The Attack on the Right to Privacy

The Right of Privacy, greatly cherished in the American tradition, is fast disappearing. We pay lip service to it and yet dishonor it in practice. As we pile high in apartments, as electronic surveillance increases, as the tentacles of government spread, Big Brother invades the precincts of our homes, audits our conversation and looks more and more over our shoulder.

The right of privacy--the right that Justice Brandeis called "the right to be let alone"--is nowhere expressly mentioned in the Constitution or Bill of Rights. But it is that right that many express guarantees or prohibitions protect.

Police can enter a house and seize certain articles, provided they have a warrant issued by a magistrate who is satisfied that there is probable cause that a crime has been committed. Police can also make arrests on such a showing. But the Fourth Amendment makes a man's home his castle and his person secure against arrests on suspicion or for investigation or for preventive purposes, as is done in some countries. These are important rights of privacy.

There are other constitutional areas of privacy. Every person has the right to free exercise of religion; and no religious test or requirement may be made a requirement for holding a public office. These guarantees in the First Amendment and in the body of the Constitution itself create enclaves that neither the states nor the Federal Government may enter. They may not legislate respecting them; and since they are not legitimate objects of legislation, no legislative committee may explore them nor probe them.

"To what church do you belong?" "Do you attend regularly?" "Do you believe in God?" These and like questions are none of the Government's business; the citizen can refuse to answer with impunity.

Freedom of speech has an aura of privacy. The First Amendment guarantees against Government abridgment of both freedom of speech and freedom of assembly. Nothing is said about freedom of association. It is implied, however. Freedom of assembly connotes a coming together of people--one form of association. Freedom of speech connotes not oral pronouncement alone but a whole congeries of various methods of expression. Joining a social, economic or political group is one method. Subscribing to a paper or a journal is another. Meeting and conversing with people are others. Believing, espousing, endorsing are still others.

"Do you believe in the United Nations?" "What are your views on Medicare?" "Do you endorse socialism?" "Did you vote for Henry Wallace?" "Are you against the segregation of races?" "Did you march in protest to our Vietnam policy?" "Do you read New Republic or Pravda or the Daily Worker?" These are none of government's business and are beyond the pale. For beliefs and reading habits are in the keeping of the individual and outside the reach of Big Brother.

Political parties, social groups, civil rights committees, trade unions, farmers' federations all have membership lists. Their disclosure usually would be harmless to anyone. So, normally, the management and the members would not hesitate to make them public. At times, however, emotions may run high, the group may be unpopular, the majority's demand for disclosure may be designed in purpose or effect to cause harm to the members. A group may be organized to promote racial equality and to litigate for the desegregation of public schools, parks and beaches. Those from Columbia, Yale, City College and Cornell who go to some areas in our country to contest racial discrimination may be criticized, jostled or run out of town. But since their appearance is transitory, usually no abiding harm is done. But those members who live in the area, giving the movement silent, spiritual help or financial support, may be greatly harassed and damaged if disclosure of their membership is made. They might lose their jobs; their bank loans might be called or not renewed; their club memberships, lost; and the like. The freedom to associate in that cause might then become so downright dangerous as to be worthless.

That is the basic reason disclosure of a membership list is not an absolute prerogative of government. The right to belong is kin to the right to believe. As I said, joining is one method of expressing one's ideas, of affirming one's beliefs, of pledging allegiance to a cause. This right to associate, though nowhere expressed in the Constitution or Bill of Rights, is a phase of the right to privacy, falling within the penumbra of the Bill of Rights, and is as fully protected as free speech itself.

One may ask, what, then, about a criminal syndicate? Are its members also clothed in constitutional immunity? Of course not. And the question and answer mark an important constitutional line.

There was a time when imagining the death of a king, that is, wishing the old boy were dead, was a crime. It was the most heinous of all crimes--treason--and punishable by death. Punishing thoughts, wishes, hopes and beliefs marked one of the bloodiest chapters in Anglo-American history.

Jefferson said that this crime of constructive treason "had drawn the blood of the best and honestest men in the kingdom." Indeed, men were executed merely for uttering treasonable words.

What the politicians did, the theologians did also. Heresy was expressing disbelief in the orthodox view: heresy was dissent; heresy was espousing a nonconformist creed that made the establishment angry.

These chapters on treason and heresy were well known in America when the Constitution and Bill of Rights were drafted and adopted. They were the main reason one's ideas, beliefs, faith and ideology were put beyond the reach of government. Government, Jefferson averred, had no rightful concern with those matters. It could step in only when ideas moved from the realm of thought into the realm of action. Overt acts were all that could be punished.

Jefferson said: "The opinions of men are not the object of civil government, nor under its jurisdiction.... It is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order."

Thus, the definition of treason in our Constitution requires proof of overt acts--not one but two to the same act of treason, save for a confession in open court.

This Jeffersonian concept, as applied to criminal syndicalism, for example, has two faces: One may, with immunity, wish, hope and pray that the regime will fall, and campaign to that end. Yet when he moves into action, collects hand grenades, prepares caches of rifles, organizes to assassinate the President, conspires to overthrow the Government by force, and the like, he steps over the line; and the right of privacy vanishes. Then the membership lists and the right to privacy lose their constitutional immunity; for the Constitution sets up no haven for illicit activities.

Those who disagree point to the Self-Incrimination Clause of the Fifth Amendment, which reads, "No person ... shall be compelled in any criminal case to be a witness against himself." This clause does create a zone of privacy, even for those suspected of crime; and it has been criticized on that ground. But it also serves a high purpose. It has roots deep in experience. There was a day when the prosecution could make its case out of the mouth of the accused. The man who stood mute when asked to plead was presumed to plead guilty. But his silence often reflected not guilt but contempt for the judicial regime. Torture and other forms of coercion were used to make men confess.

The Persians shaved the suspect's head, locked it in a stock and then poured hot lead on it.

The Chinese, under Chiang Kai-shek, put the suspect on a rack and stretched his legs until he confessed.

Hitler used the dentist chair, drilling through live teeth; and New York City police did the same.

In Washington, D. C, men were stripped, tied to a table and burned with live cigars.

Trujillo in the Dominican Republic set fire to women's hair and burned their arms with live cigarettes.

Texans took men into the woods at night, placed nooses around their necks and hoisted them into trees.

The French in Algeria attached electrodes to the testicles and gave a series of shocks until the desired confession came.

No people have been exempt from these coercive practices.

Torture produces unreliable confessions, as each person has a "breaking point" and can suffer pain only up to that point. We also know that everyone has a "consciousness of guilt." No life is blameless. And at times the sense of guilt--not over the crime being investigated but over some unrelated or remote transgressions-- bubbles up and one confesses to a crime he never committed. Moreover, a certain percentage of people have a desire to die, and confessing to a capital offense is an easier course than suicide. (continued on page 244)Right to Privacy(continued on page 192) Aside from these factors is the dignity of the individual. In a regime where the pointing of a finger creates a presumption of guilt, the failure to talk is fatal. But we have the accusatorial system under which a person accused is presumed innocent, the burden being on the Government to prove the charge beyond a reasonable doubt.

Our right of privacy includes the right to stand mute under police interrogation. The guilty may be the beneficiaries of this privilege. Yet so may the innocent. There is hardly a person who, though innocent, sometime in his life has not been caught in a web of circumstantial evidence that might implicate him in a minor or a serious crime. Prosecutions are often based on circumstantial evidence, and he who talks may be making concessions that are grist for the prosecutor's mill. So the right of privacy--the right to stay mute--expressed in the Fifth Amendment occupies a high place in our scheme of values.

What I have said represents the American ideal. But this right of privacy is being more and more invaded, more and more violated.

In the early days of the New Deal, the Fifth Amendment right of privacy was honored. In the Pecora investigation [the 1933 investigation of American financiers by the Senate Committee on Banking and Finance] and in the one I conducted for the Securities and Exchange Commission into reorganization practices, no witness was even asked a question when it was known he would invoke the privilege. With the arrival of Senator Joseph McCarthy in 1947 on the national scene, invocation of the privilege became a badge of infamy. Witnesses were, indeed, summoned to see how many times they could be made to invoke the Fifth Amendment. The phrase "Fifth Amendment Communist" became an epithet that even so-called scholars bandied about.

Police are supposed to get warrants to search houses and to arrest people. Warrants are seldom issued these days in Los Angeles. "Arrests for investigation" have run as high as 7000 a year in the nation's capital. There is, of course, no such "crime," except in Madrid, Peking, Moscow, Bangkok, Rangoon.

A lady on welfare who secretly has "a man in the house" forfeits her welfare payments. Midnight raids by inspectors, who get into homes without warrants, have become common. The inspectors are looking for "a man," whose presence means that the female recipient of aid is perpetrating a "fraud."

Vagrancy laws are used as the excuse for arresting innocent people or unpopular people or suspects.

A man in Los Angeles en route to a delicatessen at ten P.M. may resemble someone for whom the police are searching. They bundle him into the car, lock him up and book him for "vagrancy" while they investigate. Tucson, Arizona, where the Chamber of Commerce welcomes refugees from the cold and smog of East Coast winters, despises those refugees who arrive penniless. Its vagrancy laws are among the most vicious in the land. A "Tent City Hilton" on the outskirts of the town houses 1800 "vagrants" in the winter, their only crime being poverty and their urge being not to rape or rob but to feel a warm sun on theft backs.

In some Eastern cities, golfers who live in the plush areas of town drop their colored caddies off at a nearby bus station. A colored man seen loitering in a restricted area after dark is a "vagrant" and quickly picked up by the police.

Some magistrate courts convict 20 men a minute of vagrancy, the victims not being aware of the charge until after they are found guilty.

Though the Constitution protects free speech and the right of assembly, minorities who exercise those rights often feel the rough backhand of the law. An unpopular speaker, who makes an audience angry, is hauled off to jail, though the proper police function is to protect him from the mob.

Breach of the peace is a common excuse for an arrest when the only offense is espousal of an unpopular cause. If the speaker or picketeer resists arrest, then resisting arrest is a second unconstitutional charge made against him.

In Albuquerque, New Mexico, a professor who cannot sleep and goes for a midnight walk commits the crime of "vagrancy."

Traditionally, the police could search with warrants only for instruments of crime, for contraband (such as heroin) or for other illicit articles. A person's files, his diary, his correspondence, his conversation were immune from all searches. The police were not free to rummage around among one's personal effects and seize correspondence, invoices, and the like. One's personal effects were in a special zone of privacy that was immune from all police intrusions. That has now been changed by judicial construction: practically nothing is now immune from search and seizure--even one's telephone conversation or his exchange of confidences with his spouse.

Electronic surveillance, as well as wire tapping, is now recognized as a search and seizure within the meaning of the Fourth Amendment, as respects both state and Federal intrusions. Thus, a showing of "probable cause" is required; and the surveillance must be zeroed in on specific matters and not a general dragnet search.

But beyond police surveillance is surveillance by private parties. It is estimated that private surveillance through wire tapping and bugging exceeds official surveillance 200 times. A competitor, a rival, another family member, a litigant may make a game out of "bugging" to further their private interests. A client who talks to his lawyer in confidence, like a parishioner in the confessional with his priest, is now often talking for the "record." The "bug" may be in a stapler on the lawyer's desk, in the chandelier or in an inkwell. The receiving set may be down the street a block or two.

The Government may be implicated. The conference room may contain a two-way mirror; and everything said by a client to his lawyer in a Government waiting room may be audited.

The men dressed as telephone mechanics who drive up in a "telephone" truck may be Government men, placing a "bug."

The man or the woman applying for a Government job must disclose his or her race and religion, when, by constitutional standards, those facts are irrelevant to any qualifications for Government work.

Tests given by Government agencies often ask, "Do you believe in the second coming of Christ?"--a question that disqualifies some religious groups.

Government questionnaires probe the employee's marital relations, his premarital sexual relations, his reading habits.

The loyalty and security hearings, launched by Truman and extended by Eisenhower, have now reached 20,000,000 employees of Government agencies and of companies having procurement contracts. How one voted, whether one owns Paul Robeson records, whether Picasso is a favorite artist, whether The New Republic or Supreme Court decisions are read, whether one has a friend whom someone has accused of being "subversive," whether one thinks that Negro and white blood should be mixed in a blood bank--these are all used as ideological tests. The fact that any ideological test at all is tolerated is shocking by First Amendment standards. The fact that ideas and beliefs, as distinguished from actions and deeds, are probed runs counter to the American constitutional ideals. Yet we now seem committed to it.

As one views the increasing intrusions into the various realms of privacy since World War Two, he is, I think, bound to agree that we are approaching what Orwell described in 1984 as follows: "You had to live--did live, from habit that became instinct--in the assumption that every sound you made was overheard."

As the living space per capita decreases and people are concentrated into smaller and smaller areas (5000 per square block in some cities), any privacy that a person may once have had is gone. But beyond that is a startling erosion of privacy due to the pre-eminence of Big Brother.

We have not, of course, evolved into a totalitarian state. But the pattern of surveillance and conformity that possesses us marks a gravitation toward the collectivistic philosophy. That philosophy in ultimate terms requires men to walk in unison, uttering no "subversive" thoughts, reading what the powers that be consider orthodox and associating only with "safe" people.

Electronics have made it easy to penetrate any sanctuary and to break down the walls that have guarded people's confidences. Thus, the police have new and terrifying tools to search out even the ideological stray.

The climate of privacy once allowed the genius of our people to flourish. We may in time rebel against its loss. Only rebellion, I think, can save us from ultimate suffocation.