A New Hat at Harvard, The Emerging Case Against Coffee, Private Baloney, and Other Matters. Secrets of Trash

(FORTUNE Magazine) – The privacy team lost on points in the Supreme Court the other day, but the uproar over the case--California v. Greenwood et al.--left us still gloomily thinking that people talking up privacy still have lots of clout. Also that the word continues to look loaded. Question presented by Greenwood: Could cops lacking a search warrant look through the garbage of Billy Greenwood, suspected drug dealer? Written by a former Detroit Lions running back who now works on the High Court, the majority opinion answered sure, no problem. If you vibrate with the establishment media, however, you have concluded that the heroes of the day were the two dissenters, Brothers Brennan and Marshall. Their view, ringingly endorsed by the New York Times and Washington Post, was that Whizzer White had undermined ''commonly accepted notions of civilized behavior.'' They argued, first, that the police, despite numerous tips about Billy's business, lacked the kind of solid evidence that would have justified a warrant; and second, that the supersolid evidence collected via garbage examination must be excluded because snooping in a drug dealer's trash violates his expectation of privacy and furthermore threatens ''the sanctity of the home.'' The implication of this position is that when you cut up your uncle into little pieces and put them out by the curb in a large-size Hefty bag, you are in the clear if the gendarmes find him there without a warrant. The Supreme Court was probably making bad law in 1965 when it suddenly discovered that the Constitution incorporated a general right of privacy. However, the Court was definitely responding to a thought that is abroad in the land and hard doctrine on all high-minded editorial pages. Everybody claims to be for privacy, and Justice Brandeis is still quoted reverently for his 1928 dissent mentioning ''the right to be let alone.'' The reverence is misplaced. Nobody really believes in an unlimited right of privacy. The issue, as Bob Bork kept trying to explain during his confirmation hearings last year, has always been: What kind of behavior is protected by privacy rights? (Bork mentioned incest, wife beating, and price fixing as examples of behavior that might not be protected.) The answer to that question is what divides liberals and conservatives. In seeming to push for a generalized right of privacy, liberals have generally been seeking to protect behavior that social conservatives think of as deviant--using drugs, for example. Liberals have certainly shown no interest in extending the right of privacy to business. The high-minded program for corporations always turns out to involve more and more disclosure. Anybody doubting that the word is loaded might expose himself to the detailed analysis in Richard Posner's brilliant work, The Economics of Justice, published in 1981. (Posner is now a federal appeals court judge in the Seventh Circuit.) Observing that ''privacy'' is a ''richly ambiguous and highly charged word,'' he distinguishes among several different meanings of the word, of which the most important are seclusion and secrecy. With respect to seclusion, the situation is clear enough. Practically nobody --exceptions would include mainly a few hermits--really wants it. The demand for secrecy is also severely limited. People do not in general want to keep their lives secret; what they want is the right to selectively disclose some details and suppress others, so as to maximize the regard in which they are held. They also want a lot of information about other people, and, Posner argues, this is not mainly a matter of Nosy Parkerism. Information about others--friends, creditors, lovers, neighbors, fellow employees, Conrail engineers, day-care custodial workers, and Congressmen--has true economic value. Which means that privacy statutes making such information harder to get have real costs. Even in the sanctity of the home.