Security and Freedom in an Anxious Age, Part II

GUEST: Jeffrey Rosen
VTR: 12/10/2003

I’m Richard Heffner, your host on The Open Mind. And my guest again today a law professor at George Washington University and the Legal Affairs Editor of the New Republic is Jeffrey Rosen who has several times before joined me here to discuss his writings on what he considers the unhappy fate of privacy in America.

Well, last time we focused on my guest’s new Random House book, “The Naked Crowd” which he subtitles “Reclaiming Security And Freedom In An Anxious Age”. And I want to pick up somewhere close to where we left off.

And Jeffrey, I, I want to ask you first, the title “The Naked Crowd”, what does it mean?

ROSEN: It talks about just how psychologically naked and vulnerable we are to fear in this anxious age. And also the tremendous pressures that we have to expose ourselves to prove that we’re trustworthy in an age where identity is so contested. This is a book about anxieties of American identify and it … “The Naked Crowd” is a description of the peculiar pathologies that we face both to reveal too much in a doomed effort to distinguish ourselves from the crowd, to establish our trustworthiness, to give us an elusive feeling of security and the costs of what some of that exposure may be.

HEFFNER: Well, you, you talk about … you write about these two approaches. One that you call the “blob” machine and the other the “naked” machine. And I think you ought to explain them.

ROSEN: Well, this is an example of how it’s possible, through technology to strike a good or bad balance between liberty and security. The “naked” machine is an interesting new surveillance technology; it’s a real technology, it’s currently being tried out at Orlando International Airport. This is a three-D, holographic millimeter imaging machine which uses holographic imaging technology to bounce off the human body, it’s basically an x-ray machine on steroids, but it’s much more effective than an X-ray machine because in addition to revealing metal, it also reveals ceramics or plastics or any items that are concealed beneath clothing. Now the virtual of the “naked” machine is that it shows anything you’ve got under your clothes; the vice is that it also shows you completely naked. It shows an anatomically correct picture of travelers. Given a choice between standing on a long line and going through the “naked machine”, lots of travelers have proved willing to strip themselves bare, electronically. If you’ve got nothing to hide, you’ve got nothing to fear they say. The reason I like this example, though, is because it turns out it’s not technologically necessary to design the naked machine in a way that makes you naked.

The people who developed it, and they are at the Pacific Northwest Laboratory, came up with a simple programming shift, so that they can take the images of ceramics or plastics or guns and project them on to sexless mannequin and they can take the images of the naked body and scramble it into a nondescript “blob”.

So that’s why I call it the “blob” machine. You can be a blob, rather than naked, which obviously for most people is an act of mercy and given the choice between the naked machine and the blob machine, I have asked several groups since 9/11 … which would you choose, and in posing this hypothetical choice, I’ve been struck by, what was to me a surprising pattern, which is that given the hypothetical choice, substantial numbers, sometimes majorities, often real minorities say they prefer to go through the naked machine rather than the blob machine.

And I ask “why”? Both give the same amount of security, but one violates privacy, and the other protects privacy. And the answers are varied; some people say they already don’t care about privacy at airports, some are exhibitionists, some don’t trust the “blob” machine and think maybe it can be reverse engineered; they are skeptical or perhaps a bit paranoid. But to me the most interesting response was the numbers who say “I’m so afraid. I’m so afraid about going on to the airplane that I don’t care whether the machine actually makes me safer, I just want to feel safer. And the ritual of stripping myself bare to prove that I have nothing to hide makes me feel safer and for me that’s enough.”

And that impulse in public opinion, the desperate urge for a feeling of security, even if that leads us to embrace technologies that may not make us safer, is something I want explore throughout the book, I’m concerned about and I just found terribly interesting. So that’s another reason I called it “The Naked Crowd”.

HEFFNER: What, what does it tell us about the nature of human nature, or would you insist it is the nature of American human nature?

ROSEN: I think it is more broadly hard-wired in human nature, but there are traits of the American national character that exacerbate this. One explanation for this particular insistence on feelings of safety rather than actual empirical safety is something that Paul Slovak of the University of Oregon, a psychologist we talked about the last time, has called the “affect heuristic”. When people respond to images of fear or to possibilities of fear, they are more concerned with general feelings of safety than empirical numbers.

When they fly on a plane, they want … they think “does this make …do I feel safe and good here? Do I have good images of this plane, rather than wanting to know the statistical number of plane accidents or to be told that they be … in greater danger driving a car, than flying.” For the same reason people respond to images of fear rather than arguments, they also evaluate fear in terms of emotions rather than analysis.

And I think the, the emotion of fear is so palpably distressing to people, that when thinking about technologies, they’re not again interested in even the details. It took me … what …a minute and a half to explain the difference between the blob machine and the naked machine. You couldn’t do that on cable TV and for that reason I wouldn’t be optimistic that given the choice people would even engage this particular debate.

HEFFNER: What do you mean you couldn’t do it on cable TV?

ROSEN: Well, I’d get 15 seconds rather than a minute and a half.

HEFFNER: Oh, oh, oh, oh. You wouldn’t haven’t the time … you would be given the time to do this.

ROSEN: Precisely.

HEFFNER: Now that’s hyperbole.

ROSEN: Well, it’s … what’s not hyperbole is that there’s never been a market for the privacy enhancing security technologies; and I describe lots of them in the book, the blob machine is just one of them. We can think about surveillance cameras that can be designed to block the faces of individuals and the blocks could only be removed with some kind of individualized suspicion. Or to break the frame up into three parts … you could give part to judiciary, part to the police and another part to the subway authority; and the three parts can only be put together if there was evidence of a terrorist attack and not of a low level crime. Even to describe the complexity of these regimes is to show their impracticality.

When Britain wired itself up with more surveillance cameras than any other nation, the constant mantra was “If you’ve got nothing to hide, you’ve got nothing to fear”. And presented with statistics from the British government’s own Home Office, the Home Office that had been responsible for putting up the surveillance cameras, that the cameras had no impact in actually decreasing terrorism. None. Or violent crime. And they were only good on the margins for illuminating car thefts and parking lots; the parking lot thieves would move to the next parking lot because they knew the camera was focused right on them.

The public was indifferent. They couldn’t get enough of the cameras because they said “We don’t care whether it actually makes us safer. We want to feel safer.” So cable TV is a cheap shot, but this, this emotionalism is so real that it’s defined …the British government’s spent more money on these cameras than any other aspect of its crime budget. And got very little anti-terrorism effect for it.

HEFFNER: Jeffrey, why don’t you simply tell that story, as you write that story and then shrug your shoulders? That’s what we’re like. That’s what we need to feel good. After all democracy is a feel good construct, isn’t it?

ROSEN: Well I, I …at it’s worst, at its worst it’s a feel good construct. And you might well say the economic benefits of a feeling of safety are so tangible, if people are so paralyzed with fear that they can’t leave their homes and go to work, well, yes there is a benefit, a tangible benefit, a social benefit to embracing feel good technologies that don’t make us safer.

But there are also costs, which is why I don’t want to shrug my shoulders. There are tangible costs. When Britain wired itself up with some many cameras that it resembles the set of the “Truman Show”, I fear both discriminatory surveillance, greater social conformity and most important of all a sense of false complacency and false security that led the Britons not to focus on responses to terrorism that might really work.

HEFFNER: Well …

ROSEN: So that …

HEFFNER: … is that a, a real point; that we’re not doing what we need to do to protect ourselves?

ROSEN: I think so, I think so. Now, I’m not saying that protecting ourselves is easy, but you do look at the countries that have dealt with terrorism since … effectively, since the post-war period … France, Germany, Russia, especially Israel; these are countries that have put tremendous faith in human intelligence. They have … the El Al airport example must be a model for all of us, they haven’t really had a hijacking since … for decades … and there they don’t rely on data mining or these fancy cameras … they, their agents are trained to look for … tiny nervousness they submit you to 45 minute interrogations. Now they’re engaged in profiling of kinds that we wouldn’t tolerate. They put their faith in authority and are far less intolerant of discretion. These … and, and they’ve not gone to pieces in the face of a far more dramatic terrorist assault than we have.

HEFFNER: Yes, but it’s so strange to hear you say that because it seems to me that right at this moment they are suffering more from acts of terror, or terrorism.

ROSEN: They’re up against a, at the moment, a much more immediate, determined and bloody enemy than we are. But their, their society is intact in a way that I fear America’s wouldn’t be. Can you image? Can you image what the response in America would be if there a single suicide bomber at a shopping mall in the Midwest, let alone weekly assaults on buses.

I fear that our, our that all the weaknesses of our national character … the individualism, the emotionalism, the tendency to personalize risk would make us go to pieces in ways that the Israeli’s have not. And, and that’s why I’m trying as cool-eyed, in as cool-eyed a way as possible to analysis these aspects of our character to try to figure out how we can …I know we can’t change them, no nation can ever change it’s character under stress, it becomes more like itself, not less; but at least we can understand and try to resist the worst aspects …

HEFFNER: You’re saying blob then, rather than naked machines.

ROSEN: I think so. I mean you can imagine in theory that if the blob machine were put up on every subway or every bus in America … as I’m a privacy enthusiast, to put it mildly, but I would have no objection …

HEFFNER: Nut …some people would say.

ROSEN: Well, absolutely … a privacy nut … I hope …this is … I’m trying to strike moderate balance in this book, I hope I’m not a knee-jerk nut.

HEFFNER: But you know, you know that’s what … oh, I was going to say puzzles me again, but I won’t …that’s what interests me so much about “The Naked Crowd” that what I hear … and you and I have done a number of programs, together now … what I hear is … what I read, what I see is to a very great extent a more optimistic note than I have gotten in the past. Is it real?

ROSEN: I am much more optimistic about the possibility of salvation, of a good balance between privacy, liberty and security.

HEFFNER: You mean you’re saying, “Here, we could do this”.

ROSEN: We could do it. And that optimism comes from the challenge that I say led me to write the book, from my friend Larry Lessig who teaches at Stamford and is the greatest theorist of cyberspace, whose work I commend to everyone … “Code and The Laws of Cyberspace” is the seminal book on the subject.

We were in a panel about privacy and security; I was inveigling against the British surveillance cameras and Lessig turned to me and very politely, but firmly called me a Luddite. He said, “these technologies are going to proliferate whether you like it or not and you should at least understand enough about them to realize the complexities of the design choices we face and then you can argue for a good balance, rather than a bad balance.”

So I took this challenge, as I do everything Larry says, seriously and went out to Silicon Valley and spent a year learning about the technologies and thinking about the laws and trying to imagine what a good balance would look like. And after that work, which is reflected in the book, I was more optimistic about the theoretical possibility of designing these blob machines, data mining technologies that might protect privacy rather than threatening it, and so forth.

But I’m not more optimistic, nor is Lessig after we checked back in with each other after my year of work had been done, that the good balance will, in fact, be adopted for the reasons that we’ve been discussing.

HEFFNER: Well, of course, when I wrote my first note here, I wrote … about you … “No Luddite … he is engaged in a cost plus analysis”, is that a fair statement about the book.

ROSEN: I hope so. There I’ve succeeded. I, I hope not to be a Luddite. There’s not point in it. I’m not a Luddite. But I’m also not a techno-positivist, and they’re the people I contrast to the Luddites, those who uncritically embrace technology as a form of salvation in an age of fear. Techno-positivism seems to me crudely opportunistic often. The same technologies of classification and tracking and data mining that were used before 9/11 to track customers on Amazon are not being peddled to the government to get a piece of the Homeland Security pie in order to identify suspected terrorists.

HEFFNER: That’s putting it very directly, isn’t it? To “get a piece of the pie.”

ROSEN: Well, I don’t mean to be quite that cynical …

HEFFNER: Why not?

ROSEN: … well, only in the sense that there are some benefits for these technologies and there’s no reason not to design them well and I don’t think that the … well, you can … we can all use our own judgments about the precise level of cravenness and cynicism versus civic virtue, but it is true … motive doesn’t much matter … the technologists are creatures of the market and they’re driven my market values above all. So that’s why I was so distressed when I was sent to interview Larry Ellison, the head of the Oracle Corporation, the designer of the largest database company in America, who had proposed a national identification card.

And I’d been told that he would have thoughtful comments about the balance between liberty and security. I found he didn’t. He was contemptuous of the complicated design choices that might protect privacy or threaten it and he seemed more interested in just using Oracle technology to consolidate as much information as possible, rather than thinking about the differences between what’s good for Oracle and what might protect Constitutional values. So the technologists often came up with a refrain that I heard again and again, “We just build the machines, we don’t decide how they’re used.”

And this line, which did remind me of the Tom Leherer line, the great song about the Nazi rocket scientist who defected to America, “Once the rockets go up, who care where they come down, that’s not my department says Werner Von Braun.” That suggested to me that the technologists unconstrained by legislatures or courts are not going to strike a good balance.

HEFFNER: You know, I was so interested when you began your epilogue and I can’t read it all, but you started “By the time you read this, North America and Europe may have been shaken by new waves of terrorist attacks.” And you go on, “In the aftermath of the traumatic events, nothing in this book offers any reason to expect that the public will demand laws and technologies that protect liberty and security at the same time.” That’s quite a mouthful.

ROSEN: I’m, I’m …

HEFFNER: You allowed yourself that one bit of down feeling?

ROSEN: Oh, it’s not just one bit. This is not a … I hope it’s not unrelievedly pessimistic, but the part of it that is pessimistic is about the pathologies of public opinion … we are our own worst enemy. “We have seen the enemy and he is us.” Roosevelt was right about fear being our greatest enemy. We have the … you know inner resources to conquer it, but we can’t do it on our own. So what I try to do in the Epilogue is imagine who can save us? What might save the public from its worst instincts. And I talk about some legal models and I, again, talk about the technologies. We’ve already talked in the last program about the importance of turning off the damn television, which would help a lot.

But I close with little thought about the centrality of political leadership. This really is necessary if we’re to avoid our own worst instincts. Politicians have the same instincts to pander to public fears that the media does because they’re creatures of the public. In order to attract an audience to reassure the public that its doing everything possible to protect the public, to give the level of risk protection that the public demands, there is a strong temptation to engage in … if not open fear mongering … let’s call it risk-mongering. The Code Orange alerts, the constant amorphous warnings of dangers that may or may not quite materialize; this reflects the same political pressures that lead cable news stations to have 24-hour banner ads.

However, if we’re to be saved from our worst instincts, we need leaders who will challenge us to overcome our fears, not pander to them at every turn. And I do think that Mayor Giuliani is a good example of this. His calm stoicism, his competence in the face of 9/11, not emotionally … although he was not cold and he allowed himself to feel, he coolly and firmly laid out the nature of the danger, he didn’t exaggerate it, he didn’t “spin”, and just by the simple force of his stoical example he led the city and the country to achieve a … to overcome its worst self and to just achieve a sort of sense of grace, that we couldn’t have had without him.

I fear that the, the Federal response to 9/11 has not been similarly challenging. Who could imagine Franklin Roosevelt instituting a series of color-coded threat indexes. Roosevelt is another example of the kind of leadership that might save us.

And, of course, Lincoln, and I close with Lincoln’s famous address to the youth of Springfield when he talks about the mob spirit being our greatest danger and calls for allegiance to the ideals of cool reason and Constitutional liberty itself. So we need, it’s not “tough love” but a less democratic, less pandering leadership. And without it, without we, we can’t be saved, but with it … perhaps, perhaps we can.

HEFFNER: How do we achieve in our democratic nation a less … your phrase … a less democratic approach?

ROSEN: Well, the greatest leaders of the past have tended to arise unexpectedly, if not fully formed, but to have shown their mettle only in the face of the crisis. And character, of course, is everything. And when we think about what made Lincoln able to respond to the crisis so effectively, I think it was a combination of his pragmatism and his Constitutionalism.

There’s a wonderful new book by Daniel Farber called “Lincoln’s Constitutionalism” which stresses what a Constitutionally precise, legalistic President Lincoln was … in addition to his saving pragmatism, his astonishing ability to relax ordinary procedures when the exigency required it. He was always, at his core, a legalistist. He never insisted on the unilateral authority for the President to do whatever he liked. He said there was a limited ability to suspend habeas corpus in areas of actual battle when Congress couldn’t act and then he asked for Congressional sanction after the fact.

As a young Congressman he’d introduce spot resolutions demanding the precise spot where the American blood was supposed to have been spilt on Mexican soil, challenging the legal basis for the for. So this … and I think of the current leaders and I do think John Ashcroft is misrepresented and unfairly caricatured as religious zealot, which he’s not, I believe.

But I do think he’s been a creature of public opinion above all … and Lincoln is his hero, but he has been less legalistic than Lincoln. If Ashcroft had been less of a politician and more of a legalist, more of a Constitutionalist, then he might have been able to strike a more effective compromise with his Libertarian and Civil Libertarian critics and the Patriot Act might look better than it does. So I think that, that’s … that character, who could have predicted Lincoln and of course, we didn’t deserve Lincoln. One never deserves a Lincoln. But Lincolns emerge and Giulianis do, too, and God forbid we’ll need a leader of that magnitude too soon. But, when the crisis comes perhaps some American leader will be up to the challenge. Who knows?

HEFFNER: As you look around, you can’t dismiss it. Even though we have very few minutes left, you can’t dismiss it with “Who knows” because you’ve thought so much about this. As you look around us, do you find either pockets of people, or individual leaders who want to go further in terms of leading the American public?

ROSEN: Well, again, we started off by talking about my optimism about Congress and I’m terribly impressed by the conscientiousness and intelligence of Democrats and Republicans in the Senate. I think that people like Senator Feingold, Craig, Derbin, Spector(CHECK SPELLINGS), these are moderate Constitutionalists who take legal values with tremendous seriousness. And again this … come up with a phrase you like, but calling Constitutionalism … this is a uniquely American trait. Now at the level of Presidential politics …

HEFFNER: Which is what we’re really talking about.

ROSEN: We are.

HEFFNER: I think so, when I asked the question … look around and who, who do you choose?

ROSEN: Well, I mean, we don’t have to talk about the Presidential primaries but I was distressed to see … I think that Al Gore played as much politics with the Patriot Act as George Bush. When I saw Gore stand up in Constitution Hall before 3,000 cheering partisans denouncing Ashcroft and the Patriot Act as the greatest threat to liberty, I recalled the fact that the Clinton/Gore Administration had proposed many of the provisions in the Patriot Act in the wake of Oklahoma City. So I don’t think that sort of partisanship is useful. I think that an allegiance to Constitutional values is a principle, and it is principle with people and the people who are defending it in Congress do so … they did it during the Republican Administrations and they are doing it during the Democratic ones, and they’re doing it because they believe it. Now whether any of them happens to have the unique alchemy of healing connection and emotion and devotion to principle that requires being elected President, let alone being a great one; I have no idea. That is, that is alchemy. But …

HEFFNER: You have no ideas. Would you make a bet?

ROSEN: Oh, no. Of course not.

HEFFNER: No choices You don’t expect me to ask this question.

ROSEN: I’m not a pundit. This is not my thing. I’m not … who cares about my political preferences and again, people … I’m not concealing them, I’m a Democrat, but I … whether … we could go through the Presidential candidates, and I think … you know who … even with many Giuliani was dismissed an authoritarian before he had his moment of grace with 9/11 and FDR was, of course, dismissed as a light-weight and a playboy and only …

HEFFNER: By your friend, Walter Lippmann.

ROSEN: Well, he was, indeed. He grudgingly called him “an amiable man who would like very much to be President and seems to have no other obvious qualifications.” But he showed himself in the heat of battle and, I think in the end, you never really see the mettle of the leader until, until the crisis is on.

HEFFNER: Jeffrey Rosen, it is not I, it is time … the inexorable clock that gets you off of this spot.

ROSEN: Good.

HEFFNER: Thank you so much for joining me today on The Open Mind.

ROSEN: Thanks for having me, as always.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR 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.