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But ask how her personal experiences have shaped The Right to Privacy,the book she and co-author Ellen Alderman have recently written on the subject of privacy, and Kennedy displays remarkably little rancor toward the press.
"That's usually people's first reaction," Kennedy says cheerfully. "'Oh, you've had so much experience; you can just write about yourself.' But the right to privacy involves many different issues, from drug tests and school searches to workplace and technology issues. The media is only part of it, and under the law it's not even a very big part of it."
Kennedy does mention a particularly egregious case, described in the book, in which a Los Angeles area television crew traveling with a team of paramedics filmed the heart attack death of a man in his own home, and then broadcast the scene repeatedly, without ever having asked family members' permission-or even notified the family that they intended to air the footage. Kennedy's purpose, however, is not to bash the press but rather to reiterate one of the points of the book-that privacy isn't just a problem for the rich and famous but for everyone. "Now that the media has grown and is so much more energetic in pursuing stories," Kennedy says, "people who never expected it suddenly find themselves caught up in a story and lose control over their lives."
In fact, as great an affront to our ideas of common human decency as this television case seems to be, the results of the family's invasion of privacy lawsuit were mixed. And this leads Alderman, a friend of Kennedy's since they went to law school together and co-author with Kennedy of an earlier best-selling book on the Bill of Rights (In Our Defense), to make another of the book's important points. "Almost always when privacy is at stake there is also another very important right or interest involved. And often the right to privacy gets balanced away or loses out to that other interest-the interest of law enforcement or a free press or a boss's right to run a business, for example."
One of the difficulties for privacy advocates, as Alderman and Kennedy state in the introduction to The Right to Privacy, is that "the word 'privacy' does not appear in the United States Constitution." The most explicit section of the Constitution involving privacy is the Fourth Amendment, which prohibits unreasonable search and seizure and has been interpreted by the Supreme Court to protect privacy. "A more controversial right in the Constitution evolves from interpretations of due process," says Alderman, "and then you have to leave the Constitution behind and look at state laws."
This shift provides the structure of the book, says Alderman. "It evolves from discussing the most explicit protections for privacy to the discussion at the end of the book about an area in which there's no protection at all-computerized information."
To make their points Alderman and Kennedy have chosen interesting-sometimes maddening-cases involving everything from illegal strip searches by the Chicago police to questionable workplace psychological testing. They manage to present the human and legal complexities of these cases in language that is accessible to the general reader and is remarkably free of jargon. That clarity, they say, comes from their method of working together. "We both do all the research together, including reading lots of articles and court papers," says Alderman. "We also do all the traveling and interviews together. Then we divide up the writing. One of us does a very rough draft of a particular story, then we fax it back and forth for edits. It's twice as much work, but by the time we're done, the writing is really focused."
The picture that emerges here is of a gradual erosion of privacy, an erosion that might be imperceptible if viewed only through a single lens of, say, threats from law enforcement or from intrusion by the media. Most alarming, of course, are the threats to personal privacy that are likely to arise from our increasing ability to store huge amounts of information in computer databases.
"As we write in the book," Kennedy says, "there is a federal law preventing a video store from giving out a list of the videos you have rented without your permission. But there's no federal law protecting your medical records. Those records are on computers. They can easily be transferred. And in some states, you can't even get access to those records even though other people can. That's your most personal, sensitive information. Who gets to look at the information? Your boss, your insurer, your pharmacy. It's a long list. And it will only increase as the move to HMOs and managed care picks up."
What should we do?
Yet neither in the book nor during the interview do Kennedy and Alderman advocate some umbrella legislation-a constitutional amendment, for example-to bolster the right to privacy. Given the complexity of the issues involved and the real benefit to society of a free flow of information, Kennedy points out, "it would be very hard to draft a law that would adequately cover all these situations." Both Alderman and Kennedy seem to think that businesses and organizations can do more to safeguard the personal information they gather, and, in conversation, they hope consumers will bring market pressures to bear. They also agree that some protections of privacy will have to be accomplished through legislation.
But a list of remedies is not the goal of The Right to Privacy. "People have different reactions to these issues," says Alderman, "and we just don't have the solution that is right for everybody. Our goal is to make people more aware of the problem, of the value of privacy and of what we risk losing. In addition, the more people know about their rights, the better informed they are, then the more likely they are to participate in the process and in the public debate. We hope to get people thinking about these issues. Especially in the area of computers and information technology, where we are at a crossroads. The laws there are just about to be made. It's important now to see what we've done about privacy issues in the past and decide whether that has been satisfactory or whether we want to do more."
Alden Mudge is on the staff of the California Council for the Humanities.
©1996, ProMotion, inc.
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