Ayn Rand, the controversial darling of the rightmost extremities in modern politics, once wrote, “Civilization is the progress of a society towards privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.”
In this passage there are a number of tantalizing little tidbits of social philosophy. Perhaps the most interesting of these is the notion that privacy equals progress.
Setting aside the expansive debate as to whether “progress” is an appropriate way to characterize change in society, the idea that progress could be measured in terms of privacy is both philosophically and legally intriguing.
The evolution of our Fourth Amendment protections against unreasonable search certainly reflects a quest for greater privacy. When Fourth Amendment rights were first codified, the intent was the protection of property, not privacy. We see this going all the way back to early 17th century English Common Law in Semayne’s Case. The ruling in this famous case is where we get the phrase “That the house of everyone is to him as his castle” — a man’s home is his castle.
For most of our nation’s history this was probably a sufficient lens through which to view the amendment. As we entered the 20th century and technology began to rapidly change, communication technology in particular, our interpretation of what the Fourth Amendment protects also needed to change.
The reasoning is pretty simple: While the government may not physically intrude upon my home in the course of wiretapping my telephone conversations, they are nonetheless intruding upon something (albeit an intangible something) that I own — my words.
This transition from a property-based to a privacy-based interpretation became solidified in 1967 with decisions in a pair of landmark cases: Katz v. United States and Warden v. Hyden.
In this legal one-two punch, Katz strikes down the theory that a physical invasion was required; and after Hayden, the Fourth Amendment has been viewed as only providing a procedural mechanism to ensure that the search or seizure is reasonable.
Based on a narrow legal perspective, Rand might be on to something. A broadening of protections against the intrusion of government can hardly be a bad thing. Again, it bears mentioning that government loses none of its authority to intrude, just that those intrusions must be reasonable.
Solid as that seems, Rand’s subsequent statement, “The savage’s whole existence is public, ruled by the laws of his tribe,” is where things get sticky. On one front, technology, we have undeniable progress. On the aforementioned legal front, a certain evolution of thought is also evidenced, but in the broader social and cultural frontiers the waters grow muddy.
If progress is to be measured by increased privacy, how is it that we have used technological revolutions to freely abdicate many core privacy interests? How many of us spend hours sharing things on Facebook, Twitter, Instagram, Pinterest and other social media sites? The lonely trot out their most flattering photographs as bait on Match.com. We hunger for an intimacy and connection that is wholly predicated in confession and exhibition. Is this not the very antithesis of privacy?
Of course, there’s the whole other largely unseen realm of personal data that corporations collect, analyze and sell. Credit scores, buying habits, property ownership, health history, criminal records, educational records, job histories, familial and social relations are all neatly commoditized so that companies better understand where your buttons are.
They can do this because all of those end user agreements and terms of service contracts we sign without reading give them the right to do it. This is definitely the antithesis of greater privacy. It’s more akin to public vivisection.
As such, it is arguable that man has not set himself free. Rather, we have confused exposure with freedom; privacy with performance; and intrusion with invitation.
Matthew Pate is a former law enforcement executive who holds a doctorate in criminal justice from the University of Albany and who has advised police agencies around the country. He writes from Pine Bluff, Ark. Contact him at email@example.com.