The Destruction of Privacy in America, Part II

Host: Richard D. Heffner
Guest: Jeffrey Rosen
Title: “The Destruction of Privacy In America”, Part II
VTR: 6/2/00

I’m Richard Heffner, your host on The Open Mind, and this is the second part of an examination of the destruction of privacy in America with the author of a new Random House book on this compelling and often frightening theme. Its title: The Unwanted Gaze.

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

Now, let me pick up with Professor Rosen where we left off last time. Not quite where we left off … although in talking about privacy I wanted to bring to your attention and ask you to comment here as you do in your book, something that Justice Scalia said, talking about privacy: “Ordinarily, the very purpose of anonymity is to facilitate wrong by eliminating accountability”. And I wondered what your response is to that.

ROSEN: It’s an extraordinary statement, isn’t it?

HEFFNER: Is it untrue?

ROSEN: I think it’s contestable. It occurs in the context of a case where Justice Thomas, Justice Scalia’s frequent collaborator and comrade took a very different point of view. Justice Thomas said anonymity was at the core of the founding of the American Republic, the Federalist Papers were famously anonymous, written by “Publius”. Anonymity can be important to protect unpopular political groups and enable them to put forth their points of view. So Thomas gave an eloquent defense of the importance of anonymous speech. And Scalia said, “yes, but there are these countervailing interests in law enforcement and when we allow people to conceal their identities they may get up to an awful lot of mischief”.

HEFFNER: Is that not true?

ROSEN: Of course it’s true. But it’s also true that anonymity can be crucial in reconstructing in cyberspace boundaries of reticence and restraint that Americans have traditionally taken for granted. When I go to the book store to browse discreetly for my book, just to check the latest sales figures as it flies off the shelf after this show, as I’m sure it will, my friends may see me and I might be mildly embarrassed, but probably no one will recognize me and they’ll quickly forget. By contrast when I dial up Amazon to do the same browsing on my new Sprint web-phone, which I bought precisely for this purpose, Sprint promptly disclosed my phone number to Amazon identifying me with granular specificity. More distressingly, if I browse on Amazon’s site or in a virtual mall, every website that I visit, and magazine that I read, and the amount of time that I spend reading it, can be monitored, searched and recorded. So, in cyberspace one lives as if one has a tiny camera on one’s back.

And I think this is a powerful counter to Justice Scalia’s notion that anonymity is only important for wrong doing. Anonymity is important for the ordinary back-stage areas that are necessary for life in a free society. I liked, I’m so moved by the work of the great sociologist Irving Goffman who wrote the definitive works on privacy in public places in the 1960s. And Goffman reminds us that individuals, like actors in a theater need back stage areas where they can take off their public masks and relief the tensions that are an inevitable part of public performance. Unless you have a space to let down your hair, to joke, to be vulgar, to say things you don’t really mean, with confidence that your back stage behavior won’t be revealed and exposed, we live like citizens of totalitarian societies. Milan Kundera said that the distinctive aspect of a liberal state is one that respects this back stage area. And his great novel, The Unbearable Lightness of Being discusses how the police in pre-Soviet Prague destroyed an important figure of the Prague Spring by recording his telephone conversations with a friend and then broadcasting them as a radio serial. He was exposed in his undress. He … all of us make jokes, says Kundera, and say things we don’t really mean, but unless we have these private spaces protected, then the transformation of the individual from subject to object is experienced as shame. It’s a long way of answering Scalia’s point, but I think it’s profoundly true that really this notion that there’s some true self that will be … is unitary and has to be exposed and that any form of concealment has to be … mean that you’re up to no-good is unconvincing and wrong.

There are many aspects of my identity … we just met and we had a lovely conversation before the show started and we’re having one now. But we have only just a glimmer of all the deep textures and layers of … that lie beneath no doubt and to presume that any form of concealment is a misrepresentation of the true self is one that I find deeply unconvincing.

HEFFNER: You are most eloquent. But may I say, point out in fairness that I don’t believe that Justice Scalia was saying that anonymity, let’s say privacy, is only used to facilitate wrong by eliminating accountability. And if it were not Jeffrey Rosen who was ordering up books on the Internet, but terrorist A, B or C, if we were not able, “we” meaning our representatives, our government, those people who limit our privacy were not able in some way to put together the picture of what was being done, we have a problem there, too. Right?

ROSEN: We do. And law enforcement is terribly important. And what do we think about these new technologies of encryption that make it possible to conceal one’s identity and to engage in anonymous browsing. They have Star Trek names like “the Anonymizer” or “Zero Knowledge” and I can use these to conceal my identity to encrypt my web browsing request and make it very hard to trace back my real identity. So the government, the Clinton Administration which has recently discovered privacy as an issue, not coincidentally, I think, after the impeachment the President seemed to care much more about privacy than he did before … for what that bit of armchair bit of psychologizing is worth. But the Administration proposes that you shouldn’t be able to encrypt documents without giving the government a backdoor key, this was a failed proposal of a couple of years ago … the clipper chip. Which would essentially mean on very low cause, because as we discussed earlier you can have a subpoena for information, even if the crime is not very severe … you’d be able to get it. My answer, I think to the question is law enforcement is terribly important and we must protect its interests, but we should also be sensitive in balancing the seriousness of the crime against the intrusiveness of the search. It might be appropriate to issue a subpoena for private diaries, for example, in the Unabomber case. The Unabomber case was solved partly through diaries. I have no objection to that. But in the case of a dismissed civil suit for perjury the invasion was too great. So this suggests that we need filtering mechanisms, or judges or special masters actually to make judgments. To actually decide, as the Fourth Amendment requires, what searches are reasonable. And this is something government should have the ability to do it in the case of serious crimes, but we should set the bar high.

HEFFNER: Was Brandeis a little more absolute perhaps living in a less threatening time about privacy and that back stage rule?

ROSEN: Yes, indeed. Brandeis in the beautiful article that you quoted earlier, said “A man records in his diary that he has not dined with his wife.” No one, not even the recipient of the letter should be able to disclose the diary or the letter to someone else because it’s not the physical fact, but the mental state. It’s the indignity. Even in noting an innocent fact that should be protected, he was more absolute. The difficulty is that the causes of action that Brandeis proposed to protect privacy in this absolute way turned out to be dependent on social expectations. All of the great invasion of privacy torts are defined in terms of whether or not the invasion is outrageous, beyond the pales of a civilized society, or unreasonable. And this is the rub. This is why in the twentieth century the torts were whittled away because unlike the 1890s, the 1990s and early 21st century are an age when no one agrees what’s “reasonable”. So the only time that people win invasion of privacy suits using the Brandeis torts today are the most voyeuristic examples of basic peeping tom-ism. Pamela Lee who unwisely disclosed her wedding intimacies to a videotape, sued for invasion of privacy in a related case. And won. And the judge held, wisely I think, even sex symbols have privacy. So when it comes to putting cameras in bedrooms and stealing people’s most intimate moments, that may be protected. But beyond that it’s very hard to allow the law to intervene to save us.

HEFFNER: Cameras in bedrooms. Okay. What about cameras in courtrooms?

ROSEN: I’m not for them.

HEFFNER: Are you against them? Is that what that means?

ROSEN: I should say I am against it for the Supreme Court. Justice Sauter has been known to say, “over my dead body” in terms of cameras in the Supreme Court. And this is why I agree with him. Actually, Justice Scalia gives us the best defense. So Justice Scalia says if he were confident that oral arguments of the Supreme Court would be broadcast in their entirety and not excerpted in any way, he would have no objection to cameras in courtroom. But because he knows that the arguments will be taken out of context and the most sensational aspects will be excerpted on the evening news, he says that in a world of short attention spans, cameras in the courtroom could decrease, rather than increase understanding of the Supreme Court because of this danger that isolated bits of information will be mistaken for genuine knowledge. And this helped lead me to the thesis of the book, which is that this is what privacy protects us against … having isolated bits of information taken out of context and mistaken for knowledge. So this is why “Court TV” which covers trials in their entirety … I think I have less objection to.

HEFFNER: Oh, “Court TV” doesn’t cover trials in their entirety except occasionally and most importantly, it’s not the coverage that Scalia was concerned about, it was the communication, the choice that would be made by those who master the media as to what would be excerpted and what would be shown.

ROSEN: I am embarrassed to reveal my ignorance, I actually don’t have cable TV, so I don’t see these sorts of things [laughter].


ROSEN: But, but it’s the danger of context. But there’s another danger, too, why I don’t like cameras in the courtroom. It changes the quality of the individual’s concerns. So the Justices of the Supreme Court are tremendously powerful actors in our system of government and they’re able to speak mostly through their opinions because they can go to restaurants in Washington and sometimes be unrecognized. The phenomenon of the celebrity is an unsettling one. When we see Sam Donaldson on the street we think that we really know him. People feel free to approach him, the ordinary boundaries of reticence and civil inattention that guard most of us are not the case when one is a genuine celebrity. But this is a mistaken sense of intimacy. We don’t really know … well, we may know Mr. Donaldson. But, but to do this to the Justices of the Supreme Court, I think, would change the quality of their identity and would make it harder for them to speak through their words.

HEFFNER: You have indeed become a Washingtonian. Because when I ask about cameras in the court, you think I mean the Supreme Court. And actually I was thinking about criminal trial courts, civil trial courts. And I wonder how you feel where the anonymity of the judges is not at issue.

ROSEN: I think because … perhaps we should distinguish between sensational cases like Simpson and a few cases that seized the public’s imagination and ordinary cases. In ordinary cases we can be relatively confident that the dreariness of the subject matter will be a protection against sensationalism. But I don’t have … I was thinking about the Supreme Court and I think my sense is that cameras in lower courts are fine with me, but I don’t have strong feelings about this.

HEFFNER: We’re going to have to argue this out off camera.

ROSEN: Okay.

HEFFNER: But let me, let me bring you to this question … to another question. And that is the role that the media themselves have played in the diminution of our concern for privacy.

ROSEN: Yes, a central question. And, indeed, if one were to examine or identify the greatest invasions that I discuss in this book, they come not only from the State, but, I think from the media. What was the moment of the Bob Packwood drama that the Senator found most an indignity. It wasn’t only the subpoenas, because after all if it’s just his colleagues reading his diaries, it’s a constrained audience. It was the moment that the gossip column in The Washington Post, the reliable source, took excerpts from his diaries on a daily basis and ridiculed his favorite music and his favorite recipe for baked apples with an unflattering picture. He said it was such an indignity, such an indignity. And just the casual cruelty with which the press can simplify people and ridicule them and judge them out of context. It’s what Monica discovered, it’s what Packwood discovered. I told the sad story of Oliver Sipple, the Marine who saved President Ford’s life by blocking the arm of Squeaky Fromme his potential assassin. Newspapers later “outed” him as Gay. He was distraught. He didn’t mind that his friends knew that he was Gay, but he chose to disclose this in a limited context and didn’t want it widely known, especially to his parents. And sued. He sued the media. The courts dismissed his claim on the grounds that no reasonable person should object to being portrayed as manly and it was good to break the stereotypes that Gays and lesbians were not manly. Who can say whether a reasonable person in San Francisco would object to being portrayed as Gay. Well, Sipple objected, he didn’t want to be a political tool for a broader agenda, and ten years after this, he committed suicide. So, the media can … the indignity of being misjudged and having your honor assaulted is a terrible thing. It’s, it’s … that quality that we care about more than money … it’s more than anything else. And that the media has tremendous power … that really is central to this discussion of privacy invasions.

HEFFNER: Well now I’m certain that you are very much concerned with the First Amendment and its use. Now, where does the balance come between the freedom of the media, as you embrace it, and your concern about privacy.

ROSEN: You are correct, these are the two things that I care most about and on the legal question I ultimately conclude that as dreadful as these invasions are, and as much of an indignity as I see them, which is why I’m denouncing them socially, law should not restrain the press. The tests for restraining invasions of privacy are so malleable that unless judges are to be put in the business of deciding what people should be interested in, it’s very difficult to enforce a robust legal system against dignitary injuries. And this relates, in fact, to the conversation we were having earlier about my suspicion of sexual harassment laws as a protection against dignity. I think these are real, dreadful, meaningful invasions, but I do not think that law can save us from them.

HEFFNER: You’ve come back then, I’m certain to your insistence upon the necessity for cultural change, for psychological change, for our changing and what we are willing to seek after when we’re no longer quite so involved in what someone else is doing, the press will not be feeding it up to us.

ROSEN: This is true, although I don’t want to be too much of a prig. I mean I like gossip as much as the next fellow and gossip can have an important social function in regulating behavior and correcting wrong-doing …

HEFFNER: Mr. Justice Brandeis did not quite feel that way.

ROSEN: He didn’t. But there’s a difference between oral and written gossip. And I think Brandeis understood this intuition. He didn’t mind the wedding being discussed in the drawing room. But once it was put in the tabloids he found that an indignity. Similarly, I think, cyberspace has blurred the distinction between oral and written gossip. Oral gossip is a very effective way of enforcing social norms while still respecting privacy. If I behave badly, my colleagues and friends will gossip about me behind my back. And social disapproval will indirectly make itself known to me, but I can correct my mis-behavior without feeling like my public face has been assaulted at its core … I’m not shamed or embarrassed centrally.

HEFFNER: By “oral” you mean neighbor-to-neighbor, over-the-fence … you don’t mean radio, for instance.

ROSEN: Absolutely not.

HEFFNER: And yet, it’s an oral medium…

ROSEN: But it’s broadcast … it is indeed an oral medium. So this reminds us about the importance of context. Oral in the drawing room or water cooler sense, circulates among a relatively small group of people who know us well. They can put my wrong doing in the broader context of my personality. They know I behaved boorishly here, but I have all these other good qualities and they can, therefore, judge me whole. Once the gossip is recorded in cyberspace and indelibly recorded for a long time, it can be resurrected in a different country or ten years later. So I tell the story of James Rutt, the Internet executive who’d spent a decade gossiping in The Well, which is a discussion group. And he didn’t mind talking about his weight problem or his thoughts about sex and politics among his virtual friends. But once he got promoted to head of an Internet company he was worried that this … these musings would be taken out of context and used against him. So he fortunately had a technological solution. The Well offered a feature called “Scribble”, that allowed him to go back and actually erased a decade of his own past, restoring him to the kind of privacy that he would have had in the real, rather than the virtual world. But this is why again I wanted to say not that we shouldn’t be aware of each others’ misbehavior, and there’s nothing wrong with discrete evaluation of the sexual and other foibles of intimate friends and colleagues. This is a natural and important human impulse. Because it’s, unlike law, it can regulate behavior in an effective and humane and limited way. It’s just when it’s written down and published, it can be far more brutalizing.

HEFFNER: And a half century from now, when you look back on what you’ve written, do you think you’re going to be able to say, “I was able to light enough fires, I was able to raise enough outcry about these invasions of privacy, so that I was right … the law was not needed. We did not need to resort to law. You want to bring about a kind of social change, cultural change.

ROSEN: I, we began by talking about whether I was optimistic or not. I would not be optimistic that the party of reticence is going to have a big victory in the next fifty years. All of the technological and cultural trends conspire to encourage exposure. And I … the notion of … the subject of privacy will be relevant in fifty years, no question about it. But the question of what social norms will look like, is one that is beyond my limited capacity right now. So rather than a transformative project, I’m just trying to think through a hard problem, and propose some tentative solutions.

HEFFNER: If you were philosophically so needful of a voluntary approach, of cultural and psychological social change, do you think you would be able to formulate a legal approach, a legislative approach, a governmental approach?

ROSEN: There are a couple of legal principles that I hold dear and think should be resurrected. The idea that genuinely private papers should not be lightly searched except in the cases of the most serious crimes was at the cornerstone of the Bill of Rights. It was really as important as the First Amendment. And it’s an outrage that it evaporated and it evaporated recently and there’s no reason that the Fourth Amendment properly construed, in light of its text and history and structure, should not resurrect an enclave of protection for private and other electronic papers.

HEFFNER: Even … even in the midst that the threats that face us today.

ROSEN: The threats can be evaluated on a case by case basis by sensitive, intelligent judges, making judgments. So, when Monica Lewinsky objected that her diaries had been searched, the inventive counsel’s office said, “Well, look at the Unabomber case, there the diaries were searched”. Lewinsky wasn’t able to make the same response that in any decent legal system one could be able to distinguish among searches based on the seriousness of the crime. It’s these vague notions of threats … threats to security, and Scalia saying that anonymity is often a mask for wrong-doing, have historically been means by which our most basic Fourth Amendment and other freedoms have been whittled away. And rather than surrendering to technological determinism and accepting these threats at face value, we should just insist on judgments and on an enclave of privacy, which is so important.

HEFFNER: But they have been whittled away and no one makes a better statement of that than you do. What could possibly have forestalled that whittling away given the nature of our nature. Given the nature of our nation. Given the nature of our historical development.

ROSEN: And given the nature of privacy, too. It’s a quality, a state, which we call it a gift, a treasure that everyone claims to appreciate in abstract, but people tend not to behave in concrete situations in ways that are consistent with these views.

HEFFNER: You mean they don’t yell and scream and tear their hair.

ROSEN: Not only that, they voluntarily surrender information on the web. They expose themselves, they don’t behave in ways that are protective of values of reticence. It’s only sensational snippets that galvanize people. So why do we have a video records protection in this country. Congress said to them, “you can, journalist and lawyers can’t lightly subpoena your video records. This is because when Robert Bork was nominated to the Supreme Court some canny journalists got his video records, they were utterly innocent, virtuous in the extreme, Jimmy Cagney kind of stuff. But Congress was outraged and then they passed a law. We have a driver’s privacy protection act because the soap opera actress Rebecca Shaefer was tragically murdered when her drivers’ license bureau sold her personal information to a direct marketer. It was obtained by a crazed fan and he killed her. So Congress responded to that. This is no way for a sane legal system to respond to privacy … but little sensational snippets … video records, and driver’s records. You ask, could we craft a broader law?

Europe has a law prohibiting information disclosed for one purpose to be used for another without the consent of the individual concerned. That’s a lovely principle, and I’m not sure it would be a terrible thing … if it were phrased in terms of waiver … it would be easy for people to click pass those screens as fast a teenage boys click past the adult certification screens on adult websites. It’s not so … you’d want to know what level of consent was required, but that’s a possibility. But again I don’t think the law is going to save us again.

HEFFNER: Professor Jeffrey Rosen, thank you so much for joining me today on The Open Mind. I think The Unwanted Gaze is a magnificent book, I hope everybody does rush out and get it. And then they’ll recognize you there at the bookstore when you get what ever salacious selections you’re going to make. Thank you.

ROSEN: Thank you.

HEFFNER: 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.

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