Of Our Time: The Age of Trespass

[T]he system of private property is the most important guaranty of freedom, not only for those who own property, but scarcely less for those who do not.

F. A. Hayek, The Road to Serfdom, 1944


[A] government big enough to give you everything you want is a government big enough to take everything you have.

Ronald Reagan, 1984


Conservatives today seem awfully confused about what threatens, or safeguards, personal freedom. Earlier in this century, principled conservatives worried that collectivism embraced in the name of social justice would erode individual liberty. Hayek, writing during World War II, believed that the "democratic planning" then in vogue in Britain and the United States was a slippery slope to totalitarianism. He had Nazi Germany and Soviet Russia as vivid cautionary examples for naive or fellow-traveling collectivists in the British Fabian movement and the American New Deal.

Has history proven Hayek right? Not really. Soviet planning certainly collapsed of its own weight, but an excess of economic intervention has never been a road to serfdom for a stable democracy. The warnings of the right notwithstanding, history records no case of a welfare state sliding into dictatorship on an overload of taxation or even public ownership. On the contrary, totalitarianism arose in nations that were fragile democracies to begin with, often triggered by the economic unease of ordinary people. Hayek won his celebrated economic debate with the Polish socialist Oskar Lange over whether central planners could ever set prices efficiently. But in the notional political debate between Hayek and Karl Polanyi (whose masterwork, The Great Transformation, also appeared in 1944) about whether democracy and liberty are menaced more by state economic intervention or by market insecurity, Polanyi wins hands down.

Except for genuine libertarians (who are only a splinter of modern conservatism) and lunatic-fringe private militias (who are paranoid about government black helicopters), the contemporary right is shockingly indulgent of the other potential source of tyranny—the state's police power. As Anthony Lewis and Wendy Kaminer suggest in their articles in this issue, government's ineluctable expansion of police powers in this decade is surely the greater threat to personal freedom. But the right is so busy defending liberties against such menaces as Social Security, Medicare, and public education that it seems not to mind a quantum expansion in official eavesdropping, summary searches and seizures, clandestine activities in the name of national security, rough justice for the sake of fighting crime, or the private appropriation of what is necessarily public.



Oddly, too, the American right seems oblivious to the assault on liberty and privacy by private property itself. Americans are increasingly uneasy about the dissemination of supposedly confidential data collected for a supposedly narrow purpose. Information collected in a medical examination for life insurance can go into a data bank and be used for everything from marketing of products to denial of health insurance. Invest igat ive reporters have demonstrated how easy it is to crack the databases maintained by consumer credit companies. Despite government's obvious capacity to snoop, governmental non-police agencies such as the Social Security Administration, the Health Care Financing Agency, the Census Bureau, and even the hated IRS have done a rather better job than private data banks of maintaining good boundaries and protecting citizen privacy.

Since, in the Hayekian world, private property is by definition the guardian of liberty, the right does not know how to think about these abuses. They occur in the "wrong" ideological pigeonhole. Redress of private-sector assaults on privacy, moreover, entails public regulation, which (again by definition) is held to be the greater constraint on liberty. Denying a willing buyer the right to purchase someone's medical records, or a telemarketer the right to invade your home during dinner, is seen as a crime against private enterprise. Even the Cato Institute, as close to principled-libertarian as the American right gets, considers the commercial right to buy and sell data a sacrosanct freedom. The right's solicitude for property rights trumps what should be a more fundamental concern—with personal privacy and liberty.



As I write, the European Union has just put into effect a legal regime that sharply constrains U.S.-style commerce in personal data. The European approach virtually prohibits companies from trafficking in data beyond the purposes for which it was collected. Europe has long had tougher limits on practices such as telemarketing. Most European countries allow consumers to opt out of the pool of people who can be solicited by telemarketers. These constraints will now be extended to junk e-mails and junk faxes. More fundamentally, the new law requires all companies that collect personal data to disclose how they intend to use it and to obtain informed consent before it can be added to the data pool that can be sold. Interestingly, American trade negotiators are fiercely resisting the European privacy regime as a restraint on the rights of property.

Note the several ironies. Most European nations have government identity cards, something fiercely resisted in the U.S. as a state invasion of liberty. Yet Europe does a much more comprehensive job of collecting—and safeguarding—personal data collected for state purposes, such as vital statistics. These public databases in turn facilitate a variety of other public purposes such as public health measures and voting. They make unnecessary the vast outlays expended in the U.S. on private databases, which manage to be both inefficiently fragmented and duplicative, yet alarmingly porous.

Contrary to the intuitions of conservatives, the European state, on balance, is a better guardian of privacy than the American private sector. The laws of most European nations, unlike Anglo-Saxon law, codify a right to privacy. Our right to privacy, as Louis Brandeis suggested, is merely inferred from the common law. For example, the publication of someone else's letters can be understood as a breach of an implied contract, or an encroachment on literary property rights. But even though Brandeis repeatedly quoted Judge Cooley's dictum that the most fundamental right is the right "to be let alone," our system nowhere makes this right categorical.

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We live in an age of inversion and trespass. While the private realm is being invaded, some things that should be public are being rapidly privatized. I refer not just to the public services and institutions appropriated by profit-making companies or seceding from the polity in a new feudalism. [See Andrew Stark, "Arresting Developments," page 41.] Data sources that used to be in the public domain are now treated as proprietary information. Industry is lobbying to extend the copyright period for decades more. Again in the context of global trade negotiations, U.S. government negotiators, acting at the behest of American industry, are fiercely resisting efforts by poorer nations to treat even a handful of lifesaving vaccines, drugs, and hybrid seeds as public goods rather than proprietary commercial products.

The preservation of a private realm from public incursion, and vice versa, has long been the defining characteristic of democratic societies. Hannah Arendt, in her 1950 Origins of Totalit arianism, famously wrote that the essence of the totalitarian state was its attempt to obliterate the boundary between the private and the public, i.e., the political, realms. In her 1958 book, The Human Condition, Arendt observed, more subtly, that:


The distinction between the public and private realms, seen from the viewpoint of privacy rather than of the body politic, equals the distinction between things that should be shown and things that should be hidden. . . . The most elementary meaning of the two realms indicates that there are things that need to be hidden, and others that need to be displayed publicly, if they are to exist at all.


A public realm, the business of people as citizens, must be relentlessly public if it is to be viable, Arendt believed. A polity rife with secret activities and private purposes loses its robust democratic character. Conversely, when properly private matters are exposed to public prurience, our personal liberty is diminished. Prosecutors and congressional investigators have lately gone after diaries long held to be private. In the Clinton/Starr/Lewinsky matter, the President's intimate life was exposed to the kind of public scrutiny that would render ordinary life unbearable if it were applied as a general principle.

Over a century ago, in a landmark 1890 Harvard Law Review essay co-authored with Samuel D. Warren asserting a common-law right to privacy, Brandeis condemned the tabloid journalism of the yellow-press era. "The press is overstepping in every direction the obvious bounds of decency," young Brandeis wrote, sounding uncannily like a Nieman report lamenting Matt Drudge. "Gossip is no longer the resource of the idle and vicious, but has become a trade. . . ."

But Brandeis was not just decrying random invasions of privacy. The villain of his piece was . . . commerce. "In this as in other branches of commerce, the supply creates its own demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more," he continued. "Triviality destroys at once robustness of thought and delicacy of feeling." Brandeis understood that private commerce could pillage the privacy, as well as the economic security, of the individual. On both counts he reasonably sought redress using courts and legislatures—the instruments of the public realm—to rescue private space. A century later, privacy is under new assault, thanks to the bizarre alliance between "news" media that have become unfettered instruments of pure commerce and an inquisitorial state inflamed by pseudo-conservative moral fundamentalists.



Are liberals today any clearer about the public and the private? We are surely more consistent civil libertarians. However, in this age of trespass, liberals and feminists have taken a good deal of heat for such slogans of trespass as "The personal is political." The concept is still useful, I think, but the Clin ton/Starr/Lewinsky affair suggests that it needs to be carefully bounded.

Liberals have quite properly used the state to expand the domain of rights as a strategy of increasing personal liberties, especially for groups whose liberties were previously constrained by slavery, segregation, and racial and sex discrimination. Many of these inequities were most vividly manifest in what seemed to be domestic, even intimate, spheres, which nonetheless reflected broader power relations in society; they only seemed personal. Racial or gender discrimination, as Gary Becker asserted with the peculiar obtuseness of the Chicago economist, was nothing but a private "taste." But if a black person was consigned to the scullery, or if a woman was doing more than her share of housework and child-rearing, that reality was not just the product of domestic negotiations, or of biology. The domestic division of labor also reflected society's ground rules, which in turn reflected and reinforced unequal power—the fact that society tacitly expected husband to be "breadwinner," and upheld that role through a variety of laws ranging from the tax code to the Social Security system, as well as levying career penalties for a father (or mother) who chose to spend time with offspring. A seeming domestic quarrel about mundane chores was really a much more profound political fight. By the same token, the very high burden of proof in rape cases and the light treatment of powerful men who extracted sexual favors of women in their employ reflected a similar power imbalance.

But by the 1990s, some feminists were wondering whether some of the personal was properly private, and whether some cherished laws and doctrines were in fact antithetical to both equality and privacy. Taken to an extreme, the concept of sexual harassment not only puts into the public legal realm properly private matters. It also restores an archaic set of assumptions about the special vulnerability of women, assumptions that deny the equal personhood (the "agency") of women. Still, in our effort to reclaim a defensible intimate realm, it would be a mistake to conclude that the personal is never political. Compared to the conservative muddle, the liberal reconsideration of the proper line between public and private can be considered a fine-tuning, not a wholesale default.


What, finally, explains the right's double standard—its high anxiety about state economic power, and the free pass for both state police power and assaults on liberty by the market? Let me violate the rules of good theater and introduce a new character in the final act—class. Look at the apparent muddle through the lens of class and the logic falls into place.

After all, society's (mostly Republican) economic elite doesn't need social insurance; it worries more about the rights of producers than consumers; and it has little fear of expanded search procedures or longer prison sentences directed mainly against lower-class Americans. The elite has little personal concern if immigrants are treated to Orwellian nightmares (unless they are foreign computer programmers in short supply, on whose behalf a special liberalization of the immigration laws was just enacted). The right, defending class interests, is much more worried about government property "takings" than about takings of civil liberty. And, despite the seeming contradiction, it is more than willing to have government play a highly interventionist role when that serves elite interests, as in the case of expanded rights for intellectual property. Where you stand still depends mostly on where you sit.

The propertied right, representing the power center of American conservatism, is far too indulgent of the puritanical right, which cares little about liberty and would willingly use the state to enforce social conformity, even in intimate realms. This tactical opportunism is shortsighted, because the ancient libertarian defense of a private sphere, and its worry about concentrated power, are both substantially valid concerns. The constitutional founders, good conservative liberals, knew that a competent state was necessary to defend personal freedoms, both from temporary moral majorities and from the state itself.

The conservative default, therefore, leaves liberals with a double responsibility. We need to be extra vigilant against assaults on liberty from whatever quarter, whether from the police powers of the state, the incursions of the market, new wrongs wrought by well-intentioned new rights, or even the occasional abuses of our cherished welfare state (now often in the hands of its enemies). We are all better served if the public realm stays public and the intimate one remains private.

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