Privacy: The line must be drawn where?

By Robbin Zirkle Introduction The tension that exists between individual rights to privacy and national security is perhaps one of the most relevant issues in the Information Age. The Western World is at odds with corporate utilization of personal information and the phenomenon of cyber terrorism. As of August, 2011, many European countries took legal action against companies charged with disseminating personal information in an effort to respect individual privacy in a decreasingly private world. Many have pointed out, however, that in the United States, increased discord exists in regard to privacy issues due to concerns regarding national security. Governmental initiatives have been directed to the creation of an agency toward to focus solely upon these issues. In one such initiative, the United States Federal Department of Commerce's Internet Policy Task Force recommended in December 2010 that the United States Government establish a Privacy Policy Office within the Department of Commerce. Many politicians and members of the general populace support the establishment of such an office, making it necessary, now more than ever, to examine where the "Privacy Line"--that is, the line between an individual's right to privacy and national security--is drawn. These governmental initiatives highlight worldwide changes and make it apparent that our lives are conducted increasingly through electronic communication. It seems that internet users take this for grantedwe expect total privacy while sharing a great deal of personal information with nameless, faceless strangers. As our face-to-face interactions decrease and the spread of ideas become pandemic, politics of privacy and the digital world become

increasingly important. Reviewing the two landmark United States Supreme Court cases, Roe v. Wade and Washington v. Glucksberg, both of which set precedents for privacy in the United States, as well as the recent national security crisis, the "WikiLeaks Scandal," provide meaningful insight into the issues that should delineate privacy policy.

Supreme Court Cases The Ninth Amendment reads that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This statement indicates that individual rights are guaranteed by the Constitution, and has been cited in conjunction with other Amendments to support the right of an individual to privacy. Roe v. Wade was a landmark Supreme Court case in 1973 in which "Jane Roe," an unmarried pregnant woman, argued that the Texas law prohibiting abortion except in cases threatening the life of the mother was unconstitutional (Trachtman, 2009, p. 92). The Supreme Court ruled seven to two in Roes favor, contesting that the Constitution allows a woman to decide whether or not to terminate a pregnancy. The Supreme Court determined that "only a 'compelling state interest' justifies regulations limiting 'fundamental rights' such as privacy " (Britannica). The Supreme Court balanced the state's interest by qualifying that the state has the right to regulate abortions after the first trimester of pregnancy or at the point of viability. It permits women to maintain control of their bodies while permitting the government to intervene if another individuals life is potentially at risk. Through this ruling, the Supreme Court made a clear commentary on privacy: individuals have inalienable rights to privacy until those liberties begin to infringe upon the rights of others.

The Supreme Court made determinations in Roe v. Wade following a reinterpretation of the Constitution. Writing on behalf of the Supreme Court, Justice Douglas stated that although the Constitution does not explicitly guarantee a right to privacy, such a right is implied through the language employed by our Founding Fathers. One example of this implicit guarantee is the Fourth Amendment, which precludes unreasonable searches and seizures, and is interpreted to mean that citizens have a right to privacy in their own homes that may not be breached unless officials have a warrant to search the premises (Trachtman, 2009, p. 40). Therefore, other forms of privacy are ensured within the Bill of Rights, such as through the previously quoted Ninth Amendment, which guarantees "certain rights." In 1997, the Supreme Court heard Washington v. Glucksberg, in which Dr. Harold Glucksberg petitioned for the right to honor the wishes of terminally ill patients who asked for his assistance, which violated the Washington state law prohibiting the promotion of suicide (Trachtman, 2009, p. 95). Glucksberg argued that the Fourteenth Amendment, which prohibits a state from depriving persons of life, liberty, or property without due process of law permitted competent adults to choose whether or not to end their lives (Trachtman, 2009, p. 95). In response to this case, the Supreme Court ruled in favor of the state of Washington and determined that the Fourteenth Amendment only prevents the government from prohibiting certain fundamental liberties. This reinterpretation of the Constitution came to fruition because the colonies prohibited assisted suicide, therefore, there was no reason to believe that the framers of the Constitution intended to contravene this tradition and establish a right to die (Trachtman, 2009, p. 96).

While ruling on Washington v. Glucksberg, however, the Supreme Court only guaranteed that states had the right to prohibit doctor-assisted suicide; as Trachtman notes, this also asserts each state's right to allow doctor-assisted suicide. It is possible that this loophole enables regional communities to control the establishment or prohibition of such a clause. This is particularly helpful as citizens have significantly greater opportunity to involve themselves in local government than in national government, and could reasonably speak out regarding the introduction of state laws permitting doctor-assisted suicide. This loophole is an example of a line being drawn between liberty and order. It clearly provides states with the opportunity to interfere with liberty, but points to those rights, listed in the Constitution, that states cannot infringe upon. When this distinction is applied to the previously mentioned case, Roe v. Wade, it becomes clear that some liberties are implied, though those may be defined by society itself; therefore, it is important for the United States Government to have recent and relevant policies addressing issues and interpretations of rights to privacy so that its countrymen are ensured their own, inalienable rights.

The Wikileaks Scandal While each individual has a right to privacy, the line between individual rights to privacy and national security becomes hazy when reviewing security breaches such as those that occurred in the WikiLeaks Scandal. WikiLeaks was a "media organization and Web site that functioned as a clearinghouse for classified or otherwise privileged information" that was founded in 2006 by Julian Assange, an Australian computer programmer (WikiLeaks, 2011).

Throughout its four-year lifespan, WikiLeaks posted sensitive information including a message from a Somali rebel leader encouraging the use of hired gunmen to assassinate government officials, and United States military operating procedures for the detention facility at Guantanamo Bay. In 2010, WikiLeaks posted documents related to United States conflicts in Iraq and Afghanistan, and United States President Barack Obama named the leak a threat to national security. Following these and other "leaks," WikiLeaks suffered numerous setbacks between December 2010 and April 2011, but in August 2011, two German newspapers uncovered a cache of unedited WikiLeaks documents, to which WikiLeaks responded by posting over 130,000 enedited documents to its website, a departure from its previous policy of "redacting the names of sources or informants in the interest of preserving the safety of those individuals" (WikiLeaks, 2011). While WikiLeaks ceased publishing operations in October 2011, its actions demonstrate a clear threat to national security: in not changing names of sources and informants, it jeopardized the safety of individuals throughout the international community and effectively diminished the power of the United States Government's elected officials to make decisions regarding the release of such information. Many people argue that movements such as WikiLeaks' are in an effort to improve transparency, while others argue that the free-flow of such information is a serious setback for United States Intelligence and national security. And so, the question of the Information Age emerges once more: the line [between privacy and security] is drawn where?

Discussion

It seems that the answer to the question of the Privacy Line is quite simple; while it is not necessary for individual liberty to conflict with social order, such conflict emerges frequently. In the case of online privacy, a discrepancy exists between the freedom that Americans value tremendously and the sense security that Americans desire, particularly in the post-9/11 world. In this circumstance, liberty is opposed to the ideal of social order: individuals seek to maintain their freedom while the government petitions for order and control. This tension necessitates the creation of a line, mediating freedom and security. Fortunately, the answer to the question of where the Privacy Line is drawn is simple, but unfortunately, it is frustrating: the line changes as society changes. The Supreme Court Cases Roe v. Wade and Washington v. Glucksberg both followed a long history of state legislation regarding individual rights. These landmark cases are such because they involved a redefinition of the Constitution, the document which provides a foundation for the United States Government. It is entirely possible that the social mood or society itself may change dramatically in the future, and therefore, rights to privacy will likely be redefined once more--it would not be the first time that this has happened. For example, the 1896 United States Supreme Court Case Plessy v. Ferguson established "separate but equal" institutions for people based upon their race, but this ruling was effectively overturned in 1954 with Brown v. Board of Education of Topeka, which declared segregation unconstitutional (Plessy v. Ferguson, 2011). Privacy becomes an issue in the virtual community in a number of ways, especially in regard to the dissemination of individuals' information throughout the internet. As of September 18, 2011, European privacy regulators are attempting to pressure companies such

as Google and Apple to change data collection practices. Furthermore, the European Commission was considering how to regulate software cookies, which track internet user patterns to provide advertisements appropriate to them (OBrien, 2011). Recent policy movements demonstrate that United States is currently attempting to make similar efforts toward internet privacy--in April 2011, the Commercial Privacy Bill of Rights Act of 2011, bipartisan legistlation, was introduced by Senators John Kerry and John McCain (A New Internet, 2011). This was followed by Senator John Rockefeller's introduction of the Do Not Track Online Act of 2011 in May 2011, and Representatives Edward Markey and Joe Barton's introduction of the Do Not Track Kids Act of 2011, also in May 2011 (Vega, 2011). In contrast to privacy issues, public feelings about national security at the price of personal privacy find the United States cleanly divided. While the WikiLeaks Scandal itself was a polarizing event for many people, it is important to note that there are significant concerns that sparked its inception. Many Americans begrudge a lack of transparency within the United States Government, especially with issues such as the conflicts manifesting in Iraq and Afghanistan, as well as practices at the Guantanamo Bay detention facility The release of such information, however, can result in the endangerment of people all over the world, as has been evidenced in cases such as the divulgence of the identity of a covert CIA agent, Valerie Plame, by Vice President Dick Cheneys Chief of Staff, I. Lewis Libby in 2007 (George W. Bush, 2011). Libby identified Plame to journalists, allowing the public to learn that she was a covert CIA agent helping to determine whether Iraq had attempted to purchase enriched uranium from Niger. This leak jeopardized Plames safety in Africa and ruined her career as a covert operative. This is a particularly well-publicized and criticized example, but

demonstrates what a breach of national security can mean for individuals who are not currently in the United States.

Conclusion It is clear that the discrepancy between privacy and national security is a relevant issue in the minds of individuals throughout the United States, but it is still not clear as to what should be done to reconcile tension between these conflicting interests. As evidenced in both Roe v. Wade and Washington v. Glucksberg, the Supreme Court exists to interpret the constitution in light of both historical and social circumstances, and clearly delineate what individual privacy means. That stated, it is important to recognize that the transition from interpersonal to digital interaction drastically changes the global landscape. While the digital world enables free exchange of ideas and embraces diversity, it also enables other groups to access nearly limitless information and individuals. In a New York Times article entitled A Little Less Privacy, a Bit More Security, journalist Simon Chesterman points out that threats against national borders do not respect national borders and the revolution in technology and communications has blurred the line between what is foreign and what is domestic. Therefore, individuals who aim to harm United States citizens do not belong to a definitive groupthey are nameless, faceless, and nearly impossible to differentiate online from benign citizens. They can live across the street or across the world. It is unreasonable to promote the government censorship of digital thoughts and actionsdoing so would violate the individual liberty to speak ones mind. But as Chesterman points out, we must acknowledge that there is a social contract in which we give the

statepower over information in exchange for security and the conveniences of living in the modern world. Essentially, this means that if we expect the government to protect us from international, technologically-advanced, adaptable enemies, then we must expect that we cannot keep every private matter from government eyes. It is not a choice between liberty and safety, but rather a reconciliation of the two, a social contract. In conclusion, this social contract can be mediated at least one way in the immediate future: through the establishment of an office which will monitor the tension between liberty and national security. Such an office must be able to bridge the United States Department of Commerce and the United States Department of Homeland Security as the first monitors exchange of ideas in the digital sphere and the second monitors threats to the United States. Furthermore, as stated by Susan W. Brenner, a professor of law and technology at the University of Dayton School of Law, "A heavily networked world can't depend on old-fashioned top-down regulation and law enforcement for security" (Clemmitt, 2011). This office must be flexible, technologically up-to-date, and sensitive to issues which influence citizens and friends of the United States both at home and abroad. It must carefully draw a line between privacy and security, not allowing integrity to be sacrificed in the process.

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