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Privacy: Throwing Babies Out with Bath
Water
A theme runs through the following two news items:
privacy rights are under attack. A 'good' reason is
offered for the chipping away of privacies such as
the confidentiality of medical records. Moreover,
the cases are so legally tangled that analysis
becomes blurred and 'bad law' based on judicial
activism becomes more possible.
News item One: an Indiana judge www.medicalnewstoday.com/medicalnews.php?newsid=25528
ruled that Planned Parenthood must disclose to the
State its medical records of patients under 14.
The reason for searching en masse through the
records of 40 Planned Parenthood affiliates -- a
process referred to as "a fishing expedition" --
would be to verify that clinics are properly
reporting cases of child abuse. The complication:
since the clinics receive Medicaid reimbursement --
that is, tax funding -- the State has far more of a
presumptive 'right' to information than it would
have with a private clinic. Nevertheless, any
ruling may well set a future precedent for private
clinics and further erode parental rights in favor
of State supervision.
News Item Two: a civilian rape counselor
in Colorado may be imprisoned for www.medicalnewstoday.com/medicalnews.php?newsid=25528
refusing to provide a military court with records
of her sessions with a formerAir Force Academy
cadet. The ex-cadet is among approximately 150
women whose rape allegations caused Academy leaders
to exit in disgrace.
She has asked a district court to block her
unprecedented arrest by the military.
The reason for her threatened imprisonment? One
of the accused argues that his right to a fair
trial overrides the accuser's right to medical
privacy. One of the complications is the case now
spans two worlds of 'justice' -- civilian and
military -- each of which operate along different
rules.
Similarly complex cases are occurring across
North America.
Some rulings uphold privacy rights. For example,
on March 28, the Colorado Supreme Court www.ccadv.org/media/rmn_co_supreme_court_confidentiality_decision.pdf
ruled against the claim that a victim's records at
a domestic violence (DV) shelter are confidential
only for information she imparts but not for
information or service she receives.
But, overall, a principle of personal freedom is
being chipped away: privacy.
Privacy rests on the assumption that -- in the
absence of specific evidence of wrongdoing -- an
individual has a right to shut his or her front
door and tell other people (including government)
to mind their own business. This is a presumption
of innocence. Privacy also assumes an important
division between the personal and public spheres, a
division that is reflected in Constitutional
protections against unreasonable search and
seizure. Historically, privacy has stood as a
bulwark between individual rights and social
control.
Privacy comes into question whenever someone
enters certain areas of the public sphere: for
example, through filing a criminal charge such as
rape. Even then, however, the legal system has
evolved traditions to insure that privacy is not
excessively violated. These traditions include
spousal privilege, a prohibition against 'fishing
expeditions', and the confidentiality of
confessionals and medical records.
These evolved protections are under concerted
attack. In general, the attacks are occurring in
"gray" areas; new law and precedent is being
introduced through complicated cases where it is
possible to take contradictory positions depending
on the aspect you are examining.
It is interesting to ask, 'why are these attacks
happening with such frequency now?' I believe the
timing comes from the convergence of three
factors.
First, judicial decisions have become a form of
de facto law. The legal status of explosive issues,
from abortion to gay marriage, is being decided by
hundreds of courts at multiple levels as much as by
legislatures. Activist judges, political advocates,
and lawyers are redefining not only broad
principles of law -- e.g. Constitutionality -- but
also the minutia of law's application. The court
system has become a popular vehicle for sweeping
social change instead of its more traditional role
as a forum to evaluate the restitution or other
specific justice of individual cases. Privacy is
one of the many battlegrounds of judicial
activism.
Second, privacy has fallen into disrepute since
9/11. None of the cases cited above involve Home
Security. Nevertheless, all privacy rights suffer
from a general sense of anxiety that makes people
eager 'to trade rights for security'. If someone
refuses to provide personal information, such as
medical records, the question immediately arises,
"What do they have to hide." Standing on privacy
has gone from being the exercise of a right to
being an indication of guilt.
Third, society may have reached a 'tipping
point' on a broad range of issues; a tipping point
is when critical mass results from many small
changes that may have occurred over a long period.
How our society approaches issues like abortion,
rape, and DV appears to be at critical mass. And
these issues involve privacy.
On issues like rape, the backlash is heightened
by a growing sense that some women have abused the
system and hidden behind privacy to do so. For
example, reports of false accusations have become
commonplace; men's rights advocates argue that this
reflects a pro-woman bias in courts. For example,
courts routinely name an accused rapist while
shielding the accuser. And, in criminal procedures,
anonymity encourages abuse.
Such imbalances should be corrected but in
manner that equally protects, not equally violates
the privacy rights of men and women.
The social factors converging against privacy
rights -- and especially medical privacy -- are
powerful and persistent. They ride on the emotional
fuel provided by volatile concerns like abortion
and rape.
But there is a saying about babies and
bathwater. Those who push to strip away the
traditional protections of privacy may be trashing
a prerequisite of personal freedom. And, without
freedom, there is no security for
individuals…either in court or in society.
©2007, Wendy
McElroy
* * *
Wendy
McElroy is the editor of ifeminists.com
and a research fellow for The Independent Institute
in Oakland, Calif. She is the author and editor of
many books and articles, including her latest book,
Liberty for Women: Freedom and Feminism in the
21st Century. She lives with her husband in
Canada. E-Mail.
Also, see her daily blog at www.zetetics.com/mac
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