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CHAPTER 1
WHAT WE TALK ABOUT WHEN WE TALK ABOUT PRIVACY
I
Philadelphia, midmorning, Tuesday, May 29, 1787. The twenty-nine gentlemen sat, somewhat uneasily, in the East Room of Independence Hall exchanging rumors, theories, and conjecture. They didn't know each other particularly well, but then they certainly had a lot in common. They were all men of status and means. Men of comfort and learning in a land made up of mostly poor uneducated farmers. They were men of reputation. Patriots. A few of them were bona fide celebrities. Thomas Jefferson, sadly, was abroad in France, and John Adams was tending to the nation's affairs in England, but George Washington was there. The retired general had ridden into the city two weeks earlier like a conquering hero to the sound of cheers, ringing bells, and celebratory cannon fire. Benjamin Franklin had come as well. At eighty-one Pennsylvania's favorite son looked more like its great-grandfather — his insides torn apart by kidney stones and his joints aching from gout. Nevertheless, the legitimacy added by his presence was no small matter. As they waited for the day's proceedings to begin, the twenty-nine gentlemen all knew, quite frankly, that their purpose for being there was dangerously unclear and that their authority was murky at best.
It is James Madison we should keep our eye on. While most of the delegates to the Constitutional Convention were late to arrive in Philadelphia, thirty-six-year-old Madison had shown up eleven days early, with a plan. The present government, as it stood, was wholly unsuited to meet the needs of the people it meant to serve. Each state was essentially a sovereign nation, the economy was in shambles, conducting foreign relations was a nightmare, and a small rebellion had just recently been put down by force in the Massachusetts countryside. In their zeal to prevent the tyranny of a king the founding fathers had fallen victim to the tyranny of the mob. The Confederation, as Madison saw things, didn't need to be fixed. It needed to be dismantled and replaced with something stronger. Madison was resolved to say as much and he was resolved to say it early. While his more patient colleagues waited to see which way the wind blew, he would seize the initiative and propose the creation of a new government at the first opportunity. If successful, the scheme would be nothing short of a second revolution.
But before Madison could propose what we now call the Virginia Plan and take his rightful place in our historical memory as the "architect of the Constitution," there was a crucial matter of procedure that required the Convention's attention. As soon as General Washington called the day's meeting to order, George Wythe, known to his contemporaries as "Wythe the Just," rose to address the delegates. He had three proposals. First, everyone must agree that no notes or transcripts of their conversations would ever be reproduced without Washington's express permission. Second, no outsiders, under any circumstances, would be allowed access to the notes or transcripts kept by the Convention's secretary. And finally, nothing said behind the closed doors of Independence Hall that summer could ever be published or otherwise communicated to others "without leave." In other words, Wythe was suggesting the delegates all take a vow of secrecy. If they were to properly deal with the difficult task at hand, they would need to be frank with one another. And to do that they would need the confidence that comes with absolute privacy. Wythe's proposals were put to a vote. The framers agreed.
The next person to speak was Governor Edmund Randolph, Madison's companion from Virginia, who immediately gave voice to Madison's ideas and set the republic on a path toward its new beginning. He was free to make such a radical proposal because he understood — they all understood — that any backlash would be contained in the room and not published in the nation's newspapers. After a summer of candid conversation it was decided the Confederation would come to an end. A new national government under a new Constitution would emerge. And while that document would be published widely and debated rigorously in the name of transparency, the notes and transcripts of the Convention would not be released for another fifty years. Were it not for Wythe the Just and his demand for privacy, it is unlikely that the gentlemen would have fared so well.
II
So what is privacy? Arguably the most influential privacy scholar of the twentieth century was a Columbia law professor named Alan Westin. He said, in the 1960s, that privacy is "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others." Perhaps the most influential privacy scholar of the nineteenth century was a Supreme Court justice named Louis Brandeis. His definition of privacy, coined around 1890, had a bit more punch: "the right to be let alone." To be fair, neither of these definitions would survive wholly unscathed under a philosopher's lens. Not all privacy concerns have to do with information, and being "let alone" is a rather broad way to describe something so nuanced. But again, privacy is a slippery concept, and when speaking generally about the wide range of intrusions that constitute "privacy problems," these two sentiments expressed by these two giants are as good a place to start as any.
Let's work backwards. Let's say that you already have some basic intuitive sense of what is meant by the word privacy. Let's say that if a stranger approached you on the street and asked politely for unfettered access to your wallet and your electronic devices that you would feel a powerful urge to refuse: that even if you could ensure your banks accounts would not be drained and credit would not be ruined, you would still regard such a thing as a violation. This is about more than just money. "But if you aren't doing anything wrong, then you should have nothing to hide," says the stranger. Maybe, but the answer is still no.
So why refuse? There's more than one reason. Most people have at least one or two emails sitting in their inbox that, while neither immoral nor illegal, are incredibly personal. Other communications might not be so intimate but, if taken out of context and broadcast to others, could certainly be misunderstood and potentially damage personal or professional relationships. Perhaps you have a medical condition you'd prefer did not become common knowledge. Perhaps you have sensitive material that was given to you in confidence by a friend or employer that he or she wouldn't want shared. Perhaps your purchase history includes lice shampoo or bed-bug bombs, and you don't want others to think of you as that person who maybe has lice or bed bugs (first impressions tend to stick).
The important thing here is that privacy is not one single thing but a complicated assemblage of all the reasons you would instinctively refuse such a request. Some of your objections are easy to explain. Others not so much, but the feelings behind them are no less genuine just because they're difficult to articulate. Privacy is an umbrella term. Much like the word freedom, it speaks to a multitude of different yet related things. Some of these things are distinct, but in most cases they overlap in very interesting ways. And so a useful strategy when trying to make sense of privacy is to identify why it has value in the first place.
III
One reason privacy has value is that it can create space for the kinds of radical discussions that push against the status quo and established political norms. The authors of the Constitution didn't travel to Philadelphia to design a new system of government. They had, in fact, been ordered by Congress and their home states to repair the old one. When we talk today about the Articles of Confederation, America's original constitution, it is usually to speak of their deficiencies. But there was a lot contained within that document that the founding fathers were understandably committed to preserving.
The Articles of Confederation represented, for the first time, a process of nation building that had been solemnly ratified by thirteen very different state governments. It was the product of hard-struck compromises that took years to negotiate. It established a national Congress, delegated powers to make war and peace, and outlined a basic economic framework. Nobody who had a hand in writing it ever claimed it was perfect, which is why the founding fathers built in an amendment process. With a few well-placed tweaks the Articles might have served the new republic for generations.
Still, many Americans felt strongly that the negatives outweighed the positives. The Confederation Congress lacked the powers it needed to govern. It could request money but not levy taxes. It could negotiate foreign treaties but not enforce them. And because any change to the Articles could come only from the unanimous consent of all thirteen states, any one state could hold the nation hostage for any petty political reason (Rhode Island was particularly troublesome in this respect).
Then, in the winter of 1787, crisis. Amid a severe economic downturn armed gangs started springing up throughout the western counties of Massachusetts. Led by Daniel Shays, a former officer in the Revolution, a small army of debt-ridden soldiers marched on the federal arsenal at Springfield hoping to seize its guns, cannons, and powder. They were met there by General Benjamin Lincoln and quickly put down, but the larger implications of Shays' Rebellion could not be ignored. Armed insurrection spoke to growing conservative fears over the viability of the Confederation government. Henry Lee had seen the writing on the wall months earlier and warned George Washington that restlessness over the economy was "not confined to one state or to part of one state" but to "the whole." Smaller revolts had already sprung up in New Hampshire. Writing to a colleague, Washington later said the uprising left him "mortified beyond expression" and effectively rendered the republic "ridiculous and contemptible in the eyes of all Europe."
So, in response, the Confederation Congress called for a "grand convention" with delegates from each state. Many, like Madison, saw the gathering as an opportunity to begin anew. But it is one thing to think such things and another to discuss them openly. Madison might speak his peace and at any moment some Confederation loyalist, or perhaps just some plainly opportunistic delegate, might start throwing around words like treason. Wythe the Just's call for privacy freed them to speak their minds.
The noted constitutional historian Carol Berkin once asked who, without the guarantee of privacy, "wished to be on record supporting measures their local governments opposed? Who would dare to exceed or ignore his instructions if such independent actions were made public? Who would vote 'yea' on overthrowing the government?" Alan Westin agreed, noting that "if the Convention's work had been made public contemporaneously, it is unlikely that the compromises forged in private sessions could have been achieved."
Privacy is incredibly valuable to the democratic process, and not only because it gave us our Constitution. Consider how Americans choose their leaders. The United States has strict laws protecting the privacy of the ballot box — laws that were enacted in the 1890s to break up the power of parasitic political bosses. Back when such things were still a matter of public record, those who mustered enough courage to vote against their district's political machine could expect, if things didn't go their way, a loss of employment, a lack of municipal services, or even violent reprisals from hired thugs. The secret ballot helped fix that.
Consider how, without privacy, independent political groups would be unable to effectively fight for popular causes and bring about much needed social change as they have throughout our history. Before a social movement can be effective, activists and organizations must first conduct private meetings and strategy sessions to plot out a course of action and hone an intellectual platform. It is unlikely that civil rights groups like the NAACP or Martin Luther King's SCLC would have been so successful if every strategy session they conducted was recorded and every sympathetic financial donor, especially southern whites, had their identity made public. The same can be said for labor unions. And for religious groups. And for women's rights organizations. And for the LGBT movement. Americans have a legally recognized right to privacy in their political associations, and almost every western democracy has erected laws that limit access to the membership rosters and donor lists held by organizations that actively agitate the political system. Privacy carves out a space for such groups to hone and develop their platforms and strategies before taking them public. That, in turn, makes these groups more capable of effecting positive change.
Even a casual glance at the Bill of Rights reveals how integral privacy was to the framers' understanding of liberty. The Third Amendment prohibits soldiers from being quartered inside peoples' houses. The Fourth Amendment prohibits unreasonable searches and seizures and protects the privacy of our homes and our personal effects. The Fifth Amendment gives citizens the right to remain silent about their personal affairs when being interrogated. And none who signed the Constitution, most especially James Madison, author of the Bill of Rights, would have forgotten that a vow of secrecy was needed to give it life in the first place.
These things — voter privacy, organizational privacy, the origins of the Constitution and the Bill of Rights — are important to remember when thinking about what it takes to keep the American system afloat. We sometimes lose sight of the fact that the right to privacy isn't just about individuals. Privacy has societal value. It advances the cause of liberty.
Of course, one shouldn't be naïve. History also teaches us that too much privacy in our institutions can be disastrous for democracy and blind citizens to very real threats to their liberty. Democracies, as the saying goes, die in darkness. Over the centuries privacy has helped to mask corruption of all stripes: from elected officials embezzling public funds, to the solicitation of payoffs and bribes, to voter suppression, to limitations on marketplace competition, illegal surveillance operations, illegal military actions, and even illegal political assassinations. To be sure, transparency in government is an essential aspect of any free society. But so is privacy. The goal, then, is to find a workable interplay between these two competing and equally necessary values. The goal is balance. Only tyrants, fools, and zealots speak of such things in all-or-nothing terms.
IV
The desire for privacy is not a uniquely human trait. Complex political organs, shifting social and cultural hierarchies, superstructures and spheres — those powerful forces certainly influence how privacy is shaped and perceived over time, but a need for privacy is one of the most basic aspects of what it means to be alive. Naturalists and ecologists have discovered that most animals, especially mammals, seek periods of seclusion or small-group intimacy throughout their lives. This is often described as a tendency toward territoriality, where an animal will lay a private claim to a specific space and defend it against intruders. What Robert Ardrey called "the territorial imperative" has a variety of benefits, like providing a space for organisms to learn survival skills, to mate, and to safely raise young. Mammals in particular maintain complex norms of "social distance" through sensory perceptions like smells and sounds.
While not unique to humans, privacy is most definitely part of the human condition. Anthropologists, as Westin reminds us, have found that individuals in almost every society seek some measure of privacy for themselves and practice "avoidance rules" rooted in personal space to minimize socially undesirable events or situations. These rules help people protect themselves from the stresses and strains of constant social interaction.
Virtually every civilization has employed rules governing privacy, at least with regard to the concealment of sexual activity, urination and defecation, and female genitalia. Margaret Mead, the famous anthropologist, once observed that most societies consider their spiritual rituals to be private, particularly rites of passage where an individual spends a period of time in isolation. Many religious societies throughout history believed that they were constantly being watched by a god or gods, and that communication with these entities required either physical or psychological privacy to be most effective. In the words of the New England colony's spiritual leader Cotton Mather: "a Godly man will sometimes Retire, that he may carry on the Exercises of Godliness."
Privacy is good for the mind. Individuals, from time to time, need to carve out tiny pockets of isolation for emotional release, self-reflection, and a sort of mental recharging. We all know what it is to carry the weight of a day. We each have our own burdens, and we each juggle multiple versions of ourselves as our interactions shift among coworkers, strangers, acquaintances, friends, and loved ones. Social interaction, even in the best of circumstances, is mentally taxing, and the true significance of those interactions often only come to light after we set aside our social masks, in solitude, and reflect upon them.
(Continues…)
Excerpted from "None of Your Damn Business"
by .
Copyright © 2019 Lawrence Cappello.
Excerpted by permission of The University of Chicago Press.
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