thinks so.

There is a tendency to exaggerate the social value of privacy. I value my privacy as much as the next person, but there is a difference between what is valuable to an individual and what is valuable to society. Thirty-five years ago, when I was a law professor rather than a judge, I published an article called “The Right of Privacy,” in which I pointed out that “privacy” is really just a euphemism for concealment, for hiding specific things about ourselves from others.

While he may say so, I doubt he values his privacy as much as the next person. He doesn't  value privacy as much as I do. Probably not you as well. The problem for Posner is his understanding of privacy, "a euphemism for concealment."  What a negative perspective.

It strikes me that Posner is projecting when he defines privacy so insidiously.  Sure, there are things people prefer to conceal, like the occasional passing of wind when outside of polite company, but it's not just a matter of hiding one's embarrassment as it is not offending others.  No one wants to be in an elevator with a guy who feels it's not worth concealing.

We conceal aspects of our person, our conduct and our history that, if known, would make it more difficult for us to achieve our personal goals. We don’t want our arrest record to be made public; our medical history to be made public; our peccadilloes to be made public; and so on. We want to present sanitized versions of ourselves to the world. We market ourselves the way sellers of consumer products market their wares — highlighting the good, hiding the bad.

All this may be true, but this ignores another side of privacy that has nothing to do with concealment. It ignores modesty. It ignores humility. It ignores the desire to preserve the sanctity of ones thoughts from being on public display.  It's not that we can't conduct ourselves well and properly in public, but that we are entitled to a quiet time when we aren't on display.  It's not that we have anything to conceal, but want the opportunity to indulge our peccadilloes, whatever they may be. 

For the most part, the op-ed makes it appear that Posner is only talking about video cameras on every street corner, every building, constantly watching our every public move.  The argument in favor of such surveillance is much like the argument for videotaping police in the performance of their duty.  They're in public, where we are lawfully entitled to watch them, so no harm done.

But there is a difference. We are what the government euphemistically calls "private citizens." The police, in contrast, are called "public servants," also euphemistically.  Both words begin with "P", but fall on opposite ends of the spectrum. While it may be true that our public actions are generally observable, it's also true that there is no good reason to keep private citizens under constant surveillance. Our every movement isn't anybody's business.

Even so, if this was as far as Posner was prepared to go, there would be sound argument to allow it, provided one embraced the whole post 9/11 "everything has changed" rhetoric, particularly given that video caught the Boston Bombers.  This proves that if we were all bombers, it would make perfect sense.  But is that all Posner is talking about?

Civil liberties groups, notably the Electronic Frontier Foundation and the Electronic Privacy Information Center, of course do not limit their concerns to surveillance cameras. They worry, too, about governmental surveillance of people’s computer files and other stored data.

But I don’t think they appreciate that this is a two-way street. Surveillance technology used by our government is also used by our enemies. We must keep up; we cannot resign from the technological revolution.

The cameras on every corner appear to be the start of the death of privacy.  Your hard drive?  The cloud? Server farms in Maryland?  That's where the really good secrets are hidden, and the government needs them to protect us from our enemies. Remember that technology train we all have to hop on or miss?  Nobody realizes that Judge Posner is driving that train.

 

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