One of the subtlest but most pervasive threats to the First Amendment has grown out of concern for personal privacy. Although the common law right to privacy is barely a hundred years old, in its short lifetime it has helped to create exceptions to and carve-outs of constitutional principles that threaten to erode both press freedom and the public's right to know. The threat is insidious because each example seems so very reasonable.

Consider, for instance, the decision of some state assemblies to prohibit public disclosure of the home addresses of elected and appointed law enforcement officials. This will protect their safety and privacy, proponents say. True, but the prohibition will also make it almost impossible to find out whether cops are living in the communities they serve or retreat to the suburbs after dark.

Or how about a legislature's decision to allow government agencies to withhold crime victims' names from the public -- a decision prompted by homeowners complaints that security system salespeople solicited them shortly after they reported burglaries?

Or how about the ruling that the press cannot use the federal government's centralized criminal-history computer to obtain "rap sheets" containing information that is public at its original source, simply because it is too easy to retrieve?

Or a state judge's order to seal the names of all prospective and seated jurors in a murder trial to protect them from the theoretical possibility of "interference, intimidation, and loss of privacy"?

Or an order forbidding the rebroadcast of a television documentary about a widely publicized child-custody dispute because of an unsubstantiated alligation that it might embarrass the child?

In each case we can understand the need for privacy, for protection from the prying eye of the press. But there's one much more important observer who goes right on watching, and all those privacy laws and rulings only protect him as he gathers information about us. He goes by the name "Big Brother," and he's counting on the fact that we'll say that the records he has amassed -- dossiers on every man, woman, and child in the country, databases crammed with details of government mismanagement, corruption, and dishonesty -- are none of our business. Unchecked by public oversight, Big Brother is free to exploit, leak, manipulate, doctor, and lose them.

Privacy allowed the FBI to withhold the names of informants, even though they had never been promised confidentiality, sixty years after a notorious murder investigation was closed. It denied the media access to the Challenger cockpit tape. It seals the names of people who default on federal student loans. And, in a case to be decided this term, the Supreme Court will be asked to recognize a substantial privacy interest in virtually any individually identifiable record. (In this instance, the State Department has refused to release the names of Haitian refugees who were denied political asylum. The government says it fears someone might go to Haiti to check out what happened to the deportees.)

Meanwhile, invasion-of-privacy lawsuits are on the rise, and the press is uniquely vulnerable to them. This is because the courts have yet to define the constitutional parameters that protect the right to publish truthful, but personal, information. Though there will be losses along the way, the press must nevertheless act boldly, seeking out stories demonstrating that the public surrenders oversight of the actions of government at its peril.

Jane Hansen's prize-winning series published in The Atlanta Journal and Constitution in 1989 provides an excellent example of how this can be done. Hansen revealed that Georgia child welfare system, shrouded in confidentiality laws ostensibly designed to protect the privacy of children, failed to save many of those in its care from subsequent abuse or, in some cases, from death. In fact, all the system really protected was the bureaucrats, by hiding their failures. Hansen's series sparked enough public outrage to compel the state to appropriate funds to overhaul the system and to enact news laws to beef up accountability. And it vividly illustrated the human cost of allowing claims of personal privacy to reflexively trump all competing values.

Stories such as this make the best possible case for justifying both an open government and an unfettered press.

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