Beyond Reductionism: Reconsidering the Right to Privacy
In the last few years the American public has been concerned about numerous disclosures of personal information – both inadvertent and government-ordered – by cellular phone companies, web sites and Internet service providers. Some Americans are worried that a new X-ray scanning machine – which can produce detailed images of the naked body of the clothed passenger who stands before it – may be used for routine screenings of airline passengers. Such controversies are just the latest evidence that many Americans are not satisfied with the legal protection afforded their privacy. While some scholars might see such cases as opportunities to enact still more privacy legislation, perhaps it is time to reconsider the right to privacy as such. The notion of privacy as a right is, after all, of recent vintage. First proposed by Samuel Warren and Louis Brandeis in an 1890 law review article, it did not enjoy legal recognition until 1905. And since then, the protection it offered has been limited in scope: its implementation involves a balancing test in which the judge balances the individual’s interest in privacy against whatever “public interest” is said to oppose it. A thoughtful person contemplating this test might wonder whether Americans enjoy privacy not by right, but by permission; and he might then wonder whether there is any viable alternative.
