Computer technology has given reporters access to information faster than ever before. With the help of the Internet, reporters can research nonprofit companies and check on the status of legislation without leaving their desks. Databases help reporters sift through accident reports to find doctors guilty of repeated malpractice and courts that send an inordinate number of minorities to the electric chair.
But the same technology also has created a backlash from a public that fears how much personal information con artists, private companies and, to a lesser extent, government can gather.
Privacy legislation is being introduced regularly, from a new Florida law closing autopsy records to a piece of legislation in Pennsylvania that would add a right to privacy to the state constitution.
Privacy advocates say they aren’t trying to stop reporters from keeping a watchful eye on government. But media attorneys warn that unless privacy legislation is carefully crafted, access to what are now public records can be cut off.
In Pennsylvania, Republican state Sen. Jake Corman introduced legislation to put a right to privacy in the state constitution. Roughly 25 other states already make some reference to privacy in their constitutions, according to his office.
“This nation was founded on the principle of personal property and rights,” he said. “No one has the right to information you want to keep private.”
Identity theft is one of his prime concerns, he said.
One of his colleagues, Rep. Matt Baker, fell victim to the crime. In another case, a man who moved to Pennsylvania from New Jersey testified that he had to go to New Jersey several times after someone from the New Jersey Department of Motor Vehicles stole his discarded license and gave it to people who used it to commit crimes under his name.
“With technology the way it is today, once someone gets your Social Security number, you’re done,” Corman said.
He also worries about reports he heard from Massachusetts, where a college professor was able to cross-reference voter registration databases with other databases to find out why the governor of that state was admitted to a hospital, as well as his prognosis and treatment.
“I’m not trying to close the doors on public knowledge on how government works,” he said. “But no one has the right to that kind of information if you want it kept private.”
Robert Ellis Smith, an attorney and publisher of Privacy Journal, said he believes that only about 13 states specifically mention privacy in their constitutions. But those 13 states include 35 percent of the U.S. population, he said.
According to Smith, people need privacy laws to protect them from stalkers and aggressive telemarketers. Medical records need to be kept private to protect patients’ dignity. Bank account information needs to be shielded to make sure marketers, charities and criminals don’t know how much money people have. Smith also said people should be protected against being photographed against their will, especially if those photos might show up on the Internet or be manipulated to make them appear in fake, embarrassing scenes.
“I’m particularly concerned with posting a lot of data on World Wide Web sites,” he said. “It makes it too easy for stalkers to find people.”
But government officials can use privacy legislation to hide their own wrongdoing, while some commercial groups carve out special privacy legislation to protect their own interests, said Jane Kirtley, professor of media ethics and law at the University of Minnesota and the former head of The Reporters Committee for Freedom of the Press.
The most glaring example is at the federal level, where Attorney General John Ashcroft refused to release the names of Middle-Eastern men detained after the Sept. 11 terrorist attacks, saying that it would intrude on the men’s privacy.
“It’s outrageous that the government makes those kinds of arguments,” Kirtley said. “I don’t know anyone who wants to be held in secret if that would mean people didn’t know he was arrested and he wouldn’t be able to see a lawyer.”
In Florida a few years ago, veterinarians tried to close records showing who owned dog licenses, Kirtley said. She said they claimed it was a violation of the animals’ privacy.
The real reason, she said, was that dog food companies had started using those lists to send advertisements to dog owners. The veterinarians were selling the same food to their clients and didn’t want the competition, she said.
In Washington, D.C., in May, the National Zoo refused to turn over information on a dead giraffe to a Washington Post Reporter, citing the animal’s medical privacy, according to The Reporters Committee. The veterinarian also said the public wouldn’t understand the documents and argued that turning the documents over would disrupt scientific research.
In California, arrest records were closed to the public after information brokers began selling lists of those arrested to attorneys and detox clinics, which would then solicit them for business, Kirtley said.
The law still allows journalists to look at the records, but that gave the state the right to decide who was a journalist. Web journalists and free-lancers could be excluded by officials who don’t like their reporting, she said.
Asking government to protect citizens’ privacy from private industry is dangerous, she said.
“It creates a climate of secrecy where the public isn’t aware of what’s being gathered about them, much less what is being done with it,” she said.
In addition, if the information isn’t public, there is no way to make sure the information is accurate, she said.
“The privacy pretext is being used to ensure government is not held accountable,” she said.
Journalists often are their own worst enemies when it comes to keeping public access open, Kirtley said.
“They’re more likely to report invasion of privacy stories and stories about identity theft,” she said. “They don’t write the other half of the story, the way these records make sure government is held accountable.”
In Montana, privacy rights took a strange twist in the mid-1980s when the state supreme court ruled that corporations had the same privacy rights its state constitution grants individuals.
Michael Meloy, a media attorney there, said that surfaced when Mountain States Telephone and Telegraph Co. – now known as Qwest – requested a rate increase from the Montana Public Service Commission. A competing phone company asked to see its application, which normally would have been public because it was filed with the government. Mountain States objected, and the state supreme court ruled that releasing the application would violate the company’s right to privacy.
But since then, the court has backtracked, he said. A Supreme Court judge in another case wrote that the state erred in the Mountain States case. Meloy said he is representing a group of newspapers that wants to see the contracts between electricity providers. The case is before the Supreme Court, and he said he expects the court will rule against a corporate right to privacy.
BALANCING PRIVACY AND RIGHT TO KNOW
On the whole, Meloy said, Montana’s courts have done a good job balancing people’s right to know against their right to privacy.
That’s because both rights are written into the state’s constitution, he said. Even more importantly, when privacy rights are up against a public interest in knowing information in Montana, the burden of proof falls on the person who wants to keep the information closed.
So when a Montana policeman was fired for beating up a suspect, the court released the reason behind the termination, even though that sort of personnel information would normally be kept private, he said.
Likewise, last summer, when the governor’s top aide drove after drinking and got into a car accident that killed the majority leader of the Montana House of Representatives, the court ruled that the investigation was public. That ruling came against the wishes of Gov. Judy Martz, according to Meloy. She washed the aide’s bloody clothes before police spoke to him, he said. Then she tried to have the investigation records closed on the grounds of privacy, Meloy said.
“Most of the time, the right to privacy is not intended to keep the public from knowing things it should know about,” said Meloy. “But if they can, people in government will use the right to privacy to shield their dirty laundry.”
Privacy Journal’s Smith says that he, too, worries about government officials misusing privacy to duck public scrutiny.
“Some of them are giving privacy a bad name,” he said.
Ideally, he said, the state should protect information that meets three criteria: release of the information would be a clear, unwarranted invasion of privacy; the information is sensitive; and the information deals with an individual as opposed to a company or group.
“If you narrow it down to those circumstances, there are few times privacy would trump open access laws,” he said.
Smith said transcripts of 911 calls should almost never be released. In cases of compelling public interest, such as when there is a question of whether a dispatcher handled a call correctly, a neutral third party should first review the call and rule on whether it should be released. Or the names of people calling in should be masked, he said.
Kirtley, however, would rather avoid privacy laws altogether.
Instead, those who use public records to steal identities or commit other crimes should be severely punished, she said. Meanwhile, people should work to limit the amount of personal information the government collects about them in the first place.
After all, she said, the government has the power to arrest people, garnish their wages and take away their children.
“The harm a telemarketer can do to me pales in comparison to what the federal government can do by reading my e-mail,” she said.
Susan Schwartz is a reporter for the Press Enterprise in Bloomsburg, Pa., and the SPJ Project Sunshine chair for Pennsylvania.