SCALIA ON PRIVACY

"The question we confront today," wrote Justice Antonin Scalia in an
opinion that places him up there with Louis (the right to be let
alone) Brandeis, "is what limits there are upon this power of
technology to shrink the realm of guaranteed privacy."

Cops in Oregon suspected a man of growing marijuana inside his house.
They knew he would have to use high-intensity lamps, so they had this
bright idea to place a thermal imaging machine across the street to
measure the heat coming through his walls ó enabling them to "see"
inside the house as if they had X-ray vision.

Unconstitutional, ruled the Supreme Court, in a 5-to-4 decision that
crossed all ideological lines. To the lower court that held that the
thermal search had revealed no "intimate" details, Scalia replied, "In
the home, all details are intimate details." He refused to "leave the
homeowner at the mercy of advancing technology," bottoming the
majority's opinion on the original intent of the framers of the Fourth
Amendment prohibiting unreasonable searches.

Thus our homes are still our castles, into the most humble of which
not even a king may pass without the owner or occupier's consent.

The Supreme Court's reaffirmation of the individual's right to privacy
is heartening news to citizens who want to maintain personal control
of their medical, financial and academic records, their buying habits,
their genetic makeup and other intimate details of their lives. Such
information should be available to others only with the individual's
consent.

Identity theft is the fastest-growing crime in America today,
impoverishing a third of a million households last year. The key to
your identity door is your Social Security number. Shouldn't there be
a law to stop companies from demanding your number, or selling it to
anyone, including potential stalkers or identity thieves? President
Bush is ready to sign one, but an anti-privacy lobby keeps Congress
from passing it.

You've probably been getting mail lately from your bank spelling out
in unintelligible prose its "privacy policy." The Washington Post's
Robert O'Harrow Jr., whose coverage of privacy sets a high standard,
reports that a billion or more of these policy fliers ó 10 per
household on average ó are being sent out in compliance with a 1999
banking law.

Unless you assume the burden of "opting out" by filling out a form,
finding a stamp and mailing it back, the bank can share all your
private dealings with any affiliate or marketer or just about anybody.
Fewer than 5 percent of us protect ourselves by taking the trouble to
say "no"; we're lazy, which is just what the perpetrators of "opt out"
count on.

Banking-insurance combines, credit agencies, Internet cookie-cutters,
private investigators and other snoops are dead set against the method
known as "opt in," which would require them to get our informed
consent before spreading our private data around for their profit. The
anti-privacy lobby has been delaying, watering down and defeating
legislation to require the customer's consent before using information
having nothing to do with the goods or services that the buyer is buying.

Who's pro-consent in the Congress? At Senate Commerce, the new
chairman, Fritz Hollings, has been a staunch advocate of "opt in," but
the anti-privacy lobby is counting on John Kerry and John McCain, who
have swallowed its "opt-out" line. Senator Dianne Feinstein's bill
goes both ways. The Democrat Chris Dodd and the Republican Richard
Shelby are strongly pro-consent, having just pushed through an
amendment to the education bill requiring consent from parents before
marketers can obtain data from children in schools. (Primedia is
determined to kill that in conference.)

In the House, Florida's Clay Shaw has reintroduced his bill to
restrict the sale and display of Social Security numbers, and Senators
Jim Bunning and Tom Harkin have its companion in the Senate. But the
House Democratic leader, Dick Gephardt, is the prime captive of the
anti-privacy lobby; the snoopers' friend has inexplicable support from
the American Enterprise Institute, now distributing a tract arguing
that consumer consent is just too costly for business to bear.

Which approach will prevail - opt-in consent or opt-out intrusion? Do
not despair, consenters; Scalia (and Justices Thomas, Ginsburg, Souter
and Breyer) have given us hope.