Substantivity means that our discussions about loss of privacy should actually be about loss of privacy, and
Although I've been interested in privacy issues for some time, the immediate spark for these remarks is a discussion by Eugene Volokh about a decision of judge Kozinski objecting to (and presumably asserting the illegality of) the collection of DNA from people who are on probation after having been convicted of a crime. Kozinski's argument is that this will lead, via a slippery slope, to the collection of DNA from many more people, and perhaps from all people. He points out that a similar expansion has already happened with the collection of (searchable) fingerprints, and I think he is right that there is the "danger" this will happen with DNA. Volokh also feels that the slippery slope argument is well made (oddly, he doesn't explain why such an argument is appropriate to a judicial -- as opposed to a legislative -- decision), although he chooses not to discuss whether or not the "bottom of the slope" is truly a bad thing. Kozinski deplores the bottom of this slope, saying that we will all come to accept it because "the fishbowl will look like home".
What exactly is so bad about the government having all our DNA fingerprints on record? Unless I've missed something, Kozinski (see page 11530 here) thinks this is not much worse than the government having all our finger fingerprints on record, and he laments about how close we've come to that. He recognizes the huge help these databases provide in solving crimes, and is sad that the public doesn't realize ... what exactly? What is the substantive harm of having our fingerprints on record? You'd think he would give some examples. Perhaps the government goes to legal brothels and collects fingerprints to match with political opponents? Would this be the best way to get dirt on people? At least some people claim that DNA fingerprints are special, in that they could, conceivably, wind up containing health information about people, that can then be used by the government to ...
The government collects a huge amount of financial information on all of us; both the invasiveness of the collection of this data and the potential for its misuse dwarf by orders of magnitude anything we have to fear from the collection of (DNA) fingerprints. Similarly, the substantive invasion of privacy and potential for abuse from searching my home or person dwarfs that of swabbing my cheek. Why should we be so sure that those "framers" of the constitution would think otherwise if they were brought technologically up to date?
People generally have nonsubstantive and/or disproportional attitudes towards "privacy". They are horrified at the possibility that Microsoft might collect some information about their computer hardware while doing an "update". But they have no concern whatsoever that the phone company keeps records of every cell phone call they make or receive, including who they call, when, and for how long. (I know these records exist because I receive a copy of them every month with my bill.) And Mastercard knows about all my travels and purchases and the movie rental store knows about my kinky tastes in film, but these are not typically our concerns.
One of the big scandals of the modern day is that our medical records are not computerized and networked so that any doctor with a legitimate need can have access to them. In addition to giving timely and accurate access to the most important aspects of a person's medical history, this would allow automatic checking of many things including adverse drug interactions. The one and only reason given for not doing this is "privacy concerns". These concerns are substantive, but greatly disproportional to the enormous loss of life that happens every day due to the nonexistence of this system. (I hope to write more sometime about the pros and cons of such a medical system.)
I am not denying that we have much to fear from inappropriate behaviors of our government. Just to give one example, I am horrified that merely because I am suspected of using my car to deal drugs, the government can take that car away from me. But we should deal with substantive abuses in a direct way, and not by arbitrarily denying the government access to the data it should have. If by consenting to have my cheek swabbed I can greatly reduce the probability of my house being broken into and my family assaulted, this is not an example of living in a fishbowl, but rather an example of my privacy being greatly improved in every substantive way. If Mr. Kozinski lives in an apartment building, we can be reasonably certain that he insists on having a doorman who monitors everyone who comes and goes and who learns a great deal about the occupants of the building. He can afford this, and no doubt he also has access to whatever (very intrusive) bodyguards he needs to follow him around and protect him. I would guess that when it comes to his own life, he chooses substance in privacy over whatever he imagines the framers would want for him.