The Destruction of Privacy in America, Part I

GUEST: Jeffrey Rosen
VTR: 6/2/2000

I’m Richard Heffner, your host on The Open Mind. And while week after week I find just about every topic we discuss at this table endowed to a quite considerable extent with the public interest, still today’s subject — the destruction of privacy in America — looms so large that I simply haven’t gotten it out of my mind since reading a quite compelling new Random House book on the subject, titled The Unwanted Gaze.

Jeffrey Rosen, its author and my guest today, is Legal Affairs Editor of The New Republic magazine and an Associate Professor at the George Washington Law School in the nation’s capitol.

Well, as you might guess, in his provocative analysis of the destruction of privacy in America, Kenneth Starr and Monica Lewinsky play an important introductory role. Indeed, Professor Rosen writes that “One of the virtues of the Starr investigation was to remind Americans how little our legal system cares about privacy today and how much more robustly intimate secrets were protected to the not-so-distant past.”

“The subpoenas issued by Starr,” he reminds us, “were perfectly legal, but for most of American history, many of them would have been suppressed as clear violations of the Fourth Amendment to the Constitution, which declares that ‘the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated”.

Well, what happened to erode those principles — and why — are, of course, the questions that Jeffrey Rosen then asks. And I want him to share his answers with us today. Just why have Constitutional protections for private papers and now e-mail — even semen stains — evaporated, as he suggests, during the past few decades? Why does there seem now to be so little public concern for privacy?

Professor Rosen, I want to ask, what’s happened?

ROSEN: It’s a fascinating and complicated and difficult story. And the place that I like to begin, I’m so glad that you mentioned the example of diaries and e-mail because it was the search of her undeleted e-mail that Monica Lewinsky found most invasive about the investigation and the moment when prosecutors retrieved from the hard drive of her home computer the unsent love letters that she had drafted but never sent to the President. And she says in her under-appreciated memoir, “this seemed like such a violation. How is it possible that in America prosecutors could subpoena a diary?” I set out to answer that question. And I go back to the time of the Fourth Amendment to the Constitution was framed. You read it. It prohibits unreasonable searches and seizures. And if you were to ask the framers of the Constitution “what is the paradigmatic example of an unreasonable search?”, they would have cited the search of a private diary. There’s a wonderful story of John Wilkes, the roguish English patriot, the Bob Packwood of his day, who wrote salacious pamphlets making fun of King George the Third’s mother. And King George dispatched his Ken Starr figure, Lord Halifax, to break into Wilkes’ desk drawer, seize his private diaries and tried to chart him off to the Tower. And Wilkes objected “my most intimate secrets have been exposed to the world”. And he sued the King in trespass … in the 18th century it was private property protections that guaranteed privacy. You had to break into someone’s house to seize his diaries. And Wilkes won a tremendous verdict … a thousand pounds … a ruinous amount in its day. And this case was cited by the colonists from John Hancock to John Adams as a great victory for privacy. They named towns and infants after Wilkes … Wilkes Barre, Pennsylvania. He was … this was very much on the minds of the colonists. So how was it possible that we moved from John Wilkes to Bob Packwood to Monica Lewinsky?

Part of the story is a Constitutional one, and what’s so remarkable about it, is how recent these protections … how recently these protections were eroded. It was during the 1970s and 80s that the Supreme Court held that when you surrender information for one purpose you abandon all expectation that it will be kept private for another purpose. And this had the rather tautological effect of allowing companies and employers and prosecutors to lower our expectations of privacy in a way that then gives them more discretion to search. So in other words, if the Fourth Amendment now turns on what people’s expectations are, subjective expectations that society is prepared to accept as reasonable … this is the test that Justice Harlan gave us … by telling you in advance that your e-mail may be monitored, employers can lower your expectations of privacy in a way that give you discretion to monitor e-mail. So this is a terribly important, but a little noticed story. When Bob Packwood objected that his diaries had been searched, he case was summarily dismissed. The courts sniffed it away, the public laughed at him. But I actually have some sympathy for Packwood as I do for Wilkes, as I do for Monica because the notion that there’s no intimate sanctum where we can record our thoughts without fear of State scrutiny is one that the framers of the Constitution would have found chilling and unrecognizable.

HEFFNER: Okay, the change occurred. Why? Something must have been presumed to have been gained by losing that privacy.

ROSEN: I think the legal story, which is a complicated one turns a lot on the difficulty of keeping a regulatory state going in a world in which we have robust protections for private papers. As late as 1890 the Supreme Court held that you couldn’t even subpoena someone’s business papers because that would be too much of an invasion both of his Fourth Amendment rights against unreasonable searches and seizures, and his Fifth Amendment rights against compelled self-incrimination. The idea was that even receipts for plate glass were somehow an intimate reflection of your mind that would incriminate you. Think of how robust those protections were just a hundred years ago. It’s a lovely notion, Justice Brandeis, the greatest advocate of privacy, the hero of my book is Justice Brandeis. He called the Boyd case “a decision which will live as long as civil liberty is remembered”. The difficulty was that it was hard to enforce tax laws and regulatory laws and environmental laws in a world where you could really keep all of your business papers separate. So in an effort to keep the New Deal going the Supreme Court held, in a progressive era, that a subpoena wasn’t even a search … to compel someone to turn over a paper wasn’t really searching them. And that was part of the story. So, so part of the erosion of privacy is legal. But the more important one, the more important aspect of this story, I think, is cultural and technological. So shall we talk a little bit about that?

HEFFNER: Indeed.

ROSEN: [Laughter]

HEFFNER: Indeed. Why do you say it?

ROSEN: In a world where thinking and reading …

HEFFNER: Wait a minute … let me stop you for a moment …

ROSEN: Please.

HEFFNER: … the technological and cultural, which you will elaborate upon …

ROSEN: Yes.

HEFFNER: … do you believe that the changes in the law that took place would not have taken place without those technological and cultural changes?

ROSEN: Law is deeply dependent on social norms. And when we see the subjective aspect of the legal test for privacy, what subjective expectations of privacy is society prepared to accept as reasonable? This presumes that we as a society care about privacy. And it’s not really clear that we do. So this is how the technological and cultural aspects …

HEFFNER: Now what are the indications that “we as a People” do not care?

ROSEN: Think of all the ways that we live our lives as if they were not virtually exposed. On the Internet, when you pause to think about it, all of our intimate thoughts, reading and writing and sex and gossip are monitored and recorded and can be wrenched out of context at a later time by those who don’t know us.

HEFFNER: But, but you’re making the assumption that we … most of us who innocently use the Internet, who innocently send back and forth e-mail … make the same assumptions about that e-mail that we would make about the U.S. Postal service.

ROSEN: It’s, it’s …one doesn’t want to generalize too broadly because of course, one of the interesting parts of the story is that people have deeply conflicting intuitions about privacy. This is not an age were communal norms of reticence and restraint, the ones that prevailed in Brandeis’ day, are widely accepted. It’s an age of “Jenny-cam” where people, as we learned from The New York Times magazine, put cameras in their bathrooms … of Fergie and of Geraldo. And there are some people who don’t particularly value privacy. But when I talk about technological changes, I just want to say that I think the reason that privacy is contested now is that we haven’t yet accustomed ourselves to the dangers of living in a world where intimate activities that used to take place in a drawing room or in a mall, and could only be observed are now recorded and monitored. So this is another reason I think the example of Monica Lewinsky’s e-mails and diaries are so important. Monica Lewinsky didn’t mind that her friends knew that she had bought a copy of Nicholson Baker’s Vox a fine, and eminently respectable, but rather salacious book about phone sex. Because her friends knew that she was more than just the sort of the sort of person who would read a racy book. But when all you know about Monica Lewinsky or if all you know about me is a book, the most recent book I’ve read, or the most recent music I’ve listened to, or a letter that I sent to a friend, you may misjudge me. You might allow part of my personality to stand for my whole identity. So to really know a person is a very difficult thing, it only happens with the smallest group of friends or family members or loved ones. But in the age of the Internet when so much of this intimate information is recorded and monitored, there’s a great danger that information disclosed in one context will be taken out of context and exposed in another. This is really what Brandeis and Warren feared in the 1890s. Their wonderful classic article begins … the notion that prurient information that used to be whispered in the closets is now being shouted from the rooftops. What upset Warren is a mild society item about his daughter’s wedding. He put on a lavish breakfast party and the Boston tabloids ran a little item about it. And he was appalled that although the event wasn’t salacious that this society event, appropriate to disclose to his social equals, would be exposed to the world. So nowadays are like are Mrs. Warren, the daughter or like Monica Lewinsky. All of us run the risk of being judged out of context in precisely this way.

HEFFNER: Your comments about the article led me to get my intrepid researcher, James Fabiano, to find it for me. And he found it, of course, on the Web.

ROSEN: Excellent. Oh, that’s very good.

HEFFNER: And, I’ll be darned if I can find my copy of it now. But I, I had wanted to refer to it, and now I can’t … because it was, as you say in your book, as you write in your book, such a … here it is … such an incredibly prescient notion that the individual shall have full protection in person and in property is a principle as old as the common law”. But it has been found necessary from time to time to define anew the exact nature and extent of such protection”. And then they go on to point out that then that was the time, and that was what … 1890? And it would seem that it is time again. And I believe that that is the thrust of your magnificent study here The Unwanted Gaze because you’re saying privacy has been destroyed. But Professor Rosen there is something else that you’re saying, you seem to be making the point that “We The People” have embraced this lose of privacy rather than that there are those who can now steal it from us. And you really feel that way that we’re, we’re co-conspirators?

ROSEN: I hope I’m not that pessimistic. I mean a note of grim and chastened optimism maybe to emerge at the very end because I do give examples of cases where political vigilance has actually protected privacy rather than being complicit in its destruction. We have the recent example of Double Click, the Internet advertising broker that tried to match our on-line and off-line browsing habits with our actual identity. And people became appalled. As long as the browsing habits were anonymous people were happy to accept these electronic “cookies”. But as soon as it became clear that this Internet broker was compiling East German-like dossiers on our on-line and off-line behavior, there was a protest, the stock price plummeted and under political pressure Double Click had to back away. So this just reminds us that political vigilance actually can protect the surveillers and stop them in their tracks. And I mean the book to trace the sad story of this legal, technological and cultural shift, but to offer some constructive suggestions, too, I hope for trying to resist it.

HEFFNER: May I say that your optimism does not shine through.

ROSEN: Perhaps just the glimmer of the gaze … coming through the pages would be all. One doesn’t want to be too celebratory in these …

HEFFNER: In making Louis D. Brandeis your hero …

ROSEN: Yes.

HEFFNER: … and in referring in to the Warren and Brandeis article in the Harvard Law Review you had seemed to be indicating that there needs to be a judicial … strong judicial stand. Do you see that coming now?

ROSEN: I think law is important, but it may not save us in the end. The reason the Brandeis article is so central to the book is that it led me indirectly to the title, The Unwanted Gaze, where does this come from? Brandeis and Warren were struggling with the fact that American law has traditionally been hesitant to protect offenses against honor or offenses against dignity. Instead, as we discussed earlier, it’s really been notions of private property that have protected us from invasions of privacy. This was effective in a pre-cyberspace world, but as Brandeis himself recognized in the celebrated case from the 1920s involving wiretapping, where the Supreme Court held that it was not a search to put a wiretap under someone’s house. In his heroic dissent Brandeis looked forward to the age of cyberspace, saying “ways may someday be developed where you can remove papers from desk drawers without breaking into the home”. We need to translate the Fourth Amendment to protect this dignitary interest in privacy in a world where privacy invasions are no longer based on private property. So in looking for a metaphor for this central difficulty, I turned to Jewish law.

There is a beautiful doctrine in Jewish law involving the law of common courtyards which are overlooked by windows. And the doctrine is called Hezzek Re’iyyah, “the injury caused by seeing”. Or the “injury caused by being seen”. And this doctrine says that if your neighbor puts up a window over your courtyard and observes you, you not only have the right to require him not to observe you, to enjoin him from spying on you, but you actually have the right to require that the window be taken down because Jewish law recognizes that it’s uncertainty about whether or not we’re being observed that forces us to lead more constricted lives and basically is an offense against our intrinsic human dignity.

HEFFNER: But even if I am … I as the person who maybe looked upon do not object, I gather that, shall we say, the State has the right, has the obligation to take that step for me.

ROSEN: This is precisely the salient and difficult point. Jewish law holds that you cannot waive the right not to be observed, so even if you fail to protest the window must come down. One has the right only to waive something that belongs to you, as in civil matters or property. But the intrinsic right to dignity cannot be waived. As your questions suggest American law would be properly hesitant to embrace such a paternalistic notion. And, indeed, the Internet companies today make precisely this argument. They say consumers are voluntarily choosing to disclose private information, what business is it of a liberal government to prohibit them from doing so, or to require a high consent requirements before they can waive their property rights. It’s a hard question.

HEFFNER: And what is your position on the position of the industry as the regulators are beginning just to talk about the possibility of regulation?

ROSEN: My, I’m a … John Stuart Mill is another hero of mine in this book, so I think of myself as a classic Liberal and am not a paternalist I trust. But it seems to me that …

HEFFNER: You’re stuck.

ROSEN: Well, I may be stuck. See if you’re convinced. The position would be that when it comes to the most severe invasions, personally identifiable information collected, matching my name to everywhere I go on the Web … the dangers are so great and the dangers that people will lightly give this up are so high that at least I would require a serious amount of informed consent. We have warning labels on cigarettes, there’s no reason not to make the “opt in provision” that is the most rigorous privacy protection. In other words before the information could be collected, you’d have to affirmatively say that you wanted it to be collected. Rather than the opposite based on the “opt out” which says that the information will be collected unless you take steps to prohibit it. So I think a high level of informed consent is consistent with liberal notions that people can choose to waive it if they like, but they should realize what’s at stake, because the stakes are not always so obvious.

HEFFNER: And that protects your voluntarism then.

ROSEN: I, I’d hope so. Although the industry thinks that even, even this is paternalistic because citizens should be free to sell their data in exchange for free stuff and convenience …

HEFFNER: Well, the industry thinks that you’re voluntarism is, in a way, regulatory. Is in a way a … the response of the authoritarian state. But there are others who feel, who go far beyond you and say, “voluntarism is not enough.” You have no sympathy for that position?

ROSEN: I think not. Although they’re philosophically rich, aren’t they? There are some who say that there’s something inherently degrading about exposing with a web camera …

HEFFNER: As you quote the Hebraic tradition …

ROSEN: “The tents of Israel must be facing away from each other, only then is the divine spirit pleased”. It’s a lovely vision, but this is a liberal democracy.

HEFFNER: And?

ROSEN: And your … we began this part of the conversation … you asked “will law save us?”. And I think what exchange suggests is my strong belief that it won’t. It’s really an excess of regulation that’s lead to inadvertent violations of privacy that are greater than those that the law seeks to remedy. One part of my book examines the inadvertent expansion of, for example, sexual harassment law. Which has given employers a legal incentive to monitor private e-mail and Internet browsing. The most recent study by the American Management Association suggests that a half of all large employers now monitor Internet use. And partly this is a consequence of the ambiguities of the Supreme Court’s “hostile environment” test for sexual harassment, which often makes the legality of speech turn on the subjective perception of the listener. So because any employee might find speech hostile or offensive, there’s an incentive to over-regulate. One of the arguments in this section of the book is that many of these indignities of harassment, those allegedly suffered by Paula Jones and Anita Hill, for example, are better conceived as offenses against dignity and privacy, rather than as gender discrimination.

I was led to this … it relates again to the unwanted gaze. I was reading a harassment code which prohibited “elevator eyes”. You know “elevator eyes” you …

HEFFNER: Yes.

ROSEN: … it’s not very polite to look someone up and down, especially in an elevator which is a small space. I thought this was hard to see, a single leer would be hard to see as a form of gender discrimination that limited someone’s professional opportunities. But it’s not at all to think of leering glances as an invasion of privacy. The Unwanted Gaze substituting part of a woman’s identity … her appearance … for the whole of her personality. To sexualize someone in the workplace like that is an indignity. Similarly, what Paula Jones suffered. In our discussion of the impeachment, we said, “well she had not employment consequences”. Indeed, not. But if Clinton did what he was alleged to have done, he insulted her and violated her privacy. So we’re back to Brandeis and Warren again. Our law has no vocabulary for punishing dignitary offenses and the inadvertent and well-intentioned effect to do so through harassment law … think of all the collateral violations of privacy that is spawned. Not only that of Paula Jones bringing her suit, but Monica Lewinsky, who was forced to describe her own consensual sexual activities under oath. It was … again, it was such a violation. She said, “Why should Paula Jones’ right to sue take precedence over my right to privacy?” And this … I think this confirms my classically liberal intuition that the State cannot save us from being mis-judged and insulted and viewed out of context. Society’s an orgy of judgments and misjudgments. And as long as there aren’t tangible employment consequences, often it might be better to favor social rather than legal regulation for this sort of indignities.

HEFFNER: Well, in the sense then you disagree with your hero, Brandeis.

ROSEN: Let’s see if this is the case. Brandeis … it’s true, tried to propose a new application of ancient principles and proposed tort principles for regulations of privacy. In fact I agree with him in this respect. And I say that tort law, which is the area of law that governs civil offenses of one individual against another, not a workplace injury, but an individual indignity is well suited to govern the serious but ultimately not discriminatory conduct in the workplace that arises when men and women interact in daily situations. So, the great “Intrusion on Seclusion” tort … these wonderful, you know, early twentieth century phrases that arose from Brandeis’ article may have been a more effective way of protecting Paula Jones than employment discrimination. State courts have held that to make unwanted advances can be an invasion of the emotional sanctum. Even in public places, this is an important idea … privacy is not just the right to be left alone in your bedroom, but the right to control the boundaries of social accessibility that occurs in public as well as private spaces. So like Brandeis I would say that tort law, rather than anti-discrimination law maybe helpful in this regard.

HEFFNER: Do you see anything on the current scene in terms of our highest court that would lead you to believe that that approach may surface once again.

ROSEN: Interestingly, the Supreme Court in the past few years has been minimizing the distinction between what it calls the “gender discrimination” aspect of harassment law and the hostile environment. And it’s returning to the test of Title Seven of the 1964 Civil Rights Act which properly insures that no one’s livelihood should turn on their gender. So this notion that it’s really sex discrimination … that there has to be some sort of employment link is one that Justice Ginsberg the great Liberal equal treatment feminist and other Justices are returning to, and I’m hopeful that that trend will continue?

HEFFNER: Would there, in a half minute left that we have, would there be any positive signs that one victor in the polls or the other is more or less likely to nominate for the Supreme Court persons who will follow that position.

ROSEN: The main thing I’m delighted to say about this current Supreme Court is that these are justices who like their privacy. There have been a series of unanimous Fourth Amendment cases holding that it’s outrageous for The Washington Post to bring a camera into someone’s home when the police execute a search. I think Liberal and Conservative, this is an age when Justices who survived the crucible of the confirmation process realize how important privacy is and I’m very hopeful that that bipartisan spirit will continue regardless of who our next President is.

HEFFNER: Professor Rosen thank you so much for joining me today on The Open Mind, I hope you’ll stay where you are and we can do a second program.

ROSEN: I’ll look forward to that.

HEFFNER: Good. Thank you.

And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send four dollars in check or money order to: The Open Mind, P. O. Box 7977, F.D.R. Station, New York, New York 10150. Meanwhile, as an old friend used to say, “Good night and good luck”.

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

Explore
EXPLORE THE OPEN MIND
SUBSCRIBE
Sign up to receive our newsletter

Produced by THIRTEEN    ©2014 WNET, All Rights Reserved.