TCS Daily

Abortion, Bombs and Privacy

By Patrick Cox - July 12, 2005 12:00 AM

The terrorist bombings in London will further erode support for Roe v. Wade and may well lead to its overthrow.

I am not, in this forum, arguing that this is a good thing. Rather, I would like, if possible, to separate my views on abortion from the rather more interesting issues involving privacy and terrorism.


Within moments of the 7/7 bombings, English authorities were backing up data recorded by the half million surveillance cameras that monitor constantly London's streets, subways and other public places. Another million cameras, at least, are placed throughout Britain, and may help identify the perpetrators if it is determined that they commuted into London from outlying areas to plant the explosives.


There have been, as of this writing, no statements regarding the usefulness of those recorded images in identifying and apprehending the terrorists who planted the bombs, but it's hard to imagine that they will not play a key role.


The public, British and American, will thereby see the forensic value of the CCTV, Britain's closed-circuit television system.  Assuming, of course, that these recordings are as useful as I expect them to be, the system's PR quotient will upgrade significantly.


This, of course, will intensify and shift the ongoing debate regarding the public's right to privacy. I use the term "right," of course, rhetorically, as I personally do not see evidence of a privacy right, per se, either in U.S. Constitutional Law or Natural Rights theory.


Rather, I see a right to private property that is often confused with a right to privacy.


Obviously, we have the right to close our window shades and put up a fence around our property. We may even have the right to expect that our neighbors will not put spycams on poles to peer over our fences into our spaces. When we start asserting that we also have the right to prevent others from pointing any cameras, or eyes, at us or our property, we begin to exercise control over their property and rights. Thus does a theoretical right to privacy conflict with property rights.


This leads many privacy advocates to support a diminishment of property rights-based freedoms as necessary and legitimate for the prevention of unwanted exposure of individuals to public scrutiny. This, I think, is an argument that is fraught with peril.

If it is a violation of rights for me to take a picture of my neighbor -- from my own property using my own camera, extending the legal right not to be photographed as far as photons travel -- we have walked into a legal and philosophical no-man's land. The fact that most privacy advocates are concerned primarily with government use of these photons does not eliminate the problems with their postulate.


If we grant legitimacy to government for the administration of public properties, we can grant property rights to the administrators. If these administrators find it useful to view and record people in public places through electronic as well as personal means, there is no good rights argument that I know of to counter that impulse. Though many assert otherwise.


So strong is the reflex for the preservation of privacy, even some libertarians who profess a firm belief in property rights oppose, for example, Homeland Security's ability to access public, tax-funded library records. This puzzling and intellectually contradictory position would be understandable, and eminently defensible, if the libraries in question were privately owned -- but they are not.


Even some of my favorite thinkers reflexively oppose government surveillance in public places, including Dick Armey, who has led the battle against traffic monitoring by radar cameras. While it may be true that such automated ticketing devices are impractical, unfair, inefficient, a misallocation of resources, it is hard for me to see the difference between a patrolman recording radar data and a patrolman putting up a camera that records radar and photographic data.


I applaud, by the way, Armey's support of the individual's right to use strong encryption. On the other hand, I don't see a theoretical basis in support of the notion that government doesn't have the right to try to crack, with a warrant, my PGP or S/MIME encrypted e-mail. Similarly, HBO, Showtime and other networks have the right to encrypt their transmissions, but I also believe that, once satellite signals have entered my property without my permission, I have the right to try to decode them. If I accept that signal willingly through cable, however, and agree to limitations on my right to decrypt their data as a term of use, that is another matter.


We can, of course, choose to democratically limit government's right to record and store data such as that gathered by the CCTV, though I don't see any sort of libertarian property-rights argument in favor of doing so -- unless one accepts the anarchist argument. If, however, we discover that the CCTV helps find and eliminate the threat of additional attacks by the 7/7 perpetrators, it will be difficult to argue that the tradeoff of security for public anonymity is a wise one. (Readers interested in this issue may want to look at the work of science fiction writer and scientist David Brin, who has made this subject his own in a series of illuminating essays).


Regardless, it appears to me that one of the main effects of an expected shift in public acceptance of public surveillance will be the right to privacy as it is presented in U.S. law -- set forth in Justice John Marshall Harlan's 1961 dissent in Poe v. Ullman, involving an unenforced Connecticut law banning contraceptives.


That argument, in the opinion of many, conflated privacy with property rights, making the case that contraceptives should be legal not on the basis of traditional rights theories, but because individuals have a right not to have the intimate details of their sex lives examined by government.


While it is difficult not to be sympathetic to this argument when it is presented in such terms, it is also possible to be highly critical of the legal rationale even while agreeing with its motive. It is also possible to object to Roe v. Wade, that extended the right of privacy into the realm of abortion, while favoring abortion rights. Few seem to understand this subtlety, though, and abortion rights activists have painted themselves into the privacy corner.


As a result, the current debate over abortion is centered on the enigmatic Roe v. Wade and it, in turn, is based on the privacy argument put forth in Poe v. Ullman. When people start thinking about public cameras and their legitimacy in terms of crime and terror prevention, I suspect that philosophical support for Roe v. Wade will wane.


The author is an economist and writer in Florida.


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