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John Whitehead's Commentary

Nowhere to Hide: The Shrinking Realm of Personal Privacy

John Whitehead
Recently in the Midwest, a prosecutor ventured into a brave new world while working on a rape case. Dating from 1993, the statute of limitations in this case was in danger of running out. In an effort to gain the time needed to solve the case, the prosecutor took a step no one had ever taken before. He filed an indictment against an alleged criminal - identifying the still-at-large suspect solely by DNA. In doing so, he created the world's first genetic John Doe.

The implications of this move reach far beyond the borders of the prosecutor's Wisconsin town. This ground-breaking indictment threatens to make statutes of limitations obsolete. It challenges our traditional concepts of evidence and proof. And, perhaps of paramount importance, it is a subtle thrust into the ever-shrinking realm of personal privacy.

What this means is that if DNA indictments become commonplace, police will need DNA samples to match the indictments against. There is already a push in many states to retrieve DNA samples from every person arrested. Privacy advocates oppose the move, correctly noting that many of those arrested turn out to be innocent. Retrieving private genetic information from these individuals is an unnecessary and unwelcome intrusion.

Those in favor of DNA sampling and other intrusions into American citizens' private lives downplay the importance of a broad right to privacy. This cherished freedom, however, has long been one of the fundamental pillars of a free society.

In the 18th century, British Parliamentarian William Pitt wrote, "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter; but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement."

In the late 1800s, two American lawyers reiterated this respect for privacy in a seminal article that appeared in the venerable Harvard Law Review. Samuel Warren and Louis Brandeis described privacy simply as "the right to be left alone."

Unfortunately, these grand statements have not been enough to protect American citizens from the increasingly intrusive eye of big business and government. Earlier this year, the ACLU called for Congress to investigate a global surveillance system run by the National Security Agency. Known as ECHELON, this system monitors microwave, cellular and fiber-optic communications worldwide.

"It appears that the NSA is engaged in a surveillance system of epic proportions," said ACLU Associate Director Barry Steinhardt. "If these reports are true, ECHELON dwarfs the extensive surveillance of Americans already conducted by the FBI and other domestic law enforcement agencies."

Such extensive surveillance would mean that the NSA is conducting an ongoing violation of the privacy rights of American citizens - a violation funded by taxpayer dollars.

Agencies committed with the task of protecting American security or enforcing our laws tend to be the biggest violators of privacy. In addition to the NSA violations mentioned above, the FBI continues to push for expanded powers to monitor Americans. And local police in many areas have installed surveillance cameras in public parks, at city stoplights and along public highways. Before long, state agencies will be able to track your every move via so-called security cameras and listen to your every word through surveillance of cellular and fiber-optic communications.

Earlier this century, Aldous Huxley and George Orwell wrote novels with what many thought were competing visions of the future. Huxley's "A Brave New World" foresaw a society where the state ruled by indulging every pleasure of its citizens. Orwell's "1984" prophesied a land where big brother watched your every move.

That future is now. Today's state mirrors Orwell's "1984" in that it attempts to monitor our every word and move. But as in Huxley's "Brave New World," our entertainment culture also indulges its citizens' every pleasure - so much so that they're too busy pleasing themselves to notice that someone is always watching.

But who's doing all this monitoring? We certainly cannot assume that whoever is watching will practice tolerance and restraint. After the tragic deaths and subsequent FBI cover-up of Waco and the evasive tactics of the Clinton administration, it's hard to believe the government will do the right thing with all the information being collected.

As the song goes, "He sees you when you're sleeping, he knows when you're awake." From your DNA to your cell phone conversation, he knows if you've been bad or good. So you better watch out - because big brother is coming to town.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People  (SelectBooks, 2015) is available online at Whitehead can be contacted at

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