The Web Means the End of Forgetting, Part II

GUEST: Jeffrey Rosen
VTR: 09/20/10

I’m Richard Heffner, your host on The Open Mind.

And joining me again today is Jeffrey Rosen, a law professor at George Washington University and Legal Affairs Editor of The New Republic.

Now, we’ve often discussed here the concerns Professor Rosen and I share relating to the loss of personal privacy in our new age of anxiety, of increasing surveillance for the sake of national security and of obeisance to the Mighty Web with its digital wonders.

And last time we began by parsing what I characterized as “one heck of a scary, scary piece” my guest had written some months back – as he so often does – for the New York Times Sunday Magazine.

Its title: “The Web Means the End of Forgetting” and it belongs with still another Jeffrey Rosen Sunday Magazine piece on “Google’s Gatekeepers”.

They both reflect the scholarship and intellectual depth that undoubtedly will characterize my guest’s upcoming volume on Louis D. Brandeis.

And Jeffrey you snuck in a reference to Brandeis in our first program taped today. Let’s talk about Brandeis and his real relation to the question of privacy that concerns you so much.

You referred to his late 19th century piece on privacy then. Talk about it.

ROSEN: Brandeis is so exciting because more than any Justice, more than any philosopher in the 20th century, he can teach us about the need to translate technologies to accommodate changing times in order to preserve Constitutional values.

So Brandeis first encountered the problem of privacy in the 1890s, as you suggested. And his concern then was invasions by technology in the private sphere.

In particular the Kodak camera and the instant press. And he said that this new technology, which was responsible for a proliferation of gossip against celebrities meant that what used to be whispered in the closets was now shouted from the roof tops.

And because of this concern that the privacy of Boston aristocrats was being infringed by this new technology, Brandeis proposed an entirely new legal cause of action to deal with the problem.

They’re called the Brandeis torts … they sound like a delicious dessert but actually they’re a sort of failed legal response because each of them, and they have to do with technical phrase like “intrusion on seclusion” … if your landlord puts a hidden camera in your bedroom.

Or “intentional infliction of emotional distress” if people post terrible lies about you on the web.

All of these rely on some notion of what a reasonable person would find highly offensive.

And in the 20th century as sexual mores went haywire and social consensus about what degree of privacy was appropriate to demand dissipated … juries just couldn’t enforce these so-called Brandeis torts. And as a result they pretty well went out of fashion.

So it was a noble effort, but Brandeis’ effort in that context to have the law evolve to meet this changing technology reminds us of the dangers … at least in America … where we take free speech seriously … of regulating invasions of privacy by private citizens against each other.

Now Brandeis was much more successful in talking about how we can change the law to respond to government invasions of technology and we can talk a bit about that if you like.

HEFFNER: But you know it’s, it’s interesting, you say that success was not his, really, in the first area. And I wonder again, as I pressed you in our first program on this particular topic, how you could think we would have more success … two centuries, really, later? Unsuccessful in the 19th to keep these tools of modernity … the camera, for instance … successful in the 21st century?

ROSEN: I am learning from the lesson of the failure of Louis Brandeis. And that’s why I don’t think the law is the best way of saving us from invasions of privacy by the private sector.

A legal response to the problem of the web, never forgetting, as we discussed, is not where I’m putting most of my hope.

Unlike Brandeis I would emphasize technological responses more. Technologies of deletion allowing the web to forget, allowing us to impose expiration dates for data that determine how long our embarrassing pictures or intemperate chat rests forever in the digital cloud.

I think that is the lesson of the failure of Brandeis’ first effort that the law ultimately is a crude instrument and that we have to put more faith in technology and changes in social norms.

HEFFNER: But Jeffrey, you know, if I were to go back here to the transcripts of our first programs together a decade ago … your concern then about privacy had to do with security. That’s what really began all of this, didn’t it?

ROSEN: I don’t know, we’ve been talking about all aspects of this dimension. I’ve, I’ve …these conversations have been the most satisfying I’ve had and I’m so glad that we’ve been continuing them.

But we began by talking about two things: one is the question we’re talking about now … what to do when Monica Lewinsky … and she was the privacy victim we began (laugh) talking about years ago, felt judged out of context by the fact that her book store receipts were exposed to the world. And she felt misrepresented, the world thought that she’d just bought this high-brow dirty book Vox, but actually she was a much more interesting person who also read Dickens. So that problem of being judged out of context is the same problem Brandeis was concerned about when he worried about the invasions of the Kodak camera and it’s the same problem that hundreds of millions of Facebook users are concerned about when they’re drunken pictures are exposed to the world.

The second problem, the problem of security, of protecting us against government invasions is the second problem that Brandeis worried about. He dealt with that as a Supreme Court Justice. He was much more successful in using the law to restrain the government than he was in the private sector. And I’m much more optimistic about legal responses to the second problem.

HEFFNER: But you know that, that, that’s what puzzles me. Because I would think that what you are so concerned about … you use the word reputation … you go back to that again and again and I, and I appreciate that. You say that it is a natural, built-in concern of humans.

You go beyond humans, too. But I would think that the need for doing all kinds of things in the name of national security will foster the development that you are so concerned about. That the very, very need for national security will work against the development of solutions that you look for.

ROSEN: Undoubtedly. There’ll be tremendous pressure. But happily the US Constitution which restrains the government, but not the private sector, is better equipped to deal with the challenge of a surveillance state.

And here Brandeis is inspiring and optimistic. So Brandeis, in the 1920s … the beginning of the age of the wires and the radio, dealt with this question of the power of the government in the face of a new technology.

The question was wire tapping. Should the government in investigating Homestead, a suspected bootlegger … because this is the war against booze, be able to put wires under the sidewalks in front of his office and intercept his conversations with his fellow bootleggers without trespassing in his office.

A majority of the Supreme Court in a wooden and unimaginative decision, written by Chief Justice Taft, the former President … said “No, the Fourth Amendment, which protects the right of the people against unreasonable searches and seizures in their persons, houses, papers ands effects, only protects the law of private property. And if there’s no trespass, there’s no violation of the Fourth Amendment.”

Brandeis in this visionary, extraordinary dissenting opinion disagreed. He said at the time of the framing a far smaller invasion … eavesdropping in the home was held to violate the Fourth Amendment.

Now he said, “It’s possible without intruding into the physical home to listen in on conversations that the Framers couldn’t have imagined.” Then he looks forward to the age of cyperspace. He says “ways may someday be developed by which it’s possible without trespassing in the home to extract secret papers from desk drawers and introduce them in court”. A far smaller invasion, at the time of the framing was unconstitutional, we need to translate the Fourth Amendment so it takes account of this new technology and protects privacy even without trespass.

And … it took the court about fifty years to answer Brandeis’ challenge. In an unsatisfactory, but earnest opinion, it said that the question isn’t is there a Constitutionally protected place as long as there’s a reasonable expectation of privacy that society is prepared to accept as legitimate … the technological search should fall unless there’s a warrant.

The problem with that test, of course, is that it’s quite circular. As the technologies become more pervasive our expectations of privacy are diminished with a corresponding diminution of Constitutional protections.

So we now squarely face the challenge that Brandeis issued in the 1920s which is how, in a world where as you say, Dick, the pressure for surveillance are … as we speak … leading the government to demand of Internet service providers that they turn over private communications, without a warrant in the name of preventing hacking and computer security. How can we translate the Constitution to give the government the necessary security that it needs while also preserving the values of privacy?

HEFFNER: And what do you think the … I won’t even say results, but the movement is? Where … what direction are we going in, in terms not just of the Bush Administration, but of the Obama Administration?

ROSEN: Well, executives and Congress will always press toward more security because people demand it. They’re scared and they, they want to feel safe.

HEFFNER: And the court?

ROSEN: The court, happily, has been rather Brandeisian in a quite interesting opinion written by none other than Justice Antonin Scalia … no Liberal squish, he.

The court in the Kylow a few years ago struck down the use of thermal imaging technology which was used to go outside someone’s house and detect that in a particular area of the house there was an unusual amount of heat being emitted … based on this the cops got a warrant, found that he was using heat lamps to grow marijuana.

Justice Scalia said, “No” that because the technology, although it didn’t physically penetrate into the home, could reveal intimate details in the home, such as the hour of the day that the lady of the house was taking her daily sauna or bath, therefore, a warrant was presumptively required … at least as long as the technology was cutting edge and not in general use.

Now that’s an important qualification because obviously as these technologies, whether it’s heat lamps or cell phone cameras or hidden microphones become more pervasive, then the protections diminish.

But the fact that Scalia was willing to engage in precisely the exercise of translation … Constitutional translation … that Justice Brandeis demanded … suggests to me that the Court … when it’s interpreting well established Fourth Amendment protections … at least for the home … is willing to push back against this relentless urge for more security.

HEFFNER: And do you think that the Roberts court, in the long run, will be Brandeisian in that respect?

ROSEN: You know, when it comes to the home, I think they will actually because they’re … the Conservative Justices have a Libertarian streak in this regard and they care about Constitutional history and they recognize the Framers concern about this.

The difficulty is … as, as you know, as we’ve been discussing the main threats to privacy from technology are not going to take place in the home.

They’ll take place over the wires of the Internet service providers and when the government pressures AT&T to look through all incoming traffic to detect unusual movement and to read through emails without a warrant … the Roberts Court might be less willing to act because they’ll say “No home, no unreasonable search”.

Here, now, we need to remember Brandeis’ challenge and be bold. He said, “if we must guide by the light of reasons, we must let our minds be bold, recognize that we have no security in an ultimate sense, in our persons or our effects, if they are open to casual exposure without individualized suspicion, whether or not the invasion takes place in the home.”

Or think of the next challenges we may face. I was at a conference of Google … not long ago, where the head of public policy said he expects that in a few years Google will be asked to put on line all public and private surveillance cameras and have them live.

If these images were stored, it would be possible to click on a picture of me … back click on me to see where I came from this morning, from my house … forward click on me to see where I’m going after I leave the studio and basically have 24/7 surveillance of everyone at all times in the system.

Now what on earth would the Roberts court or any court do with this breathtaking prospect. No home, no trespass. We have no expectation of privacy in public? I don’t think that corresponds to people’s intuitions. You may expect that your neighbor could notice you on the street. But you don’t expect 24/7 ubiquitous surveillance. It transforms the nature of our public spaces and ourselves in a way that doesn’t seem consistent with the values of a free society.

HEFFNER: Where would Brandeis be?

ROSEN: He would have insisted, insisted on the duty of Justices to think boldly and creatively about how to protect a sphere of privacy despite the lack of an invasion of the home.

He was not a legalistic or technical when it comes to the values that were being preserved. He insisted on the Framers values. He was not a mushy, let’s make up a living Constitution from penumbras formed by emanations kind of Justice.

HEFFNER: Mushy?

ROSEN: Mushy in the sense of being untethered to Constitutional history. He wouldn’t have created a right to sexual autonomy, for example. As the court did in, in the case leading up to the case leading up to Rowe v. Wade, if he didn’t think that they were firmly rooted in the Framer’s values.

But he would have insisted in a disciplined, bold way of asking “What was the value the Framers were trying to protect?” And how can we preserve it in an age when the greatest invasions today come not merely from the government in the home, but from the government plus Google in the streets and everywhere we live.

HEFFNER: And Google’s vision of the future? And our concerns for national security, how do they meet?

ROSEN: They meet because it will be the Googles and the AT&Ts and the Verizons and the Facebooks that will be either asked or required by government to turn over vast amounts of data without individualized suspicion, without warrants in the name of national security.

HEFFNER: And if I remember correctly, the last time we faced this question of private organizations handing over information, etc., they were not punished even though they violated the law.

ROSEN: They were not. And as a matter of fact Congress immunized the phone companies and said, “Be, be our guest, thank you so much for your help. We’re not going to punish you for your sins”.

HEFFNER: Why won’t that happen continuously?

ROSEN: Well …

HEFFNER: … and be incorporated into the way we face the future?

ROSEN: The … all the statutory pressure will come, as you suggest, in favor of disclosure. But there will be Fourth Amendment constraints placed by the courts.

Whether they’ll be majorities … whether the dissenting judges will be Brandeisian, I don’t know. I have great admiration for Justice Breyer who is interested in these technological questions. The new Justice Elena Kagan is holding Brandeis’ seat and she has great potential. I hope she’ll think as creatively as her greatest predecessor about these problems.

HEFFNER: Clarence Roberts holds who’s seat?

ROSEN: Clarence Thomas?

HEFFNER: Clarence Thomas.

ROSEN: Justice Marshall’s seat.

HEFFNER: Yes, so what, what has that got to do with anything at all, Jeffrey, I’m surprised to hear you say that.

ROSEN: Well, I’m … Elena Kagan is conscious of the legacy of her greatest predecessor. She knows about Justice Brandeis’ inspiration and I hope she’ll live up to it.

HEFFNER: How did you become, why did you become interested in Brandeis? I know you say it will take a while before I can read the book.

ROSEN: Not too long I hope. I became interested … well I’ve been interested for a long time as you know because we’ve been talking about his legacy about privacy … but the Yale University Press has started a wonderful new series called the “Yale Jewish Lives” series and they asked me to write about Brandeis and I leapt at the chance, because this is a chance to talk about what Brandeis means today, not just about privacy, but also about economic reform and Zionism.

When it comes to economic reform Brandeis is the most prescient prophet about the dangers of the curse of bigness and the risks that bankers can take with other peoples’ money.

Again, I think of the 20th century. He predicted the crash of 1929. He inspired both regulatory response … the Glass-Steagall Act that avoid another crash until 2008 and then he would have predicted the, the current crash because of the dangers of, of bankers taking risks that they didn’t understand.

He was so insistent on the need for carrying out business on a human scale because of the limits of human comprehension.

And he understood better than anyone the dangers of corporate oligarchies. He great nemesis was not the government, but J. P. Morgan, who he felt had been responsible for the crash of 1907, actually, at the time when he was hired by Wilson to try to come up with an economic policy.

But that tradition of suspicion of giant corporations is under siege today. It’s represented in the Obama Administration by people like Paul Volcker and most notably Elizabeth Warren, who’s just been, sort of, appointed to head the new …

HEFFNER: … sort of …

ROSEN: … consumer agency. But the Brandeisians are not in the ascendance in either the Democratic or Republican Party. Today Lawrence Summers and Timothy Geitner are more in the Hamiltonian tradition of top down regulation. Of a kind that Brandeis would have suspected.

He feared the curse of bigness both in government and in the private sector. He had questions about many aspects of the New Deal, especially the first New Deal which he thought relied too, too heavily on government regulators.

His solution was to break up the banks … to tax them, so that they were small enough to be effectively regulated by the states. And he would supported the Volcker rule which prohibits bankers from trading for their own account. And also imposes capitalization limits so they’re just not allowed to take certain kinds of risks.

HEFFNER: I was so interested in this extensive article that you wrote recently for The New Republic, “Why Brandeis Matters” and you write here, “He would have been suspicious of the centralizing tendencies of the Obama Health Care Bill”.

And that you say would be true of all of the government’s activities in the economic area.

ROSEN: He has no obvious … in the grass roots movements on the Left and the Right. On the Left today, the Progressive Left is suspicious of corporate bigness, but is willing to tolerate regulations like health care because they have great faith in Federal regulators.

And generally it’s the opposite on the Republican Right. A concern about the dangers of government surveillance, but less concern about corporate malfeasance.

Now there are exceptions here. I have to say I, I’m writing now about the Tea Party Movement’s Constitutional vision and I’m struck by the strong anti-Federal government, as well as anti-corporate rhetoric on the Right.

I mean some of this is the era …the sort of John Birch tradition, the paranoid strain in, in American history …

HEFFNER: But you wouldn’t say that about Brandeis?

ROSEN: He as definitely not part of the paranoid strain because Brandeis had great faith in human reason and on regulation on a human scale. He was not a complete radical anti-government Libertarian by any means. He just felt that the regulation had to take place at the state level, not the Federal level.

But I think he would have respected the fact that the, the Tea Party Movement like the … some nascent anti-corporate agitation on the Left, comes from the grass roots. Because he did believe that Constitutional change ultimately has to come, not from the Supreme Court, but by an engaged citizenry.

He as so insistent on the duties of public deliberation and he thought that leisure was so important so that people had the time to study important issues and civic concern and to make up their own minds.

HEFFNER: And if I were to say to you it makes me feel that your hero, Mr. Justice Brandeis, was a creature of and functioned in terms of the 19th century, whether it had to do with leisure or it had to do with smallness versus bigness … would you hit me on the head?

ROSEN: No. It’s a fair concern. Was this just too romantic a vision to be relevant even in the 20th century let alone 21st? And he certainly had strong strains of Jeffersonian agrarian romanticism. Like Jefferson he idealized the small shires where he thought that liberty could most flourish.

And his great civic ideal was the polis of Periclean Athens which he felt was … achieved its fullest potential in the, in the kibbutzes of, of the dawning of the State of Israel.

So is this obsolete today? I think although despite its romantic strain, it’s no more entirely obsolete now than it was in the 20th century. Can’t be applied literally, but I think in all sorts of ways we’re discovering on the web, the prescience of Brandeis’ insights about the need for small scale communities for genuine deliberations.

When you see what really engages people most as citizens today, they tend to be small virtual communities … chat rooms that are bounded, that people feel ownership and membership in. So I think his fundamental political insights about the curse of bigness remains more prescient than ever despite the romantic constraints.

HEFFNER: So the web isn’t as totally negative a phenomenon as I would have thought you thought.

ROSEN: Absolutely not. I mean it’s very important to say that Brandeis, I think, would have been nervously optimistic about the potentials for the web.

After all, for someone who thought that civic deliberation was the highest public duty, how could he not have welcomed a technology that makes it possible for citizens to read primary documents and to express their opinions about them on a scale far greater than he in his technological age could have imagined.

But he was not a meliorist or a naïve optimist, he would have recognized the dangers of these kinds of deliberations. Not only for privacy, but also for polarized speech … the kind of virtual mobs and group think that can develop in these unbounded communities where … which are unmoderated and can tend to become very extreme.

So I think he would have seen them whole, but in the end he was optimistic. He, he was fundamentally optimistic about the ability of citizens to educate themselves and to govern themselves and in that sense he would have welcomed the web.

HEFFNER: What was … we just have a few minutes left, but I, I do want to tease from you a little more about Brandeis. You said how you became what, what was the immediate instance of your involving yourself in Brandeis? How do you feel about him as your studies have gone on?

ROSEN: I never expected to be so thrilled by this man’s legacy. I knew him as a Supreme Court Justice. I now see … it was as an economic theorist, as a muckraker, as a, as a social philosopher that he can teach us so much.

And what an inspiring personal example, too, for someone who’d been a completely unobservant Jew throughout his entire life, had not really identified strongly with his religion … to become in his fifties the leader of the American Zionist Movement. Not only because of his concern about Israel, but because of his concern about America and his insistence that by coming … becoming better Jews we can be better Americans … because all Americans have an obligation to engage in the communities that define them. So that they will be able to develop a better sense of American identity. This is just … what’s not to be excited by such a remarkable man. I think he was one of the greatest political philosophers, as well as Justices of the 20th century.

HEFFNER: And his reputation today?

ROSEN: You know, he’s well thought of, but I think it’s peculiar that he’s not gotten what I’ve perceived to be his due. In the confirmation hearing for Elena Kagan, she cited not Holmes … not, not Brandeis, but Holmes as her model. Holmes is so much less appealing … a kind of nasty man, a nihilist who didn’t believe in the ideals that he upheld, who had contempt for democracy, even as he thought that “if my fellow citizens will go to hell, I will help them, it’s my job.”

Why not recognize the legacy of Brandeis. I think it has to do with the fact that there’s no obvious constituency for his unique combination of a suspicion of bigness in government and in corporations for the reasons we’ve discussed.

And also his insistence on the need to translate the Constitution in light of technological change is considered too adventurous among a Progressive Left that is more concerned with playing defense against Conservatives than actually translating the Constitution.

HEFFNER: Jeffrey Rosen, we’ll end it here, but obviously, when the book comes out on Brandeis, we’ll be back at the table again. Thank you again for joining me.

ROSEN: Thank you so much, Dick.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.”

And do visit the Open Mind website at www.theopenmind.tv or thirteen.org/openmind.

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.