Page 114 - Privacy in a Cyber Age Policy and Practice

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often follow a model that differs sharply from the liberal communitarian one,
which emulates the advocacy model found in American courts. According
to this model, interested parties are divided into antagonistic, ideological
camps, with each side—and there are only two—presenting its respective
interpretation of the facts in the way that will most strongly support its
brief. Following the notion that one ought to “zealously” defend one’s client,
each side feels free to make emotive points, provide stretched interpreta-
tions and selective facts, and advance particularistic normative arguments
favorable to its case. The implicit assumption is that the proper judgment
(if not “the truth”) will arise out of the clash of two extreme advocacy posi-
tions. American judges (unlike, for instance, French ones) act as neutral
referees, and the jury is kept mum during the proceedings.
In public discourse, the advocacy model is reflected in the increasingly
polarized debates between liberals and conservatives over numerous issues
including the role of government, gun control, abortion rights, and even
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climate change. Liberal communitarianism and other intermediary
positions are often barely heard over the noise from the resulting clash.
In comparing the advocacy and the liberal communitarian approaches
to public discourse, one notes that intermediary or third positions (not
necessarily compromises) find little room in the former. Moreover, the
advocacy approach does not take into account the basic tenets of the bal-
ancing approach of the Constitution, especially the Fourth Amendment.
Typical pro-privacy arguments run as follows: There is a right to privacy
that is important both in its own right and as a necessary means for realizing
various other values such as democracy, creativity, and the flourishing of
the self. The government is violating this right by this or that act; thus, the
government should be made to desist. The implicit assumption is that the
whole normative and legal realm is the domain of the right and any consid-
eration of other values, such as security, constitutes an “intrusion.” When
Nadine Strossen was asked when she served as the president of the Amer-
ican Civil Liberties Union (ACLU) if she ever encountered any security
measure of which she approved, she first responded with a firm “no” and
then corrected herself and approved of fortifying the doors of commercial
airliners that separate the pilot’s cockpit from the cabin holding the passen-
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gers. Similarly, the ACLU objected even to the use of handheld computers
at Transportation Security Administration (TSA) checkpoints—describing
them as “a violation of the core democratic principle that the government
should not be permitted to violate a person’s privacy, unless it has a reason
to believe that he or she is involved in wrongdoing”—despite the fact that
these computers were using the same data as all the other computers and
simply reduced the distance agents had to travel to review the data. That is,
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they added a bit of convenience rather than constituting a new intrusion.