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Toward a conservative conception of privacy

By Steve Lilienthal
web posted November 24, 2003

Conservative defenders of privacy and constitutional liberties are focused at the national level on revising the provisions of the USA-PATRIOT Act that invite potential abuses by law enforcement and overhauling the CAPPS II proposal.

However, the state level is also important too, perhaps more important, because a citizenry that exercises vigilance in defense of its constitutional liberties at the local level is much less likely to stand for infringements at the national level. There is no better forum for activists to work than the state and local level, an area in which your impact is directly felt and experienced. Your state legislator and local officials are usually more accessible than your Federal legislators, and the process of initiative and referendum is available in many state and localities, providing an avenue for citizens to vote directly on issues involving privacy and liberties.

One important measure recognizing the importance of privacy that is desired by advocates who are not culturally conservative is the recognition of privacy in state constitutions.

For instance, California's Constitution in its First Article, Section One declares:

"All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

Florida Constitution's "Declaration of Rights" (Article One, Section 23) states unequivocally that "Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein." It adds, quite properly, "This section shall not be construed to limit the public's right of access to public records and meetings as provided by law."

Those states with provisions in their constitutions protecting privacy are Alaska, Arizona, California, Florida, Hawaii, Montana, and Washington. Hawaii, Illinois, Louisiana and South Carolina have provisions against "unreasonable intrusions.'

Conservative defenders of liberty and privacy may welcome the fact that there are state constitutions that address privacy as a right to be protected. Indeed, they may be helpful in defending home schooling, particularly if the parents in question are not religious, or if the state constitution has no specific language protecting religious freedom or parental rights.

But conservatives who believe in ordered liberty that respects the right to life should beware.

The idea of a right to privacy in much of the contemporary political debate is defined through the prism of abortion. Many libertarians and liberals understandably embrace such constitutional provisions, understanding that it will be interpreted in many state courts in the context of Roe v. Wade, which placed precedence on the right of the woman carrying the child in making a decision about her pregnancy. State laws prohibiting abortion are considered by many liberals and libertarians to be excessive and to lead to infringements upon a woman's privacy.

Thus, there is an important difference between those who value life from the moment of conception and the liberals and libertarians who are concerned with protecting the public from excessive governmental intrusions into their lives and those of their family but who support abortion rights. Cultural and traditionalist conservatives recognize in this case the right to life for the unborn child must take precedence given that a human live is at stake. Thus, the state has a duty to outlaw abortion in all but extreme cases if it is to fulfill the wish expressed by our forefathers when declaring our nation's independence that all Americans have the "unalienable rights" of life and liberty.

That fact acknowledged, the conservative defender of privacy and constitutional liberties still can play a vital role at the state and local level in seeking to protect privacy and constitutional liberties. After all, Russell Kirk in outlining conservative principles advised, "Constitutional restrictions, political checks and balances, adequate enforcement of the laws, the old intricate web of restraints upon will and appetite -- these the conservative approves as instruments of freedom and order. A just government maintains a healthy tension between the claims of authority and the claims of liberty."

Does your state constitution acknowledge the rights of parents, religious worshippers, and property owners? Does the lack of such provisions grant the state the right to interfere?

The latter right -- property -- is one addressed by Kirk: "Separate property from private possession, and Leviathan becomes mater of all…The more widespread is the possession of private property, the more stable and productive is a commonwealth…Getting and spending are not the chief aims of human existence; but a sound economic basis for the person, the family, and the commonwealth is much to be desired."

On a practical level, the defender of privacy and constitutional liberties can work to ensure that provisions offering protection of parental rights, religious freedom, and property rights are indeed included in your state constitution.

Then, there is the handling of sensitive personal data?

Conservatives were clearly concerned about the Total Information Awareness program, later renamed Terrorism Information Awareness in a move to make it more politically saleable program, before it was scuttled due to a rising public outcry. TIA intended to use data-mining techniques that, if misused, could cause significant infringements on the privacy of citizens. But there is a state level program called MATRIX that should also be of concern; it is considered to be a mini-TIA, funded by grants from the Justice Department and Office of Homeland Security. MATRIX should be of particular concern if
you live in Connecticut, Florida, Georgia, Michigan, New York, Ohio, Pennsylvania and Utah. A number of states had pulled out of the program due to concerns about expenses or privacy, including Texas, Oregon and South Carolina.

The company charged with having helped to develop the MATRIX system is Seisent, a Boca Raton firm known for its massive database full of information from public records. LawTechnologyNews was moved to comment about Seisint's "Accurint" service: "Hands down, the most crowded and positively unnerving demonstration at summer tradeshows was Seisint Inc.'s Accurint service, which helps lawyers and other researchers track down just about anybody."

Senator Ron Wyden (D-OR) introduced on the federal level a bill -- S1484 -- The Citizens' Protection In Federal Databases Act of 2003 -- with the intent of instilling more accountability in how Federal law enforcement, intelligence, and national security agencies are using databases. IT requires those agencies to report to Congress on what databases they have acquired, what types of information they contain, and it provides a prohibition of hypothetical modeling of people who may commit a crime.

Why not state versions of Wyden's bill?

This is just one example where defenders of privacy and constitutional liberties working on the state level can be influential by not only seeking a legislative remedy but by helping to alert their fellow citizens to the importance of protecting privacy and liberties from the conservative standpoint of reining in unwarranted powers of the state, not championing unrestrained individualism no matter the cost in human life

There are other areas where the states may be lacking in protecting the privacy and constitutional liberties of their citizens.

A good guide for the activist to know what is or is not covered by his state's laws is the Compilation of State and Federal Privacy Laws by Robert Ellis Smith and James Sulankowski (publisher: Privacy Journal.) That will be a good first starting point to begin to understand what can be done to better your state's protection of privacy for families and individuals from excessive governmental intrusions or mishandling of personal information.

Despite the differences with liberals and libertarians on issues such as abortion, on many issues alliances can be built with them. In fact, it will be absolutely necessary to do so to achieve victory in the state legislature or at the polls. Indeed, a few weeks ago, COCL Update profiled Janine Hansen, the Nevada President of Eagle Forum, detailing her work with her states' liberals and libertarians, as well as conservatives and moderates, who share concerns about the potential for abuse contained within provisions of the USA-PATRIOT Act.

Conservatives have a vested interest in curbing excessive governmental power. Frank Meyer, the political thinker during the early days of National Review, who sought to fuse traditional conservative and libertarian principles, is worth paraphrasing. The energy of today's conservatism must be devoted to limiting the power of the state in an era different than what he confronted. Today's conservative confronts government interest in harnessing powerful new surveillance and tracking technologies and continuing, heavy-handed bureaucratic regulation over our lives and property. Also, there is the new international and domestic threat of terrorism and, in reaction, new powers given to our government in the name of national security but the potential to be used for very different purposes against people other than terrorists. Conservatives must be leaders in the effort to preserve individual freedom and the importance of traditional values as much as possible. We understand that order is important to ensuring the continuation of our nation's freedom, whereas unrestrained libertarianism places greater value on liberty alone, vesting no real worth in order. On the other hand, an excessive value placed on order will destroy freedom.

The challenge confronting conservatives is to seek the proper balance between order and liberty. That calls for the exercise of eternal vigilance, guided by a practical and realistic outlook. From the standpoint of the activist, he needs to consider where his influence can be felt most. Naturally, what happens at the Federal level in regard to our privacy and constitutional liberties is very important. Conservative defenders of privacy and liberty have every reason to keep their eye trained on the Federal Leviathan to fight its attempts to encroach upon our liberties. But there is no better place to raise the awareness of the importance of protecting privacy and liberties than your own backyard. It is an effort worth making. The payoff will be in ensuring the protection of our essential freedoms and a continuing adherence to the traditions that are important to our country's continued survival.

Steve Lilienthal is Director of the Center for Privacy and Technology Policy at the Free Congress Foundation.

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