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Privacy in a Democratic Society
Some form of privacy for the individual, the family unit, and the community is needed by all men living together. However, the need is not absolute. It must be balanced with the individual's need to disclose information and with society's need to conduct surveillance. The concept of privacy defined by United States law plays a central role in maintaining the balance of those needs.
The Need for Privacy
Privacy is the claim made by individuals, groups, or institutions that they be allowed to determine for themselves when, how, and to what extent information about them is communicated to others. There are four states of privacy that allow an individual to withdraw temporarily from society. The most basic of these is solitude. He can separate himself from the company of others. The second is small-group intimacy. He can choose to communicate in confidence to a small, group of persons whom he trusts. The third state of privacy is reserve. He can withhold information about himself, even from intimates. The fourth is anonymity. He can flee the restrictive influence of known persons and seek to escape in a crowd or strange surrounding.
Privacy is neither a self-sufficient state nor an end in itself. It is an instrument for achieving individual and group goals and self-realization. As such, it is only part of the individual's complex and shifting system of social needs.
The Need for Disclosure
The individual's desire for privacy is balanced by an equally powerful desire to participate in society. Thus each individual needs to communicate with others, to disclose information about himself, and to find companionship. He makes a constant adjustment of these two desires with respect to his culture, status, and personal situation. As a rule, he attempts to establish a balance that serves his general social aims as well as his individual social needs. Either too much privacy or too little can create imbalances that seriously jeopardize individual well-being.
The Need for Surveillance
There is a universal tendency on the part of individuals to invade the privacy of others, and of society to engage in surveillance to guard against antisocial conduct. Invasions of privacy fall into two categories: individual and social. Individual invasions of privacy stem from curiosity about the world and those who inhabit it. This ranges from day-to-day inquisitiveness to a wish to break social taboos or engage in voyeuristic practices. Social invasions of privacy occur through infractions against norms established and enforced by society. The rules, taboos, or laws require that procedures be adopted to watch over the conduct of individuals, investigate infractions, and determine guilt. Every society establishes machinery for penetrating the privacy of individuals or groups in order to protect personal and group rights and to enforce norms.
There are three types of surveillance: physical surveillance—the observation through optical or acoustical means or devices of a person's location, acts, speech, or private writing without his knowledge or against his will; psychological surveillance —the use of oral or written tests, devices, or substances to extract from an individual information that he gives unwillingly or unwittingly; and data surveillance—the collection, exchange, and manipulation of documentary information about individuals or groups by computers (or other data-processing devices), which threaten privacy if too much knowledge is available to too many people.
Functions of Privacy in a Democratic Society
The political system of a society is a fundamental determinant of that society's balance of privacy because particular patterns of privacy, disclosure, and surveillance are functional necessities for particular kinds of political regimes. In totalitarian states the social balance favors disclosure and surveillance over privacy for the individual, but demands secrecy for the regime. In democratic societies the reverse is true.
Privacy serves four basic interests of the individual in modern democratic society: personal autonomy- freedom from manipulation or domination by others; emotional release- the opportunity for self-expression without fear of reprisal; self-evaluation—the ability to take stock of one's actions and experiences and to integrate them into a meaningful pattern; and limited and protected communication—the opportunity to establish mental boundaries in interpersonal situations ranging from the most intimate to the most public and formal.
Privacy also serves the interests of the organization, which plays the role of responsible and independent agent in a democratic society. Every group (political party, religious body, union, government agency, legislature, fraternal organization) is entitled to be free from constant, immediate public exposure so that it may act effectively. Often privacy is a functional necessity for the formulation of responsible policy, especially in a democratic system concerned with finding formulas for reconciling differences and adjusting majority-minority interests. Furthermore, privacy is usually considered essential for organizational autonomy, gathering information and advice, preparing positions, internal decision making, interorganizational negotiations, and timing and disclosure of policy.
Privacy has not been treated as an absolute right in modern democracies. Its exercise in a democratic society creates dangers that call for social and legal controls to protect the public from crime, subversive elements, or the misuse of power, for example. Thus the members of a democratic society must search in every conflict for the proper boundary between democratic institutions and processes and privacy, disclosure, and surveillance.
Privacy in American Law
The authors of the United States Constitution established a broad legal framework for achieving this balance. Until the late 19th century, constitutional safeguards were sufficient. Doctrines of trespass and of search and seizure protected private property from unwarranted physical intrusion, and prohibitions against self-incrimination and cruel or unusual punishment prevented penetration of the mind by means of torture or oaths. The mobility of frontier life made establishment of dossier or other methods of data control impractical. However, 20th century technology eroded the classical balance between individual and group claims to privacy and the needs of law enforcement and government information systems.
In the 1960's the courts began to expand the 4th and 5th Amendment protections of privacy to meet the scientific challenges. They also broadened classical interpretations of the 1st Amendment (freedom of speech, press, and association) to encompass the right to be silent as a corollary of the right to communicate. By the mid-1970's the U. S. Supreme Court had held that a woman's right to abortion rested on the constitutional right to privacy and that the federal executive had no inherent right to wiretap without a judicial warrant in domestic-security cases. However, the principle that privacy is not absolute was also continued, as in state and federal court rulings that law-enforcement agencies could compile dossiers on potentially dangerous groups unless specific harm could be shown to have been done to constitutionally protected activities.