Page 20 - Privacy in a Cyber Age Policy and Practice

A CYBER AGE PRIVACY DOCTRINE 5

public policy. Such normative changes have occurred in other areas. For
instance, the civil rights movement led to changes in the position of the
Supreme Court (e.g., from Plessy v. Ferguson to Brown v. Board of Educa-
tion) and to acts of Congress (e.g., the Voting Rights Act of 1965). More
recently, changes were introduced both by the courts and by various legis-
latures reflecting changes in the characterization of same sex marriage in
the moral culture. Now such a change is called for in regard to the concept
of privacy. This chapter next discusses the normative principles of such a
reconstituted concept. (For a philosophical discussion of these normative
principles, see Chapter 7.)
(i) In seeking to base a privacy doctrine not on the usual foundations
of expectations or location, this chapter draws on a liberal communitar-
ian philosophy that assumes that individual rights, such as the right to
privacy, must be balanced with concerns for the common good, such as
those about public health and national security. By contrast, authoritarian
and East Asian communitarians tend to be exclusively concerned with the
common good or pay mind to rights only to the extent that they serve the
rulers’ aims. And at the opposite end of the spectrum, libertarians and sev-
eral contemporary liberals privilege individual rights and autonomy over
societal formulations of the common good. (Although the term “common
good” is not one often found in legal literature, its referent is rather close to
what is meant by “public interest,” which courts frequently recognize, and
a similar concept is found in the U.S. Constitution’s reference to the quest
for a “more perfect union.”)
The Fourth Amendment reads: “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated” (emphasis added). This is a prime exam-
ple of a liberal communitarian text because it does not employ the absolute,
rights-focused language of many amendments (e.g., “Congress shall make
no law”), but recognizes on the face of it that there are reasonable searches,
which are understood to be those in which a compelling public interest
takes precedence over personal privacy.
(ii) This book assumes that the communitarian balance is meta-stable.
That is, for societies to maintain a sound communitarian regime—a careful
balance between individual rights and the common good—societies must
constantly adjust their public policies and laws in response to changing
external circumstances (e.g., 9/11) and internal developments (e.g., FBI
overreach). Moreover, given that societal steering mechanisms are rather
loose, societies tend to oversteer and must correct their corrections with
still further adjustments. For example, in the mid-1970s, the Church and
Pike Committees uncovered “domestic spying on Americans, harassment
and disruption of targeted individuals and groups, assassination plots