Nine years ago, Danny Lee Kyllo was busted for growing pot after police used a thermal imager to detect heat emanating from high-intensity lights inside his house. This month the U.S. Supreme Court ruled that the police violated Kyllo's Fourth Amendment rights by conducting their infrared surveillance without a court order.
Shortly after the Supreme Court upheld the principle that a man's home is his castle, I started calling my credit card companies to let them know that I was moving to a new address. Some of them asked for my Social Security number to verify that I was whom I claimed to be.
Perhaps you don't see a connection between Kyllo's arrest and my conversations with Citibank and American Express. Neither do I, but William Safire does.
In a recent essay, the New York Times columnist rightly praises Justice Antonin Scalia's determination to shield our homes from the state's prying eyes. The same sort of motivation, Safire suggests, should lead Congress to stop businesses from asking their customers for certain kinds of information–their Social Security numbers, for instance.
In Safire's view, warrantless searches and credit card applications both infringe upon "the individual's right to privacy." He calls the Supreme Court's decision "heartening news to citizens who want to maintain personal control of their medical, financial and academic records, their buying habits, their genetic makeup and other intimate details of their lives." He insists that "such information should be available to others only with the individual's consent."
But consent is not enough for Safire. After all, I gave my Social Security number to Citibank voluntarily; they didn't hold a gun to my head. By contrast, Danny Lee Kyllo did not agree to let the cops monitor his house with a thermal imager. Furthermore, I'm pretty sure that Citibank is not going to use my Social Security number to kidnap me and lock me up.
Government's special powers require special limits on how it collects and handles information. Unlike private businesses, the government can legally compel you to supply information (through subpoenas, tax returns, driver's license applications, and so on). Another distinguishing feature of government is that it can use information about you to seize your property or deprive you of your freedom.
That's why the Fourth Amendment applies to the government but not to Amazon.com or L.L. Bean. "Having one's door broken down by police acting without a proper warrant is not like receiving an unwanted advertisement in the mail," observes Solveig Singleton, a privacy scholar at the Competitive Enterprise Institute, in a recent paper published by the National Center for Policy Analysis.
As that comparison suggests, the concerns of privacy advocates are many and varied. Singleton notes that the solution to junk mail (whether paper or electronic) is more information, not less: By knowing more about your interests, businesses can better target their appeals, so you'll be annoyed by fewer messages that hold no interest for you.
Similarly, Safire worries about "identity theft," in which criminals rip people off by pretending to be them. "The key to your identity door is your Social Security number," he writes. But when I call my credit card companies and try to access or change information in my records, it's their knowledge of my Social Security number that helps prevent identity theft.
Even when it's hard to imagine how the information a businesses collects could be used to hurt consumers, many people are vaguely uneasy about letting go of their data. But they're not necessarily willing to bear the burden of withholding information from companies whose privacy policies they consider inadequate. That would require too much research, and it might mean giving up otherwise appealing opportunities. "We're lazy," Safire concedes.
Instead, Safire wants the world rearranged to suit bashful, lazy people like him. He advocates an "opt-in" system in which the sharing of information would be prohibited without specific permission for each datum and use.
Another word for information sharing, of course, is speech, which is why Timothy Muris, the new chairman of the Federal Trade Commission, has argued that the Fair Credit Reporting Act is unconstitutional. If that position seems extreme, try to imagine an "opt-in" system for journalists, under which any information they obtained about someone through interviews, records, or observation could not be used without explicit written permission. Somehow I doubt that William Safire would support such a rule.