Privacy At The Crossroads: Which Way America?

Professor Arthur R. Miller

Set forth below are the remarks of Professor Arthur R. Miller, formerly of Harvard Law School, at the annual dinner meeting of the New Jersey Corporate Counsel Association held on November 14, 2007.

Arthur R. Miller:

    It is very nice to be here, particularly since I have been greeted by a number of former students.  Also, several people have thanked me for my civil procedure audio tapes and getting them through first-year civil procedure. I cannot help but be amused at this when I look at my annual royalty statements.
 
    I would like to talk to you about a subject I personally care about very much: privacy. My initial interest in the subject goes back more than 35 years, when I was asked to testify in connection with the proposed national data center, an idea that emerged during the 1960s.

     The United States Senator who called me to be his witness said, “I want you to testify about privacy.”

     To which I responded, “Senator, I know absolutely nothing about privacy.”

     “My staff tell me you have written an article on the subject,” he replied.

     I said, “Senator, I wrote a three-page article on computers and copyright, and I know nothing about privacy.”

     The Senator then uttered three immortal senatorial words: “Learn, damn it.”

    So I did and went down to Washington and testified. It was quite an experience, and it put me on the evening news. Requests for articles followed. I quickly discovered that the more I got into this subject the more I was intrigued by it. In those days privacy was perceived as something that had to do with hard-faced men in trench coats, wire tapping, and so on. Even very sophisticated people might respond to your inquiry as to their thoughts on privacy with, as I was once told, “Privacy is a rich, white man’s value; the poor have no time to think about it.”

    There is some irony in the fact that privacy was initially perceived as a kind of idiosyncratic virtue associated with Howard Hughes, Greta Garbo and the like, people who wanted to be left alone. Those who looked upon themselves as honest and upstanding, who thought they had nothing to hide, were indifferent to such a right. As the computer became part of everyday life, however, that attitude changed. Those engaged in studying attitudinal changes – particularly for the business community – began to focus on a very significant shift of opinion. In 1984 – ironic date – privacy emerged as a majoritarian concern. It was around this time that people began to connect privacy with a sense of self, with autonomy and self-determination. It was perceived as, very simply, an ability to shut the door, whether on government or on a difficult spouse. I think of it as the ability to go within yourself.
  
    What is it that bothers so many people about the possible loss of privacy? For starters, many people think they have a right to privacy and insist that it is in the United States Constitution. Remember Robert Bork and his confirmation hearings for the United States Supreme Court, when he testified that “privacy” is not in the Constitution. The media – predictably – then reported that Robert Bork did not believe in privacy. Well, in fact, that is not what he meant. Privacy is in the Constitution, although the word is not. And Bork, a strict constructionist, was simply pointing that out.

    How is privacy in the Constitution? Well, I am sure that no one sitting here tonight is worried about the police breaking into his home. Why? Because you are protected against unreasonable searches and seizures in the Constitution. That is a special form of privacy. As is the freedom of association and the ideological freedom that is guaranteed by the First Amendment. Finally, you know that a woman has a right to choose whether to have an abortion, and that both men and women have the right to decline medical treatment. Both decisions are predicated upon the Constitution and can be described as bodily privacy.

    The privacy that I wish to address – informational privacy – is not in the Constitution in any of the forms I have mentioned – it is neither an already recognized form of privacy, spatial privacy, associational privacy, ideological privacy nor bodily privacy – and, in all probability, it is never going to be recognized as having a constitutional foundation. But, privacy has been recognized at common law, and a number of states have written it into their state constitutions. Here we are, then, thinking of ourselves as the freest nation on earth – where individuality counts for everything -- but in fact we are subject to an extraordinary degree of surveillance – albeit mostly benign – and we constitute the most computerized and recorded people in human history.

    Think for a moment of the experience we have all had in going to the airport, ticket in hand, to fly the friendly skies. The fact that we are physically present and possessed of a valid ticket is not going to get us to Sheboygan. What is going to get us there is the computer acknowledging our existence. Similarly with the slightly disconcerting experience of walking into a hotel lobby and hearing someone say, “Welcome back, Mr. Miller,” after an absence of ten years. And then it becomes painfully obvious that Mr. Miller simply exists in the system. And, it has become a system in which everything is recorded. Aldous Huxley in Brave New World and George Orwell in Nineteen Eighty-Four were right: we have arrived at a system that provides womb to tomb dossiers on everyone.

    Next, we now have the technological capability of moving information anywhere on this planet all but instantaneously. When you wake up in the morning, a live report on Iraq is on the television, and the delay can be measured in a couple of seconds. We live in a truly global environment. You remember Horace Greeley saying, a century and a half ago, “Go west, young man, go west!” He was thinking of opportunities and of a fresh start on what was then the frontier. Well, today such advice is something of a cruel joke. A person’s credit record would arrive seven hours before he did. There is no frontier.

    The decisions that are made about us are less and less in terms of a face-to-face dynamic and increasingly based on preset decisional criteria in a computer. If you want credit, insurance, or a variety of governmental benefits, it is the machine which will determine your eligibility. Did you every try to get into law school? Well, of course you did. Here’s the way it frequently works today. Alicia, a vibrant young lady with a college education decides that she wants to go to law school. She dutifully fills out an eight-page application to Sywash U’s law school and sends it off to the admissions office. There it is placed into a file, but the back sheet – containing Alicia’s transcript – is sent off to the pride of New Jersey, the Educational Testing Service. At ETS the transcript is “input” into a computer, where certain courses are dropped – say, physical education, military science or music appreciation – and the grade point average recomputed. Then Alicia’s major and her undergraduate institution are subjected to an augmentation or discount factor in accordance with the proposition that an A at Dingbat U is not the same as an A from Cal Tech. This results in another recomputation. Then the computer takes Alicia’s law school aptitude test score – and, you understand, this is an examination written by people who typically are not lawyers – and applies a weighting factor, provided by the law school. Finally, the computer produces a number – euphemistically called a predictor index score – which is sent back to Sywash Law, where an admissions officer enters Alicia’s number on a great chart on the wall. As the admissions season nears its climax, two horizontal and parallel lines are drawn on the chart: those above the top line are admitted; those below the second line are rejected. Those between the lines are in some sort of limbo, and they receive a letter – machine generated, of course – telling them not to despair, that they still have a chance.

    And, the final concern:  In our era – the age of the Patriot Act and the War on Terror – people have an apprehension, and it is a real concern on the part of many, concerning the impact that data collection, data recordation and data decision-making have on civil liberties. This is not new. During the Vietnam War the military set up files on any American who said anything negative about our involvement in Vietnam. Before their cover was blown, the military had established something like a million files. A million files! This is something that can have a very chilling effect. When the Pentagon Papers were published in The Washington Post, a small publishing operation of the Unitarian-Universalist Church in Boston, the Beacon Press, followed suit. The FBI noisily announced that it wanted to get to the bottom of how the Pentagon Papers had gotten to the Beacon Press – they already knew, actually – and an army of trench-coated FBI types descended on the church’s headquarters for surveillance purposes. The reaction was predictable: church attendance plummeted, and the only contributions were in cash, no checks. I am reminded of the Nineteen Eighty-Four image of an ever watchful Big Brother on the screen. Well, the real truth is that it does not matter whether Big Brother is really there on the screen. What matters is that you think he is there. That’s because most people will modify their behavior just in case he is. I cannot think of anything that is more inconsistent with American values than a government that is involved in behavior modification. I am concerned that the real fallout from the War on Terror is going to be on this value we have identified as privacy.

 Let me leave you with several parting thoughts.

First of all, I think that in time our legal system is going to recognize that anyone who handles personal data – and that includes most of us – has a duty of care to the people whose lives are reflected in that data.

Secondly, we must think long and hard about what types of personal information should be retained. Those who believe that everything should be retained are with us always. They must be resisted. There are areas of human life which are simply out of bounds.

Thirdly, those who handle data have an obligation to maintain confidentiality and security. To reduce the risk of intrusion requires technological intervention – auditing systems, barriers, tracking technologies, and so on – and we are compelled to utilize the very best means we have to make confidentiality and security a reality.

Fourthly, while we have an underground data exchange network that permits us to know just about everything about everyone – assuming the right price, of course – the one person who is never permitted to access this data is the data subject himself. This is not only wrong, it is inefficient. We have recognized – as early as 1970, with the Fair Credit Reporting Act – the right of a person to see his credit files, and I think it is appropriate for this principle to extend across the entire range of personal data.

Finally, data is like people. By this I mean that it is not static, it evolves, and eventually it becomes irrelevant. Nevertheless, it continues to exist, even beyond the life of its subject. I think the destruction of data that has outlived its utility is a primary component of  privacy.

 The fact that what undergirds the society of the future is dossiers and files and databanks does not make that society any the less of a potential dictatorship than the absence of jackboots.

This article is scheduled to appear in January 2008 issue of The Metropolitan Corporate Counsel and is reprinted with permission.