- The Washington Times - Thursday, September 3, 2009

ANALYSIS/OPINION:

IN CONFIDENCE

By Ronald Goldfarb

Yale University Press, $27.50, 289 pages

Reviewed by James Srodes

The way Washington lawyer Ronald Goldfarb tells it, he got the idea for this book while reading a New York Times article about a Catholic priest who had a young man confess to a murder for which two other men were about to be wrongly convicted. Eighteen years later, when the murderer died, the priest received permission from his superiors and took his information to authorities who initially ruled that while the confession might have been important as evidence for a jury to consider there was no reason to set aside its verdict. Only after federal appeals were the men released.

In its essence, this important book is about the changing nature of confidentiality, of the sanctity of privileged information and of the expectations of individual privacy in this 21st century where the technology of intrusion and the saturation of information are proving to be both a source of liberation and disturbing oppression. What Mr. Goldfarb has done is take the cliche about collisions between individual rights and society’s needs for transparency portrayed on “Law and Order” and other courtroom soap operas and put it squarely in front of us for a real-time consideration of just what kind of world we want to live in from now on.

In the interest of disclosure, I have dealt with Mr. Goldfarb in the past in his role as the pro bono legal adviser to the Washington Independent Writers group and on various literary matters. But this is Mr. Goldfarb as a creative legal philosopher. He has some very important things for both the layman and legal professional to consider about our expectations of privacy, assumptions we have all grown up with assuming were part of the common American heritage written into our Constitution by the Founders.

Except that they were not written into the Constitution at all. Most of our American standards of privacy have been fashioned and expanded during the last 100 years. Moreover, Mr. Goldfarb argues, “For better and worse, twenty-first century notions of privacy differ from twentieth-century standards of privacy.”

He notes: “Conflicts between secrecy and transparency are timeless; resolutions vary as cultures and times change. With changes in values, historical notions of privileged communications should be reconsidered. How relevant is the spousal privilege in a society in which so many couples (including same-sex couples) living intimately are not married and so many marriages are transitory? Is it not reasonable to hold a clergy member to account for failing to prevent a serious crime, since we separate church and state under the law? Given the realities of current ‘it-takes-a-village medical practice,’ where confidentiality is unrealistic, how can HIPAA-like [Health Insurance Portability and Accountability Act] rules be refined and enforced to protect against the inevitable unwarranted misuse of patient information? Are there instances where the attorney-client privilege is applied that are dated or violative of public interests, suggesting that those protections should be refined?”

Yet there are exceptions to the exceptions, as Mr. Goldfarb quickly concedes. Privacy within the family circle might well need to be violated to protect parents or children. There are new standards still to be worked out about the security of information provided to merchants and for other commercial activities. Along with the seemingly insatiable appetite for information by strangers about oneself, there is a countervailing social need for much the same information — about one’s financial, physical and mental health — in order to efficiently deliver valuable social services that did not exist a decade ago. And when does the laudable goal of greater transparency in political affairs threaten national security?

In addition to a valuable history of American privacy rules, this well-written book is efficiently organized by the sectors of confidentiality that apply to government officials, attorneys, medical personnel, psychotherapists, clergy, businessmen and journalists. In each sector, he offers sensible changes that we may want to institute but must at least consider in altering our guarantees and limitations on confidentiality. In some cases, say of government secrecy, he recommends legislative reforms that raise the standard of oversight. In others, such as the clash between prosecutorial evidence and a defendant’s right to a fair trial, judges should be free to compel normally privileged information to be brought forward.

Returning to the case of the priest’s delayed disclosure of a confessed murder, he argues for “an independent judicial balancing power so we don’t have absolute rules that protect or invade privacy and confidentiality automatically. There is no one-size-fits-all rule that will answer all questions all of the time. In the interest of justice, judges need to have the power to establish wise and flexible rules to protect openness, along with confidentiality and secrecy, but not to exalt either of those features.”

Mr. Goldfarb concludes with a plea that we conduct this needed discussion with wisdom and restraint. “In the conflict between openness, accountability, and transparency on one hand and privacy, anonymity, sanctuary, and confidentiality on the other, there should be no winners or losers, only wise compromises. We face neither the end of privacy and confidentiality nor the beginnings of a totally transparent society.”

This book is a must-read if we are to begin this discussion with any hope of agreement.

James Srodes is a local author-journalist and former president of the Washington Independent Writers group.

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