I promised last week that this week I would write a blog on privacy. The academic blog I intended to write I will still write. The polemical blog I offer this week is prompted by a connection between a comment to my last blog and the events of Tucson.
Professor Adam Reed commented to my last blog that regulation stifles innovation; my response does not deny that fact, or possibility, but asks why the focus is always on government regulation and not on industry that historically has done far more to rub out discovery and innovation than government in a free market society has or ever will do.
The focus on government displaces a critique of the market that laissez-faire paradigmatic thought cannot countenance, evidence to the contrary notwithstanding.
And so it is with privacy too. To be sure, surveillance, search and seizure by government must be controlled. And to be sure, sometimes it is out of control, as is true of the Bush Administration's electronic surveillance program throughout most of the last decade. But if asked to choose between government, regulated by the Constitution, and the free market, which in the U.S. is hardly regulated on matters of privacy at all, hands down for me it is the latter.
Many authors -- O'Harrow and Solove and Lewis are my favorites -- have written extensively about how data mining, recombining and individual portfolio-making exact an ineluctable price on personal privacy, one that to date we can not yet even calculate all of the emotional, social, political or cultural costs. Yea, I don't like to pay taxes, that feels like it invades my privacy, and no, I REALLY do not enjoy having to pay an extra $1,200 in flood insurance because FEMA, making sure it will never be criticized again like it was in New Orleans after Katrina, has declared virtually the entire swath of the Finger Lakes a "flood zone;" in order to refinance a mortgage for our lake house I was REQUIRED to pay it. (And told every official I could get on the phone both governmental and banking that if Keuka Lake ever rose to the level for which I would need flood insurance, that 100 million year event would probably not have me submitting a claim!)
But at least those impositions are transparent. How every financial institution known to man, or so it would seem, got my home phone number in the pursuit of that refinanced mortgage and began calling me incessantly over the course of an 8 week period, is far more murky to understand. And spooky. I can trace the laws that tie a regulated bank to a regulatory body to writing the check for the flood insurance. I cannot tie how lending institutions far and wide know that I am suddenly "a person of interest."
This is one very small example of my point that the free market encroaches on my privacy all the time. Now I am going to go way out there on a limb. Another reason I do not have the academic blog on privacy ready today is because the time when I tend to write it, early morning, this week has been taken up by the events in Tucson. Shaken at first by the news, I was not immediately riveted, perhaps because I, like so many others, am getting jaded by these senseless shootings. Virginia Tech was my baptism by fire, and I have not been able to immerse myself in these stories since that event. But as I learned more about Congresswoman Giffords, her fortitude, courage, struggle to heal -- underscored by the fact that she is a Cornell alum -- I became more drawn into the story. Christina-Taylor Green did me in. President Obama's rendering of our grief and efforts to find meaning for us all to go on in the wake of this sadness had tears running down my cheeks at the kitchen table where I sit and read the newspaper on line and also write these blogs.
So maybe it is the force of emotion that is prompting me to take a great big leap: Where is the privacy in these acts of outrageous violence? Why can't a 9 year old girl, inspirational by any measure, be able to go with a kind neighbor to a public mall to meet a federal representative who models leadership for her and come home alive? I submit it is because, in some part, the paradigm of our free market culture displaces a clear-headed critique of all of the factors that contribute to this kind of event. Mental disturbance is not even exempt from this picture. How is it that we have taken "freedom" so far as to not use all of the knowledge we have about mental illness to be able to do more for people who suffer from it, including and perhaps especially those who demonstrate a penchant for violence? Why is regulation prohibited instead of the very sale of fire arms? How is it that we don't make the connections between our totems and our paradigms, even in the presence of persistent and repetitive evidence of serious harm to the common weal? Where is the love for privacy, not least cherished among those who advocate for full freedom in this area of access to guns, when it comes to simple acts such as being able to go to school, visit a mall, go to church, the Post Office or McDonalds?
Privacy is inexorably intertwined with personal autonomy. It includes the freedom to go out into the world, and so long as one's actions are legal, to do what one wants to do. The privacy of the Tucson victims is now irrevocably changed. Public life should not be a constant threat to bodily harm. Civil society should still involve some aspect of that personal privacy to be in public without exacting horrible costs. The failure to recognize in a clear-headed manner the need for balance between ideological extremes of a "free market" and "government regulation" results in disordered liberty.
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