Guest: Abrams, Floyd
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THE OPEN MIND
Host: Richard D. Heffner
Guest: Floyd Abrams, Esq.
Title: ‘Personal Privacy vs. Public Security”
I’m Richard Heffner, your host on THE OPEN MIND. And today, as so many times in the past when I’ve felt the need for wise and measured guidance through difficult public questions relating to constitutional issues, I turn to my dear friend, constitutional expert Floyd Abrams, partner in the distinguished Cahill Gordon & Reindel law firm.
At issue today: the tension between Americans’ traditional concern for both personal privacy and liberty of movement and the very real need to take all the necessary security and surveillance measures in public places that have been occasioned by the recent deadly bombing of the World Trade Center here in New York.
More and more we Americans seem unlikely much longer to remain as free as we have been up to now from the terrorism and the murderous fanaticism that plague the rest of the world.
Well, with that horrendous fact of life as a given, we shall of course, protect our security … as my guest affirmed in his recent New York Times magazine article titled “Big Brother’s here .. and — Alas– We Embrace Him!”.
Now, Floyd Abrams is afraid of that embrace. Even as he writes that “We will protect our society as we must”, he also wonders: “Will we destroy our privacy and our freedom as we do so?”
Then, too, my friend concluded his New York Times article by quoting Winston Smith in the novel 1984 that horrendous warning against the ultimate police state where personal privacy is totally subordinated to security measures.
He writes that Winston Smith understood that in his world ‘You had to live — did live, from habit that became instinct – in the assumption that every sound you made was overheard, and except in darkness, every movement scrutinized’.
But, Mr. Abrams then concludes “We do not live in that world. But are we not moving inexorably – and for what often seem like the very best of reasons – toward it?”
Well I want to ask if that isn’t really a giant hedge? Can reasons really be “the very best” – or even good enough – if they lead to “the very worst”. Floyd?
Abrams: Well, the reasons can be good. 19 the society in that book is an evil society, and evil government doing harm to the public for the purpose of maintaining its own power. That’s not our situation. We have a genuine security problem, on the one hand, and as lawyers say … on the other, we have a genuine need to preserve privacy. It’s very hard to reconcile those two interests where they clash directly, my article maintains, even affirms, we’re going to have to yield on privacy interests, where necessary. And so the question, it seems to me, again and again … where is it necessary to do so? Even where it’s necessary in, in my vie we’re losing something. I mean I think one of the problems with prior articulations of this problem is that people have sort of said, “So long as it’s necessary, let’s just do it. Let’s, let’s like it”. And I guess one of the things I was saying without proposing any policy alternatives, was even where it’s necessary, even where we have to have more scrutiny and not less, even if we have to stop cars on the street to check them for bombs, we should understand that we’re losing a good deal of the freedom that we’ve historically had and, and we ought to make sure that it really is necessary before we lose it.
Heffner: Now, let me ask you, it’s not a dirty question, it’s really a very honest inquiry. Does this reflect a movement on the part of my friend, Floyd Abrams, who I described the very first program we did together years and years ago as a First Amendment Absolutist.
Abrams: Well, you’ve never understood me.
Heffner: (Laughter) Okay.
Abrams: That’s one of the rubs. I don’t think it’s a movement, certainly it’s not an anti-First Amendment move at all. I view it as a sort of recognition that the world is a tough place to live in, that there are genuine threats, that there are real risks, and that we have to yield sometimes in the service of self-preservation. That part I should think would almost go without saying. I suppose there are some people that would even, and some of the letters I’ve gotten from writing the article have been from people who don’t think that the risks are real. I think they are real. But what I was trying to communicate is that we have to try, as best we can, in a world of real risks to try to minimize the incursions on our privacy. I mean, see, as a practicing lawyer, for example … lawyers asking witnesses all the time, “What is your Social Security number?’ … what is the relevance of that question? What is the possible relevance of that question? There’s only one … and that is that you can tap in all too easily, simply from knowing someone’s Social Security number … illicitly tap in to find out all sorts of private information about people. Now, in my view, that’s something that should be looked at, dealt with. Social Security numbers shouldn’t be a proxy for a national identification number, a card people have to carry with them in many countries of the world to identify themselves at all times. But we’re moving in that direction. That’s not a security problem at all. We don’t have Social Security numbers for security reasons, we have them because the government, for one reason or another needed to issue those numbers so we could get Social Security at the end of the day. And yet we are moving gradually, and now I would say more than gradually, precipitously in the direction of a Social Security number being used more and more for people to find out private information, sometimes not very embarrassing, but no one else’s business but mine, and yours, and our audience. Simply because the information is there and accumulated, and that’s wrong and I think we should try to do something about it. .
Heffner: Floyd, once you start down the slippery slope … now that’s a hackneyed phrase, but it’s used and always has been used by people who believe that they do have to take absolute stands against any invasion of privacy because some how or other that’s always going to leave us high and dry. You don’t feel that way.
Abrams: I, don’t think you can live like that I mean are we going to take an absolute stand against being searched at all before you get on an airplane? I mean even if you disapprove, as I do not, of the screening machines that people go through before they get on airplanes, is … re … is our interest … is our belief in privacy so strong that we’re going to say to security people ‘keep your hands off me, don’t touch me”. I don’t think so. I’m sufficiently concerned about planes blowing up.
Heffner: You’re sufficiently concerned about planes blowing up … being blown up. The others who are concerned about other things that relate to the public interest, not necessarily security as you’ve defined it, but the public interest. And I really wondered as I read your article whether you weren’t, I thought you were hedging at the, at the end … and I thought that perhaps it’s time to recognize that willy-nilly we live in a different world, as you’ve suggested, and that the values that you have touted so long and so enthusiastically and so strongly and so well, just don’t really … increasingly just don’t really have a place in our lives anymore. It’s not the world we were born into, but it’s the world we’re going to go out of.
Abrams: Well, all we can do then, is to rail as best we can against any greater incursions into our liberties than we must yield. It may be that we simply have to come to grips with the fact that every time we walk into an apartment building or a 7-Eleven, or lots of other places, including open spaces, some television camera is going to be on us because of some security need, real or perceived, that people have. I can live with that. It’s too bad our society is so crime ridden; that’s the problem, as to lead to the need for that.. But I can accept for myself, at least, the notion that that’s just something we have to live with … what
Heffner: And the use made of that surveillance … made of that surveillance?
Heffner: How do you fell about that?
Abrams: I feel very strongly that that to the extent that uses are made of it for anything other than internal security needs of the places involved, that we should have protection against that … if necessary by legislation against that, mean, we, we have now, for example, in the last-few years, because of a felt need of the public, a new law … fair credit reporting act … someone cant get ahold of illicitly your credit rating. That came about because they were so easily being obtained and bandied about by people just calling in, or tapping in in one way or the other and obtaining all sorts of private information. That’s a good law, we probably need more of those laws and enforcement of those laws with respect to other privacy interests. Now my, my general view as expressed in the article is that trying to be honest about it, We have to recognize that the incursions on our privacy have to be viewed cumulatively. All the different ones, including the ones that I think are justifiable. But that if we take them all together we see a very sad picture of, of impositions into what we would have previously called our privacy. What can we do? Well, all we can do is to fight them off where they’re not needed, and not just fight them off, but if necessary, get laws passed to protect us against illicit use of what should be private information.
Heffner: How effective have the laws, the few laws that have been passed, been? Because you used the word “effective enforcement”
Abrams: Yes. I would say not very so far. One of the problems of our crime ridden age is that there are always crimes more severe than the sort of privacy incursion crimes that I’m talking about today. One of the, one of the realities is that it’s, it’s more important to prosecute people who beat up other people and harm them physically than, than to enforce certain other laws. But the answer is we have to enforce both. And that we need laws in this area and we need enforcement of them in these areas, and if we take seriously enough the incursions into our privacy we will. Because bear in mind, too, the people who interfere with our privacy here tend not to be making a lot of money from it, it’s just easy … it’s comfortable, it’s convenient to be able to tap into private information … what theatre tickets we buy, what sporting events we go to, what groceries we buy … and as, as the world becomes more and more technologically oriented, and we’re able to tap into some home shopping network which will supply us with everything we supposedly need from cradle to grave, it will also be easier for anyone out there, with rather primitive facilities to find out just what we’re doing, just how we’re living, and then try to sell us things, or otherwise interfere, as I view it, with oUr privacy interests because they know more about us than they have every right to.
Heffner: But I always thought that my friend Floyd Abrams was more concerned with, let’s say in the dichotomy between the free press or the freedom of the press to print whatever it finds out about an individual, more concerned about the freedom of the press than about the privacy of the individual.
Abrams: I remain of the view that the right to, to publish to, to say what you think about people, to reveal information trumps most other competing interests. And the right of the press to write things about us that we’d rather not have written almost always ought to triumph over our wish that they not do so. What I’m talking about here is the rather routine and promiscuous use of information about us by credit services, by, by entities that want to sell us things … by people who want to spy into our lives, with no competing interest on their side, on the public side. I mean when the, when the press writes a story about Gary Hart, one can argue about whether they’re intruding into his privacy or not. But at the least there is a serious Claim that they can make that when he behaves in a foolish; perhaps dangerously foolishly promiscuous way that the public has an interest and a right to know about it because it bears on whether he’d be a good President o not.
Heffner: Let me ask you to be a prophet for a moment. Let’s say with all the good will in the world we make every effort to avoid the frivolous use of information, but this is the information age, and we have the machinery at hand in which we can enter every bit of information that we know. Perhaps in the case of a Supreme Court nominee, we’ve entered somewhere the nature of the videocassettes that he has rented. Now the press comes along and discovers this and prints that information. You will defend the right, I presume, of the newspaper or the newspaper person who does this … I guess the question I’m asking and asking in asking you to be a prophet is … is it possible to assume for more than a moment that as we learn more and more about learning more and more about individuals, about illnesses, about idiosyncratic efforts on the part of the person to do this rather than that, is there anyway in which you think we really can protect our privacy? Really, look into your globe for the future.
Abrams: It’s very difficult and it’s very difficult because once information is assembled, assembable … and then assembled in a place, in a manner in which it is easy to obtain, chances are it will be obtainable. That’s the problem. So, yeah, I start out discouraged about that. I don’t start out with a view that we can’t do something about it if we want to do something about it. We’re not talking about breaking the back of the Mafia here. You know, we’re not talking about, about some entrenched group of enormous power that won’t yield it. We need countervening power, we need a public sufficiently aroused to say, ‘we care about these privacy interests, we care about them enough to say that when the marketers of the world want information about us, they shouldn’t have them, and that they should go to jail, or something like it if they illicitly obtain information about it. If people tap into FBI files, if people obtain information from the police, if the police provide information to private investigators, but that all these things are, are wrong should be actionable, and, and that we shouldn’t stand for them. Now, it’s not easy to do that. But if you ask me to be a prophet and, and say, is it, is it really possible we could do something about this? Yeah, this is a potentially solvable problem. It’s not like some others.
Heffner: It’s so strange for me to hear you say that, Floyd because you say it’s not as though we’re dealing with some Mafia-like source of power. It seems to me we’re dealing with the greatest power that there is, information, and our capacity to accumulate that information, and when its there, it’s like going to the moon because it’s there… it’s
Abrams: Yeah, but
Heffner: … it’s going to be used
Abrams: But the fact that information is in one place doesn’t mean that, that people will miss-use it. I mean … I saw as a practicing lawyer in the anti-trust field some years ago; how sending a few businessmen to jail, who’d engaged in price fixing, affected behavior…behavior of, of, other good solid businessmen faced with difficult competitive situations where there was on the one hand a temptation to do things which might be said to violate the anti trust law, but where the temptation was nowhere near great enough to overcome even some serious risk of being jailed. So here, I think, if we had laws, if we had rules in effect which put people at risk for them to misuse information … I think We would find much less misuse.
Heffner: Again, … it seems to me that you’re asking for, you’re presuming the power well, for instance, when we talk about misuse of information, misuse that results in invasion of an individuals privacy but delights the public, and sells newspapers, and sells television programs, then aren’t we, at a time when there is not that sufficient respect for privacy as a concept, the privacy of the individual as a concept, to be able to work against the pay-off for invading people’s privacy.
Abrams: Well, I think that to some extent you and I are talking about different sorts of privacy interests. There’s some relationship, but they’re certainly not identical. As I’ve said in the security area, for one, I think privacy interests yield. I certainly think privacy interests ought to yield to the general right of free expression in America. But the real privacy problems as I perceive them are not problems with newspapers and television sometimes I disapprove of, of some of the use or misuse of the power that, that they sometimes my dents, sometimes not … have. But, but my level of concern is much more with the, with the ease with which all this information about all of us is put together in all too obtainable form that they’re obtainable not by the press writing a story about someone running for office which may well serve the public, or even about a celebrity who’s pretty well opened himself up to public scrutiny, but about the rest of the folks, the rest of the real people out there who aren’t going to the public and asking for anything from them, but just want to be left alone in their lives. Not to be spied upon, not to have detectives going after them, not to have marketers knowing about them … these are the concerns that, that I have and that I think are very real.
Heffner: Don’t you think they’re also fairly trivial?
Abrams: No, 1 don’t. I don’t.
Heffner: Because you see them
Heffner: … accumulating?
Abrams: Yeah. I, see them all accumulating. I mean I … as, as … I mean I think we should feel worse than we do when we have a television camera on us, not voluntarily as you and I do today, but just walking, walking the streets, walking into a building, walking into a store. We’re so used to it now, we, we, we live with it so much as a, as a part of day today life that it’s, it’s pretty well nothing. I think we should consider it something, and, and at least acknowledge to ourselves, “we’ve really come to this, it’s that bad out there”. Maybe crime is that bad that we have to live like this, but, but the beginning of change is, is, is some. level of self-knowledge, and the self-knowledge here is people are looking at us all the time, whatever we’re doing … there, there are outsiders, strangers staring at us.
Heffner: You see, and you, you don’t want to be stared at. And I look at this … well, in the Garden of Eden, the first bite of that apple, as soon as we have knowledge, it’s going to be used and we’re not going to stop accumulating that knowledge. You say “law”, “legislation” will help here. Do you think it’s possible, Floyd, that at some point we’re going to sit back and say, “Look, given the nature of the information society in which we live, really must do is recognize these older values as of the past. As relating to the 18th century, and maybe even the 19th century, but as we jump into the 21st ours is not a society that can place as much of a value upon privacy as we once did because it’s sort of out of range, it’s not very realistic to think about that. If we know now, for instance, through testing, that someone carries genes to make him more, or her more, of an insurance risk, are we really not going to make that information, or is that information not really ultimately going to get back to the insurance company, and be used accordingly, etc., etc., etc. Transvaluation of values.
Abrams: The question, statement that you make poses the issue very fairly. It may be that things have changed so much … information is so available, and that information once available will be used, that there’s nothing, really, we can do about it, except come to, come to understand that that’s what happened. I don’t have that, that pessimistic a view. I think that all your premises are right, the question is can we do something about these things? I think it is possible to keep insurance companies, for example, from using information like this. I think it is possible to keep people that want to hawk their goods to us at home from learning all about our demographic profile from rather easily being able to tap into a body of, of information about us. I think it is possible even to limit the general dissemination of, of information which law enforcement officials have about us which, which by nature is supposed to be secret. But which is all too available, it’s just very easy to hire, if ou have the money to do it, the private detective who have friends on the police force, in, in law enforcement agencies and the like, and to have made available to them all sorts of presumptively private information law enforcement compiled information about people. Welt, if we enforce the laws about that, or if we don’t have … if we have laws about that, I think that’s the sort of thing that we’d be able to stop. But, but I see in my practice how easy it is for, for organizations that want it enough, to get a hold of telephone records. And, and the answer is that’s the sort of thing I think we can stop if we care enough to try to do so.
Heffner: I’m always so happy, Floyd, when you’re here to have your optimism, “I think we can, I think we can, I think we can” to balance my sense of the game may not be over, but it’s pretty near…
Heffner: … it’s end. Thank you so much for joining me again, Floyd Abrams. And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you’d like to share your thoughts about our program, please write THE OPEN MIND, F. 0. Box 7977, FDR Station, New York, New York 10150. For transcripts, send $2.00 in check or money order. In the meanwhile, as another old friend used to say, “Good night and good luck.
Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Thomas and Theresa Mullarkey Foundation; The New York Times Company. Foundation; and, from the corporate community, Mutual of America.