Duke Magazine


Karla Holloway

Instantaneous photographs and newspaper enterprise have invaded the precincts of private and domestic life, and numerous mechanical devices threaten to make good the statement that what is whispered in the closet shall be proclaimed from the housetops…. Gossip is no longer the resource of the idle and the vicious but has become a trade which is pursued with industry as well as effrontery…. [T]he details of sexual relations are spread in the columns of our daily papers."

These are not the complaints of the twenty-first century, or even of the twentieth. They are the words of two Boston barristers, Louis Brandeis and Samuel Warren, who published their essay "The Right to Privacy" in the Harvard Law Review in 1890. They argued for a legal tort that would protect modern man from the kinds of outrageous violations of private personhood that the media's advancing technologies and "unscrupulous" interests threatened.

The right to privacy that allows us to associate our homes with sanctuary and that places the highest value on an "inviolable personhood"—a nineteenth-century notion of "the right to be let alone"—is a right we still understand and desire today. But in twenty-five years, I suspect that we will barely recognize how public—and indeed how violated—our inviolable personhood has become. In fact, we have encouraged some of this slippage. The threat of terrorism has been enough to persuade us to accept warrantless searches. And when these searches became virtual in the form of warrantless wire-tapping, it seemed merely a change of venue rather than a loss of constitutional rights. In the battle between privacy and national security, the nation followed its fears.

Brandeis and Warren were prescient when they named the kinds of devices and institutions that not only continue to threaten privacy (think of paparazzi, the Internet, Facebook, and MySpace) but also will, in a peculiar reversal of value, eventually relegate the idea of privacy to an archaic notion of years past.

By eagerly embracing new, increasingly necessary or seemingly urgent technologies, this era's modern man has contributed to the accelerated attenuation of the private. The desirable efficiencies of electronic communications displace concerns for their porous nature.

Consider one of the most recent versions of the private body rendered public—"sexting," or sending nude photographs via text messages. Did you allow the image to be taken on a cell phone? Did you send the image to ten of your very best friends? Just one? It doesn't matter. The production and form of transmission diminish the potential of an after-the-fact privacy claim. Our interest in joining virtual communities takes precedence over the caution that reasonably accompanies the insecurity of these technologies. And consumers can take no comfort in the fact that Facebook and Google seem to adopt the best model of corporate citizenship as they negotiate their ownership of users' information. The negotiations over how your information might be used become hot news-items-of-the-day but quickly fade from attention. They are more a customer-relations vehicle than a substantive engagement with consumer rights.

The visible body is not the only body at risk. Its very matter is no less vulnerable. When the U.S. Ninth Circuit Court of Appeals ruled in United States v. Kincade (2004) that a parolee had to provide a DNA sample for CODIS—the national DNA databank—it was a harbinger of the era to come. The Ninth Circuit cited a Supreme Court case, California v. Greenwood (1988). In that case, the Court held that household trash left curbside for collection was not private property because it was effectively and purposefully turned over to a third party (the trash collectors).

In his dissent from Kincade, Judge Alex Kozinski warned of the decision's potential reach, noting that "you can't go anywhere without leaving a bread-crumb trail of DNA matter." Thanks to twenty-first century science, even "garbage" DNA (naturally discarded matter like saliva, blood, hair, and skin particles) carries significant information about our genetic identities. Some "body's" trash can easily become our government's evidentiary treasure.

The potential for harm does not lie only in what we purposefully or inadvertently discard. In our eager embrace of DNA ancestry searches, we blithely swab our cheeks and send the sample through the mails, essentially cooperating in the public circulation of the most intimate dimensions of our identity. And those whose curiosity encourages their cooperation with enterprises that promise to unlock our genetic code are no different from those who surrender their DNA to determine, say, paternity. Whether it's Maury or National Geographic's Human Genographic Project, you might just as well have turned over both your own genetic information and your family's to any government entity that can prove a "special interest." You may indeed learn some facts about your genetic makeup, but the government may use it in any way that it deems appropriate. And as the science advances, the material you sent in for one purpose may end up being used for something entirely different—from medical research for the public good to tracking down a suspected criminal in your family, using the very genetic markers you made available for discovery.

Given the twenty-first century spectacles that already inhabit the virtual public square, as well as our increasingly eager, and arguably careless, contribution to their content, the idea of "a right to privacy" is already greatly diluted. In twenty-five years, I predict its social traces will reveal only faint reminders of the right those previous centuries were vigorously determined to claim. 

Private Bodies/Public Texts: Race, Gender, and a Narrative Bioethics

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