IN PURSUIT OF PRIVACY: Law, Ethics, and the Rise of Technology.

By Judith Wagner DeCew. Cornell Univ. Press. 208 pp. Cloth $39.95, paper $15.95

In the Supreme Court’s right-to-die decisions last June, not one justice treated assisted suicide as a "fundamental right" deserving the same constitutional protection as marriage, procreation, and abortion. This outcome was not foreordained. Only five years ago, a majority of the Court declared, in Planned Parenthood v. Casey (1992), that "at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." The constitutional right to unravel the mystery of life, we now know, does not include a right to seek help in ending it.

Although DeCew finished her book before the recent decisions, there’s no doubt she would have found them dismaying. A philosophy professor at Clark University, she advances a notion of privacy even more expansive than that set out in Casey. Surveying legal and philosophical approaches to privacy, DeCew rejects narrow definitions based on such justifications as keeping personal information secret or preventing state interference in "particularly intimate and personal choices." Instead, DeCew deems privacy "a cluster concept" that includes one’s interests in maintaining independence, controlling information, and forming relationships. In her view, the state should breach this broad sphere of privacy only when absolutely necessary.

DeCew is most successful when applying her theory to such policy debates as that surrounding Caller ID (which, as she notes, discourages not only telephone stalkers but also anonymous calls to drug treatment centers and shelters for battered women). She is on weaker ground when she takes on the Supreme Court. By focusing almost exclusively on the substantive protection that the Court gives privacy, and applauding or attacking rulings on that basis, DeCew glosses over the more significant jurisprudential debate of the past 30 years: who should craft our law on privacy, elected legislators or appointed judges? To DeCew, it’s a task for the courts. But as this year’s right-to-die cases have shown—and not for the first time— many in the judiciary believe otherwise.

—Arnon Siegel