Privacy and the Digital State Balancing Public Information and Personal Privacy

The terrorist attacks against the United States on September 11, 2001 have greatly affected our lives, our livelihoods, and perhaps our way of living. Our Constitution and Bill of Rights were designed to inhibit excessively powerful government. But now, we are counting on it to prevent Americans from being killed with impunity, and to "insure domestic tranquility". In these times, the government must concentrate more on protecting concrete lives than protecting intangible privacy. The subject of this book - privacy - is where the conflict among our competing interests after September 11 is likely to be sharpest. "The right to be let alone", pales next to the right not to be blown-up. So "privacy" will inevitably need to accommodate security and safety to a greater extent than before September 11. But for America to continue being America, our constitutional mandates must still be genuinely respected. Privacy and the Digital State argues that "privacy" is inherently relative, and is always balanced alongside of various social exigencies, such as other compelling rights guaranteed by the Constitution, the interest of the public in broad disclosure of and access to government records, and the desire to foster an efficient, productive economy. This book examines the recurring dialectic between "open government" and "privacy of personal information" and hopes to provide its readers with some additional perspective on striking that balance. While open access to government records promotes greater accountability, it must be balanced against the government's obligation to prevent unwarranted invasions of privacy where acutely personal information is involved. Two recent U.S. Supreme Court decisions, Bartnicki v. Vopper and Kyllo v. U.S., reflect the tensions and complexities in our attitudes and rules about privacy. In the case of an illegally intercepted cellular telephone call broadcast over the radio, a divided Court concluded that free speech trumped privacy. But where the government used new sense-enhancing technology to "search" the outside of a house for heat coming from marijuana grow lamps, the Court said it violated the Fourth Amendment. These cases demonstrate that the relationship between privacy and technology is increasingly uneasy. Privacy and the Digital State addresses the issue of government-held information in the digital age and argues that open access to public information and sensitivity to personal privacy can be effectively balanced at all levels of government.