By Patrick J. Kelly

Two weeks ago, I heard Prof. Jonathan Turley, of the George Washington University School of Law, speak on the subject of privacy rights. Adding to the atmosphere at the presentation was its location in a house where much of the planning for the Bay of Pigs invasion was alleged to have occurred. Prof. Turley reported that according to the Wall Street Journal, in 2004 there were 29 million cameras recording the movement of citizens in the United States. The number of cameras is now believed to be 40 million. Contemplating this statement, I was led to a startling conclusion: from the time I enter my car until the moment I return home my daily activities are subject to recording.

Cameras record my car’s movement on the freeways and at stop lights. Any stops for gas are recorded on video, and any credit card transaction will be tracked electronically. Upon arrival at the parking garage, my car is automatically admitted thanks to my electronic parking pass, which records the time I enter the garage. Cameras film every move my car makes in the garage, and every move I make once I park. On the elevators more cameras record my actions, as they do in the skyways I walk on the way to my office building. Our office building has additional cameras recording the lobby and the elevator, and the passkey I use to get to our floor records when I come and go from the building.

Good reasons exist for the cameras in our hallways and the passkeys to my office and parking garage. The concern is not necessarily that every move we make is recorded, but how easily we have accepted the transition from a world where we jealously guarded our privacy to a world where someone knows what we are doing about 14 hours a day.

The reality is that the world has changed dramatically in the past ten years. I note two driving forces behind the change: security concerns and the greater convenience provided by technology. We often voluntarily trade our privacy in exchange for benefits perceived or realized. Air travelers have adjusted to long security lines and baggage checks because we have concluded that this intrusion is justified for safety reasons. (I know all about this as my wife, who is of Irish descent, is on the “no-fly” list, for reasons that sometimes make a lot of sense to me). Similarly, we readily provide private information about ourselves to strangers because it is more convenient to bank, shop, and the like over the internet or by phone.

Intuitively, most of us are more concerned about the intrusion when a governmental agency procures our private data than when we freely submit our information to a private company. We cannot deny that the state has the right to know how much money we earned or lost in the last year, where we live, and even when we leave or enter the country. But it is different when the issue is telephone or email monitoring. The intuitive nature of this concern is one of the reasons that the right to privacy is so much at risk right now. It is difficult to articulate exactly what constitutes “privacy.” The framers did not do it; they did not include the right to privacy as one of the enumerated ten amendments that constitute the Bill of Rights. The Supreme Court has interpreted the 3rd, 4th, and 9th amendments as containing protections sufficient to conclude that privacy is a right that enjoys constitutional protection. However, we still must address the question at the center of the privacy debate: what is privacy?

At its core, the debate about privacy focuses on the ability of individuals to control or regulate the flow of their personal information. We subscribe to the philosophy that information is the ultimate source of power; consequently the holders of personal information confer that power every time they release the information. This leads to concern that vesting ownership of private information in another risks weakening or destroying the individual’s autonomy.

The loss of privacy is one of the first steps in the erosion of individual freedom. What good is the freedom of association if the government can monitor with whom we associate? How can we practice, or not practice, our religion comfortably if the government is monitoring us while we worship? And where is the value in the right to remain silent if the government can access any piece of information about us before we even know we are subject to an investigation? Sometimes it appears that our democratic philosophy, predicated on the protection of individual rights, is turning leeward. We always relied on our government to guarantee privacy rights, but it now appears there has been a shift: out of perceived necessity, we are asked to accept increasing governmental intrusion on individual rights. When drafting the Constitution the framers never contemplated scanners, cameras, or hourly release of sundry technological advancements. It is our responsibility to ensure that we protect the rights fundamental to our form of government.

The balancing of privacy rights, convenience, and security presents a difficult dilemma, and I do not pretend to have a solution. However, as attorneys we are uniquely able and positioned to monitor changes in policy and law that augur greater infringement of individual privacy. It is our duty to remain vigilant to the potentially invasive effects of governmental action, and to challenge those actions when appropriate. I understand and accept that in order to live in a safe world I must sacrifice some personal freedom and privacy. However, it is essential to ensure that we sacrifice only that absolute minimum necessary to secure our safety. Most of all, we must not simply acquiesce to the loss of our individual rights for the sake of convenience.

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PATRICK J. KELLY is president of the Minnesota State Bar Association, a founding partner in the St. Paul law firm Kelly & Fawcett, and a recognized Minnesota SuperLawyer.  He practices in areas of municipal law, labor and employment law and litigation, real estate, and administrative hearings.