A Strong Analysis Of Privacy V. Public Access

“The Right to Privacy” by Ellen Alderman and Caroline Kennedy (Knopf, $36.95, 405 pp.)

In a society devoted to free expression and lust for information, privacy naturally suffers.

To many, no more powerful objection can be made against the “let-it-all-hang-out” state than that. We have our daily reminders that privacy is an endangered resource - tabloid-TV trash about family dysfunction, media surveillance of both celebrities and ordinary people, government and business exploitation of personal information through new technology. All of these seem to confirm a traditional view expressed by the authors: that loss of privacy equals damage to selfrespect, and triggers immediate shame and indignity.

Yet, there’s another way to look at loss of privacy, less common among lawyers, and far less popular generally: as a loss of unearned innocence, a loss of the ability to pretend, to keep up a front, to deceive oneself and others. When the private becomes public, truth can usually be found on the upswing, and abundant truth is one pillar of an ideal society. Thus the priority of the public over the private has a certain political and philosophical appeal.

Is that good enough reason to make protection of the right to privacy less than a compelling civic need?

One of the many virtues of “The Right to Privacy” by Ellen Alderman and Caroline Kennedy, a journalistic and legal study of victims of loss of privacy, is that it makes us feel in our gut the downside of the view that loss of privacy builds a stronger community.

Most discussions of privacy in law school and the appellate literature operate on the abstract plane of principle, with invocations of Justice Brandeis’ famous concern for the “right to be left alone.”Alderman and Kennedy, both Columbia Law School graduates, do their duty to that law, explaining it when necessary. But the heart of “The Right to Privacy,” a sequel to their successful previous collaboration, “In Our Defense: The Bill of Rights in Action,” is journalistic, almost literary. “See how these people have suffered,” they seem to say, as they relate the stories of victims on five battlefronts: “Privacy v. Law Enforcement”; “Privacy and Your Self”; “Privacy v. the Press”; “Privacy v. the Voyeur”; and “Privacy in the Workplace.”

In presenting such cases, a mix of headline events and less familiar incidents, Alderman and Kennedy provide good analytic service. They make clear that specific rights of privacy, where they exist, are rarely statutory stipulations, but rather emanations from common-law precedents, or state or federal constitutional principles. They convince one that, on the whole, privacy is losing ground against public access, and that we, as a society, should re-examine the balance. They come across as clearheaded, concerned, good-hearted advocates of a kinder, gentler way of dealing with each other.

The weakness of “The Right to Privacy,” however, is its virtual lack of philosophical dimension, of any questioning of the premises it holds dear. While Kennedy makes no direct mention or use of her own experience as a president’s daughter, she and her co-author, whom she also considers her best friend, plainly take for granted that the ability of individuals to wall off the public successfully, except when they choose to emerge, is a social good.

Much recent political thought, though, questions that assumption. It is at least arguable that reduction of privacy forces communities to bond more closely together, to confront ills they’ve previously swept under the rug, to remove the notion of shame from the merely unfortunate.

Their book stands tall as a thought-provoking rebuke to all who view intrusion on others too casually.