In Today's World, Privacy, Confidentiality, and Legal Privilege Ain't What They Used to Be (Joe Rothstein's Commentary)

October 14, 2009

By Joe Rothstein
Editor EINNEWS.Com

In 1987, a young man by the name of Jesus Fornes confessed to Catholic priest Joseph Towle that he had killed a man. Two other youths were being tried for the murder, and Fornes was conscious-stricken about whether he should step forward and admit his guilt.

Despite the priest's counsel the guilty young man did not reveal the truth at the trial. Father Towle felt he could not intervene because he would be violating the Catholic Church's sacramental seal of silence, an offense for which he could be excommunicated.

The two innocent defendants were convicted and sentenced to 15 years in prison. Ten years later the guilty man died and Father Towle asked his church superiors for permission to reveal what he knew. His superiors assented. Father Towle told authorities about the confession. In due course, the trial judge released the two who were wrongly convicted.

A great injustice was done here. If Father Towle had spoken up at the time of the trial two innocent lives would have been saved the pain of prison. But the law protects pastoral communications. And with that legal protection Father Towle remained silent.

The clergy privilege applies to all religions. Should it?

The law also recognizes the "sanctity" of communications between husbands and wives. But what does that mean in an age when cohabitation between unmarried partners is common? If husbands and wives can't be required to testify against one another, why not parents and children? Or brothers and sisters?

The doctor-patient confidentiality privilege also is one of long-standing. But how is it enforced if doctors are no longer the kindly people who visit your home, but rather are employees of hospitals or health groups? And does that privilege extend to technicians, hospital staff, electronic record keepers and others also involved in a patient's testing and care?

These are just some of the dilemmas Ronald Goldfarb discusses in his new book, In Confidence. The book is a dizzying journey through the history of confidentiality and privacy, questions of "privilege," government secrecy, and game-changing technologies that are roiling all of these issues. Despite the weight of the topics he discusses, the work reads more like an adventure story----one that impacts our daily lives.

The U.S. Constitution has no specific mention of a "right of privacy." But through the years---mainly just the last century---courts have interpreted the Constitution in ways that have given individuals the right to be left alone. That covers a whole gamut of issues from ownership of personal data to the right to have an abortion.

Legal interpretation of such concepts as privacy, confidentiality and privileged communication has been evolving as the world in which we live changes. Reading Goldfarb's work it becomes clear that the law isn't evolving fast enough.

How do you protect privacy in an age of computers, the Internet, cell phones, data mining, exotic means of surveillance, biometrics, E-Z Pass transponders, ubiquitous security cameras, mobile phones, GPS and radio frequency ID tags on cars and clothing?

The inverse is also a monumental problem: how does the public get access to information that should be in the public domain when the government is binging on "secrecy" stamps?

The day he took office, President Obama ordered federal agencies to open the flow of information to the public. Nine months later he's still struggling to get that message to key officials. The FAA, for example, in the wake of the Hudson River ditching of a U.S. Air passenger jet, stiff-armed reporters who asked how many bird strikes on airplanes had been reported and tried to push that information beyond public reach of the Freedom of Information Act.

Goldfarb estimates that in 2005 the Bush administration classified 15.6 million documents, double the number from 2001. He pegs the annual cost of government document classification at $7 billion.

Normally I would consider a work that delves into the history and application of legal concepts such as confidentiality, privacy and privilege as pretty dull stuff. But Ronald Goldfarb makes these issues as current and personal as today's twitter message. And he offers some answers that are grist for much contemporary debate, affecting the way the law views confidential privilege for pastoral, marriage, business, attorney-client and reporter-source relationships.

As for the government, he urges the courts to stop being doormats for claims of state secrecy. Congress has essentially abdicated its power to keep the information channels open, deferring to the administration to decide what should be kept secret. If the courts don't adjudicate these issues, Goldfarb rightly points out, no other body can keep the federal government from withholding essential public information from the public.

These are not theoretical questions. Some serious state secret cases are now before the courts. Congress is far along on the path toward providing a "shield" law to protect news source confidentiality. Our legal system is wrestling with high profile issues such as whether White House emails are subject to subpoena in the Bush era Justice Department case.

In Confidence is very much a happening work that puts what we read on the front pages in full historic, and current, perspective.

(Joe Rothstein can be contacted at joe@einnews.com)