Controlling Government Abuse of Our Right to Privacy

America need not rush out to create a new bureaucracy to mimic Europe's approach to solving the privacy dilemma, but Americans deserve much more respect from the institutions, both public and private, that serve them

by / April 2, 2006
Government's interest in data -- in information of all kinds -- is well known. Most of the information we provide to get government services or comply with various laws such as the federal income tax law is filed under duress. Now, according to a story in the San Francisco Chronicle last month, "The Internal Revenue Service has proposed a new rule that would let tax preparers sell or share a client's tax-return information with third parties, as long as they got the client's consent." This interest by the IRS does not bode well for our right to keep such data private.

Several years ago, during Senate hearings on the nomination of Robert Bork to be a member of the Supreme Court, an investigator opposing the Bork nomination managed to secure Blockbuster's records of the movies Judge Bork watched. Opponents also got access to his reading habits and began to draw certain conclusions about Judge Bork's mental processes.

A number of concerned citizens, worried about Americans right to privacy, expressed alarm. The opponents of Judge Bork were sanguine. Privacy, they argued, is dead. Too many Americans, they said, already have compromised their personal rights for a free six-pack of Coke or a membership in a frequent-buyer program. Most are not even aware they are so vulnerable. Thus it is very unclear what support there is for new privacy protection to prevent similar occurrences, let alone more comprehensive national privacy legislation.

Just a few years ago, the White House Office of National Drug Control Policy conceded that it may have violated federal privacy guidelines by using devices used by a data collection firm called DoubleClick to monitor traffic on its Internet sites for children and parents. The White House office which operates two anti-drug Web sites, one for children and another for parents, was spending over $130 million to advertise anti-drug use, with $12 million designated to direct users to Internet sites. But when users click to reach the Drug Control office, cookies are installed. The office also made deals with search engines so that computer users who searched the Internet using key words and phrases like "pot" or "weed," would automatically receive anti-drug advertisements on their computer screens and be invited to the Drug Control Web sites.

However well intentioned, this example is but one in a long history of abuses by government to track citizens' behaviors. In a thoughtful 1970s book called The Rise of the Computer State, author David Burnham, former Washington bureau chief for The New York Times, observed that "the computer files of the IRS, the Census Bureau, the Social Security Administration, the various security agencies such as the FBI, and our own insurance companies, know everything there is to know about our economic, social and marital status, even down to our past illnesses and the state of our health. If, or is it when," he asks, "these computers are permitted to talk to one another, when they are interlinked they can spew out a roomful of data on each of us that will leave us naked before whoever gains access to the information."

By a vote of 280-138, the controversial Patriot Act was reauthorized by the House of Representatives last month; the Senate voted 89-10 to approve the compromise package; and the bill, good for at least four more years, was sent to President Bush for his signature.

According to the ACLU and other libertarian groups, there are significant flaws in the Patriot Act, that threaten fundamental freedoms by giving the government the power -- without probable cause -- to access medical records, tax records, information about the books you buy or borrow and the power to break into your home and conduct secret searches without telling you for weeks, months or indefinitely. The fight against terror justifies such powers, it has been argued, although the executive duty to seek court approval -- before or within 72 hours after wiretaps for example -- is still not resolved.

There is no doubt that the privacy rights of our citizens have taken a back seat to the fight against terror. The House and Senate were no doubt right to extend the act. But must we wait four more years to determine the effectiveness of the acts various provisions? The threat of terrorism notwithstanding, the threat of government abuse is very real and growing.

Most of the developed countries in the world -- after having experienced public controversy over the treatment of personal information and personal information systems -- have now developed legislation and policy and a response mechanism. So-called Data Protection Boards or Privacy Protection Commissions have been established to act as independent privacy ombudsmen defending individuals and investigating the workings of personal data systems maintained by government agencies or commercial firms.

"It seems strange," David Flaherty, author of Protecting Privacy in Surveillance Societies put it, "that some countries have independent agencies to protect privacy. In America you have to protect your own."

America need not rush out to create a new bureaucracy to mimic Europe's approach to solving the privacy dilemma, but Americans deserve much more respect from the institutions, both public and private, that serve them. At the least, the president -- this one or the next -- must create A National Privacy Protection Study Commission as both Nixon and Ford did to get to the heart of the commercially driven privacy issues and make their recommendations to the president and the Congress. Only at the national level in a publicly appointed body will we get at the truth of our concerns and forge solutions under the watchful eye of the body politic and the press.

Today, given the pervasive influence of the Internet, unscrupulous agents either of government or commerce, can tell where your mouse sits on your desktop, what sites you visit and for how long, and can track your movement from one Web site to another. As more and more of our daily activities for work, for play, and everyday living involve the use of this new network of networks, every aspect of our lives is suddenly open to surveillance and the misappropriation and misuse of personal information, including our habits and by extension our innermost thoughts.

As we rush headlong into a new but uncertain age, it is becoming increasingly clear that in our zeal to promote the marvels of the Internet, we may be seriously eroding the fundamental rights of the average citizen and consumer. Freedoms that Americans have so long cherished and expected are being undermined everyday not only by both Internet entrepreneurs and global corporations, but also sadly by our own government.

At stake are much more than merely occasional abuses of our more traditional concept of privacy, i.e. the right to protect confidential personal information from disclosure. Rather our more fundamental, constitutional right to be left alone -- the right to pursue life, liberty and happiness without unwarranted scrutiny, physical or electronic invasion, is being assaulted by the proliferation of surreptitious data gathering on the Internet.

It would be ironic and sad if the same Constitution which created a free press and a free enterprise system enabling the robust knowledge economy we now admire, was somehow responsible for the massive loss of personal privacy we are witnessing and with it a demise of more fundamental freedoms of our democratic society.

John Eger, a telecommunications lawyer and Lionel Van Deerlin Professor of Communications and Public Policy at San Diego State University, was telecommunications adviser to Presidents Richard Nixon and Gerald Ford.