In 1890, two of America’s leading legal minds, Louis Brandeis and Samuel Warren, published an article called “The Right to Privacy” in the Harvard Law Review. Scandalized by the rise of a gossip-mongering press that intruded on the lives of prominent citizens, they called upon the courts to recognize a “right to privacy.” Their fear was that new technological and commercial innovations — in this case photography and the mass-circulation gossip rag — would cause the rich and famous untold mental pain and distress. As Stewart Baker observes in his provocative book Skating on Stilts, the substance of Brandeis and Warren’s argument now seems rather quaint, as a gossipy news media has become a central part of our public life. In Baker’s telling, “the right to privacy was born as a reactionary defense of the status quo.” And even now, he argues, privacy campaigners often overreact against new technologies they fear but do not understand.
Baker’s argument has been panned in civil libertarian circles. When he suggests that societies eventually adapt to new technologies — that “the raw spot grows callous” as we grow accustomed to invasions of privacy — privacy campaigners reply that it is Baker who has grown callous to the harms in question. Baker’s central goal is to convince Americans to accept that government must use new technological tools, like the data mining programs used by the National Security Agency, to combat mass-casualty terrorism. His critics maintain that he is far too glib about the potential that government might abuse these new tools, and indeed too dismissive of the notion that it has already done so.
I’m torn on the question of whether the national security state has overstepped its bounds, and there are people I respect on both sides of the debate. Civil libertarians like Ben Wizner of the American Civil Liberties Union and Julian Sanchez of the Cato Institute see the new Leahy-Sensenbrenner USA FREEDOM Act– which would end the dragnet collection of Americans’ phone records under the PATRIOT Act, and limit other surveillance — as an important step towards reining in a bureaucracy run amok. Baker fears that it will cripple the ability of U.S. intelligence officials to prevent future terror attacks. I couldn’t tell you which side is closer to the mark.
What is increasingly clear to me, however, is that privacy concerns are limiting our ability to flourish as a society for reasons having nothing to do with NSA surveillance.
The Food and Drug Administration recently ordered one of America’s most popular consumer genonics firms, 23andMe, to cease selling and marketing its direct-to-consumer DNA test on the grounds that it is a medical device subject to FDA approval. The FDA’s case seems pretty flimsy. The saliva collection kit that 23andMe offers through its Personal Genome Service is utterly harmless, and no one is claiming otherwise. Rather, the FDA is concerned that by giving its consumers data on disease risks, complete with plenty of disclaimers, it may prompt them to seek unnecessary MRIs and mastectomies, as Christina Farr of VentureBeat reports. The obvious rejoinder to these concerns is that consumers don’t have the option, for better or for worse, of operating on themselves. They generally need a medical practitioner to sign off, and medical practitioners hardly suffer from a lack of licensing and regulation. The FDA seems to be engaging in a senseless power grab.