306 / Book Reviews

serious and useful book. At the end he offers a list of mostly sensible reforms asexamples of what might be brought about by an open discussion of the issues.

Judge Gray puts it in a nutshell when he says that “we should approach this issueas managers, not as moralists” (p. 10). Reducing the prevalence of use of heroin,cocaine, and marijuana is a worthy goal, but it is not a goal worth pursuing at anycost. We need a more humane and inevitably more complex guide to policy for illicitdrugs. MacCoun and Reuter have provided us with such a guide, and a good deal ofthe empirical base needed to apply it.

PHILIP J. COOK is ITT/Sanford Professor of Public Policy, Sanford Institute of PublicPolicy, Duke University.

Richard J. Ellis

The Limits of Privacy by Amitai Etzioni. New York: Basic Books, 1999. 280 pp., $16.00paper. DOI: 10.1002/pam.10033

Amitai Etzioni is the country’s most prolific and insistent communitarian. The topicshe writes about are tremendously diverse. They include human rights, holidays, theinternet, divorce, drugs, cops, corporations, education, affluence, diversity, and hatespeech. Although the subjects vary, the theme remains doggedly the same: Americahas become a nation out of balance. Rights now trump responsibilities, and theindividual has been elevated over the community. Etzioni’s goal is to restore the balancebetween personal autonomy and the common good.

In The Limits of Privacy, Etzioni applies his communitarian philosophy to the subjectof privacy in the contemporary United States. The trouble with privacy, according toEtzioni, is that too often it is allowed to trump other values and close down theconversation. Privacy is regarded as an absolute right, rather than as one value thatmust be balanced against other values. Etzioni is particularly concerned that Americans’“excessive deference” (p. 4) toward privacy often comes at the expense of public safetyand public health. As examples, Etzioni points to the resistance to HIV testing of infants,public release of sex-offender information, public decryption devices, and universalidentification cards and biometric identifiers. In each of these areas, Etzioni argues,the privileging of individual privacy has led to a disregard of the good of the whole.

Not that Etzioni always comes down on the side of the community. In the case ofmedical records, Etzioni sides emphatically with protecting privacy. This case isimportant to Etzioni since he bills himself as an apostle of moderation and commonsense who rejects the absolutisms of left and right in favor of a case-by-case balancingof rival goods. If privacy lost out in each of the book’s case studies, the reader mightwonder whether Etzioni is less interested in balancing rival goods than insubordinating privacy to the needs of the community.

Etzioni’s desire to replace an absolutist “rights talk” with a discourse of balancingrival goods is appealing. Who could disagree that privacy, like all values, has limits?Only fanatics elevate a single value into the only one worth pursuing, and only utopiansignore the unavoidable clash between rival values. In different societies and in differenttimes, the choices will be made differently, but we all must choose. And every choice,as Isaiah Berlin emphasizes, entails loss.

One can accept Etzioni’s general plea for the need to balance rival goods, however,without accepting the book’s premise that privacy has assumed a privileged, let alone

Book Reviews / 307

unassailable, place in contemporary American public policy and law. Etzioni’s claimthat an individualistic commitment to privacy has “overwhelmed other societalconsiderations” (p. 5), such as public safety and public health, cannot withstand closescrutiny. Far from treating privacy as an unassailable trump card, courts andpolicymakers routinely balance privacy interests against competing societal andindividual interests. And privacy arguably loses more often than it wins.

Certainly it is difficult to find evidence of an excessive deference to privacy in thearea of sex offenders. During the 1990s, every state enacted legislation requiringreleased sex offenders to register with local law enforcement agencies. States andlocalities differ greatly in how they handle this information. Some send police officersdoor to door to notify the community that a sex offender has moved into the area,others make the information available on the Internet, and still others target those inthe community with the greatest need to know. Some release the address as well asthe name of the sex offender. The notification procedure and the amount of informationreleased often depend on the degree of threat an offender poses to the community. Inshort, states and localities are currently engaged in precisely the sort of balancing ofprivacy and public safety that Etzioni recommends. The trouble is, as Etzioni concedes,these notification policies have been largely ineffective in reducing recidivism andprotecting the community. Etzioni proposes instead to transfer all high-risk child sexoffenders who have completed their sentence “to a guarded village or town wherethey are allowed to lead normal lives aside from the requirement that they stay put”(p. 73). But it is not clear how creating a colony of sex offenders illustrates the virtuesof balancing rivals values. Instead it seems to turn public safety into the trump card,while jettisoning altogether individuality, autonomy, and privacy.

The argument that privacy occupies a privileged position today is particularlydifficult to reconcile with court decisions in recent decades. Since 1970, the U. S.Supreme Court has consistently constricted the privacy protections afforded by theFourth Amendment, particularly in cases involving drugs. The Court has ruled thatno reasonable expectation of privacy exists for a homeowner whose backyard wassubject to aerial surveillance by the police nor for the man who put his trash out forcollection only to have it searched by police. Nor, according to the Court, do we havea reasonable expectation of privacy in our bank records or in the telephone numberswe dial. Since we voluntarily give this information to the bank or telephone company,the government does not need a warrant to obtain such personal information. Noteven our private diaries are secure from government, as Bob Packwood and TedKaczynski both discovered. Reasonable people might disagree whether the Court’sactions have struck an appropriate balance between privacy interests and lawenforcement interests or whether law enforcement interests have been allowed toovershadow privacy concerns, but the position that privacy has trumped public safetyis untenable.

In the workplace, privacy is closer to imperiled than privileged. The Supreme Court’sdetermination that a privacy right exists only where an employee has a reasonableexpectation of privacy creates a perverse incentive for employers to expand thoseareas of the workplace that it monitors regularly, thereby lowering the employee’sexpectation of privacy. A company policy declaring that e-mail will be monitored isenough to show that employees do not have a reasonable expectation of privacy intheir e-mail messages. Companies concerned about theft can and do search theiremployees and their lockers, food service companies and health care providers canand do use high-tech equipment to monitor that their employees are washing theirhands, and employers routinely administer drug tests in the name of public safetyand economic efficiency.

308 / Book Reviews

So long as the monitoring is not “highly offensive to a reasonable person” theemployer will prevail in court, and even when the monitoring might be highly offensive,it is the rare case that will ever be challenged in court. The privacy card available toemployees is no match for the employers’ stacked deck of public safety, public health,and economic efficiency.

Etzioni’s exaggerated portrait of the privileged status of privacy stems in part from anoversimplified narrative pitting individual rights against community interests. Overlookedaltogether is the fierce conflict among rights, a conflict in which privacy rights oftencome out on the short end. When privacy clashes with free speech, freedom of the press,or the public’s right to know, privacy generally, although not invariably, loses.

Privacy fares even worse when it comes into conflict with concerns overdiscrimination and harassment, as Jeffrey Rosen emphasizes in his recent book, TheUnwanted Gaze: The Destruction of Privacy in America (2000). Nondiscriminationand harassment laws are an inseparable part of the general cultural shift towardindividual rights that Etzioni sees as beginning around 1960, yet these laws haveweakened, not strengthened, privacy protections. The effect of a legal and regulatoryregime designed to root out discrimination and harassment has been to make privatebehavior of public interest. Privacy becomes brushed aside as the last refuge ofhypocrites and scoundrels.

The relative weakness of privacy arguments in contemporary law and policy is alsoevident in the struggle over gay rights. Initially, gay and lesbian activists framed theirarguments around privacy rights, but only after redefining same-sex marriage as anissue of discrimination did they begin to succeed—first in the Hawaii Supreme Court,and then in the Vermont Supreme Court and legislature. In Baehr v. Lewin (1993), theHawaii Supreme Court found that a ban on same-sex marriage violated Hawaii’s equalprotection clause, but dismissed the argument that same-sex marriage could be seen aspart of a fundamental right to privacy. Relying upon recent U. S. Supreme Courtopinions, including Bowers v. Hardwick (1986), the liberal-leaning Hawaii court agreedthat same-sex marriage was not “so rooted in the traditions and collective conscienceof our people” that it could be seen as a fundamental privacy right. Far from allowingprivacy to trump community, the courts have allowed community to define privacy.

Etzioni may well be right that we should be more aggressive in AIDS testing, thoughthe real obstacle here, I suspect, is not that privacy is a trump card but that concernsabout discrimination and equality, backed by interest groups who care intensely aboutthe issue, make this an awkward issue for public officials. He may be right, too, thatthe advantages of biometric identifiers or national identification cards outweigh thesacrifice in privacy that would be required to implement these new technologies. Buthis real aim, as he admits at the outset, is not to gain “limited, ad-hoc concessions”on particular policies. Rather, his aim is a fundamental change in American publicphilosophy. “What is required,” Etzioni insists, “is a fundamental change in civicculture, policymaking, and legal doctrines.” Privacy must be treated “as one goodamong others, without a priori privileging” (p. 4). One need not accept the manymodern-day jeremiads about the eclipse of privacy in a high-tech age to recognizethat privacy does not occupy anything like the privileged position that Etzioniimagines. If Etzioni’s plea for the need to balance privacy with other interests andvalues seems like common sense, that is because his prescription is already policy.Proposals to restrict (or expand) privacy in this or that policy area can and should bedebated, but the attempt to label privacy advocates as absolutists or extremists is arhetorical device better calculated to close down a conversation than open one.

RICHARD J. ELLIS is Mark O. Hatfield Professor of Politics, Willamette University.