Congress and the Right to Privacy
An Introductory Essay by Donald R. Wolfensberger
For the Congress Project Seminar on
“Congress and Individual Privacy in a New Security Age”
Woodrow Wilson International Center for Scholars
Monday, May 15, 2006
We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government.
–Supreme Court Justice William O. Douglas (1966)
An American has no sense of privacy. He does not know what it means. There is no such thing in the country.
–George Bernard Shaw (1933)
You already have zero privacy–get over it.
–Scott McNealy, CEO, Sun Microsystems
Could it be that Bill Douglas, GBS, and the CEO are all right: that is, that today there is relatively little or no privacy left in America, but no one really seems to care all that much? Have we somehow gradually accepted the erosion of privacy as being an inevitable part of living in a country in which equality and openness are paramount realities? And besides, no one should really have anything to hide from others, should they?
How else can one explain what passes daily as standard fare on television where people bare their souls (and everything else, it seems) to millions of strangers? Or should we draw a distinction between what people are willing to reveal to complete strangers and what they resent sharing with their own government? Could it be there is an ambivalence about personal privacy implanted in the American character dating back to the Revolution? On the one hand, we rebelled against the invasions of our hamlets, homes and pocketbooks by King George III’s bureaucrats and troops. Among “the long train of abuses and usurpations” complained of in the Declaration of Independence were these:
He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people....He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance. He has kept among us, in times of peace, standing armies, without the consent of our legislatures....quartering large bodies of armed troops among us....He has plundered our seas, ravaged our costs, burnt our towns, and
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destroyed the lives of our people.
It is little wonder, then, that the Declaration boldly declared that governments should be instituted with the consent of the governed to secure their unalienable rights of “life, liberty, and the pursuit of happiness,” and that any government that does not should be abolished and replaced by one that “shall seem most likely to effect their safety and happiness.”
On the other hand, the rapidly spreading democratic impulse in our young nation was leveling and exposing the populace. Old World aristocratic virtues like personal circumspection and interpersonal distance did not seem as relevant or possible in the new world given social conditions. Historian Gordon S. Wood describes the situation as follows:
In such a small-scale society, privacy as we know it did not exist, and our sharp modern distinction between private and public was as yet scarcely visible. Living quarters were crowded, and people who were not formally related--servants, hired laborers, nurses, and other lodgers--were often jammed together with family members in the same room or even in the same bed.
These crowded living conditions made it easy for people to know what everyone was up to, and some even considered it their duty to find out. As Wood points out:
Members of New England communities thought nothing of spying on and interfering with their neighbors’ most intimate affairs, in order, as one Massachusetts man put it in 1760, “not to Suffer Sin in My Fellow Creature or Neighbor.” People took the injunction to be their brother’s keeper very seriously and turned one another in for adultery, wife-beating, or any other violation of community norms.1
It is still true that in