- The Washington Times - Tuesday, January 11, 2000

In his fifth book, "The End of Privacy," Charles J. Sykes provides a disturbing examination of the myriad ways in which individual privacy is being eroded today. Mr. Sykes, an advocate of privacy rights, argues that new technologies, commercial ventures and government regulations are impinging upon our privacy to an extent never seen before an extent that demands increased legal protections. His book presents a solid case to support this position.

In present-day America, "privacy" has come to mean two types of freedom generally afforded to us by law and custom. The Supreme Court identified the presence of this dichotomy in Whalen vs. Roe (1977). The first type of freedom derives from the right each person possesses to restrict the disclosure of confidential information about himself to others. The second refers to the freedom of action allowing behavior that falls within a vaguely defined zone of inviolable personal autonomy (e.g., using birth control; engaging in sexual relations of one's choice).

The book presents a panoramic depiction of the ways we are losing our capacity to control personal information. For example, the exchange of data linked to our Social Security numbers is staggering. At the inception of the program in the 1930s, we were told that the Social Security number would never become a national identifier. However, it has gradually become precisely that. We are now required to provide it to pay federal, state, and local taxes, receive welfare benefits, and open bank accounts. Other examples abound.

In addition to governmental encroachments, the private sector is collecting, selling and sharing data about us on a grand scale. Mr. Sykes notes that a Texas woman received an obscene letter from a man who possessed an amazing amount of knowledge about her life. As it turned out, the writer was an incarcerated Texas felon being employed by a national marketing firm to enter data into its computer records. When the recipient of the letter sued the marketer, she discovered that her dossier was 25 single-spaced pages in length and contained over 900 pieces of information stretching back years. On the medical front, the revolution in genetics presents new threats to privacy. Mr. Sykes refers to a 1997 paper presented at the annual meeting of the American Society of Human Genetics which "reported that a survey of physicians, patients, and genetic counselors had identified 550 people denied insurance or jobs because of genetic information."

In the same vein, he quotes Associate Professor Jean McEwen of the Boston School of Law: "To an insurance underwriter, even a reference in a medical record to the fact that a person has banked his or her DNA in a particular disease-related data bank could trigger suspicion that a genetic disorder runs in the family. This deposit, in turn, could be used as a basis to deny coverage or at least to require DNA testing before issuing a policy." The computerization of such records will make it "nearly impossible to control the flow of this information." Growing public concern over the control of medical records prompted President Clinton to propose new safeguards late last year.

Not surprisingly, a ferocious battle to maintain privacy on the Internet has erupted. Mr. Sykes describes how federal law-enforcement agencies are waging a determined effort to prevent or undermine the encryption (encoding) of Internet messages. He observes that "[l]imiting our ability to use encryption technology remains a top priority for much of the federal government." However, unless effective encryption technology can be sold for private uses, e-commerce and other e-activities will simply not develop to their full potential. Here privacy has powerful allies.

The Federal Bureau of Investigation worries that organized crime and terrorists will increase their use of the Internet as a vehicle for plotting criminal activity. No one can deny the legitimacy of this concern, but when federal law-enforcement agencies suggested having private codes logged with the government, it caused a predictable furor. The Web community, now in the tens of millions, is intensely suspicious of such efforts and lets its representatives know this en masse, often via e-mail. Consequently, for the time being we are safe from this threat.

While I agree with Mr. Sykes about the dire need to protect the dissemination of private information, there are ways in which he goes too far. For one thing, he advocates expanding the zone of behavioral autonomy that notion of "privacy" which our courts have recognized and then used to overturn many laws that enforce traditional morality. Conservatives including Robert Bork have the better argument when they note that the American "judiciarchy" is merely dictating moral relativism and lawlessness from the bench in such instances. When Mr. Sykes attempts to make the point that Mr. Clinton's privacy was violated in the Lewinsky scandal, it is a confusing one.

Nevertheless, even if one does not share all of the author's conclusions, this is a book that should be recommended to policy-makers and laymen alike. If for no other reason, it is interesting to learn what strange political bedfellows the politics of privacy makes in this Information Age.

Christopher M. Gacek is a telecommunications attorney practicing in Washington.

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