I've Been Thinking Of Privacy By Fred Cederholm

Column for on/after June 4th

I’ve been thinking about privacy. Actually I’ve been thinking about George Orwell’s “Big Brother,” the Constitution, Homeland Security, investigations, Congress, the separation of powers, and Animal Farm. So much of what we do in our daily lives is being monitored - with or without our knowledge, or our permission. Just what is still “private” in our private lives?

You see the explosion of technologies and databases which has occurred in recent decades documents the minute details of who we call, who we email, what websites we visit, where we travel/drive, and what we purchase via credit/debit cards or checks. These data are ever so accessible both legally and illegally/covertly. The ever-present eye of the fictional “Big Brother” of George Orwell’s book, 1984, is alive and with us in the twenty-first century.

I have mixed feelings about this development. On one hand, there is the argument if you are doing nothing illegal (or in the wider sense - doing nothing “wrong” - by your own personal standards), should you even care? After all, one definition of “integrity” is that which one does in private when no one is watching. On the other hand, there is the side which questions why your routine business/affairs/actions should be available for the scrutiny/analysis of anyone else for whatever reason? Here the clandestine “eye” could be a challenge to your very integrity.

It may come as major surprise, but the US Constitution does not specifically mention rights to privacy. The legal fiction of privacy rights has “sort of” evolved via rulings of the US Supreme Court over the years – both by the cases they have heard as well as those lower court decisions whose rulings they chose to let stand. There may be the appearance of such “inherent rights” under the Fourth Amendment’s search and seizure limitations as well as the Fifth Amendment’s limits on self incrimination. The Ninth Amendment further muddies the waters: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (Huh?) Other than THAT, it’s just not there folks.

Under the guise of Homeland Security in the post 9-11 era, we the people have learned of government access to phone records, credit/debt card statements, global positioning satellite (GPS) trackings, web searching histories, and surveillance videos – all gathered by Uncle $ugar without benefit of either subpoenas or search warrants. We have been told such data is merely generic and is necessitated in the interest of security. The legal justification came from nothing more than the “I need it, I want it, it’s mine” of a gaggle of executive orders from the President.While there has been a tempest in a teapot on the web, there have been no court challenges, yet.

From my experiences as a forensic accountant investigator for the FDIC/RTC working on cases for failed banks and savings and loans, I know how the seemingly harmless “generic” data (that fell into my lap during the interventions at those institutions) could be leveraged into killer questions at subsequent depositions - and later into specific warrants and subpoenas. This is spinning straw into gold – pure and simple. When dealing with reputations, the appearance of impropriety is as lethal as any actual impropriety itself. Or, as in an underlying theme from the 1970 Oscar winning movie, Investigation of a Citizen Above Suspicion: “in every criminal a subversive may be hiding, and in every subversive a criminal may be hiding.”

Other than an occasional partisan “burp” from Capitol Hill, our elected members of Congress have been deafeningly silent on the assaults made on the privacy rights of mere citizens - until an ongoing bribery investigation of a US Congressman led to a search of his congressional office, that is... Now judging from the brouhaha coming from both sides of the aisle, the right to privacy has “roots” in the separation of powers guaranteed by the US Constitution. To fully appreciate/understand this blatant hypocrisy of selective outrage, one need only look to George Orwell’s other book, Animal Farm, which states that “all animals are created equal, but some are more equal than others.” Orwell’s choice for “the first among equals” species is just too metaphorically on point to be politically incorrect. I’m Fred Cederholm and I’ve been thinking. You should be thinking, too.

Copyright 2006 Questions, Inc. All rights reserved.

To “audit” this column and to learn more about the subjects discussed, please check out:

Things that are not in the U.S. Constitution
http://www.usconstitution.net/constnot.html#privacy

U.S. Constitution: Ninth Amendment
http://caselaw.lp.findlaw.com/data/constitution/amendment09/

'Investigation of a Citizen Above Suspicion' (1970)
http://www.calendarlive.com/movies/reviews/cl-et-citizen26sep26,2,2184670.story