THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Sunday, December 31, 1995 TAG: 9512310325
SECTION: COMMENTARY PAGE: J2 EDITION: FINAL
TYPE: Book Review
SOURCE: BY ROSS C. REEVES
LENGTH: Medium: 82 lines
THE RIGHT TO PRIVACY
ELLEN ALDERMAN AND CAROLINE KENNEDY
Alfred A. Knopf. 332 pp. $26.95.
A journalist recently observed that a good day for a politician is one when his name is not in the newspaper. It can also be said that a good day for any person is one free from the invasions of privacy so vividly recounted by attorneys Ellen Alderman and Caroline Kennedy in The Right to Privacy.
The concept that there is such a thing as a ``right to privacy'' is a youngster by legal standards. First articulated at the turn of the century, it may be traced to the cultural tradition of the ``right to be left alone'' that attracted immigration to America as well as the young republic's constitutional tradition of limited government.
Privacy was simply assumed until the late 19th century, when the right to be left alone collided with rapid industrialization, urbanization and development of the mass media. The notion of limited government simultaneously began to give way to all-pervasive government intrusion. Politicians and bureaucrats of all stripes have since grown increasingly obsessed with the intimate details of private behavior, from child-rearing techniques to political orthodoxy.
Out of these tensions, the courts have forged a constitutional jurisprudence recognizing privacy rights but balancing them against other values, such as freedom of the press, law enforcement needs and regulation of working conditions and commerce. In a parallel development, courts trying civil lawsuits have recognized a wide array of privacy rights at common law.
The humdinger of all constitutional privacy cases was Roe v. Wade, in which the woman's right to choose abortion was recognized as a counterbalance to the government's authority to regulate the practice. This formulation of privacy has been the pivotal issue in recent Supreme Court nomination proceedings, so at first blush it seems odd that Alderman and Kennedy dwell on abortion issues only briefly in The Right to Privacy. This proves to be a wise decision in view of the volume of text required to deal with the underlying issues, however.
They instead provide compelling case histories of other intersections of government authority and privacy rights, many of which are right out of the headlines: decisions to force or withhold medical treatment, the fight over frozen embryos and publication of HIV diagnoses. An excellent treatment is also given to unreasonable searches and seizures, beginning with a horrific description of Chicago's past policy of strip-searching all women jailed for any reason, including unpaid parking tickets. The authors then press on to harder issues, including students' privacy rights against searches by school officials and the use of ``drug profiles'' to determine whom police stop and question.
Two-thirds of the book is given over to non-governmental intrusions into privacy, a far richer field because the courts must make it up as they go along without legislative guidance. In separate chapters the authors deal with threats to privacy from the press, from voyeurism and from intrusive employers, concluding with a brief discussion of new threats arising in the information age.
Alderman and Kennedy use a sure-fire format. Each topic begins with a compelling but objective description of actual events leading to privacy litigation, much of it based on personal interviews. These are harrowing stories indeed: the girl whose boyfriend shows a surreptitious tape of their lovemaking to his college buddies; the teenager identified in a newspaper story as the long-lost daughter of itinerant carnival workers; the couple whose room at a local inn featured a two-way mirror. Each major vignette is accompanied by a cogent analysis of the issues and tactics in the ensuing lawsuit and is followed by summaries of similar cases to ``compare and contrast.''
Their instinctive bias in favor of privacy rights notwithstanding, Alderman and Kennedy are remarkably balanced in their approach. Despite their anecdotal style, their analysis of legal precedent is always adequate for their purposes, crisp and to the point. The Right to Privacy will not break new ground as legal scholarship, but it is a provocative and thoroughly enjoyable introduction to a controversial topic. MEMO: Ross C. Reeves is a corporate attorney in Norfolk. by CNB