BIG BROTHER'S SMALL MIND

What an unexpected -- at least by me -- twist it would be if Internet
technology managed to do what nearly two decades of drug war hysteria could
not: force Americans to re-learn the concept of civil liberties.

If you haven't yet read business editor Sharony Green's piece on this page
about the complex and sometimes scary implications of computer technology's
ability to encroach on every corner of your life, do so right now. You can
come back to this later, if you're really desperate.

Different aspects of the issue will hit a chord -- or a nerve -- with
different readers, but the one that hit hardest here is the question of
whether the Constitution has the flexible strength to protect us from the
kinds of intrusions by private interests that would never be allowed on the
part of government.

It's a question that's bothered me for years, though not (until now) in this
context. For some time I've had the strong sense that much of the Bill of
Rights was becoming practically, if not officially, obsolete, rendered
largely irrelevant by court rulings and public attitudes that suggest Big
Brother really isn't all that bad a guy as long as he comes dressed in a
business suit instead of an Orwellian tunic.

The result is that your rights involving things like search and seizure,
self incrimination, probable cause and privacy all have a big asterisk
beside them. Government can't arbitrarily search your body chemistry -- but
your boss can. The police can't randomly bug your workplace phone
conversations or monitor your e-mail -- but your boss can. It may be taboo,
as a matter of public health, for you to smoke in certain places, but nobody
can prohibit you from smoking at home -- except your boss. (Think I'm joking
about that one? Think again.)

The argument for this public-private dichotomy, of course, is that your
phone and computer and desk drawers at work aren't really yours at all --
they're the company's. (What about your urine or hair fibers, or the
sanctity of your smoke-free living room? That's another debate.)

And it's not just employers. The folks with whom you do on-line business may
well be compiling data banks on your likes and dislikes, and sharing that
information with other folks, the result of which may be a profile of you
that gets into some pretty personal stuff, and which a lot of people you'd
rather not let know such things have access to. Just how protected is
computer data about, say, your preference in birth control? Your medical
records? The kinds of books and videos you enjoy?

There are two basic problems with allowing the private sector sweeping
powers over your life that government is forbidden to exercise. The first is
that there's so much gray area, so much overlap. The state can't, for
instance, arbitrarily force you to submit to a drug test -- but it can offer
a worker's comp discount to employers who do. When taxpayers subsidize drug
testing, you have to make me a pretty compelling argument that drug testing
isn't a government program.

The second, and more important, is that the principles behind civil
liberties -- that "penumbra," to use a Supreme Court term, of protections
that are supposed to make your life your own -- are moral and ethical as
well as legal. The letter of the law may concede private interests broad
powers over our lives, but the spirit of the law comes nowhere close to
granting those powers the status of rights.

Indeed, the very word "private" in the above context is laden with cruel
irony: Isn't "private" an adjective more aptly applied to individuals than
to collectives in the first place? Isn't it precisely our right to things
that are fundamentally private that is most jeopardized when "private"
interests have power over them?

Our technology is almost always ahead of our ethics, which is why we had
nuclear bombs before we had nuclear power. I firmly believe the Constitution
is durable enough to protect us in this new realm, but why should it have
to? Just because I own a good pair of binoculars doesn't mean I have to spy
on my neighbors.