Whenever some would-be social reformer tells me that individual rights need
to be balanced against the common good, I get nervous. And when someone
argues that the civil libertarians and privacy advocates have, in their
concern for privacy, constituted an active social harm, I get positively
jittery.
Which is why Amitai Etzioni's book "The Limits of Privacy" has had me off
coffee for a week.
It was a book I felt I had to read, since Etzioni has become an outspoken and prolific participant in the debates over privacy issues online. His newspaper articles over the past year have dealt with privacy on the Internet (Boston Globe, March 29, 1999), database privacy (New York Times, April 6, 1999) and Internet content regulation (Wall Street Journal, Oct. 14, 1998). Indeed, Etzioni's growing prominence on these issues is probably why he was a major source for a recent Times story about the privacy issues raised by tracing the Melissa virus' creator.
Even so, Etzioni's treatment of privacy issues in his new book came as an unpleasant surprise. The book is disturbing not just
because Etzioni thinks of civil libertarians like me as harmful to the
social order; it's also troubling because of his willingness to embrace
just about every government initiative that would erode personal privacy -- so
long as it can be justified in terms of a valid public concern.
Described in his press materials as "one of the world's leading proponents
of communitarian thinking," Etzioni is a sociologist at George Washington
University. But "The Limits of Privacy" is not sociology, nor does it rely on
sociological methodologies -- instead, it is expressly a work of policy
advocacy.
Officially, Etzioni wants to
replace the rights talk in American policy and jurisprudence with a
"balanced" philosophy of privacy. Unofficially, his book is aimed at
discrediting those threatening civil libertarians and privacy activists and replacing
them with Etzioni's "balanced" approach -- what he calls "a
contemporary conception of privacy." If there's a hell in Etzioni's
communitarian cosmology, it's the realm of discourse in which lawyers and
civil libertarians win arguments by invoking individual rights.
Etzioni cheerfully acknowledges that he's no lawyer himself (he likes to
drop the occasional aside about how irrational the legal system is), but
he's certainly as tendentious as the most stereotypical litigator. And,
like a lawyer quizzing a witness about the latter's decision to stop
beating his wife, Etzioni knows that if you ask the right kinds of
questions, the answers will invariably support your case: "To begin a new
dialog about privacy, I have asked ... audiences if they would like to know
whether the person entrusted with their child care is a convicted child
molester." Well, yes, Amitai, I'd kinda like to know that. So I guess I
should be willing to punt this privacy stuff, huh?
The author stacks the deck by beginning his book with discussions of two
cherry-picked issues -- Megan's Law and the HIV testing of infants -- where
the interest in protecting the health and welfare of children is
indisputable, and where the countervailing privacy interests are
comparatively weak. He moves on, however, to the trickier issues of
government access to encrypted communications (where the government's case
for guaranteed access is known to be rather weak, at least as far as actual
evidence goes) and the institution of a national I.D. card (the case for
which is typically framed less in terms of solving a known public problem
and more in terms of providing a raft of public benefits).
The reader who works through Etzioni's discussions of these issues and thinks she's got the author pegged as an anti-privacy zealot like David Brin will find she's been thrown a curve by the chapter on medical records -- which Etzioni finds to be too easily subject to abuse by insurance companies and other
monolithic villains of late capitalism. Medical privacy, says the author,
"is in a fundamentally different condition than the other four areas of
public policy studied here ... Privacy is unnecessarily compromised without
serving any important public good."
This last is not exactly a controversial proposition in itself -- you can
find a similar view in "The End of Privacy," a recent book by Canadian
political-science professor Reg Whitaker. Like Etzioni, Whitaker sees a
role for government in policing the excesses of commercial entities that
might misuse our private data. But where the agenda of Whitaker's book is
mildly Marxist -- his primary aim is to outline how technology and
capitalism synergistically fuel changes in the privacy landscape -- the
purpose of Etzioni's book is both simpler and more troubling: It seeks to
justify the role of government in making privacy decisions, whatever those
decisions may be.
Thus, when the issue is government-initiated privacy
intrusions, Etzioni argues that privacy is overvalued when "balanced"
against the public welfare. Yet when government might play a role in
protecting privacy -- by, say, regulating private companies' use of
commercial or medical databases -- suddenly Etzioni is nervous about the
threat to privacy. He labels this particular conclusion "the Privacy
Paradox": He believes that the greatest threat to privacy is not the
state, which is traditionally seen (he says) as the greatest threat to our
privacy, but Big Business, which you need the government to
police.
Maybe Etzioni is right about the relative weight of the threat to privacy
posed by corporations, and it's true that civil liberties groups tend to
focus more on the threat posed by government. But this is because the Bill
of Rights is, after all, a set of limitations on government action -- in
the United States at least, civil libertarians and privacy advocates have
fewer legal tools they can use when the issue is commercial or
nongovernmental intrusions on privacy.
In practice, this means that advocacy
groups like the Privacy Rights Clearing House and the Electronic Privacy Information
Center are forced to rely less on litigation and more
on public statements and moral suasion when corporations act in ways that threaten privacy. (It was such public outcry/education strategies by public interest groups that compelled Intel to
promise customers a way of concealing the serial numbers of PIII chips, and
that forced Microsoft to provide a means of erasing the serial-number
document stamp imposed by recent editions of Office.)
But even when Etzioni has a point, it's hard to get past his paternalistic
communitarian agenda. You get the feeling as you read "The Limits of Privacy"
that Etzioni is only casually concerned about privacy issues per se; what
he's really interested in is vindicating the role of government. This is
particularly apparent in the chapter promoting government access to
encrypted communications. Here, the knowledgeable reader will find much that casts doubt on Etzioni's understanding -- not only of encryption but also of the other issues he addresses in this book.
As someone who's been contributing to the public debate about encryption
and wiretapping policy over the last seven years, I was
startled to find that Etzioni gets some of the most basic details of the
crypto debate spectacularly wrong. Most notably, he confuses key
recovery (the holding of decryption keys by the government, sometimes
referred to as "key escrow") with public-key cryptography (crypto schemes like PGP, or Pretty Good Privacy, that depend on paired keys, one of which is freely available to the public). Absurdly, he keeps referring to the government's policy as one of "public key
recovery." If the keys are public already, you don't need a
policy to enable the government to "recover" them.
But even if you ignore a howler like that one, you'll be troubled by the
quality of Etzioni's analysis, which is grounded in two approaches: a) attempting
to cast doubt on every argument advanced by crypto proponents and b)
accepting uncritically every argument the government advances in favor of
guaranteeing governmental access to private encrypted communications --
especially those arguments couched in terms of the threat posed by drug
dealers and terrorists who may use encryption to escape detection. (One can
imagine a vastly different, vastly better, book whose author was equally
skeptical of both sides of the encryption debate.)
This one-sided approach
results in some peculiar blind spots. At one point Etzioni writes that
"events that have a very low probability but a very high disutility (such
as the terrorist scenario depicted) deserve as much public attention as
those that have a relatively high probability but a relatively low
disutility (e.g., the acts of individual drug dealers or pedophiles)."
Here Etzioni embraces what I have called the Pascal's Wager fallacy of
the anti-encryption contingent. This fallacy derives from
factoring an infinitely terrible event (the terrorist detonation of a
nuclear device in Manhattan, say) into your risk calculations. The result
is that, regardless of how low the probability of such an occurrence is,
any measure that might prevent it is pseudomathematically justified. For
all Etzioni's talk of "balancing" rights against the collective good, he
doesn't seem to get that the balancing doesn't work when the government
gets to put its finger on the scale.
Etzioni confronts us with a similarly unbalanced "balancing" when he
discusses the now-discredited and abandoned "Clipper chip" proposal. Here's
how he characterizes the issue: "Initially, the United States offered users
of encryption a choice: They could freely use whatever encryption software
they could find on the market (or the Internet), or they could purchase a
more powerful program (powered by the Clipper chip's Skipjack coding
algorithm) provided by the U.S. government. The latter would include a key
allowing U.S. law enforcement authorities to decipher the messages."
Etzioni characterizes the
Skipjack algorithm as "more powerful" because, well, the government assures
us that this is the case. In comparison, he says, nongovernmental
encryption schemes "may be unreliable or include trapdoors [he means
"back doors" -- "trapdoor" has a different meaning in cryptography] that can
be exploited by unknown parties." In short, he argues that an encryption
technology designed by the government with a known built-in back door is
somehow more secure than publicly available software, based on well-known,
published algorithms, that might have a back door. This is topsy-turvy
reasoning.
The hidden assumption here is that the government means well, so its
guaranteed access to our private communications and data is somehow more
acceptable than the mere possibility (unsupported by actual evidence) that
programs like Pretty Good Privacy may have a back door.
But of course that
assumption is the whole ballgame. If there's been a common theme in
American political life over the last quarter-century, it has been the
growing consensus on both the left and the right that the government, even
when it indisputably means well, can't be trusted with too much power.
Let's assume for a moment that Etzioni is right when he argues that privacy
interests necessarily stand in opposition to the community's good (although
this is by no means a given -- Whitaker notes that individual privacy can
also be justified in terms of its "social or collective value"). Even so,
as law professor Michael Froomkin points out, "this doesn't allow for the
Leviathan." That is to say, it's a mistake to suppose that the collective
power of the state is the same thing as the community.
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.
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