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"Privacy Exposed" -- A Commentary by Prof. Jed Rubenfeld

Privacy Exposed: The More Invasive the Technology, the Better -- by Jed Rubenfeld

(This article originally appeared in the October 26, 2001, edition of the Washington Post.)

Millimeter radiation imaging, a technology available but not used at most U.S. airports, can depict the naked body of a fully clothed person. The American Civil Liberties Union has opposed this technology, which is so advanced it can "detect the diameter of a woman's nipples, or whether a man has been circumcised." According to the ACLU, "If there is ever a place where a person has a reasonable expectation of privacy, it is under their clothing."

America will be making difficult decisions about privacy rights in the near future. The critical task is to distinguish what is essential from what we can live without. To do this, we need to stop lumping together totally different things under the term "privacy"--for example, our private parts and our private life.

In a perfect world, we would protect both our private parts and our private life from forced exposure. But we should not confuse the two. If a security guard sees our genitals on a screen, at least we still have them. But if government can see or listen in on our private lives indiscriminately, without probable cause, we will no longer have private lives at all.

Hence, wiretaps are different from imaging technologies at airports. A wiretap allows police to learn what you are doing, thinking and saying behind closed doors. Courts developed the "reasonable expectation of privacy" principle for this kind of case, and this protection is absolutely essential to civil liberty. Without it, we cannot have a private life.

By contrast, the issue in transport searches and seizures is much more about shame or dignity than informational privacy. Thinking clearly about this distinction can yield two fundamental points to guide us through the decisions we will soon face.

The first is highly counter-intuitive but nevertheless critical. The more invasive the technology, the better. Radiation imaging technology is infinitely preferable to a body-cavity search conducted by human hands. Yes, both techniques reveal the same information; that is why some privacy scholars mistakenly equate the two. But a body-cavity search is far more degrading and dehumanizing.

Indeed, if imaging technology were perfected, no human eyes would need to see anything in most cases. An agent would get involved only if the scanner set off an alert indicating suspicious hidden objects. The same is true of the face-recognition technology causing alarm among some privacy scholars. Human agents need to get involved only when computers "recognize" a suspect. All technology can be abused, but the better we can make this technology, the less human surveillance there has to be and the less of a threat to people's anonymity.

Another example is surveillance technology that penetrates private places, such as homes or cars, but that detects only dangerous objects or substances (i.e., anthrax, explosives or biochemical devices). Many privacy scholars have argued against such technology. That's the wrong approach. If the technology could be perfected, it would violate no legitimate privacy interests and it would reduce the need for human surveillance and for far more revealing, blunderbuss searches and seizures. Superior technology is better at protecting privacy in both its dignitary and informational dimensions.

Second, when human agents do get involved, the agents' decency and respectfulness are critical parts of the equation. If we think solely in terms of information-gathering, such niceties make little legal or constitutional difference. But once we see that shame and dignity are the real concerns when, say, we are detained, searched or questioned at an airport, the agents' behavior has to be decisive. Respect cannot be treated as a luxury item here. Decency in how we are treated will make the difference between a mere inconvenience and a fundamental violation of dignity.

Current search and seizure law, concerned exclusively with informational privacy, does not see this point. It does a very poor job of protecting dignity. This is a deficiency that lawyers, lawmakers and judges must address with much greater care.

We are going to have to give up some of our protections in the days to come. But if we are clear and careful about it, we need not give up anything essential. To be sure, the inessential may include much that is valued and valuable. But if firefighters, police officers and soldiers can give their lives in this fight, ordinary citizens can make sacrifices too.

The writer is Robert R. Slaughter Professor at Yale Law School and author of "Freedom and Time" and "The Right of Privacy."