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November 04, 2005
Is Alito Strongly Pro-Privacy?
An interesting report written by U.S. Supreme Court nominee Samuel Alito has surfaced from 1972 entitled The Boundaries of Privacy in American Society. In the report, Alito takes a very strong stance toward privacy. Here are some of the highlights:
· "At the present time . . . we sense a great threat to privacy in modern America; we all believe that the thret to privacy is steadily and rapidly mounting; we all believe that action must be taken on many fronts now to preserve privacy."
· "We believe the potential for invasions of privacy through the use of comptuers is so great that all private computer systems should be licensed by the federal government."
· "[W]e are convinced that in recent years government has often used improper means to gather informtion about individuals who posed no threat either to their government or to their fellow citizens. . . . Most of the problem in this area involves surveillance by the federal governemnt of persons it believes to be subversive. In general, this is the province of the Federal Bureau of Investigation and it is completely improper for the Central Intelligence Agency to enter the field as it has apparently done in recent years. It is also quite wrong for military intelligence to get deeply involved in domestic surveillance."
· Alito calls for strengthening the privacy protections of federal electronic surveillance law. He calls for shortening the period in which court orders can allow the government to engage in surveillance; and he recommends adding provisions to the law to regulate surveillance even when one party to the communication consents.
· "The Conference believes that no private sexual act between consenting adults should be forbidden."
· "We propose the following measures to prevent invasions of privacy by private consumer reporting agencies: 1. only "hard," factual verifiable data should be collected; 2. only authoritative sources, such as employers, doctors, and public records should be consulted to obtain information; 3. only "relevant" information should be collected; 4. the qualified privilege against libel and defamation suits now granted to consumer reporting agencies should be rescinded."
What conclusions should one draw from this report?
The report was written over 30 years ago, so it is unclear whether it reflects Alito's current views. The views expressed in the report reflect the great concern over privacy in the 1960s and early 1970s that swept over the country in the early days of the computer. Alito's views were thus not uncommon at that time.
The report appears to be written on behalf of "The Conference on the Boundaries of Privacy in American Society," and Alito is the group's chairman. Thus, he may simply be reporting the group's conclusions, not his own personal convictions.
In the end, I don't give this report much weight in evaluating Alito's views, but it is an interesting document nonetheless.
Posted by Daniel J. Solove at November 4, 2005 02:57 AM
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Comments
"We believe the potential for invasions of privacy through the use of computers is so great that all private computer systems should be licensed by the federal government."
This scares me. Sure, this was a time when not everybody had a computer system of their own and he may well not advocate the same today. Still, "[W]e are convinced that in recent years government has often used improper means to gather informtion about individuals who posed no threat either to their government or to their fellow citizens", so let's insert the government's hand directly into the tools for surveillance?
I would really like to know what Alito would have expected this licensing to accomplish. What would be criteria to qualify or disqualify an applicant? A quick skimming of that section suggests that, for instance, Apple Computer might never have gotten off the ground; it's easy to see how Wozniak and Jobs would be denied a license for the computers they built in their garage.
The unease is more general, though. Something isn't optimal so let's get the federal government involved? Does Alito seriously suggest that the solution to a morally negative use of a technology (which is itself morally neutral) is a government decision on who may or may not use that technology? He can have my laptop when he pries it from my cold dead hands.
Posted by: John Armstrong at November 4, 2005 08:34 AM
I had a similar initial reaction, but it's mitigated somewhat by the fact that in 1972 a "private computer system" would almost certainly have been a business mainframe.
Posted by: Bruce at November 4, 2005 02:49 PM
Bruce:
As I said, the quote was from before the era of personal computers. I came back at the end, though, and questioned whether this means Alito is a supporter of the government (and the federal government, specifically) regulating and controlling whatever can be used for any ill purposes.
Posted by: John Armstrong at November 5, 2005 02:16 PM
Holy Cow! I am a technologist, and I have strongly harbored exactly these fears and concerns regarding privacy for a number of years. Particularly since the rise of companies like Choicepoint and the broader and broader application and use of Credit scoring. With medical records not very far off, and the use of DNA testing for a number of diseases, this paranoia has only grown.
My greatest objection to Alito was based on his deference to police authority in 4th amendment questions; I feared he would be exactly the opposite of what he expresses here. If this is indeed his work and he still adheres to it, I'll be popping of a letter to my Senators asking them to support him.
Posted by: scott at November 7, 2005 05:13 PM
The strategy, if you want to call it that by those opposing Alito, is weak. It's so weak I call it "The CAP Strategy Against Alito is a Byrd CAP Strategy"
On the issue that they attack, Alito seems very progressive based on his stewardship of the "Boundaries of Privacy in American Society" task force. Things must be looking mighty bad in the anti-Alito camp for this to be their strategy. It looks for all I can tell to be an effort to Bork him from within the republican party like Meirs. That's not going to happen, and it is telling of just how weak the argument against Alito is from those who oppose and are organized against his nomination..............................
Posted by: Steve at January 7, 2006 10:35 PM
