- - Tuesday, November 5, 2019

Although it begins and ends with Facebook founder Mark Zuckerberg’s 2018 congressional testimony, “None of Your Damn Business,” Lawrence Cappello’s trenchant, informed study of privcy issues in America covers a lot of territory in between. While the book’s subtitle limits it to the last century-and-a-half of U.S. history — from the late-19th century “Gilded Age” to the 21st-century “Digital Age” — it actually traces the origins of the subject back to the Founding Fathers.

Much has been made of the fact that the word “privacy” never appears in the U.S. Constitution. While this is literally true, the concept of privacy — and the basis for many later elaborations, refinements and (sometimes) distortions of it — permeate the document, as Mr. Cappello points out:

“Even a casual glance at the Bill of Rights reveals how integral privacy was to the framers’ understanding of liberty. The Third Amendment prohibits soldiers from being quartered inside people’s houses. The Fourth Amendment prohibits unreasonable searches and seizures and protects the privacy of our homes and our personal effects. The Fifth Amendment gives citizens the right to remain silent about their personal affairs when being interrogated. And none who signed the Constitution, most especially James Madison, author of the Bill of Rights, would have forgotten that a vow of secrecy was needed to give it life in the first place.”

When real or imagined dangers threaten, we sometimes forget that “the right to privacy isn’t just about individuals. Privacy has societal value. It advances the cause of liberty.” Calmly, clearly and sensibly, Mr. Cappello shows us how privacy as a right — and as a legal concept — gradually evolved as America itself evolved from small, largely rural beginnings into today’s incredibly intricate, sophisticated mega-state driven by an equally intricate, sophisticated mega-economy.

One of the problems with the current debate about cyber-privacy is the fact that we live in an information society driven by rapid, mass transmission of data, private and otherwise. The speed and volume have evolved much faster than a consensual societal approach for dealing with them. More and more people do more and more buying, selling and socializing on the Internet and related new ”public” channels of communication with each passing year, even as more and more people complain about the erosion of their privacy.

The author neatly skewers this techno-social catch-22, reminding us that, “we mustn’t forget that there will always be some Americans who simply don’t care much about their own privacy. Particularly with the advent of social media … the bigger fear for many Americans is that they’re not being watched. Those who find such behavior troubling should remember that the larger value of privacy is located on the societal level — it’s about more than individual rights.”

Perhaps the most vexed, nominally “privacy” issue is that involving abortion. Most of the pro-abortion legal arguments made in court — and usually won there — have been based on the decision to abort being a privacy-based “right” protecting personal, domestic, intimate decisions made “in private” from state interference. Privacy, however, is not a blanket immuity. A private, family-based decision to rob a bank or murder a spouse or sibling shouldn’t — and doesn’t legalize committing murder or robbing banks. Similarly, logic would dictate that the intimate nature of the decision to abort does not make the act or abortion either legal or illegal. 

The central issue isn’t privacy. It’s one of legally defining how and when life begins and where, if anywhere, an individual’s “right” to abort is trumped by a fetal “right” not to be killed. On this issue, society, the legal profession, and individual men and women have yet to achieve a definitive consensus. The confusion and flux won’t last forever, but it will take time to resolve. Privacy, per se, should be a peripheral factor at most.

On the larger privacy issues springing from modern technology, law, regulation and common sense will also gradually work their way, just as the invention of the automobile gradually led to the development of traffic laws, modern highway systems, safety and emission standards, and parking regulations.

Aside from a sweeping new federal regulatory approach dealing with cyber-privacy, Lawrence Cappello suggests that, “Those with little faith in the ability of lawmakers to provide effective privacy solutions should find some comfort in the knowledge that a number of developments suggest another way. Privacy, a thing traditionally discarded in favor of earnings, is increasingly becoming a marketable commodity. Privacy advocates now have a powerful and somewhat unfamiliar new weapon at their disposal: the profit motive.”

• Aram Bakshian Jr., a former aide to Presidents Nixon, Ford and Reagan, has written widely on politics, history, gastronomy and the arts.

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By Lawrence Cappello

University of Chicago Press, $30, 330 pages

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