Invasion

Privacy is a right that Americans are losing

It's a fundamental right -- won in the Revolutionary War, enshrined in the Constitution -- that is dying a death of a thousand cuts in the courts: the right to be left alone. Once, privacy was a core legal value. Now, in our over-amped, media-driven society, an anesthetized public doesn't seem to know what it's missing.

The latest sign is a seemingly arcane question being considered this week by the Supreme Court: if the person dies after engaging in confidential discussions with a lawyer, can the government then force the lawyer to break the confidence?

The question has serious implications. It began, as so much in Washington seems to these days, with independent counsel Ken Starr. Starr wants the lawyer whom Vince Foster consulted shortly before his suicide to tell all. The lawyer, of course, is refusing, citing the age-old lawyer-client privilege. Yet already, a federal appeals court has sided with Starr. If that ruling is upheld, the government will have the power to inject itself into a relationship that has always been considered sacrosanct. Lawyers cannot be effective if their clients aren't honest with them. But clients won't feel they can be entirely truthful if what they say could get out -- implicating, or at least embarrassing, friends and family.

But this is not just a challenge to the legal profession; it is a challenge to open society. The same reasoning could easily be extended to other protected relationships. Will Americans now have to think twice before divulging their secrets to a psychiatrist? A priest? A spouse? What is to stop the power of government -- and its chilling effects?

Indeed, as a number of wise commentators (most notably legal scholar Jeffrey Rosen in the New Republic and the New Yorker and attorney Harvey Silverglate in the Phoenix) have pointed out, government prosecutors seem to have historical momentum on their side. Consider how much has changed. In 1763, there was a famous case in which the British government seized a number of documents (including a diary) from the home of John Wilkes, a member of Parliament, in an attempt to build a case against him. But the very idea of using someone's personal papers against him was so offensive that the court threw it out. (Wilkes eventually won damages.)

That case, in turn, inspired the Fourth Amendment's prohibition against "unreasonable searches and seizures . . . of persons, houses, papers, and effects." A famous ruling in 1886, in Boyd v. United States, found that the government could not subpoena a defendant's personal business records because this would constitute an unreasonable search (as well as violating the Fifth Amendment right to not incriminate oneself).

Only in the late 20th century has this philosophy -- that the personal sphere is inviolate -- begun to seem so quaint. The courts have granted prosecutors much broader powers to obtain documents. They have ruled that surveillance -- using electronic bugs and the like -- does not constitute a traditional "search." And they have made a range of other rulings that substantially narrow what we can expect to keep to ourselves.

"We are rapidly entering the age of no privacy," wrote one justice in a dissenting opinion as far back as the 1960s, "where everyone is open to surveillance at all times; where there are no secrets from government."

As the information age progresses, this will have to be one of the fundamental political questions we address. Technological advances mean that information can be used -- or abused -- ever more efficiently.

In the end, though, it is a social question. You cannot be comfortable knowing that anything you say to someone, no matter how intimate your relationship, could be used against you later. That your diary could be subpoenaed, even if you are not suspected of wrongdoing. (It's happened.) That medical records or conversations with a psychiatrist are fair game. That an old e-mail, or a book you bought years ago, or a Web site you once visited, are all on the record.

There was a time when any one of these developments would have been greeted with horror -- when it was understood that to live under such threats was to be unfree.

Perhaps the prosperity of the "American century" has made us complacent. Perhaps the chiseling of rights has been so slow as to be imperceptible. But unless the trends are reversed, we will find ourselves in a neo-authoritarian society -- albeit one with a happy face.

What do you think? Send an e-mail to letters[a]phx.com.