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POINT Response to "Americans Should Codify a Right to Privacy" By KELLY WARD 11.3.03 2:16PM CST Should elected officials be responsible for guarding our privacy by passing legislation and contributing to the growth of government bureaucracy to implement it? This sounds like McCarthyism all over again, doesn't it? Do we really want Congress in the business of defining our privacy? I am not comfortable with the creation of yet another congressional oversight committee comprised of the very same senators and representatives beholden to the corporations, CEOs, PACs and special interests that are often the primary violators of people's privacy. The left commonly likes to invoke the phrase "you can't legislate morality"; well, you probably can't legislate privacy, either. None of us could probably come up with an all-encompassing definition of privacy that would enable our government to act effectively. Defining privacy is probably a lot like Justice Potter trying to define pornography in 1964 and creating the "I know it when I see it" standard. Most of this country has a difficult time precisely defining what constitutes such nebulous and value-laden concepts like "free speech," "obscenity" and "the public interest." So how will an oversight committee in Washington, D.C. be able to formulate a consensus standard of "privacy"? Warren and Brandeis wrote about the tabloid newsmen of their time and the invasive nature of investigative journalism. In the same article the Justices also wrote the following: "Some things all men alike are entitled to keep from popular curiosity, whether in public life or not, while others are only private because the persons concerned have not assumed a position which makes their doings legitimate matters of public investigation." In other words, there is a legitimate realm of investigation recognized by our case law and tradition that balances personal privacy with the public's "right to know." We leave that to the courts to decide, on a case by case basis, through such legal concepts as liability, slander, intellectual property, and libel. I trust the courts to draw these lines and create these definitions rather than "one size fits all" legislation from a new Privacy Commission with the power to regulate an indefinable belief and subject to the winds of electoral politics. The real battle for right to privacy is won in the tug-of-war between producers and consumers. The new bottom line is that "private information" is now perceived as a commodity, an entity that has value in its own right, and is highly prized by businesses and corporations. Just as businesses use data-mining to extract valuable marketing information from phone records, Internet "cookies" and credit histories, consumers are learning how to best leverage their personal information in the form of "do not call" lists, electronic "junk mail" filters and privacy software. Businesses perceived as crossing the ever-shifting, blurry line between personal privacy and legitimate market research pay for it in terms of negative PR, money wasted on intrusive advertising gimmicks like Web banner ads, and lawsuits from afflicted parties. The market, more than any government oversight committee, has a far more effective way of punishing those that go too far when that trust is violated by hitting them where it counts, the bottom line. I am much more troubled by the alternative, a Privacy Commission in bed with a "coalition of the billing" with the power to define my privacy. |
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