by Mark Munger
It’s about the next twenty years. The ’20s and ’30s it was the role of government, ’50s and ’60s it was civil rights, the next two decades are gonna be privacy! I’m talking about the internet. I’m talking about cell phones, I’m talking about health records and who’s gay and who’s not. And moreover: in a country born on the will to be free, what could be more fundamental than this?
— Aaron Sorkin’s words spoken by Rob Lowe’s character Sam Seaborn – S1E9 of The West Wing.
Privacy and Government
The West Wing ranks as my all-time favorite TV series. I’ve rewatched every episode multiple times with the first four seasons the best when Sorkin was doing the writing (no offense to John Wells and some of the other writers and cast members who wrote.) The West Wing, besides its innovation of the walk and talk filming, hit on several key issues in government over its seven years and 154 episodes. And while there were some lively debates, on and off screen, the issues were dealt with in a mostly civil manner.
The quote above from the November 1999 S1E9 episode titled “The Short List” caught my attention again recently. The episode follows the nomination and appointment of a Supreme Court Justice. The staff creates a short list of candidates and settles on a sure bet. Then through additional research and a blind submission of some background material, they discover their sure bet doesn’t believe in a person’s constitutional right to privacy causing a change in the nominee.
Privacy, A Constitutional Entitlement
The United States Constitution, one of the greatest documents ever written, is a document of checks and balances. The founders were under no illusions that power corrupts and that people will always attempt to manipulate the government for their own benefit or beliefs. The three federal branches, the way the Senate and the House are allocated, the rights given to the federal government, and the rights specifically denied from the federal government were all results of this. And the civil liberties it protects, both specifically and inferred were core to their beliefs.
Considerable time and discussion was directed at power definition and separation, though the constitutional writers knew they could not list every right and power. There were some issues of the day that needed to be called out, including privacy. They also knew that the future would need a way to amend and add specific items to be flexible and mature. While we have had bumps such as the 18th Amendment which established Prohibition, the generations that followed have done well with the amendments offered and passed.
The 4th Amendment states a right to privacy. The 14th Amendment states equal protection under the law. Other references to individual rights and protections occur throughout The Constitution, though as 2022 has proven, there is still a lot left up to interpretation. The process of creating the laws is not a science and interpretation of the specifics are made by judges. Human judges are tasked to separate judgment from bias, and that task has become more difficult in the current political environment.
The Founding Fathers created the Congress to be the most important of the three branches but specifically enumerated the powers of Congress in Article 1 Section 8. It also limited the power of the states through the Denied Powers, a list of restrictions that includes making treaties and money.
Further clarification was provided in the 10th Amendment with powers not explicitly given to the federal government remaining as state powers. This, too, has come under stress recently as the parties with the majority of federal power push federal purview, and the minority party pushes state purview.
James Madison wrote in Federalist papers #51 that “Ambition counter-acting Ambition” would keep the power separated between the branches of government, a pluralism that would keep multiple parties co-existing (though I don’t believe he would recognize the mess this has created today.) Civility and honor reigned high at the time of Madison, but today they are sacrificed in the name of whatever cause is being pursued. The civil debate of that time has vanished. Today, even the word ‘debate’ will cause some people to shut down completely feeling that a debate means a belligerent argument. What is left are extremes of no action or extreme activism and a loss of the middle ground or compromise.
“… laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made new truths disclosed, and as manners and opinions change, institutions must change also, and keep pace with the times.”
– Thomas Jefferson
Jefferson foresaw that without change, the only other alternative for progress becomes revolution. The recent book by Ray DalioRay Dalio Author, American billionaire investor, and hedge fund manager. Founder of investment firm Bridgewater. Author of Principles series of books, Principles of Dealing with the Changing World Order, has become popular with his outline of the cycle empires have gone through including where the USA currently is and the ways it may fall into civil war or revolution. While it is far from certain, there is a solid debate to have about where the USA is in the cycles he identified. There is a case to be made that the USA is headed for a civil war, as well as one that we possess the ability to break the historic cycles.
Privacy and other inalienable rights are fundamental to our progress and our ability to communicate freely or not communicate freely. Layers are required and trust is the measure of how many layers one allows others to see and interact with. Without trust in laws and the people we entrust to write, implement, enforce, and judge them, trust becomes distorted. It can become manipulated and used by others to trigger reactions or distract from a meaningful and productive debate.
We should also consider western ideals and culture. Western ideals as I’m referring to them are different. Some sovereignties’ citizens have no right to, nor expectation of, privacy. The state is above both family and personal freedom. While these are not the ideals that the USA and many western nations have, it is one that we need to understand and know that one sovereignSovereign The highest authority and control. Borrowed from Old French souverain, which is ultimately derived from the Latin superānus, meaning 'above'. Has evolved to additionally mean autonomous or independent. countries’ will cannot be forced onto another. As we believe in democracy, so we must observe the will of other nations and their peoples. Though that doesn’t mean we should ignore issues we see, though discussion and debate about ideals such as privacy should lead the way.
With technology regulations such as GDPR and CCPA and the words ‘investigation’ and ‘subpoena’ appearing daily in today’s news, it appears the topics of The West Wing TV show from over 20 years ago are still very much relevant.
One of my recently published articles mentioned the hospitality industry and the amount of personal information tracked to assist a hospitality company to personalize service making the customer experience the best it can be. I also stated the need to protect that data from misuse, exposure, or theft. This is truly an issue for companies such as hotels, retailers, and even the government.
Privacy in technology is not as simple as privacy was 250 years ago. A paper trail is a thing of the past. Many people are unaware of how their privacy is being used or violated daily. It’s hidden in breadcrumbs on a phone, cookies in a web browser, and check boxes that one ‘accepts all’ to skip and quickly get into the application they want to use.
As we discuss and work through the process of data ownership and privacy, it is worthwhile to keep in mind how the USA began and what our Founding Fathers expected of this nation, for life, liberty, and the pursuit of happiness were held to be self-evident, or even sacred and undeniable as the early draft by Jefferson read. It is without a doubt that there was an inherent value in the individual and their rights with the right to privacy surely one of the highest.
“Few men have virtue to withstand the highest bidder”
– George Washington
“The price of freedom is eternal vigilance”
– Thomas Jefferson
It is left to us, the people, to continue to ensure our rights are protected. “We The People” are competing with business profit and political interests with lobbying forces working to ensure that profit wins over people. Fewer elected officials remain vigilant in their protection of their constituent’s privacy and data over business interests. And the debate required remains to journals or left to the consumer with the attitude of “what can I do?” To further complicate the issue, consumers do benefit from business use of their data to provide a great user experience. Today our digital privacy is determined by items such as annoying checkboxes that few really understand. Digital privacy needs to continue as a topic of real debate. Something that is in short supply in today’s world.