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In Confidence

In Confidence: When to Protect Secrecy and When to Require Disclosure

Ronald Goldfarb
Copyright Date: 2009
Published by: Yale University Press
Pages: 304
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  • Book Info
    In Confidence
    Book Description:

    The variety and pervasiveness of confidentiality issues today is breathtaking. Not a day passes without a media report on a breach of confidentiality, a claim of attorney-client privilege, a journalist jailed for refusing to reveal a source, a medical or hospital record improperly disclosed, or a major business deal exposed by anonymous sources.In Confidenceexamines confidential issues that arise in various disciplines and relationships and considers which should be protected and which should not.

    Ronald Goldfarb organizes the book around professionals for whom confidentiality is an issue of weighty importance: government officials, attorneys, medical personnel, psychotherapists, clergy, business people, and journalists. In a chapter devoted to each, and in another on spousal privilege, he lays out specific issues and the law's positions on them. He discusses an array of court cases in which confidentiality issues played an important role and decisions were often surprising and controversial. Goldfarb also looks into the criteria that should be used when determining whether secrets must be revealed. His nuanced analysis reveals how federal government practices and technological capabilities increasingly challenge the boundaries of privacy, and his thoughtful insights open the door to meaningful new debate.

    eISBN: 978-0-300-15559-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-x)
    (pp. 1-18)

    Everything is confidential. Nothing is confidential. We all want privacy at the same time that we clamor for openness. People have strong impulses to share even their most private information, but they also unrealistically expect their shared conversations to be kept private. The disclosure of information is impossible to control, yet people have always attempted and will forever attempt to control it.

    The late Supreme Court justice William O. Douglas, in a dissenting opinion in a 1973 case, wrote that the authors of the Bill of Rights believed that “every individual needs both to communicate with others and to keep...

    (pp. 19-36)

    The jurisprudential rationales for confidentiality and privilege, and their conflicts with the adversary system, derive from the broader concept of privacy. The overall concept of privacy covers many subjects: immunity from physical intrusion, the right to be let alone, the right to be free from physical invasion of one’s person and property, the right to have “a room of one’s own” (as Virginia Woolf described the need for personal autonomy). Third and Fourth Amendment rights to be free in one’s home and to be free from illegal searches and seizures are examples of this kind of privacy. Civil rights to...

    (pp. 37-58)

    The most confounding of all conflicts between competing demands of confidentiality and openness is raised by the needs and practices of government secrecy. In his 1967 bookPrivacy and Freedom, law professor Alan Westin notes that as a practical matter, “internal policy making requires some secrecy even in a democracy.” Clandestine police work, for example, is generally condoned and often applauded; but when it becomes overzealous, it can raise constitutional questions. The philosopher Sissela Bok describes the resulting conundrum in her bookSecrets:“Every government has an interest in concealment; every public in greater access to information.” All governments have...

    (pp. 59-86)

    Democracy, Henry Adams’s perceptive novel about the manners and politics of nineteenth-century Washington, D.C., explores the moral dilemma posed by a lawyer’s disclosure of a scandal he knew about from his professional work for a client. John Carrington, a young attorney in Washington, is infatuated with a wealthy widow, the novel’s chief character, Mrs. Lightfoot Lee. She is courted by, and courts, a clever and powerful senator, later a cabinet member, who is likely to run for president, Silas P. Ratcliffe. Worried that Mrs. Lee will marry Ratcliffe, the ardent Carrington sends her a letter disclosing confidential information (which he...

    (pp. 87-107)

    The Hippocratic oath has governed medical practice since 460 B.C. By the oath’s terms, patient information provided to doctors is sacred, “not to be noised abroad,” but rather to be treated as “holy secrets.” It would be shameful for this information to be spoken about, physicians are admonished. The fundamental principle of patient confidentiality is founded on rational notions about the privacy of treatment. However rational, the principle has been weakened by the clanging nature of modern medical practice and the invasions of new technologies.

    The English common law did not recognize medical confidentiality as a privilege not to testify.¹...

    (pp. 108-123)

    Although the general doctor-patient privilege is not recognized in some states or in the federal courts, has been deemed by many leading scholars to have a questionable rationale, and has been threatened by the changing nature of modern practice and technology, a relatively modern privilege has been created for psychotherapists. This privilege covers physicians, along with psychologists and related mental-health and social workers who are not physicians.

    In psychoanalysis, patients are encouraged to keep no secrets from their analysts, no matter how embarrassing or unpleasant or compromising their disclosures may be. Therefore, it is deemed crucial for psychotherapy, more so...

    (pp. 124-143)

    The rationale behind claims for a pastoral privilege covering confessions to clergy, although akin to the psychotherapeutic need for confidentiality, has a unique history. Psychotherapy in the secular world seeks to restore mental health to people by discovering the source of and assuaging their psychological torment and estrangement. In the religious world, there is a comparable search for forgiveness to expiate guilt and anxiety. That process is augmented by confession to representatives of God who, in his name, may forgive. One religious scholar, commenting on the function of religious counseling, used language reminiscent of mentalhealth terminology—“to help people handle...

    (pp. 144-154)

    Progressive-sounding rules sometimes have surprisingly inappropriate histories. The spousal privilege, holding that husbands and wives cannot be forced to testify against each other, is one example. Reasonable as this rule may sound, the spousal disqualification evolved from “two canons of medieval jurisprudence,” the first that women had no separate legal existence and thus husbands and wives were one, and the second that an accused could not testify in his own behalf.¹

    Marital privacy derived from these antiquated views of marital unity. “The very being or legal existence of the woman is suspended during marriage, or at least incorporated and consolidated...

    (pp. 155-176)

    Earlier chapters focused on relational rationales for protecting the confidentiality of professions and families. A broader universe in the business world also claims confidentiality for its participants. From Main Street to Wall Street, in this country and globally, for good reasons and bad, businesses attempt to keep their affairs confidential. These attempts at confidentiality are common, affect many people, and have important social consequences.

    Businesses claim that their need for confidentiality is as deserving as that of lawyers and doctors, even if the law has not recognized it as warranting privileged status. If personal autonomy is the basis for conventional...

    (pp. 177-202)

    For about a century, journalists have claimed that they should not be forced to testify when doing so would require disclosing the sources of their information. They have based their claim on the First Amendment and on the public-interest-based pragmatic ground that without the ability to promise anonymity, they could not perform a vital part of their work. Both premises—the right and the need—are discussed in this chapter.

    Should news gatherers and writers in general have a privilege not to disclose confidential communications, a right that has historically been denied other citizens? The claim that citizens may not,...

    (pp. 203-221)

    Advances in technology are devised to solve specific problems; few advances do not create new problems. So it is with modern technological advances of the information age—the computer and the Internet, cell phones, techniques such as data mining, pervasive surveillance, even biometrics and genetic mapping (identifying people’s voices, faces, retinas and irises, and palm prints and fingerprints, as well as their DNA)—which pose threats to confidentiality. Less well-known but more sophisticated and complicated—and inevitably more troublesome—technologies seem to evolve faster than security systems can be devised to control them: invasive imaging; roving bugs, which track and...

    (pp. 222-244)

    To help in understanding the seduction and illusion of confidentiality, previous chapters explored colliding ideas about secrecy, privacy, and truth.

    Experience demonstrates that there are few secrets that remain secret. Eventually, information ineluctably forces its way to the surface like a natural water source emerging through the ground or a root bursting to daylight. Journalists know that information that one attempts to conceal or repress eventually finds its way to them and to the public. It is the way of the world. The more censorship is attempted, the greater the public’s curiosity and the greater the pressure to circumvent it...

  16. NOTES
    (pp. 245-276)
    (pp. 277-278)
  18. INDEX
    (pp. 279-289)