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The Surveillance Society: The Right to be Left Alone
By Amy Radil
November, 1999
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We tend to think of privacy as a universally acknowledged right, enshrined in the Constitution. In truth, the Constitution doesn't specifically mention that right, and the very concept of personal privacy has risen to prominence only in the last 30 years.

Historically, when the U.S. Supreme Court and Congress have taken privacy into consideration, it has usually lost out to other interests. But advocates have dubbed privacy "the civil rights issue of the information age." They believe consumers and constituents will soon create a groundswell of support for stronger privacy rights.

IN MINNESOTA, the right to sue someone for invasion of privacy is extremely new, one-year old to be exact. Minnesota had been one of the last three states where privacy could not be used as the basis for a lawsuit. But that changed after a lawsuit filed in 1995 by two college students at Moorhead State University. The two women, Elli Lake and Melissa Weber, went on vacation in Acapulco, where Weber's sister jokingly snapped a photo of them naked. They took their film to Wal-Mart and received it back with a slip saying one photo contained nudity and wasn't developed. That didn't bother them until, Weber says, it became clear other people had somehow seen the picture.
Marc Rotenberg, executive director of the Electronic Privacy Information Center, says the U.S. is becoming a global piracy villain. Listen.
Weber: At our school, we're in a sorority, and we'd had a fraternity brother coming up to us saying something about he'd seen this picture and described it in detail.
Lake and Weber sued Wal-Mart for invasion of privacy. Wal-Mart's lawyers argued the right to privacy didn't exist in Minnesota. Their case went to the Minnesota Supreme Court, which overturned 100 of legal history to rule in their favor. The Supreme Court's ruling established a whole new right for Minnesotans.

Lake and Weber say they never intended to be privacy crusaders. But as they pursued their case, Weber says, her assumptions about the very existence of privacy were eroded.
Weber: You just don't expect as much privacy as you normally would have. You know, when you're in dressing rooms trying on clothes, you're a little bit more cautious about what's going on or who's seen you where. Just things. I just think you can't trust anyone nowadays. You just never know where it's going to be; it could still be on the Internet for all I know.
Melissa Weber says she's still never seen the photo at the heart of their case.

Photography was, in fact, the catalyst for the first strong declaration of privacy rights in U.S. legal history a century ago. In an 1890 Harvard Law Review article entitled "the Right to Privacy," Samuel Warren and a young lawyer named Louis Brandeis voiced anxiety that "instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life." By 1928, Brandeis was on the Supreme Court where he stood alone in saying government wiretaps should be illegal without a warrant.

Marc Rotenberg who is on the front lines of current privacy debates as head of the Washington D.C.-based Electronic Privacy Information Center, finds Brandeis' concern for privacy prophetic.
Legal historian Linda Przybyszewski discusses the change in attitude toward privacy. Listen.
Rotenberg: I think what Brandeis wrote about so eloquently, both in the 1890 law-review article and also in a famous dissent in a 1928 wiretap case, is the idea that law has to advance as technology advances, and privacy is one of the critical rights of people in a democratic society.
However, Brandeis' call for a right to privacy went largely unnoticed and unheeded. It would take several decades for the Cold War to create true alarm over government excesses in information gathering, epitomized in the investigations of Senator Joseph McCarthy. In this 1954 speech, McCarthy addresses the Irish Fellowship Club of Chicago, telling about Communists' all-out attempts to try to curb his powers.
McCarthy: What you will find is the all-out attempt to try and curb the power of the Investigative Committee, change the rules if you please, make it tougher to investigate Communists than it is to expose crooks or dishonesty.
Later the cloak-and-dagger aspects of the Watergate scandal further compounded public concern over government intrusion on private life. Legal historian Linda Przybyszewski says in reaction to these events scholars began to write about the importance of privacy and the need to protect it, raising alarms about psychological testing and government surveillance.
Przybyszewski: By the '60s, people are writing about this, also in the '50s legal scholars and popular writers start drawing attention to it and saying "this is dangerous, because what it reminds us of is authoritarian government. And there is no point in fighting the Communists this way because this is what they are, they're authoritarian, they pry into people's lives, they live a life like George Orwell's 1984."
Privacy scholars raised the powerful spectre of George Orwell's "1984." Among judges and legislators the ideological climate began to change in favor of protecting privacy. In 1967, the rest of the U.S. Supreme Court sided with Brandeis' early decision, and ruled wiretapping without a warrant illegal. The Privacy Act of 1974 prohibited government agencies from sharing information from their files with each other. But these measures have left many loopholes. In her book, "Legislating Privacy," George Mason University Professor Priscilla Regan documents the ways privacy issues often get buried in Congress. And she says online information and databases have a way of highlighting Americans' scanty legal protections.
Priscilla Regan, George Mason University professor and author of "Legislating Privacy," describes her realization of the amount of personal information available via the Internet. Listen.
Regan: I think technology has revealed gaps in existing legislation. In the area of medical privacy or medical records, for example, we have not had legislation in that area so the fact now that you can have medical records online and quick, easy exchanges of information between a health care provider, an insurance company and an employer have exacerbated the privacy problem.
The hot-button privacy issues of the moment are privacy on the Internet, and in medical and financial information. Congress has shown little inclination to tackle these issues, and the Clinton administration has endorsed industry self-regulation on the Internet. However, the U.S. Department of Health and Human Services is writing regulations to tighten the privacy of medical records. And privacy experts say state officials are stepping in to fill voids in privacy protection.
Hendricks: There's a lot of other movement among class-action lawsuits and states' attorneys general that could result in better protection than Congress is offering right now.
Evan Hendricks is the editor of the Washington D.C.-based Privacy Times. He cites Minnesota Attorney General Mike Hatch's case against U.S. Bancorp, which revealed the company's practice of selling customers' credit card numbers to telemarketers.
Hendricks: The response to that by customers learning their credit cards were being sold like this just really led to a swift and certain public outcry against it. There's no question customers did not want their information being used like this and that's why banks were doing it secretly.
Hendricks calls our current age the best of times and the worst of times in terms of privacy protection. He says technology allows business and government to gather more and more information on all of us. But he says Americans are protesting more, filing lawsuits like Elli Lake and Melissa Weber.

Ironically, after winning the right to sue for privacy at the Minnesota Supreme Court, Lake and Weber lost their case in county court. All of the Wal-Mart employees called to testify denied ever seeing the photo. The jury agreed their privacy was violated, but couldn't determine whose fault it was.

The right to privacy is elusive, even in law. Those championing the cause say their goals are clear: telling people what information is being collected on them and how it will be used, giving citizens the right to say no.