Etzioni's writing, in "The Limits of Privacy" and elsewhere, evinces an unarticulated equation of "community" and "government" -- but few people on the street, including those who acknowledge the value of government, would accept that equation. We are not, for the most part, governed by our communities but by our governments. By cloaking the Leviathan of government in the guise of "communitarianism," Etzioni justifies (in the words of EPIC's Dave Banisar) "authoritarianism with a happy face."

In the recent science-fiction novel "A Deepness in the Sky," Vernor Vinge provocatively hints that societies encumbered with "ubiquitous law enforcement," facilitated by universal surveillance, are destined for collapse. But even if society itself is not threatened by pervasive governmental access to our private affairs, there's little question that individuals are.

Look to the words of Supreme Court Justice Robert Jackson, who, when serving as attorney general to Franklin Roosevelt, made this observation: "With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him."

Given the immense scope of both government and private enterprise to peer into our private lives (and, as Whitaker notes, private databases become accessible to the government the instant an official shows up at the database company with a subpoena), the few legal and practical privacy protections we have begin to seem more precious -- not just to civil libertarians or to former sex offenders or to terrorists or criminal suspects, but to the rest of us as well. Etzioni maintains that it's OK to intrude upon the privacy of criminal suspects because "Democracies have made a special point, from the Magna Carta on, of treating suspects as a special category." What he fails to realize is that these days we're all potential suspects.

This is perhaps a partial explanation for the 1996 Harris/Equifax poll and the 1997 Harris/Westin polls, which show that 80 percent or more of Americans are concerned about threats to their personal privacy. Etzioni cites these polls in "The Limits to Privacy," but he does so only to dismiss them as the product of privacy-advocate scare tactics. I think it's unlikely that the majority of the public is relying solely on warnings from ACLU lawyers and privacy advocates; you don't have to be a civil libertarian to know which way the anti-privacy winds are blowing.

If Etzioni is correct about anything, it's that the tradition of guaranteeing individual rights against government power has been to place some individual interests beyond the realm of "balancing" considerations. The government is not supposed to be able to ask, with regard to rights, whether it's good for the rest of us -- on balance -- if so-and-so gets to rant from a soapbox in Central Park or if some of us get to keep our communications truly private.

But Etzioni fails to recognize that, to the extent that each individual right is subjected to a balancing test, it tends to get erased. State interests are always articulated in rhetorically compelling ways (save our children from the child molesters!), and the rights to which they stand in opposition are made to seem abstract, unimportant or unnecessarily categorical.

Where Etzioni goes wrong the most is in failing to recognize that the rights we have are themselves already the results of balancing considerations. The Framers gave us a Bill of Rights not because they assumed (as Etzioni mistakenly asserts that privacy advocates assume) that individual rights can be had without any trade-offs. Instead, the authors of the Constitution believed that guarantees like the Fifth Amendment's prohibition of the compelled self-incrimination of criminal suspects, or the Fourth Amendment's prohibition of general searches, or the First Amendment's protection of the rights of individuals to say and publish disturbing things, were worth their social costs.

The Framers weighed the costs and benefits a couple of centuries ago, and the Bill of Rights was the result. It seems premature for Etzioni to propose a new balance of individual rights against government prerogatives until he shows a sign of having fully grasped the old one.
salon.com | April 26, 1999

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