In a few weeks, the Supreme Court will be hearing oral arguments in a case challenging the constitutionality of the Affordable Care Act, the Obama administration's landmark health care reform law. The big issue before the justices will be whether the law's provision for an "individual mandate" -- demanding that everyone purchase health insurance or pay a fine for not doing so -- can be justified under the clause of the Constitution which gives Congress the power to regulate interstate commerce.
The act's opponents claim that Congress only has the power to regulate interstate commercial activity, not commercial inactivity, which is what a fine for not buying insurance would be, and therefore, they say, the act is unconstitutional. But I have a feeling that for the great bulk of those who oppose the act, the reason is not some refined reading of the Constitution. It is, instead, the desire to be left alone.
What so many opponents of the Affordable Care Act find offensive is the idea that you have to do something because the government tells you that you have to when freedom to so many Americans has traditionally been understood to mean being left to our own devices. If the law withstands judicial scrutiny, they argue, then what is next? A law requiring us all to buy General Motors cars? Or, in their favorite hypothetical, one requiring us all to eat broccoli?
While both of these images take the idea to the ridiculous, in my judgment, I do believe that the underlying attitude behind opposition to the Act is the feeling that to live in the 21st century is to lead a life that is persistently intruded upon, either by government or business or technology or, perhaps worse, some inchoate force we can't yet describe or define. It is a concern that defies party and ideological lines and it is growing day by day.
Last week, President Barack Obama signed a law authorizing the Federal Aviation Administration to open the skies to civilian drones -- yes, little unmanned aircraft that can hover over your neighborhood. You can just imagine what benefits such technology could provide -- for agriculture, for traffic control, for armchair real estate shopping. But there is nothing in existing privacy doctrine to prevent these same drones from gathering whatever information they can on you so long as it is visible from a "public vantage point," and nothing to prevent them from storing such information for future use or sale.
Drones, which can read license plates and track the movements of vehicles, are coming to your local police precinct as well. Last year, the Supreme Court ruled that a GPS device surreptitiously attached to a suspect's vehicle so as to monitor his movements was a violation of the Fourth Amendment right against unreasonable search and seizure. But because it does not enter the home and is not attached to a vehicle (or some other piece of personal property), a little drone hummingbird pausing in the sky outside your bedroom window would fall outside the Court's ruling.
Think of it. While so many aspects of 21st century-Internet shopping emphasize "choice" and the ability to cater your consumer decisions to the minutest individual detail, one of the insidious trade-offs in this is the way that e-commerce sites can silently gather -- and keep -- information about your online activities, information that allows them to market to you with greater precision.
Businesses will argue that this helps consumers in the way that it alerts them to well-tailored buying options they might not otherwise be aware of, but there is a growing movement of people who find this kind of eavesdropping to be an unacceptable invasion of their personal space. Last year Democrats introduced two bills in Congress -- the Do Not Track Kids Act proposed by Rep. Edward Markey of Massachusetts and the more extensive Do Not Track Online Activity Act sponsored by Sen. Jay Rockefeller of West Virginia -- intended to limit businesses from gathering and keeping on-line information, including the requirement to "anonymize"(a great new word for describing a new need) information that they do gather.
The worry about the meddlesome society has been felt in Europe, too, but here the example demonstrates just how difficult it will be to adjust the new media technologies to American principles of free speech. In a recent issue of Stanford Law Review Jeffrey Rosen noted that the European Commissioner for Justice has proposed the establishment of a new "right to be forgotten," a wonderfully poetic phrase (if they have not already, someone needs to call this "The Greta Garbo Act") that has emerged from the concerns of those who post something on the Internet that they later decide they want to remove. Since the Internet is permanent in a way that no other kind of expressive speech has ever been, it has made it next to impossible to escape one's past. Pictures, tweets, and posts live on impervious to their future impact.
The French phrase for this right -- le droit a l'oubli -- has long been recognized by French law for criminals who after having served their time and been returned to society should not, French law reasons, be hampered by the publication of the details of their past. (Our First Amendment doctrine recognizes no such right.) But the growing feeling in Europe now is to extend this right to all, allowing people to expunge things from the Internet that they no longer want to be seen.
Google's lawyers see the "right to be forgotten" as censorship, and not only "self-censorship." What, for instance, does one do about posts or pictures or other pieces of data that are copied and re-posted by others? In the proposed law there is an exclusion made for journalistic, artistic, or literary expression but the burden of determining whether something has such intrinsic value is left to those who run, say, the social network site re-posting it or even the search engine that hosts the site. One can only imagine the chill that would overcome the Internet if such restrictions were to be recognized by American law.
None of these issues threatening personal privacy suggests an easy solution. All point to the awkward fact that for a society like ours, with our fierce protection of individual choice and freedom of expression, the new world is making it harder to be master of your own domain and harder, to be sure, to be left alone.
Todd Brewster is the Director of the National Constitution Center's Peter Jennings Project and the Center for Oral History at West Point.
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