Privacy in the Home

Most of us have quirks in our morning routine that we might not necessarily want to share with anyone else—the Oreos for breakfast that would horrify our granola-chewing buddies, the tea tree exfoliant and moisturizer that would greatly amuse our brick-laying coworkers, the leopard-spotted underwear that clashes with our sober pinstripe suits.

Such information is generally within what we consider to be our "zone of privacy," which Simson Garfinkle defined in his book Database Nation as the ability of people "to control what details about their lives stay inside their own houses and what leaks to the outside." ^[1]

Since the information about your morning ritual is under your control, you can choose to share it with others. It might be fun, for instance, to horrify your health-food buddies by regaling them with tales of how you start your day with a triple espresso and a six-pack of Oreos, and "oh, did you see the Danish in the break room?"

The very fact that we can choose to share such information if we want to do so demonstrates that the "right to privacy," at least compared to the other freedoms we enjoy (most notably life and liberty), is not a particularly strong right. We can't, after all, give or sell our life to someone else and, Dilbert's cynical outlook notwithstanding, we're not allowed to do so with our liberty either. But we can and do give away or sell pieces of our privacy every day.

As a "right," privacy suffers from two main flaws: First, it's very difficult to protect because the definition of "privacy" shifts so dramatically from generation to generation, and even from person to person. A century or so ago in this country, a glimpse of a woman's well-turned ankle was considered erotic, since clothing styles and social propriety put even that innocuous body part within the zone of privacy. Today, that woman's great-granddaughters are shopping for specially designed panties, so that they can wear low-rise jeans without letting their underwear show. By contrast, we have far less trouble defining "life" and "liberty." If you ask a random sampling of people if they're alive or free, most will be able to give you a correct answer.

The second main problem with the "right to privacy" is that it is not yet widely recognized as a fundamental human right, or at least has not yet become one. The explicit prohibition against invading someone's "privacy," for instance, is less than a century old, and we still really don't have a clear definition of what it means. By contrast, the laws against taking someone's life are well understood and have been on the books for centuries. Even the prohibition against slavery, which remarkably only predates the "right to privacy" in this country by about thirty-five years, is still easily defined.

A century after its creation, however, the "right to privacy" is still vague and amorphous, struggling to find its place in our list of its freedoms. The main challenge is that at bottom, "privacy" is a derivative right, one that is largely based on our attitudes toward the ownership of property. As we'll see throughout this book, the main practical consequence is that when a privacy interest comes in conflict with property rights, privacy is typically the loser. And in a nutshell, that's the basic reason that "workplace privacy" is largely an oxymoron: Your interest in personal privacy in the workplace is routinely overridden by your employer's property interests.

Before we explore the various tools and technologies that employers are using to protect their property rights, it's useful to take a look at how property became a more important principle than personal privacy. There are a number of potential starting places for this discussion, but as England's infamous King John discovered nearly 800 years ago, few things focus the attention as neatly as the point of a sword.

The Magna Carta: Freedom from the Point of a Sword

On the edge of a sunlit green meadow in Runnymede, England (not far from Windsor Castle), there is a small monument. Ten straight beams of stone support a small dome, under which is a simple granite pillar that reads:

• To Commemorate
  Magna Carta
  Symbol of
  Freedom
  Under
  Law

The modest memorial—a gift to England in 1957 from the American Bar Association—marks the spot, approximately, where a group of rebellious barons forced King John, the younger brother of Richard the Lion-heart, to place his seal on a document guaranteeing English freemen certain basic rights.

There is no question that John's confirmation of the Magna Carta in June 1215 was a momentous occasion—one of the first instances in which a sovereignty acknowledged that even it is not above the law. Despite the importance of the King's concession, however, the Magna Carta had far less to do with a recognition of fundamental human rights and more to do with the protection of feudal property.

In thirteenth-century England, power was measured in property and the resources that could be drawn from it. As the fourth son of Henry II and the legendary Eleanor of Aquitaine, John was unlikely to inherit property, which earned him the nickname "John Lackland." In an effort to maintain family harmony with his oft-difficult younger brother, however, Richard gave John vast tracts of land in England when Richard was crowned king in 1189.

The nickname "Lackland" proved prophetic: Ten years later, after being crowned king following Richard's death, John quickly proceeded to lose all of England's property holdings in Normandy during the first five years of his reign. He spent the next decade trying to win them back, but in 1214, a stinging military defeat at the hands of Philip II brought an end to John's efforts and led to the formation of what we know today as France.

On his return to England, King John tried to refill the Crown's depleted treasury by demanding scutage (a fee nobles paid to avoid military service—the medieval equivalent of stepping to the front of the line for National Guard assignments) from the barons who had failed to join him in his fight against King Philip. Most of the barons refused to pay, and civil war began to spread across England. In the spring of 1215, the rebellious nobles captured London and forced John to negotiate with them at Runnymede.

The document initially endorsed by John was not called the Magna Carta, but instead "The Articles of the Barons." Not surprisingly, the original draft was entirely concerned with the protection of the rights and interests of the nobility. Subsequent drafts of the document, however, inserted the word "freemen" into the text of the Magna Carta, and it was this language that was read to residents throughout England.

King John never had any real intention of abiding by the document; in fact, just three months after affixing his seal to the charter, he persuaded Pope Innocent III to annul the Magna Carta on the grounds that it was signed under duress. John had a point—after all, the barons were all but holding a sword to his throat.

Over time, most of the specific provisions of the Magna Carta have gradually become irrelevant, but the principles embedded in the document became part of the bedrock of English common law. The news of what took place at Runnymede—that the Crown had acknowledged in writing that the monarchy could not seize property or prosecute freemen without due process of law—spread rapidly, and affixed the concepts of due process and the sovereign's adherence to law in the popular imagination. Underlying both of those concepts was the sanctity of private property and its freedom from interference and invasion, even by a sovereign.

The Declaration of Independence and the Bill of Rights

More than five hundred years later, belief in the Magna Carta's principles of due process and the sovereign's obedience to the law led another group of angry British subjects to gather together in Philadelphia. The complaint was essentially the same: that the Crown—then King George III—was arbitrarily disregarding the basic rights guaranteed to a free people.

Lacking the military strength needed to compel a distant monarch to sign a document like the Magna Carta, the colonists took a courageous leap and flatly declared their independence from Britain on July 4, 1776. "We hold these truths to be self-evident," the young Virginian Thomas Jefferson stirringly wrote, "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." Even in this clarion call for the recognition of basic human rights, the law of property was an important but hidden element: The term "unalienable" is defined as "incapable of being alienated, surrendered, or transferred," concepts that are traditionally applied to the ownership of land. ^[2]

Thanks to some timely help from the French army, the colonialists successfully resisted England's attempt to reassert its authority. Meeting again in Philadelphia in 1787, representatives of the thirteen colonies adopted the Constitution of the United States. On June 21, 1788, after a long and frequently feisty debate, the Constitution was ratified by a ninth state, New Hampshire, and the United States of America was formed.

With the battles against the British Crown still fresh in their minds, many of the political leaders of the new nation were concerned that the newly drafted Constitution did not do enough to guarantee the rights of individual citizens. When the inaugural Congress convened in 1789, the first thing that it did was to pass twelve proposed constitutional amendments, ten of which were ratified and form what we know today as the "Bill of Rights." Not surprisingly, given the often heavy-handed rule of King George and the British Parliament, half of the new amendments were specifically aimed at protecting the freedom of a person and his property from intrusions by the newly created federal government.

Amendments Protecting Property

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

More than 200 years later, it's still somewhat surprising to modern eyes that neither the Constitution nor the Bill of Rights even mention privacy, let alone specifically protect it. At the time that these documents were drafted, however, the concept of personal privacy barely existed. To the extent that privacy was an issue for the Founders at all, it meant primarily the right of citizens to be free from unjustified physical restraint and to be free from unlawful intrusion onto their property by agents of a central government.

^[1]Simson Garfinkle, Database Nation (O'Reilly & Associates, Inc., 2000), p. 4.

^[2]Webster's New Collegiate Dictionary (G. & C. Merriam & Co., 1977).