Defending the Right to Privacy

Here is an eloquent statement of the problem, but by whom?

Many things are necessary to lead a full, free life–good health, economic and educational opportunity, and a fair break in the marketplace, to name a few. But none of these is more important than the most basic of all individual rights the right to privacy. A system that fails to respect its citizens’ right to privacy fails to respect the citizens themselves.

. . .

Many of the good things in life that Americans take for granted would be impossible, or impossibly high-priced, without data retrieval systems and computer technology. But until the day comes when science finds a way of installing a conscience in every computer, we must develop human, personal safeguards that prevent computers from becoming huge, mechanical, impersonal robots that deprive us of our essential liberties.

Here is the heart of the matter: What a person earns, what he owes, what he gives to his church or to his charity is his own personal business and should not be spread around without his consent. When personal information is given or obtained for one purpose, such as a loan or credit at a store, it should not be secretly used by anyone for any other purpose.

To use James Madison’s terms, in pursuing the overall public good, we must make sure that we also protect the individual’s private rights. There is ample evidence that at the present time this is not being adequately done. In too many cases, unrestricted or improper use of personal information is being made.

In some instances, the information itself is inaccurate and has resulted in the withholding of credit or jobs from deserving individuals. In other cases, obsolete information has been used, such as arrest records which have not been updated to show that the charges made against an individual were subsequently dropped or the person found innocent. In many cases, the citizen is not even aware of what information is held on record, and if he wants to find out, he either has nowhere to turn or else he does not know where to turn.

Whether such information is provided and used by the government or the private sector, the injury to the individual is the same. His right to privacy has been seriously damaged. So we find that this happens sometimes beyond the point of repair. Frequently, the side effect is financial damage, but it sometimes goes further. Careers have been ruined, marriages have been wrecked, reputations built up over a lifetime have been destroyed by the misuse or abuse of data technology in both private and public hands.

It is clear, as one Government study has concluded, that “it is becoming much easier for record-keeping systems to affect people than for people to affect record-keeping systems.” Fortunately, more and more people are becoming aware of this growing threat.

. . .

In the first half of this century, Mr. Justice Brandeis called privacy the “fight most valued by civilized men.” In the last half of this century, we must also make it the right that is most protected.

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. Orin Kerr says:

    A speechwriter for Nixon.

  2. Gerard Magliocca says:

    Ding! Ding! Ding! Correct. (Maybe it was Pat Buchanan).