Privacy Rights and Anonymity

1.   Privacy and Anonymity

   Privacy is sometimes expressed in terms of anonymity: the desire to be left alone to pursue one's interests and goals without unjustified interference or scrutiny. Anonymous communications protect both an individual's privacy and the right to protest unjust policies or laws. For example, the The Federalist Papers written by Alexander Hamilton, James Madison, and John Jay were published anonymously. But, anonymity is not without other consequences. Anonymity protects both patriot and criminal alike. As a result, there are two very different views about whether anonymity should be protected by law.

(a) One view recognizes that anonymity can sometimes protect those who engage in criminal or otherwise illegal activities. But, the intrusions of modern life bolstered by digital technology make it very difficult for law-abiding citizen to find solace in personal pursuits conducted without the threat of continuous observation. Furthermore, some protection of anonymity is needed to support other rights such as the First Amendment rights of free speech and association. After all, even extremist groups such as neo-Nazis have the right to associate and publicize their views. No one should be convicted for thoughts. On the other hand, when extremists put violent words into action, they should face the full measure of our justice system. While anonymity in support of a citizen's rights has costs, its benefits outweight them.

(b) The opposing view argues that there is no justifiable right to anonymity. Those who would plot to harm us through violence or crime should not be protected, because the costs are too high. Whether it is the loss of property--or worse, the loss of lives--law enforcement should use every means to seek out and prevent such acts. While it is admitted that society's predators are outliers, it is not possible to identify them without separating them from law-abiding society. Consequently, anonymous communications are impractical to meet these goals. And after all, if you are a law-abiding citizen whose actions are not illegal, you should have nothing to hide anyway. Protecting freedoms have some costs. In this instance, loss of anonymity is a small price to pay.

   Consider these two opposing positions. Which do you think is more justifiable? (a)? (b)? neither? Why? Explain and defend your views. Offer additional evidence or considerations to support your position.

2.   The Fourth Amendment and the NSA

   Defenders of the NSA's surveillance of U.S. citizens argue that the agency's collection of phone calls made by its citizens is not entirely illegal, as some suspect. Jeffrey Toobin (New Yorker) argues

Based on the ruling in a 1979 Supreme Court case, Smith v. Maryland, it is well established that individuals do not have an expectation of privacy in the phone numbers they call. This is not entirely surprising; we all know that we’re already sharing that information with the phone company. In the same way, it’s long established that the government has great latitude in intercepting communications between the United States and other countries. It’s true, too, that while the Foreign Intelligence Surveillance Act court is largely toothless, it has, on occasion, rejected some N.S.A. procedures, and the agency has made adjustments in response. That is not the act of an entirely lawless agency.

   Toobin adds that the agency admits that there were less than three thousand incidents of unauthorized call data collection in the past twelve months (2014). But, this is probably a small percentage of the total number of calls made during that time. So, even if you disagree with these actions, they do not constitute a significant breach of privacy. After all, in a system so large, there are going to be some errors.

   How effective is this argument? Does it undermine the complaints about government invasion of privacy? Why? Why not? Explain and defend your views.

3.   The Myth of Privacy

     Some have argued that privacy is an anachronistic concept derived from a time when the conditions of life were decidedly different. It was easier to provide the kind of privacy envisioned by the Framers of the Constitution who inhabited a society built on an agrarian economy married to a frontier ethos. In this context, the "invasion" of privacy was not metaphorical: violence was often the means. Consequently, the only meaningful protection of privacy was defending the home against tresspass from either individuals or government. The Framers could not have predicted nor would they have understood the complexities of the social dependencies and interactions that define our existence today.

  Our reality is very different. After 9/11, it has become painfully obvious that there are threats to our security that by their very nature are random, unpredictable, covert and secretive. Post 9/11 public opinion has understandably shifted from concerns about personal freedoms and privacy more to concerns about safety and security first.

  Added to these considerations is the reality that digital information technology makes it easier to find, record, store and transmit lots of information about our so-called "private lives." Although some technologies can shield us and promote some security and privacy, for the most part, the balance tips significantly to the conclusion that we are fighting a losing battle to maintain privacy in public.

  Is it practical to try to "reign in" these "intrusive" technologies? Or are we trying to close the barn door long after the horse has fled? Privacy may have some desirable characteristics, but perhaps it is too expensive a luxury? National security may be much more important, for example. By this view, we would be better off recognizing that privacy is a myth and concentrating our efforts and interests in other areas that matter and are more practical. What is your take on these views? Explain and justify your conclusions.

4.  The Value of Privacy

    We read earlier that the courts have engaged in a century long process to articulate and justify a citizen's right to privacy. From its beginnings in the Fourth Amendment, landmark decisions have interpreted--expanding and retracting--this very personal right. The crisis today is that technology has advanced to such an extent that protecting privacy rights is even more difficult. Digital information technology, in particular, threatens our ability to maintain private information and communications.

   Is this a battle worth waging? Why are information and communications privacy important? (If at all.) How should citizens be protected from invasions of these forms of privacy from both the government and the private sector? Specifically, what sort of regulations could be enacted to protect a person's private information and personal communications? Explain.

Maintained by JT Allen, Furman University
Last Modified: 4/18