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Citation: The American Prospect Jan 1999, 6(1)
Author: KUTTNER, ROBERT
Title: The Age of Trespass. by ROBERT KUTTNER
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COPYRIGHT 1999 The American Prospect, Inc.
[T]he system of private property is the most important guaranty of freedom,
not only for those who own property, but scarcely less for those who do not.
F. A. HAYEK, The Road to Serfdom, 1944
[A] government big enough to give you everything you want is a government
big enough to take everything you have.
RONALD REAGAN, 1984
Conservatives today seem awfully confused about what threatens, or
safeguards, personal freedom. Earlier in this century, principled
conservatives worried that collectivism embraced in the name of social justice
would erode individual liberty. Hayek, writing during World War II, believed
that the "democratic planning" then in vogue in Britain and the United States
was a slippery slope to totalitarianism. He had Nazi Germany and Soviet Russia
as vivid cautionary examples for naive or fellow-traveling collectivists in
the British Fabian movement and the American New Deal.
Has history proven Hayek right? Not really. Soviet planning certainly
collapsed of its own weight, but an excess of economic inter4ention has never
been a road to serfdom for a stable democracy. The warnings of the right
notwithstanding, history records no case of a welfare state sliding into
dictatorship on an overload of taxation or even public ownership. On the
contrary, totalitarianism arose in nations that were fragile democracies to
begin with, often triggered by the economic unease of ordinary people. Hayek
won his celebrated economic debate with the Polish socialist Oskar Lange over
whether central planners could ever set prices efficiently. But in the
notional political debate between Hayek and Karl Polanyi (whose masterwork,
The Great Transformation, also appeared in 1944) about whether democracy and
liberty are menaced more by state economic intervention or by market
insecurity, Polanyi wins hands down.
Except for genuine libertarians (who are only a splinter of modern
conservatism) and lunatic-fringe private militias (who are paranoid about
government black helicopters), the contemporary right is shockingly indulgent
of the other potential source of tyranny--the state's police power. As Anthony
Lewis and Wendy Kaminer suggest in their articles in this issue, government's
ineluctable expansion of police powers in this decade is surely the greater
threat to personal freedom. But the right is so busy defending liberties
against such menaces as Social Security, Medicare, and public education that
it seems not to mind a quantum expansion in official eavesdropping, summary
searches and seizures, clandestine activities in the name of national
security, rough justice for the sake of fighting crime, or the private
appropriation of what is necessarily public.
Oddly, too, the American right seems oblivious to the assault on liberty and
privacy by private property itself. Americans are increasingly uneasy about
the dissemination of supposedly confidential data collected for a supposedly
narrow purpose. Information collected in a medical examination for life
insurance can go into a data bank and be used for everything from marketing of
products to denial of health insurance. Investigative reporters have
demonstrated how easy it is to crack the databases maintained by consumer
credit companies. Despite government's obvious capacity to snoop, governmental
non-police agencies such as the Social Security Administration, the Health
Care Financing Agency, the Census Bureau, and even the hated IRS have done a
rather better job than private data banks of maintaining good boundaries and
protecting citizen privacy.
Since, in the Hayekian world, private property is by definition the guardian
of liberty, the right does not know how to think about these abuses. They
occur in the "wrong" ideological pigeonhole. Redress of private-sector
assaults on privacy, moreover, entails public regulation, which (again by
definition) is held to be the greater constraint on liberty. Denying a willing
buyer the right to purchase someone's medical records, or a telemarketer the
right to invade your home during dinner, is seen as a crime against private
enterprise. Even the Cato Institute, as close to principled-libertarian as the
American right gets, considers the commercial right to buy and sell data a
sacrosanct freedom. The right's solicitude for property rights trumps what
should be a more fundamental concern--with personal privacy and liberty.
As I write, the European Union has just put into effect a legal regime that
sharply constrains U.S.-style commerce in personal data. The European approach
virtually prohibits companies from trafficking in data beyond the purposes for
which it was collected. Europe has long had tougher limits on practices such
as telemarketing. Most European countries allow consumers to opt out of the
pool of people who can be solicited by telemarketers. These constraints will
now be extended to junk e-mails and junk faxes. More fundamentally, the new
law requires all companies that collect personal data to disclose how they
intend to use it and to obtain informed consent before it can be added to the
data pool that can be sold. Interestingly, American trade negotiators are
fiercely resisting the European privacy regime as a restraint on the rights of
property.
Note the several ironies. Most European nations have government identity
cards, something fiercely resisted in the U.S. as a state invasion of liberty.
Yet Europe does a much more comprehensive job of collecting--and
safeguarding--personal data collected for state purposes, such as vital
statistics. These public databases in turn facilitate a variety of other
public purposes such as public health measures and voting. They make
unnecessary the vast outlays expended in the U.S. on private databases, which
manage to be both inefficiently fragmented and duplicative, yet alarmingly
porous.
Contrary to the intuitions of conservatives, the European state, on balance,
is a better guardian of privacy than the American private sector. The laws of
most European nations, unlike Anglo-Saxon law, codify a right to privacy. Our
right to privacy, as Louis Brandeis suggested, is merely inferred from the
common law. For example, the publication of someone else's letters can be
understood as a breach of an implied contract, or an encroachment on literary
property rights. But even though Brandeis repeatedly quoted Judge Cooley's
dictum that the most fundamental right is the right "to be let alone," our
system nowhere makes this right categorical.
We live in an age of inversion and trespass. While the private realm is
being invaded, some things that should be public are being rapidly privatized.
I refer not just to the public services and institutions appropriated by
profit-making companies or seceding from the polity in a new feudalism. [See
Andrew Stark, "Arresting Developments," page 41.] Data sources that used to be
in the public domain are now treated as proprietary information. Industry is
lobbying to extend the copyright period for decades more. Again in the context
of global trade negotiations, U.S. government negotiators, acting at the
behest of American industry, are fiercely resisting efforts by poorer nations
to treat even a handful of lifesaving vaccines, drugs, and hybrid seeds as
public goods rather than proprietary commercial products.
The preservation of a private realm from public incursion, and vice versa,
has long been the defining characteristic of democratic societies. Hannah
Arendt, in her 1950 Origins of Totalitarianism, famously wrote that the
essence of the totalitarian state was its attempt to obliterate the boundary
between the private and the public, i.e., the political, realms. In her 1958
book, The Human Condition, Arendt observed, more subtly, that:
The distinction between the public and private realms, seen from t
he
viewpoint of privacy rather than of the body politic, equals the
distinction between things that should be shown and things that sh
ould
hidden....The most elementary meaning of the two realms indicates
that
there are things that need to be hidden, and others that need to b
e
displayed publicly, if they are to exist at all.
A public realm, the business of people as citizens, must be relentlessly
public if it is to be viable, Arendt believed. A polity rife with secret
activities and private purposes loses its robust democratic character.
Conversely, when properly private matters are exposed to public prurience, our
personal liberty is diminished. Prosecutors and congressional investigators
have lately gone after diaries long held to be private. In the
Clinton/Starr/Lewinsky matter, the President's intimate life was exposed to
the kind of public scrutiny that would render ordinary life unbearable if it
were applied as a general principle.
Over a century ago, in a landmark 1890 Harvard Law Review essay co-authored
with Samuel D. Warren asserting a common-law right to privacy, Brandeis
condemned the tabloid journalism of the yellow-press era. "The press is
overstepping in every direction the obvious bounds of decency," young Brandeis
wrote, sounding uncannily like a Nieman report lamenting Matt Drudge. "Gossip
is no longer the resource of the idle and vicious, but has become a trade....
"
But Brandeis was not just decrying random invasions of privacy. The villain
of his piece was ... commerce. "In this as in other branches of commerce, the
supply creates its own demand. Each crop of unseemly gossip, thus harvested,
becomes the seed of more," he continued. "Triviality destroys at once
robustness of thought and delicacy of feeling." Brandeis understood that
private commerce could pillage the privacy, as well as the economic security,
of the individual. On both counts he reasonably sought redress using courts
and legislatures--the instruments of the public realm--to rescue private
space. A century later, privacy is under new assault, thanks to the bizarre
alliance between "news" media that have become unfettered instruments of pure
commerce and an inquisitorial state inflamed by pseudo-conservative moral
fundamentalists.
Are liberals today any clearer about the public and the private? We are
surely more consistent civil libertarians. However, in this age of trespass,
liberals and feminists have taken a good deal of heat for such slogans of
trespass as "The personal is political." The concept is still useful, I think,
but the Clinton/Starr/Lewinsky affair suggests that it needs to be carefully
bounded.
Liberals have quite properly used the state to expand the domain of rights
as a strategy of increasing personal liberties, especially for groups whose
liberties were previously constrained by slavery, segregation, and racial and
sex discrimination. Many of these inequities were most vividly manifest in
what seemed to be domestic, even intimate, spheres, which nonetheless
reflected broader power relations in society; they only seemed personal.
Racial or gender discrimination, as Gary Becker asserted with the peculiar
obtuseness of the Chicago economist, was nothing but a private "taste." But if
a black person was consigned to the scullery, or if a woman was doing more
than her share of housework and child-rearing, that reality was not just the
product of domestic negotiations, or of biology. The domestic division of
labor also reflected society's ground rules, which in turn reflected and
reinforced unequal power--the fact that society tacitly expected husband to be
"breadwinner," and upheld that role through a variety of laws ranging from the
tax code to the Social Security system, as well as levying career penalties
for a father (or mother) who chose to spend time with offspring. A seeming
domestic quarrel about mundane chores was really a much more profound
political fight. By the same token, the very high burden of proof in rape
cases and the light treatment of powerful men who extracted sexual favors of
women in their employ reflected a similar power imbalance.
But by the 1990s, some feminists were wondering whether some of the personal
was properly private, and whether some cherished laws and doctrines were in
fact antithetical to both equality and privacy. Taken to an extreme, the
concept of sexual harassment not only puts into the public legal realm
properly private matters. It also restores an archaic set of assumptions about
the special vulnerability of women, assumptions that deny the equal personhood
(the "agency") of women. Still, in our effort to reclaim a defensible intimate
realm, it would be a mistake to conclude that the personal is never political.
Compared to the conservative muddle, the liberal reconsideration of the proper
line between public and private can be considered a fine-tuning, not a
wholesale default.
What, finally, explains the right's double standard--its high anxiety about
state economic power, and the free pass for both state police power and
assaults on liberty by the market? Let me violate the rules of good theater
and introduce a new character in the final act--class. Look at the apparent
muddle through the lens of class and the logic falls into place.
After all, society's (mostly Republican) economic elite doesn't need social
insurance; it worries more about the rights of producers than consumers; and
it has little fear of expanded search procedures or longer prison sentences
directed mainly against lower-class Americans. The elite has little personal
concern if immigrants are treated to Orwellian nightmares (unless they are
foreign computer programmers in short supply, on whose behalf a special
liberalization of the immigration laws was just enacted). The right, defending
class interests, is much more worried about government property "takings" than
about takings of civil liberty. And, despite the seeming contradiction, it is
more than willing to have government play a highly interventionist role when
that serves elite interests, as in the case of expanded rights for
intellectual property. Where you stand still depends mostly on where you sit.
The propertied right, representing the power center of American
conservatism, is far too indulgent of the puritanical right, which cares
little about liberty and would willingly use the state to enforce social
conformity, even in intimate realms. This tactical opportunism is
shortsighted, because the ancient libertarian defense of a private sphere, and
its worry about concentrated power, are both substantially valid concerns. The
constitutional founders, good conservative liberals, knew that a competent
state was necessary to defend personal freedoms, both from temporary moral
majorities and from the state itself.
The conservative default, therefore, leaves liberals with a double
responsibility. We need to be extra vigilant against assaults on liberty from
whatever quarter, whether from the police powers of the state, the incursions
of the market, new wrongs wrought by well-intentioned new rights, or even the
occasional abuses of our cherished welfare state (now often in the hands of
its enemies). We are all better served if the public realm stays public and
the intimate one remains private.
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