IN DEFENSE OF PRIVACY

"PRIVATE" is a ringing word in the American vocabulary, whether it stands for a tangible line drawn against the world ("Private, Keep Out") or for an intangible circle surrounding the individual ("My private life is my own"). The privacy of a citizen's home and thoughts is the greatest distinction of a democracy from a totalitarian state, symbolized most vividly by the curtain on the voting booth.

The early Americans were so secure in their sense of privacy that they seldom gave it a thought--the Constitution does not contain the term. If anything, most felt they had more privacy than they needed in their scattered farms, and made up for it by frequent gatherings at taverns and hostels, where their gregariousness shocked visiting Europeans. Today, just when the affluent society should be on the verge of providing every American with as much or as little privacy as he chooses, there is more justified alarm over the state of privacy than at any time in U.S. history.

The threat is twofold. One area involves deliberate efforts to get information about the individual, often by technical means that have become starkly efficient. The problem raised is legal and moral: When is such snooping justified in the interests of society and how should it be controlled?

The second area involves mainly involuntary intrusions caused by the immense overcrowding and the ever-growing interdependence of civilization. The problem raised is psychological and social: How can life be conducted so that the individual will have a secure base of personal peace and dignity amid the vortex of modern existence?

Bugs & Bras

The ease of electronic snooping has become part of folklore. Half-fascinated and half-irritated, Americans know that today the walls not only have ears but sometimes eyes, any telephone can be linked to a tape recorder, pictures can be taken in the dark of the darkest bedrooms. Such practices now range far afield from criminal matters into divorce cases, income tax disputes, industrial espionage. One female operative working in San Francisco for the Internal Revenue Service wore a tiny transmitter concealed in her brassiere. She would encourage her prey to put his head on her bosom, thereby assuring perfect reception. Thus does Government bureaucracy these days re-create the world of James Bond.

Scientists forecast even more startling ways of snooping, including a device that could pick up the "sympathetic vibrations" of voices in a room blocks away. Also to be reckoned with are the "mind drugs," which make possible the ultimate invasion of a man's privacy: penetration of his brain.

Not that all snooping relies on dazzling modern means; some is downright oldfashioned. Certain Government agencies have an arrangement with the Washington, D.C., garbagemen to collect the garbage of people under investigation, and deliver it for grubby examination.

Three different congressional subcommittees are investigating various aspects of America's threatened privacy. One, headed by Senator Edward V. Long of Missouri, has energetically probed the extraordinary amount of wiretapping and bugging done by the Government's own agencies; another is headed by Senator Samuel J. Ervin Jr. of North Carolina, who is chiefly concerned with the intrusion on personal rights posed by psychological testings (sample true-false statements on a common questionnaire: "I brood a great deal. I have never indulged in any unusual sex practices.").

The third is under the chairmanship of Representative Cornelius E. Gallagher of New Jersey, who has cast a cold eye on the use of lie detectors and mail interception. One of Gallagher's chief targets is the proposal for a consolidated data center, which would computerize all the known facts concerning every U.S. citizen drawn from so cial security files, military records, census responses, school records, credit agencies, court records, tax returns, insurance forms, etc., and present them to the inquiring bureaucrat at the touch of a button. Who should be allowed to push that button is what Gallagher is worrying about. Says he: "The answer may be more important to liberty than that other big button we often worry about."

The ethical rationalizations for breaching privacy are many, and they range from the plausible to the spurious. The FBI has been known to bend wiretapping rules in the interests of fighting crime. The New England Telephone Co. recently admitted to monitoring calls "to determine the quality of customer service." Senator Thomas Dodd's aide blandly defends the lifting of his employer's documents on the grounds that he wanted to unmask wrongdoing.

There is always a conflict between the individual's claim to privacy and the community's need for information. In Britain's common law, the principle of privacy derives from the concept of private property, that "a man's house is his castle." This right was eloquently put by William Pitt: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail--its roof may shake--the wind may blow through it--the storms may enter--the rain may enter--but the King of England cannot enter."

The right was first extended to less solid property in 1741, when Poet Alexander Pope sued to prevent publication of certain letters of his that had fallen into a bookseller's hands, claiming that they were still his property. Pope was upheld--not on the ground of any right to privacy but rather that his property rights had been violated. Among other things, the ruling touched on the important right to refuse to communicate--or to choose with whom one will communicate.

As late as 1890, the word "privacy" did not occur in legal literature. In that year a socially prominent young Boston lawyer named Samuel D. Warren took offense at a local gossip sheet that had assiduously reported on every party that he and his wife gave, and they gave many. With a colleague, the young Louis Brandeis, he wrote an article for the Harvard Law Review that first enunciated "The Right to Privacy." The authors' key point, which Brandeis re-emphasized later from the Supreme Court bench: "The right to life has come to mean the right to enjoy life--the right to be let alone." Since then, some 30 states have recognized a right of privacy as common law, and seven have enacted specific statutes protecting the individual's privacy.

Laws & Penumbrae

Such laws, including those touching on the press, are still surrounded by uncertainties. The right of the press to publish and the public to know any significant fact is taken to be paramount, and in the case of public figures, almost anything can be significant, right down to the exact state of a President's intestines. Those who voluntarily display themselves, including entertainers, are also presumed to have forfeited their right in some measure. In recent years entertainers have been loud in their pleas for privacy, including a Frank Sinatra, who will take a 20-year-old actress on a yacht trip and then complain that the press is invading his private life.

In the case of more obscure people, what makes a figure public is often painfully difficult to define. In a classic example, is a newspaper violating privacy by publishing the photograph of a woman jumping to her death? Her husband thought so, and sued the Los Angeles Examiner. But the state courts ruled in effect that by choosing such a spectacular method of killing herself, his wife had made herself a public figure, thereby forfeiting the right of privacy.

The biggest legal milestone in this field was last year's Supreme Court decision in Griswold v. Connecticut, which overthrew the state's law against the use of contraceptives as an invasion of marital privacy, and for the first time declared the "right of privacy" to be derived from the Constitution itself. Justice Douglas argued that "specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees. Various guarantees create zones of privacy." Such zones, he argued, emanate from the First Amendment's right of association, and the Fourth's guarantee against "unreasonable searches and seizures." Justice Black dissented: "I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."

Idiot & Fortress

Not only in the legal but in the social context, privacy is a relatively new value (and is still rare in much of the non-Western world, which either does not appreciate it or cannot afford it). One Greek word for a private person was "idiot," which, then as now, carried implications of ignorance --or at least a large indifference to civic concern. The tribe knew no privacy, and even the lord of the feudal manor lived in a swarm of servants, children and relatives, often all of them sleeping around the edges of the big hall where the fireplace was. Until the start of the 18th century, rooms in even the grandest houses led into each other. In those days, as Lewis Mumford has pointed out, a lady's bedchamber still served as a reception room for her guests; only gradually did it become a retreat (boudoir is derived from the French bonder, to sulk). Privacy became valued as individualism and the ego became valued. In earlier times, retreating into solitude was a religious act; now privacy became a devotion in the new secular religion of the self.

The climax of privacy came, for the Western middle class, in the early 20th century, with the heavily built and uniformly heated house. But gradually, in architecture and in the imagination, the wall gave way to the window. This reflected not only an esthetic desire to let in light, but also the new creed of community, which distrusts private brooding. Besides, crowded cities made space ever more expensive, leading to "open plan" domestic architecture. The dining room became a corner of the living room, the family room opened off the kitchen, producing an illusion of greater space--and the fact of less privacy. As Mary McCarthy once observed, the bathroom is "the last fortress of the individual." Architect-Planner Serge Chermayeff asks, "Where is the provision for relaxation, concentration, contemplation, introspection, healthy sensuousness, all of which are conducive to intimacy, tenderness, wonder and delight?"

Lack of privacy is not calculable in terms of physical space only. In a new book, The Hidden Dimension, Anthropologist Edward Hall points out that people and animals have a sense of psychic space, which differs from race to race, from species to species. Americans waiting for a bus will automatically space themselves several feet apart; Arabs will cluster. In studies conducted on animals, Hall notes that a population crisis occurs when this sense of psychic space is invaded by overcrowding. The birth rate drops and animals die by the score--apparently from stress alone. Something equivalent, suggests Hall, could happen if modern society began to feel itself psychically overcrowded and overstressed.

In the U.S., signs of overstress are plentiful. Many Americans are suffering from a sense that they are invaded. Their neighbor's picture window looks in on theirs, the freeways are too crowded, the beaches are jammed. Says Science-Fiction Writer Ray Bradbury: "The best thing that could happen to New York would be to blow up every other block and plant the rubble with grass, turning it into gardens and pools so that people could get away from the mob."

The sense of invasion is not necessarily physical. For every soliciting doorbell-ringer there is his counterpart on the telephone--and few Americans can resist the imperative of a ringing phone. The TV set is a chattering presence. The mailbox is constantly flooded by printed sales pitches. How did the catering service know that a family's daughter was getting married or that they had just bought their first car?

Answer: New York State, for instance, will sell anyone a list of licensed drivers, and most city clerks are happy to supply the names of marriage-license applicants.

Many a housewife, reveling in the luxury of several charge accounts around town which she has paid off desultorily, has been shocked to discover that her record as "slow payer" can follow her to whatever state she may move to--without giving her a chance to talk back. And as Katharine Hepburn recently complained, insurance companies had asked her: "What is your income, whom do you support, how much did your house cost, do you still menstruate, are your periods regular, your bowels, do you drink?"

Still, despite all the complaints about the loss of privacy, the trend seems irresistible. In fact, few Americans seem to resist it, and many may even welcome it. A surveying agency recently found that only one out of four Americans had any reluctance about admitting what their income was --which may reflect a pride in affluence. When a team of sociologists bugged the bedrooms in a college housing project to study patterns in lovemaking, they asked permission of each couple before publishing their findings; every one consented, in the name of science.

In a survey of a Chicago suburb, William T. Whyte (The Organization Man) reported that the highly transient young-marrieds found in the nosy neighborliness of the community a substitute for the lost context of rooted families left be hind in the home town. "Outgoing" was a term of approbation, and somebody who kept to himself or put up a fence was distrusted. Says Whyte: "The group is a tyrant; so also is it a friend, and it is both at once."

Two words suggest the two limits of privacy: alone and loneliness. As a functioning individual, man demands moments when he can be alone. But he does not want to be lonely. He withdraws in order to consider his counsel. But then he wishes his counsel to be asked. If it is not asked, he is lonely. And paradoxically, at the moment that privacy is most assaulted in the U.S., Americans seem to fear loneliness more than they fear the loss of privacy.

In cities, neighbors do not know one another, and pride themselves on the fact. But the pride rings hollow. The big-city crowd offers the worst of both worlds. In its jostling closeness, it robs its members of privacy--but in its anonymity, it does not give them companionship in exchange.

Outer Thrust & Inner Fear

In law and government, the trend is toward more privacy. Recently the FCC banned the use of radio devices by private citizens to eavesdrop on others. The civil service abolished personality tests. The Internal Revenue Service, which had been caught bugging rooms where taxpayers conferred with lawyers, promised never to do it again. The Post Office walled up the peepholes through which its agents had been spying on postal employees in their locker rooms and toilets.

Legislators hope to get a regulatory law on the books before long. Attorney General Katzenbach favors a law that would allow supervised police wiretapping and bugging, but concedes it would be better to outlaw the practice altogether (except for national security purposes) than to continue the present confused situation. The wider dilemma is much harder to cope with: how to preserve privacy not only against the outer thrust of modern life but the inner fear of solitude.

Some seek physical solutions--better-planned cities, apartment buildings with thicker walls, atrium houses that turn their backs on the street, telephones that truly turn off. Others seek psychological solutions: psychiatric therapy to make up for the loss of privacy, or the secular equivalent of religious retreats.

Perhaps the only possible answer is that privacy must be fought for resolutely step by step: the door closed, the questionnaire ignored, the mass resisted, the electronic eye out-stared, the moment of silence stolen and cherished. That way does not lie loneliness or selfishness but the best, indeed the only way toward community. For only in the healing and sometimes illuminating moments of privacy can a man make himself truly fit to live with others.

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