By Jane Black It seems reasonably clear by now that President George W. Bush sees the world in black and white. There are good guys and bad guys. Us and them. Except, that is, when it comes to personal privacy. Two major news stories in late April have highlighted the Bush Administration's flip-flop approach to privacy protection -- what I call suit-yourself privacy. The first is the mammoth prochoice rally in Washington, D.C. The second is the Pentagon's decision to enforce a ban on photos of flag-draped coffins leaving Iraq.
On the face of it, the two have nothing in common. But at the heart of both stories is an individual's right to privacy. On Apr. 23, hundreds of thousands of people marched on the Capitol to protest, among other things, the Administration's decision to subpoena women's private medical records to support its case against late-term abortions.
The Justice Dept. claims this isn't an invasion of privacy because federal law "does not recognize a physician-patient privilege." It further asserts that patients "no longer possess a reasonable expectation that their histories will remain completely confidential."
CUSTOMIZED DEFINITIONS. That very same day, Bush spokesman Trent Duffy condemned the publication of photos of flag-draped coffins in The Seattle Times and on various Web sites, including TheMemoryHole.org. Duffy said the White House found the images inappropriate because "the sensitivity and privacy of families of the fallen must be the first priority."
Privacy, it seems, is irrelevant if the Administration wants your personal information to advance one of its moral crusades. But it's of primary importance if it wants to keep from public view those images that drive home the cost of the conflict in Iraq -- and perhaps cause it political damage in the process.
Of course, this is hardly the first time the Bush White House has customized the definition of privacy to suit itself. In the wake of the September 11 terrorist attacks on New York and Washington, hundreds of Arab men were held without being charged. Federal investigators declined to disclose even the most basic facts about them, including their names and where they were being held. The stated reason: protecting the privacy of detainees.
GUARDED INFO. Meanwhile, Vice-President Dick Cheney has used privacy as an excuse not to release his own medical records -- even though he had four reported heart attacks before he took office in January, 2001. And he has gone to the U.S. Supreme Court with the argument that the public would be invading the privacy of his Energy Committee -- and risking "the President's constitutional authority to gather candid advice from his advisers" -- if notes of the committee's conversations were revealed.
And although he didn't specifically cite privacy as his reason, Bush has refused to release many personal documents that might be useful to establish his whereabouts during the time he may -- or may not -- have been serving in the Texas Air National Guard.
What's hard to understand is why an Administration that's so protective of its own privacy seems increasingly insensitive to the privacy of average Americans. For instance,the Homeland Security Dept. is spending millions to roll out the Computer Assisted Passenger Pre-Screening Program, better known as CAPPS 2, which would perform a background check on air passengers before allowing them to fly (see BW Online, 4/17/03, "The System That Doesn't Safeguard Travel").
THWARTED INITIATIVES. The Patriot Act -- which the President now wants to make permanent -- has granted vast new powers of surveillance to federal law-enforcement officials. It authorizes increased access to student records and financial records with minimal judicial supervision. It even includes a catch-all section that gives law enforcement access to individuals' records upon the mere assertion that the information is "sought for" an authorized investigation. "That's what I call a rubber stamp," say Greg Nojem, associate director of the American Civil Liberties Union's Washington legislative office.
And let's not forget the programs Congress wouldn't approve. Remember Total Information Awareness, the Pentagon's attempt to combine Americans' bank records, tax filings, driver's license information, credit-card purchases, medical data, and phone and e-mail records into one giant centralized database? And what about TIPS, a Justice Dept. program that would have trained civilians with access to your home -- like the gas man and the cable guy -- to look out for suspicious activity, then report it to the government?
"What we're seeing is a massive reduction of personal privacy as the government demands more from us," asserts Marc Rotenberg, executive director of the Electronic Privacy Information Center, a Washington (D.C.) privacy advocacy group. "At the same time, the government is using privacy as an excuse to raise the shroud on government activity."
"BOGGED DOWN IN THE LAW." That's a curious inversion. In a free society -- the kind the President sent U.S. troops to Iraq to establish -- the lives of private citizens should remain private, while the lives of public leaders should be an open book. In the post-September 11 world, however, that notion has been turned on its head. Average Americans are increasingly accountable to Homeland Security Chief Tom Ridge, while Cheney and other top officials wish to be accountable to no one.
White House spokeswoman Claire Buchan disputes that assertion. "The President believes that we need to pursue our priorities," she say, "which are defending America, winning the war on terrorism, and securing our economic future in a way that protects the rights and liberties of the American people." As for the Patriot Act, Buchan says it's a tool that simply allows law-enforcement officials to use laws already available for tracking down drug traffickers to bring terrorists to justice.
That may be broadly true, but as Bush himself is the first to admit, he's not one to scrutinize the details. "I'm not a lawyer, so it's kind of hard for me to kind of get bogged down in the law," he joked in an Apr. 20, speech in Buffalo, where he advocated the renewal and enhancement of the Patriot Act. And as anyone who cares about privacy knows, the devil is in the details.
MESSAGE TO GEORGE. So here's some advice for Bush about a way to think of privacy in the broadest terms. Supreme Court Justice Louis Brandeis once said that privacy is the freedom to be left alone. And if anyone can understand that, it should be you, Mr. President. You have made freedom your mantra. But freedom should apply to everyone, not just a select few.
And freedom should apply all the time, not just when it suits whichever Administration happens to be in the White House. If you want to go down in history as one of the good guys, you should bear that in mind. Black covers privacy issues for BusinessWeek Online in her twice-monthly Privacy Matters column