PRIVACY: THE DEBATE IN THE UNITED STATES SINCE 1945 by Philippa Strum. New York: Harbrace, 1998. 288 pp. Paperback $21.00. ISBN: 0-15-501880-9.

TRANSFORMING PRIVACY: A TRANSPERSONAL PHILOSOPHY OF RIGHTS by Stefano Scoglio. Westport, Conn.: Praeger, 1998. 256 pp. Hardcover $59.95.
ISBN: 0-275-95607-5.

Reviewed by Bill Weaver, Department of Political Science, University of Texas at El Paso E-mail: wweaver@utep.edu.
 

Philippa Strum's new book on privacy is an absolute delight, and is perfect for college classes at all levels. Strum writes clearly and with great economy, and uses examples not merely meant to shock or dismay but also to make clear the underlying policy considerations and estimations of convenience that lead to incursions on privacy. She is clear about what points and issues she is going to cover in the book, and then follows through on each of these promises. At a little over two hundred pages, this book can be easily read in a short evening and is accessible to any fluent reader of English. Providing a general description of the book, Strum writes that "This volume argues that privacy was built into the Constitution, as originally written and into the Bill of Rights. It was, however, privacy only for people who were very much alike." The twin forces of progressing technology and an ever-increasing urbanized population composed of richly diverse cultures made increased observation of the individual both cost-efficient and socially justifiable. But Professor Strum is no Luddite, nor is she disposed to philosophical or abstract concerns with privacy. She takes a functionalist view of privacy and states that the two main reasons privacy should be given a more noble position in our legal pantheon is because it is necessary for dignity and for democratic regimes to work well: "Privacy, then is necessary for at least two reasons: for the psychological well-being of individuals and the space in which to develop and fulfill themselves, and for the proper functioning of democracy."

Because of her functionalism Professor Strum has no "deep" theories about privacy, but provides layer after layer of detail of how privacy has been punished repeatedly, and more fully, since the end of the Second World War. She divides this mass of detail and example up into chapters dealing with misuse of medical information, the birth and development of the social security number, normal life records (bank accounts, etc.), bodily integrity, crime and privacy, and observation and the workplace. Interspersed among these chapters are chapters about the pervasiveness of observation, and the ultimate question of whether or not privacy lost can be regained.

One of the constant subthemes throughout these chapters is the repeated failure to contain the use and distribution of information no matter how intense the efforts or how attentive the administrators. If information exists that can be used for collateral illicit reasons it will be utilized to the maximum extent possible, regardless of how such information is supposed to be legally contained. For example, Strum tells us the story of Jeffrey Rothfelder, a writer for Business Week, who with little more than fifty dollars and an hour or so of effort discovered Dan Quayle's social security information, obtained a credit report, and his unlisted address and telephone number. The social security number has become the accretion point for virtually everything knowable about a person. With such a central datum unlocking so much information the potential for abuse is staggering. Strum describes a notorious event in Canada where the social insurance number (SIN) served much the same purpose as our social security number until 1986, when someone broke into Canadian computers and stole data concerning 16 million taxpayers. How long will it be until a hacker or some other savvy opportunist raids federal systems for comprehensive information on U.S. citizens and taxpayers? Professor Strum's book is a valuable contribution to the literature of privacy because it avoids pronouncements of doom and concentrates on showing a comprehensive modern story of mistakes we have made, largely with good intentions, and how redemption may be possible. Strum's book is already on my adoption list for some of the courses I teach, and I am sure my student's will be much better off for having read and discussed it.

Stefano Scoglio's book is quite different from Strum's. It assumes that the reader is relatively well-trained in political philosophy and public law, and it seems suitable only for advanced undergraduates and above. This book is well written and occasionally interesting, but it might be better entitled "Why I Hate the World As I Found It." This is a book that is only marginally about privacy; it uses privacy as a means to do quite a bit more than one would expect from the title. The enemy of privacy is what Scoglio calls "bigness," a condition caused by capitalism, the essence of which is "the channeling, into the realm of material and technocultural expansion, of that absolute-impulse that belongs to the realm of the spirit." Further, "Capitalism" is "the self-destructive delusion that unconsciously attributes to nature and human society, in their material aspect, the ability to sustain absolutizations." This impulse toward unlimited material expansion makes Capitalism inevitably tied to "Bigness," and we can be assured that that is bad. Capitalism requires that people ceaselessly feed the demands of their "lower selves" and shun the liberating, privacy preserving state of "spiritual self-reliance." In chapters relating privacy to natural law and the progression of privacy from the vulgarity of J.S. Mill to the wisdom Louis D. Brandeis, Scoglio renders a lively and interesting analysis of how the springs of privacy became twisted around complementary, but ultimately harmful functional arguments.

But it is evident rather quickly that the enemy in Scoglio's narrative is not merely the transgressions and transgressors of "privacy," but is technology and modernity more broadly conceived. Privacy merely provides the lens through which Scoglio launches his attacks on the baseness of the modern person, and the technocracy which has created him. For example, a reader should suspect he is dealing with a broad and idiosyncratic approach to privacy when he reads sentences such as: "Beyond the most-subtle and unexpected trespasses, including environmental pollution with its secret and deadly violation of our psychosomatic constitution..." Pollution may be an assault on our "psychosomatic constitution," but this seems to be the least of the injuries it inflicts. Eventually, it becomes clear that Mr. Scoglio, in line with Plato, Hegel, Descartes, and a host of other thinkers, is thoroughly repulsed by the mundane, by the common, by the material bases of life. Privacy is something too important to be set to work for some instrumental reason or another; it must be a bulwark of the spiritual fulfillment of people.

For example, it turns out that between Oliver Wendell Holmes, Jr., J.S. Mill and Louis Brandeis, it is only Brandeis who understands the true justification for privacy rights. Unlike Mill, Brandeis "posits wholeness as the true goal of the individual, knowing however that there can be no private wholeness that excludes and opposes the social and universal other." But the good thing about liberalism in the United States is that it refuses to prescribe "true goals" of individuals; it leaves open the possibility that the worthiness of goals may be idiosyncratic all the way down. And this is precisely what Scoglio and those who hate ordinariness can least stand. The right to privacy is ordained to protect the last possible hope of people becoming humans; to guard the alarmingly fleeting chance we have to pull ourselves out of the muck of the ordinary and convert ourselves into spirit. The idea that rights to privacy are founded on grubby instrumental grounds, to keep the government from violating the ordinary precious beliefs, thoughts, and places of ordinary lives is to make privacy unable to counter the "Bigness" of modernity.

In a chapter dealing with the 1937-1965 Supreme Court, Scoglio sees the Court as faced with continuing Brandeis's "view that property has rights only insofar as it serves the higher values of personality and interiority" or sliding into a Millian mire of property rights. For Brandeis and other right thinkers "the essence of dialogue is... metaphysical, as it represents within the microcosm of human and political life the macrocosmic truth of the harmonic strife of heavenly bodies, ruled by the Logos that posits the essential identity and unity of opposites." Here, and many other places in the book, Scoglio sounds like just one more effort to hold back the decentering forces of Darwin, massive institutional employment and information availability, to preserve the centrality of the human mind to the specialness of the universe.

In the latter part of his book Scoglio undertakes a peripatetic survey of various U.S. Supreme Court justices and precedents in trying to show that prevalent liberal thinking has robbed it of its majesty. A turning point in the Court's seduction by Millian possessivism is found in Roe v. Wade. Only after the new kind of Supreme Court justice, forged in the Millianism of Roe (Justices such as Thurgood Marshall and Harry Blackmun), "has it become possible to confuse the discourse of privacy with the discourse of Millian liberty."

I would be hard put to recommend this book for the general reader in the area of privacy rights, or indeed even for the academic who occasionally writes and teaches in the area. Most readers would not readily recognize the stakes Scoglio thinks are involved in the privacy debate. For academics mainly interested in the connection of privacy to mind, and for those whose professional life is bound up in privacy literature this is probably a book that should be looked at.