The Invasion of Privacy

From the Autumn 1958 issue of The Scholar


It is repeatedly asserted by solicitous groups and individuals that the right of privacy — described once by Mr. Justice Brandeis as the “right to be let alone . . . the most comprehensive of rights and the right most valued by civilized men” — is in sorry shape in this Republic today. The evidence is impressive. Wire tapping is epidemic; even where it is illegal, it flourishes, and some authorities believe that the number of telephones being monitored on any given day runs into the hundreds of thousands. “Bugging,” the use of concealed electronic devices by absentee eavesdroppers, is an almost universal practice among policemen, private detectives, and both public and private investigators. People describing themselves as “investigators” are as numerous and as pestiferous, it often seems, as flies in late September. Each day, more and more of us are required to tell agencies of government more and more about ourselves; and each melancholy day, government agencies are telling more and more about us. Someone in the F.B.I. — not Mr. Hoover, certainly, but someone — slips a “raw” file to a favored congressman; the President instructs the Bureau of Internal Revenue to turn over income tax returns to an investigating committee; the Defense Department gives medical records to an insurance adjuster. The existence of the files, apart from their disclosure, may itself be regarded as a violation of privacy; we are compelled to leave bits and pieces of ourselves in many places where we would just as soon not be.

Broadly speaking, invasions of privacy are of two sorts, both on the increase. There are those, like wire tapping and bugging and disclosure of supposedly confidential documents, that could conceivably be dealt with by changes in law or public policy. Then there are those that appear to be exercises of other rights — for example, freedom of speech, of the press, of inquiry. A newspaper reporter asks an impertinent personal question; the prospective employer of a friend wishes to know whether the friend has a happy sex life; a motivational researcher wishes to know what we have against Brand X deodorant; a magazine wishing to lure more advertisers asks us to fill out a questionnaire on our social, financial and intellectual status. Brandeis’ “right to be let alone” is unique in that it can be denied us by the powerless as well as by the powerful — by a teen-ager with a portable radio as well as by a servant of the law armed with a subpoena.

Most of those who publicly lament the decline of privacy talk as if they believe that the causes are essentially political; they seem to feel that enemies of individual rights are conspiring to destroy privacy just as certain of them have sought, in recent years, to destroy the right to avoid self-incrimination, Some also see privacy eroding as a consequence of a diminishing respect for it. I think there may be something in both points, although a good deal less in the first than in the second; but it seems to me that the really important causes lie elsewhere — in our advancing technology and in the growing size and complexity of our society. Until the early part of this century, the right of privacy was seldom invoked. Though its broadest and most binding guarantee is in the Fourth Amendment to the Constitution, which affirms “the right of the people to be secure in their persons, houses, papers, and effects” and prohibits un-reasonable searches and seizures, it was not until 1905 that a court squarely upheld the right of privacy. The jurisdiction was Georgia, and the court laid it down as a common-law proposition that “the sight of privacy has its foundations in the instincts of nature.” In a thinly populated land, with government touching only lightly on the everyday lives of citizens and with a technology so primitive that people had to depend on their own eyes and ears to know what others were up to, men armed with the Fourth Amendment and with the squirrel gun permitted them under the Second Amendment could pretty well attend to their own privacy. Mostly, one supposes, it was not thought of as a “right” to be protected but as a condition of life cherished by some and merely accepted by others.

But then came the camera, the telephone, the graduated income tax, and later the tape recorder, the behavioral scientist, television (now being used to follow us as we move about supermarkets and department stores as a kind of radar for the light-fingered), the professional social worker, “togetherness” and a host of other developments that are destructive of privacy as a right and as a condition. Soundproofing is the only technological contribution I call think of that has been an aid to the right to be let alone. The rest have lent themselves to invasions of privacy, and the end is not yet in sight. Wire tapping, for example, is now in the process of being fully automated; where formerly the number of wires that could be tapped was limited by the number of personnel that could be assigned to sitting around all day waiting for a conversation to intercept, today innumerable phones can be monitored entirely by machines. Someday, no doubt, we shall be spied upon from space platforms equipped with television cameras. And all this time the welfare state has been developing — in the main, of course, as a response to technology. It may be that a disrespect for privacy has been on the increase, too, but what is certain is that those of a trespassing inclination are infinitely better equipped today and have infinitely more excuses for their incursions. I rather think this is the essential thing, for I believe that if the Georgia court was correct in saying that the “instincts of nature” provided foundations for the right of privacy, the same thing may also be cited as a source of motive power for those who assume the right to violate privacy. Was it not Senator McCarthy who screamed bloody murder when the Post Office Department ran a “mail cover” on his correspondence? (In a mail cover, postal officials do not open mail but examine envelopes and wrappings with a view to learning the identity of a victim’s correspondents.) No doubt his outrage was as genuine as it was noisy. There is a hermit spirit in each of us, and also a snooper, a census taker, a gossipmonger and a brother’s keeper.

Technology has forced the surrender of a measure of privacy in many different ways. It may be a man’s business whether he drinks or not, but if he wishes to drive a car or fly an airplane or perform brain operations, society’s need to inquire into his drinking habits must surely override his right to privacy in this serious matter. Government is society’s instrument in such affairs, and the more responsibilities we saddle it with, the more we require it to take a hand in our lives. If we wish it to protect us against quacks, frauds, swindlers, maniacs and criminals, we must give it powers of prosecution, punishment and licensing. We can be reasonably certain that its tendency will be to go too far (the American Civil Liberties Union reports with distress that in some places tile layers must now be licensed by public authority), but we may — indeed, it seems to me that most of us do — judge its excesses to be less dangerous than complete laissez faire or laissez passer. Technology has made us all a great deal more dependent upon one another than we ever were in the past and necessarily, therefore, less able to protect our own privacy. Once we could labor alone — now there is a division of labor which relates my work to yours. Once we traveled alone — now our mobility is collectivized, and while we have a legitimate concern over the habits of the man at the controls, whose private life we find it necessary to investigate, we also constitute ourselves a captive audience and a group of hostages to those in whom the instincts of nature that lead to compulsive trespassing are more powerful than those that make sometime recluses of us all.

In my view, which may be eccentric, it gains us nothing to denounce J. Edgar Hoover or those who descend to what Mr. Justice Holmes called the “dirty business” of wire tapping — or even expend rhetoric on the death of solitude in our kind of civilization, as William Faulkner now and then does when he feels himself affronted by the attentions of the press. If there is any way at all out of the fish bowl, it will be found only by facing some hard facts of life today. For one thing, there is no stopping the technology that extends our senses by wires and waves and electrical impulses. For another, it is difficult — if, indeed, it is possible — to distinguish, morally and practically, between the use of these devices and the use of the senses unaided. I think that wire tapping is a dirty business, but 1 am not sure that I can find much logic to support my belief so long as I am willing to countenance the older, un-mechanized ways by which society apprehends criminals. What is the moral difference between tapping a telephone wire and straining one’s ears to overhear a conversation believed by the participants to be private? What is the moral difference between putting an ear to a keyhole and bugging a room? Or between using any and all bugging devices and planting spies and informers in the underworld? Or between carrying a concealed tape recorder to an interview and carrying a concealed plan to commit to memory a much of the talk as the memory can retain? Society needs detectives, or so at least I believe, and the means they employ have never been lovely and have almost always involved the violation of privacy.

So far as morality is concerned, I doubt if a valid distinction can be madc between primitive and advanced techniques. But a practical distinction can be made, and in fact has been made (wire tapping is either outlawed or restricted by law in every American jurisdiction), and the rationale is not very different from that which proscribes mechanical devices in most sports. Whether or not wire tapping is dirty business in the Holmesian sense, it is dirty pool, and this applies, or soon will, one suspects, to most other gadgets. It may be no more immoral than other means used for the same end — any more than killing with thermonuclear weapons is more immoral than killing with a club — but somehow the advantage it gives to the police side is offensive to sportsmanship, and the numbers that can be bagged by automated spying, like the numbers that can be killed by a hydrogen bomb, make it seem more offensive to our humanity. Against this, it can be argued that crime and subversion have also benefited by science and that their adversaries should not have to fight a horse cavalry war against them. But the fact of the matter is that it is not narcotics peddlers whose privacy has been more efficiently violated by the use of the new techniques; the net has not been drawn tighter against society’s enemies — it has simply been spread for a larger catch. And here another practical distinction can be made, even though a moral one comes hard. It is one thing to deceive and trap a dope pusher by almost any means available, and quite another to tap the phone of, let us say, a philanthropic foundation on the chance of turning up a relationship between it and some citizen of a heretical turn of mind. To be sure, the underworld members of the Apalachin rally have every bit as much right to privacy as Robert M. Hutchins. But the law in its wisdom has found a way to draw a line between the two without denying their equality; this is the doctrine of “probable cause,” embodied as the condition for seizure and arrest in the same Fourth Amendment that keeps most of us out of the broad net of policemen merely fishing for evidence in our homes and among our papers and effects.

It seems to me that it is by no means too late for law and policy to deal with violations of privacy that are undertaken by zealous guardians of the peace and the public order. In all probability, wire tapping and the many forms of bugging can never be wholly eliminated, even where they are outlawed and the penalties for their use are severe; they suit the police mentality too well, and they may be easily employed without fear of detection. Moreover, there are circumstances in which even the most ardent civil libertarians would be forced to approve their use. But the third degree and the rubber truncheon also suit the police mentality, and free societies have managed to reduce their use to a point where they are not regarded as essential characteristics of the machinery of law enforcement. Probable cause, with high standards for the determination of probability, would seem a basic safeguard against present excesses. Another would be an extension of the rule of the inadmissibility of wire-tap evidence; this, of course, is the rule in the federal courts today, and it has not stopped the F.B.I. and God knows how many other government agencies from tapping wires in the hope of learning where admissible evidence may be turned up. But there is no reason why the rule of inadmissibility might not be strengthened in such a way as to give ordinary criminal defendants a chance at acquittals and reversals whenever the prosecution’s case has been made by playing dirty pool. The police, like merchants, do not care for profitless ventures, and somewhere, no doubt, there is a point at which most of the profit can be taken out of the indiscriminate wire tapping and bugging that is being employed today. Mr. Justice Murphy used to say that there was no means of preserving the liberties of citizens so efficacious as making the denial of those 1iberties disadvantageous to the police power.

Nothing will be done, however, along this line unless a certain amount of public pressure builds up against a catch-as-catch-can view of law enforcement, and in defense of the right of privacy. And even if abuses of the police power were checked, we would be left with all those invasions that are the work not of the police power, but of other public authorities and of a multitude of private ones. Here, as I see it, we encounter problems far knottier than those posed by technology in the service of law and order. We were willed a social order dedicated to the sovereignty of the individual but, again thanks mainly to technology, dependent for its functioning largely on the interdependence of lives. My behavior affects my neighbor in a hundred ways undreamed of a century ago. My home is joined to his by pipes and cables, by tax and insurance rates. If my labor is not immediately dependent on his, it is on that of other men down the street and across the continent. When I move about, my life is at my neighbor’s mercy — and his, of course, at mine. I may build a high fence, bolt the doors, draw the blinds and insist that my time to myself is mine alone, but his devices for intrusion are limitless. My privacy can be invaded by a ringing telephone as well as by a tapped one. It can be invaded by an insistent community that seeks to shame me into getting up off my haunches to do something for the P.T.A. or town improvement or the American Civil Liberties Union — possibly, for this worthy organization, making a survey of invasions of privacy. My “right to be let alone” is a right I may cherish and from time to time invoke, but it is not a right favored by the conditions of the life I lead and am, by and large, pleased to be leading. If I were to think of it as any sort of absolute right, I would be as blind to the world about me as those who used to believe that the United States could assert and by itself defend its right to be let alone. No kind of sovereignty has ever been absolute, but in the last century or so the decline has been staggering.

Read Richard E. Nicholls on Privacy Revealed

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Richard H. Rovere (1910-1979) wrote the Washington Letter for The New Yorker magazine for 30 years.


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